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THE Practice of Torture a Threat to the Rule of Law and Democratisation

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THE Practice of Torture a Threat to the Rule of Law and Democratisation THE THE PRAC T IC E OF TOR OF T UR E THE PRACTICE OF TORTURE A Threat to the Rule of Law and Democratisation A report on Indonesia, Bangladesh, Burma, Sri Lanka, the Philippines, India, Pakistan, Nepal, and Thailand The Practice of Torture A Threat to the Rule of Law and Democratisation A report on Indonesia, Bangladesh, Burma, Sri Lanka, the Philippines, India, Pakistan, Nepal, and Thailand Edited by Jessica Fernando & Shiv Karan Singh Published by Asian Human Rights Commission DIGNITY - Danish Institute Against Torture THE PRACTICE OF TORTURE A Threat to the Rule of Law and Democratisation A report on Indonesia, Bangladesh, Burma, Sri Lanka the Philippines, India, Pakistan, Nepal, and Thailand Edited by Jessica Fernando & Shiv Karan Singh Editorial assistants: Meredith McBride & Liliana Corrieri ISBN: 978-962-8314-56-0 (Print version) ISBN: 978-962-8314-57-7 (Online version) AHRC-PUB-001-2013 Published by Asian Human Rights Commission Unit 701A, Westley Square, 48 Hoi Yuen Road Kwun Tong, KLN, Hong Kong, China Tel: +(852) 2698 6339 Fax: +(852) 2698 6367 www.humanrights.asia DIGNITY Danish Institute Against Torture Borgergade 13, PO Box 2107 DK - 1014 København K CVR nr.: 69735118 Pnr: 1002304764 EAN: 5790000278114 www.dignityinstitute.org December 2012 Cover design: AHRC Communication Desk Cover photo courtesy: freemusicvideo.com Printed by Clear-Cut Publishing and Printing Co., A1, 20/F, Fortune Factory Building 40 Lee Chung Street, Chai Wan Hong Kong SAR Foreword Torture and ill-treatment are endemic to almost all Asian countries. Based on the structural reasons for torture, one may state that torture and ill- treatment are common features of less developed countries. However, these very structural aspects of torture are missing from the discourse on torture prevention within the human rights community. Very often, the differences in the factors that cause torture in developed countries and less developed countries are glossed over in the discourse on human rights. This publication addresses the practice of torture in Bangladesh, Burma, Indonesia, India, Nepal, Pakistan, the Philippines, Sri Lanka, and Thailand. In all of these countries, the criminal justice system remains at a nascent, underdeveloped stage. The institutions dealing with criminal justice, i.e. the police with their investigative functions, various agencies concerned with prosecutions, and judicial institutions, are sub-standard when compared to similar institutions in developed countries. There are various reasons for this. These include historical and political aspects, issues related to the allocation of budgetary resources, as well as the availability of human resources. Cultural factors, such as diverse philosophical positions relating to justice, are also contributory factors for the slower development of these institutions. The structural condition of the criminal justice system is the most important reason for torture being the substantial problem that it is today, one that continues to be practiced and tolerated by the aforementioned institutions. Within the criminal justice structure in all these countries, the police overwhelmingly play the most important role. From the point of view of power, the policing institution has been given the primary place, and the prosecutorial branches and the judiciary hold only a secondary place. The direct result of this hierarchy is that neither the prosecutorial branches nor the judicial branches are capable of exercising significant control over the behaviour of the police. This means that the capacity of the prosecutorial branches and the judiciary to play a role in preventing torture by the police is negligible. Instead, the prosecutorial branches and judiciary often tolerate the use of torture and ill-treatment by the police. This tolerance is reflected by the 4 The Practice of Torture willingness of prosecutors to rely on evidence collected by the police, despite the knowledge that, in the usual course of business, the police use torture and ill-treatment to obtain confessions. The same can be said of the judiciary. Both the prosecutorial branches and the judiciary may exclude evidence obtained by torture, though only in cases where glaring forms of torture have been exposed. Such instances are few and far between for many reasons. In most instances, victims do not dare to register complaints or publicise their experiences of torture suffered at the hands of the police. Due to the absence of witness protection laws and programmes, a person who makes a complaint against the police runs the risk of being exposed to serious retaliatory actions by the