PUCL Bulletin, August 2001

S. Asian justice systems inadequete in combating torture

The Conference on the U.N. Convention against Torture, which was hosted by Jananeethi and organised by the Asian Human Rights Commission (AHRC), was held in the Indian state of Kerala from April 2 to 7, 2001. Editor, Human Rights Solidarity, Asian Human Rights Commission, May 2001.

Twenty-five participants from five counties gathered at this conference to discuss the issue of torture in South Asia. The discussions were extensive and deep. The participants issued the statement below in order to draw the attention of the public to some very serious problems faced by people in the sub region due to the defective nature of their justice systems.

Enlightenment on the system of the administration of justice in the countries in South Asia has become a dire need. The unenlightened systems that exist today are creating grave crises in all South Asian countries, and these systems have become a grave threat to the peace, security, and stability of the societies in the sub-region. People in the sub-region are facing an utterly helpless situation with a high degree of despair regarding justice. The law enforcement agencies have become the cause of intense fear, trauma, and insecurity among the people. Immediate and effective reforms are needed to restore the rational functioning of these systems.

Torture is practiced to a very high degree in the countries of the sub-region. In fact, torture remains the main method of criminal investigation in these countries. Compared to some other parts of the world, the criminal investigation machinery in these countries is extremely and shamefully primitive. These investigations are, for the most part, carried out by quite incompetent people whose educational qualifications are generally very low. Hindering the resolution of this dilemma is the fact that professional training is largely inadequate. Above all, the institutional arrangements encourage the use of illegal methods, such as torture, and there are no effective systems of real control in operation. Wherever written rules and regulations for better functioning of the system exist, these are, by and large, ignored.
Among the personnel belonging to the law enforcement agencies, often sensitivity towards people does not exist. Except for the upper ranks in society, no respect is shown to human beings. The rough manner in which even women are treated is quite common.

Allowing the law enforcement agencies to become ineffective has, in fact, become a deliberate policy. This policy has as its objective the displacement of legal obstructions to many forms of economic and social activities which in normal times would be considered anti-social. People perceive links between anti-social elements and the law enforcement agencies. The consequent demoralisation seems to be created on purpose to make faith in the justice system, as a whole, collapse. This policy has, by and large, succeeded in most countries in the sub-region; and in some countries, the degree of its collapse has reached dangerous proportions. A significant result of this phenomenon is that the civic-minded citizen, on whose cooperation the system rests, has begun to withdraw his or her cooperation in sheer frustration.
Such a situation leads not only to an increase of human rights abuses but also to an increase in serious crimes. Even senior judicial officers have observed the failure of the justice system to control crime in Sri Lanka. Warnings have been made of the serious spread of lawlessness and the breakdown of the rule of law. Sri Lanka is only a manifestation of what might happen in other countries if the situation is not addressed seriously.

Some sections of society have always remained victims of the abuse of the system. The Dalits and indigenous peoples of India continue to suffer from extreme forms of police brutality and are neglected by other agencies of the justice system. Though there are some laws for their protection, such as the Atrocities against the Scheduled Castes Act in India, these laws have not been enforced in an effective manner. In fact, being neglected by the justice system is itself an added element of the insult and repression heaped upon these people.

Another section of society that is constantly subjected to ill treatment by the agencies of the justice system is women. Rape remains a major problem. The treatment that victims have received at the hand of these agencies has left in them a taste of extreme insensitivity and frustration. Jurisprudence as practiced in rape cases has not kept up with developments in international law that consider rape as torture. The procedural developments regarding investigations and trials also have been neglected, and the way in which these matters are addressed remain very primitive. People belonging to marginalised groups, such as workers in the informal sector, have often been abused as well. Among these are also found people working for church organisations.

The same situation is detected in cases regarding children. The neglect of children's rights is present throughout the justice system. It is particularly evident in the case of sexually abused children. The investigation of child abuse cases is primitive, and the prevailing trial system can cause trauma for children. There has been resistance to adopt the more developed trial system of using video cameras with safeguards for children. Deep cynicism, leading to inhuman attitudes, exists against all modern developments, an outlook that is at the heart of the region's justice systems.

In dealing with all these matters, one of the weakest links in the justice system is the prosecution systems prevailing in the countries of South Asia. The prosecution departments often place the burden for the entire investigation on the police and blame the lack of evidence as the reason for the non-prosecution of serious crimes. The inefficiency of the police provides the justification for prosecutors to disassociate themselves from the case. The arrangement adopted by more developed legal systems that place responsibility for the prosecution of all crimes on the prosecution departments should be adopted, and provisions must be made to scrutinize all claims of an absence of evidence.

In the case of torture, the investigations by law enforcement agencies alone cannot be relied upon. Special units functioning under the supervision of the prosecution department must be given the responsibility for these investigations. The prosecution departments must be held responsible for the prosecution of torture cases.

Under international law, torture is regarded as a crime falling under jus cogens, which is among the highest of crimes. However, jurisprudence expressed by law and by interpretation in the courts does not reflect the adoption of these developments in international law. Instead, torture is treated in a trite manner. Most complaints of torture are neglected. In the few cases that succeed, only compensation is paid, and it is in no way proportionate to the crime. It is essential to make the legal provision to prosecute torture on the basis of jus cogens, and the culprits should be subjected to imprisonment. The lenient way that torturers are being treated is only an encouragement to engage in this crime.

The solution to the problems mentioned above can come only from the people themselves. It is time that the people wake up to the grave dangers faced by their societies due to defective justice systems. The people must monitor all of the agencies in the justice system-the police, the prosecution, and the judiciary. People must scrutinize the performance of the system and engage in making serious criticism of it. Mass mobilizations for the reform of the justice system are a primary need. Only the people can bring about changes in the system and transform it from its current primitive stage to an enlightened one adequate to meet the needs of the times.

Thus, the implementation of the U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment requires many initiatives on the part of governments as well as the people of Asia. Even India, which is the largest country in the sub region and which describes itself as the largest democracy in the world, has not ratified the convention. Sri Lanka, which has ratified the convention and which has enacted a domestic law for its implementation (Act No.22 of 1994), has not successfully prosecuted any torturers, although the Supreme Court of Sri Lanka and the National Human Rights Commission have declared that many people have committed torture and other cruel, inhuman or degrading treatment or punishment.

The proper implementation of the convention requires the steps below.

  1. Torture must be treated as a criminal offence and must be punished with imprisonment. The seriousness of the criminal act must be recognised by the penalties imposed against it with the need for compensation for the victims of this serious criminal act. Imprisonment may result in a quick reduction of the use of torture among law enforcement agencies.

  2. The prosecutor general or the equivalent of this position (for example, the attorney general in some countries) must bear the legal responsibility for the prosecution of all cases of torture and other cruel, inhuman, or degrading treatment or punishment.

  3. An independent investigation unit must be given the legal responsibility of investigation of all cases of torture and other cruel, inhuman or degrading treatment or punishment.

  4. National Human Rights Commission must constantly supervise the enforcement of the Convention against torture and other cruel, inhuman or degrading treatment or punishment or other related domestic laws. National human rights commissions can play a positive role in promoting the convention through education and investigations and by making recommendations for the proper implementation of the provisions of the convention.

  5. Civil Society organisations must make an active role in promoting and monitoring in the implementation of the Convention. They must particularly monitor the way that prosecutors and investigators perform their duties and must expose the failures of these agencies.

  6. Religious leaders and groups can play a vital role in promoting the Convention and doing all they can to ensure that it is properly implemented. In addition, they can educate the masses on ways that they can become involved to eliminate torture.

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