Asia: Are Asia's criminal justice institutions capable of addressing torture?

Asia Human Rights
February 22, 2017
Reproduced with Permission
Asian Human Rights Commission

Since the promulgation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, out of 48 Asian states, 40 states have ratified/acceded to the CAT, whereas 8 states, including countries like India, have refused to ratify the convention. Despite large number of states having ratified the CAT, the practice of torture continues in Asia. In fact, there is an increase in the number of cases reported from the region, particularly within the states where the Asian Legal Resource Centre (ALRC) and its partners work.

The main reasons why torture is widespread in Asia include: (i) prevailing crude nature of crime investigation where scientific crime investigation facilities do exist – like in Nepal, Bangladesh, Pakistan, Indonesia, Thailand, China, Myanmar, Sri Lanka and in countries like India where some facilities are available they are reserved for high-profile cases where the rich and influential are the complainants; (ii) absence of modern crime investigation technology resulting in the overdependence on oral testimonies to investigate a prove a crime – this means for the ordinary investigator crime investigation often begins and ends with the confession of an accused; (iii) lack of adequate forms of accountability among law-enforcement agencies regarding persons in their custody; (iv) absence of a law criminalising torture and the lack of enforcement of the law in jurisdictions where such a law exist; (v) absence of knowledge and understanding about the absolute prohibition of torture and the reasons for it among legal professionals; (vi) state use of torture as a means of social control; and (vii) public opinion that often justifies the use of torture.

Contrary to the common perception, use of torture is not limited to crime investigation. It is widely used as a tool for social control and to stifle differences in opinion against state policies. Most Asian states use torture as a tool to silence political opposition. So much so, politicians take pride in claiming that when they were in the opposition they were tortured. This also implies that when the victim is in power, scores would be settled. The number of politicians who share the belief that "for our people to be policed we require the use of torture" is high in Asia.

Despite the ratification of CAT, and constitutional guarantees against torture, that the practice continues and seldom are perpetrators convicted in Asia shows the appalling nature of the criminal justice architecture in Asian states. Circumstances are such that even making a complaint against torture is impossible in most Asian jurisdictions. In fact, it is often a life-threatening exercise for the victim, her/his family, and for the HRD who assists the victim.

Other than for the exception of Hong Kong, Japan, and South Korea, no states in the region have independent mechanisms to receive, process, investigate, and prosecute complaints against law-enforcement agencies. It is only in Sri Lanka there is a separate division of the police working under the Attorney General's Department that had a special procedure to investigate torture complaints. This unit however has long become defunct. Even while it was in operation, there were less than six cases, where perpetrators were successfully prosecuted for torture.

It is universally accepted that one of the measures to assess the effectiveness of justice institutions in a given jurisdiction is the prevalence of torture in that jurisdiction. Conversely, the prevalence of torture implies independence and professionalism of criminal justice institutions within a given jurisdiction. The measure to which torture is used also is an assessing tool for evaluating how far the concepts of equality before law, democracy and its principles have rooted in a society. On all these counts, Asian states perform poorly.

At least three decades have passed since CAT came into existence. Many resources have been spent in raising awareness among the civil society groups about torture. Many projects have also spent billions across Asian states for training law-enforcement officers about the adverse implications of torture, and why they should refrain from it. However, what has been overlooked is the actual state of criminal justice institutions in Asian states. In other words, expecting a law-enforcement officer, prosecutor, or a judge to reform and perform different after the training where the overall framework of how criminal justice is rendered has not changed, is an exercise that was destined to fail. It has been proven so now.