The Right Against Torture is an Absolute One

Facilitator-(F) The first point for discussion is, “What do you understand by the statement that the right against torture is an absolute one?”

Under general circumstances we all agree torture is wrong, but there are circumstances under which it is problematic. For example, should a person who is accused of torturing others enjoy this right? Or if a person is withholding information vital to public safety, are the police entitled to use force to extract the information?

According to Article 2 of the ICCPR, under certain circumstances a state may limit individual rights, but only in accordance with the principles of a democratic society and only to the extent necessary. The courts decide what constitutes that extent, not the government. But an absolute right cannot be limited under any circumstances. So if we ask, “Can a torturer be tortured?”, of course not. Barbarism cannot be fought with barbarism. There are certain principles that cannot be limited, because once you admit a limit, the principle itself will be destroyed. The principle is very important. When you campaign, if you base your work on the principle, other people can take very little objection. If you start with a certain situation, it may be very difficult to argue one side or the other, but if you start with the principle and apply it to any situation, then you cannot make exceptions.

Torture was once quite common in Europe, and then there was an intense debate surrounding it. There was an Italian lawyer named Cesare Beccaria who wrote a book published around 1775 called “An Essay on Crimes and Punishments”. He argued that a criminal justice system needs not harshness of punishment but certainty of punishment for crime. He argued that to treat a few people harshly as an example for others does not work; it is not the true purpose of law. What really works is that if someone commits a crime they know that punishment will follow. This book captured the attention of intellectuals at the time and within a short time all European countries began adopting laws against torture. And at that time in British colonies in South Asia law officers were trained under this principle. Unfortunately, the colonial powers found it convenient to allow torture to occur in practice, so the principle did not become entrenched in our societies.

Torture is not merely a matter for legal principles, but also a matter for civilisation. This means that criminal investigation systems must be developed. Wherever there is torture there is an underdeveloped criminal investigation system. That is a tremendous disadvantage for social transformation.

Participant (p): In many Islamic countries they have medieval punishments such as stoning. Do these not violate the UN conventions?

F: The problem is that most of these countries have not ratified these instruments, so they don’t consider them binding. Part of the conflict is between religious versus secular law. Changing religious law is much more difficult. Ultimately the change can only come from within the society, not from outside.

When we campaign on human rights we usually get the question, “Why should the criminal be protected, not the victim?” How can we convince people that this is an absolute right?

F: Any campaign against torture where the legal system is not properly developed has to be accompanied by other campaigns to improve investigations of rights. If you only campaign on torture naturally people will raise questions about this. So we have to campaign on reforms to criminal investigation and prosecution. It’s no good to answer people by argument. You have to say that torture should be prohibited and criminal investigation should be improved. Police officers must be trained. If law enforcement people know only how to use their hands and feet then society is in danger and people will ask this question. If you only argue that people shouldn’t torture criminals, naturally this question will be raised. But if you argue that the criminal justice system shouldn’t be run by thugs in uniform, people will understand this, because they themselves didn’t implement this situation.

It seems that torture is being committed by higher and more professional people, and victims feel like they have absolutely no way of getting to the people who have committed these crimes?

F; We need to work to introduce the principle of equality, through education, through culture—which is also an Islamic principle—that what I love for myself I love for others. And as a part of the campaign, we should work for abolition of all forms of capital punishment, because toleration of this kind of punishment is part of the problem.

P: One of the best reports by Amnesty International is its 2000 “Transforming Words Into Action” report on torture in India. It again draws us back to causes for torture and the legal system. India used to boast that its legal system was equal to any in the world. But when it comes to the criminal legal system this is not so. And this report for the first time raised questions about the system: it recognised that here even the idea of equal justice for every person is absent. So it is not the fault of the officer committing the violation, it is a problem of the system, because even the idea that everybody should be brought in for a crime is absent. The officer is not to be blamed, because he is merely carrying out what he has been indoctrinated to do. That is why he may go to a certain point and then stop: because that is what he has been trained to do. So for the criminal investigation system to develop you need to develop the concept of justice. Not just on paper, but as an agreement in society, by interaction. And what that means is that everyone will be accountable. The question of criminal investigation is one of power, not of efficiency.

F: Hong Kong in the 1950s was one of the most illegal places in Asia. But they realised that without development of a legal system, economic development would only reach a certain limited point. They set up a commission into corruption, the ICAC, and its first target was the police. Within three years the police held a strike, as they felt they were all under attack. A compromise was reached, and the commission said that it wouldn’t go into issues before a certain number of years back. But they said, “From now on this is the law and you work within it and enforce it.” Since then the ICAC’s main target has been private business. And the ICAC is the most sophisticated piece of law enforcement machinery in Hong Kong. People know there is a possibility that they will be prosecuted by the ICAC if they breach the law. Unless you have that sort of sanction, people won’t go and complain.