police. The possibility of such adverse consequences is common knowledge and prevents people from taking action. In rare instances, either due to the courage of the victims or due to other factors like intervention by journalists or human rights activists, the prosecutorial branches and the judiciary are forced to confront the issue in particular cases. However, such rare interventions do not contribute much to a change in the attitude of the public or the alteration of habits formed and generated through ingrained fear and intimidation. There have also been severe retaliations, including assassinations, against victims that have pushed forward with their complaints. Prosecutorial branches and the judiciary, like other government agencies, depend heavily on the police to function. This may also be a reason for their unwillingness to deal with any wrongdoings by the police. However, a more important reason for governments, including the prosecutorial branches and the judiciary, to tolerate the use of torture by the police is inherent in the approach to authority prevailing in these countries; the very framework of administration is heavily dependent on the police. The idea of justice has not been integrated into the administration. The administration has left not only the function of investigation but also punishment and crime control as a whole on the shoulders of the police. Criminal investigations are not primarily geared towards collecting evidence to be presented at a fair trial for the accused. For the most part, the police themselves are supposed to deal with the whole issue of crime and resolve it by themselves. In doing so, the police resort to the methods best known to them and there is hardly any possibility of controlling this situation. Thus, the state is well aware that torture is practiced, and tolerates it. Foreword 5 And this remains the major obstacle to the prevention of torture. Despite governments becoming signatories to UN conventions, despite them making constitutional provisions and legislation to prevent torture, there is hardly any genuine attempt to stop the use of torture and ill-treatment by law enforcement agencies. In pursuing the prevention of torture and ill-treatment as an objective, the international community, as well as the human rights community in general, must give weight to considerations relating to this actual situation. It is only when the actual compulsions which enable the continuous use of torture by the police are addressed that there will be an effective strategy for achieving the objectives of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In this publication, case illustrations have been collated and we find it demonstrated that, as far as the practice of torture and ill-treatment is concerned, similarities abound in all these countries. Any differences relating to prevention measures are only a matter of degree and are insubstantial. Herein, cases of torture (including some cases of custodial deaths / extra- judicial killings) have been randomly selected from a large pool of similar cases from each country. References to other publications of the Asian Human Rights Commission, which contain more case details and analysis, have been provided herein for readers that may wish to inform themselves further. This book is being published with the hope of generating a discussion on the gap between the nature of the realities surrounding torture practices in these countries and the prevailing discourse. Basil Fernando Director of Policies & Programmes Asian Human Rights Commission CONTENTS Introduction 9 Literature Review on Torture and Ill-Treatment 11 Common Features in the Literature on Torture 13 The Basic Argument for Ending Police Torture 17 Impunity 20 Laws to Criminalize Torture & for Witness Protection 21 Torture as a Problem of Defective Criminal Justice Systems 22 Features of an Abysmal / Dysfunctional System A Representative Story from Sri Lanka 26 Special Considerations for the EU & the UN 28 Torture, a Problem in the Structure of Society 32 Torture Methods by Country (88 Case Studies) Indonesia (10 cases) 36 Bangladesh (10 cases) 58 Burma (10 cases) 101 Sri Lanka (10 cases) 126 The Philippines (10 cases) 167 India (09 cases) 193 Pakistan (10 cases) 225 Nepal (10 cases) 263 Thailand (09 cases) 296 Endnotes 325 Introduction 9 Introduction The implementation of the obligations under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) in Asian countries has not yet met with any significant success. The table given below expresses the situation relating to the ratification of the convention, as well as the problems relating to implementation. UN Convention against Torture: Ratification, Criminalization, and Witness Protection Country Ratification Optional Criminalize Witness Protocol Torture Protection
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