F: Turning to the next point for discussion, “What do you understand by the statement that torture falls within Jus Cogens?”

F: Under international law there are three types of obligation that arise on the basis of their source.

One is contract law. That is by agreement. Whether you have an obligation or not depends on an agreement.

The second is customary law. In this case there is no direct agreement, but by common practice over a long period something can be considered an offence.

Third, Jus Cogens belongs to a very small category of crimes considered so serious that whether there has been custom or no custom these crimes are among the highest and most offensive. There is no limit to jurisdiction under Jus Cogens. In the Pinochet case it was argued that there was no customary law that allowed his trial internationally, but the court held that it would proceed under Jus Cogens. It is not the state that identifies this crime. Its jurisdiction is derived from international law, as a crime against humanity. Compensation is not an adequate redress for this kind of crime. So in this case we are dealing with a very rare and serious kind of crime.

The next point for discussion is “What are the basic principles of the Pinochet case?”

F: The argument by his lawyers was that the English courts had no jurisdiction over crimes committed by Pinochet during the period he was head of state in Chile. The higher court held that acts such as torture were not actions that could be considered acts of state by the head, therefore he could be prosecuted. So the first principle they established was that torture cannot constitute an act of state. Nobody can claim the right to torture, not even the head of state. They brought in the principle of Jus Cogens and crimes against humanity and said that the government could not use any argument against them. Regarding jurisdiction, they also held that this type of crime can be tried anywhere. Local jurisdictions do not apply. They made only one exception, for the sake of statecraft: an existing head of government cannot be tried under this law. Once out of government, however, the person can be challenged legally for acts committed while in government.

F: If a state cannot claim torture or genocide as a rightful act of state, what action can the international community take against the state as a whole if this occurs on a large and widespread scale?

The International Criminal Court is now becoming a reality. The statutes have been passed and they need a certain number of signatories to bring it to be. It will incorporate crimes against humanity at the state level. Also for us we can use internet campaigns to apply pressure internationally and have people lobby on them everywhere. A few years ago Sri Lankan courts took a very light view of all these issues, but now due to outside pressure they are looking at them more seriously.

F:The next issue to address is, “What do you understand by rape as torture?”

For years women’s groups have campaigned on rape, but legally it has been addressed just as a regular crime. By treating rape as torture you are putting it under the same standards as the most serious crimes. It means then that victims of rape may be able to bring their cases before international criminal proceedings. The issue of rape remains very difficult because of the narrow and prejudiced views of judges. Particularly in cases involving prostitutes, it is presumed that the victim consented.

P: Many victims of rape in Bangladesh can be tortured and raped again after the event, because they must remain in police custody for one or two days for medical check ups and other procedures. There they are exposed to police threats, particularly prostitutes, who may not be released from custody at all.

P: In every way women in our societies are victimised. After a crime they are victimised by their families and others around them. There is no escape for them. That is the worst form of torture, that someone so vulnerable can be marginalised economically and socially. This is because sexuality is used as a tool by the state. In India, from caste issues to communal issues to developmental issues, rape has always been used as a tool. In a case in Rajasthan where a woman activist protested against a child marriage that was taking place the upper caste Hindus raped and beat her. And now she has been totally isolated. In another example, after the 1992 communal riots in Bombay so many Muslim girls were raped simply out of communal vengeance. Family planning policies are a further example. They are being carried out by the state without consultation with the women involved. There was a huge experiment carried out in Barodha, where women were injected with drugs that caused many of them to lose their fertility or suffer menstrual problems, without their permission or understanding.

Economic and political power are enjoyed by one gender, which uses that power to define and construct a notion of sexuality that keeps it in control. The result in law enforcement is that the police always give the excuse in cases of rape that “she consented to it”, even when cases involve children too young to have the sexual maturity to consent. The police also argue that they can only deal with keeping law and order and have too little time to investigate crimes. It can take two to three years for charges to even reach the courts. And then although the proceedings are in camera they are frightening for the woman or child victim, because of the attitude of the judges and lawyers. Woman lawyers themselves are ridiculed and asked how they can talk about sex in the courtroom. Finally, the accused is the one who can come back to society and live a normal life.

F: This is an area we should look into. In several countries now proceedings are not only in camera, but there are completely new proceedings for cross-examination of children, by remote video. What is happening in our courts is brutal. It is not cross-examination. It is crucifixion. This is not only a question of justice. It is a question of an enlightenment process that society has to go through. The law is only part of the solution. The law of an unenlightened society is an unenlightened law.

Our campaigns must find ways to strengthen the bottom to speak for themselves. Our role is to create the undercurrent for human rights. The Dalit movement has got things from the top by being strong at the bottom. In the event of a rape case, how do we support the victim? How do we help? NGOs and civil society organisations must come to a new way of intervention. How do we start a campaign and keep it going? What is proper campaigning? It is one thing to say we use posters and media, but how are these things used to get what we want? Corporate agencies spend a lot of time on their advertising to reach their objectives. We also should spend a lot of time on how to get these things across. This is also our work. And we must stand by principles while doing that. For example, we argue that caste must be abolished. That doesn’t mean that it’s going to happen tomorrow. But if we settle for half way, then we are going to get even less than that. On certain things there should be no compromise.

O’ Brave girl Arise!

Music & lyrics F. Arogyamary Tamil Nadu India.
O’ Brave Girl Arise
Walk bravely
With the thirst of liberation
Fight relentlessly

1.Freedom is there for the Country not in our house

Give a call for truth, fight for your right

2. The people who are against the

Girl babies are like dead bodies

Ladies come forward to

Annihilate these dead bodies

3. O’ domesticated girls

Come to the path of liberation

Without minding for the time or situation

Get into the battlefield and fight

4. The fellow who rapes is a donkey

He has no scruples

There are no two opinions about him

But kill him should be your duty as a women

5. The judgment without justice

Should be buried in the soil

The society without morals

Destroy it in public

 

ARTICLE 2(3) & (4) OF THE ICCPR

F: Now we will discuss Article 2(3) & (4) of the ICCPR. Article 2 of the International Convention on Civil and Political Rights.

Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted.

According to the above, if there is a violation of a right then there must be an effective remedy. Thus

1. there must be a remedy
2. it must be an effective remedy.

There is a lot of jurisprudence going around this article at present. The first part is that in the event of a violation there must be not merely a remedy, but it must be an effective remedy. And the next part explains the remedies: legal, judicial and administrative. Let us examine the available remedies for torture in each of our countries, and secondly, how effective these are.

P: Nepal has ratified the ICCPR and under Section 9(2) of the treaty of 1990 it allows that any section of an international act is as equally applicable as the municipal law. Article 14 of the Constitution of Nepal also guarantees that each and every person should not be tortured. The 1996 Torture Compensation Act provides that anybody tortured in detention should be compensated. But there is little effectiveness in its application, because ordinary courts do not have jurisdiction to punish the perpetrators. They can only recommend to the concerned department to take action. Also the Human Rights Commission Act has opened one route to compensation for torture or illegal detention, but again the Human Rights Commission cannot directly compensate the victim and can only recommend to the concerned department or ministry to take action against the alleged perpetrators. Since the promulgation of this Act we have had very few torture cases where compensation has been awarded. Some cases have been lying before the courts for two or three years. In some cases the courts have found that a medical examination of the victim was not done in time and so no case has been made. This is a difficulty, because how can victims under the custody of the police make a medical examination that will incriminate the perpetrators who are holding them in custody? Also, compensation awarded has been very low.

F: In 1991 the Sri Lankan government signed the ICCPR, and the CAT in 1994. In December 1994 Act No. 22 was introduced to implement the CAT domestically. Under this Act the fines are only from 10,000 to 50,000 rupees. The jail terms are a minimum of seven years and a maximum of ten years. This Act can only be applied through the High Court, and the only authority to file a case lies exclusively with the Attorney General’s Department. Yet this Department has so many things to do, and they don’t have time to file cases under this Act. The Human Rights Commission Act was introduced in 1996. At first nobody trusted the Human Rights Commission, because it was appointed by the government and only dealt with things as the government wanted. Now it has changed and is extending some sort of influence.

P: There are six fundamental rights guaranteed under Part III of the Constitution of India, from Article 12 to Article 35. The second, the right to freedom, is mentioned from Article 19 to Article 22. In Article 20(3), though there is no direct mention of torture, inference can be drawn from this subsection: “No person accused of any offence shall be compelled to be a witness against himself.” Torture is ruled out because the authorities cannot compel someone to be a witness against themselves. The sixth fundamental right is the right to constitutional remedies. That means if anyone of the prior five rights are violated then the aggrieved party has the right to approach any one of the High Courts or the Supreme Court. That is Article 32 to Article 35. Article 32(1) says that if any one of these fundamental rights is violated the right to go to court for a remedy is itself a fundamental right. So remedies are clearly mentioned. In 1993 an act was passed by parliament to establish the National Human Rights Commission. The Commission has frequently intervened and ordered the government to compensate aggrieved parties. If a state government or the national government is ordered to carry out a remedy by the Commission it cannot be refused. If it has a genuine problem with compliance it has to submit a report to that effect, explaining why it is not able to implement the instructions. As far as implementation is concerned, sometimes NGOs working on issues try to prepare reports and send them to the Commission. Sometimes Amnesty International and other international organisations take the issues up, which facilitates the means to a remedy.

P: Due to corruption among police and administrative sectors, people in Bangladesh are not getting justice. The instance of torture is high, especially by the police. The government of the country is not taking any initiatives to amend the situation. Under Section 54 of the Penal Code, police may make arrests without warrants. This section is frequently used as a money-making device by police, who arrest people without charge and release them after getting payment. To deal with these practices and also to remove the corruption of authorities it is necessary to build a human rights commission.

The laws in Bangladesh open up the way for torture. There is the Special Powers Act, much like Section 54. And there is the Public Security Act, under which the ruling party can take anyone for interrogation. It was designed as a legal weapon to harass the opposition. No one from the ruling party has been detained under this Act. Bangladesh has signed the ICCPR and there is a guarantee in the Constitution of Bangladesh that protects citizens against torture, under Article 25(5). The remedy is compensation from the government. But sometimes the legal procedures are so lengthy that it is impossible for the ordinary person.

F: So going through the different countries we can see that there are some limited remedies, but they are not effective. Let us try to analyse the remedies and why they are not effective. If we recall that torture is considered among the highest of crimes, what are the remedies?

F: In Nepal there is no remedy under criminal law, only via the Human Rights Commission. In Bangladesh they don’t have even that. So while there have been a lot of speeches about torture, there have been hardly any legal developments in the field. If we think of human rights in terms of the search for solutions then we should campaign that the CAT be made law in our countries, thereby making torture a crime. Secondly we can try to examine where it is already a crime, how is it being enforced? The complaint of many human rights organisations in Sri Lanka is that although the law is in the books, nobody has been prosecuted.

F: The next problem is who is investigating and prosecuting.

The problem for Article 2 of the ICCPR is that people committing these crimes are also usually working as agents of the state. In developed democracies methods are created for police to be prosecuted by a special section in the state apparatus. So we need to consider that once a law is enacted, who can work to make it effective? There must be people with investigating powers separate from the normal police. Then, who has the duty to prosecute? In Sri Lanka, criminal investigation files are prepared by the police and presented to the attorney general, who decides whether a case can be made from the file. If a file does not arrive before the attorney general he will not accept the blame for failure to prosecute. Now what you will find is that this system no longer exists in the countries that introduced it. Britain does not follow this system any more, nor in other common law countries like Australia, Canada or the United States.

At the earliest stage the police must report a crime to the prosecutor, who advises them how to proceed in the investigation. The responsibility for prosecution lies with the prosecutor, not with the investigator. And responsibility for police actions rests with the prosecutor. By comparison, our human rights law is developing in a very warped way. Everything depends upon the police. So we must reform the relationship between prosecutors and investigators, or we will not develop effective remedies and will only be talking about rights as concepts, not as legally enforceable laws.

F: People leave everything to the police. We don’t get good results. At the level of civil society and human rights movements we must have second-level investigations.

Without people participating in these processes, justice will not occur. That is our part of the job. On the other hand, if there is a defective system then a lot of work that we do will just go to waste. So we have to also engage ourselves to reform the system. When the system lacks instruments to fight, civil society itself is paralysed. That is why we need to talk about bringing checks and balances on the police and others, not at the end of the system, but at the beginning. The lack of such instruments is why we have problems.

In Sri Lanka, when they wanted to make disappearances, they just made a law for it. The law said that a policeman at the rank of assistant superintendent or higher could dispose of bodies. Usually to dispose of bodies you have to go to court, get an autopsy and go through other safeguards. But they allowed ordinary police officers above a certain rank to authorise it. Within no time 30,000 people disappeared without records.

In developed countries NGOs don’t have to do this kind of work. They can rely on the system that is already there and go beyond it a little to safeguard human rights. We don’t have that luxury. We have to study, critique and create avenues for development. Effective remedies need a system. The more a system exists, the more people will talk.

P: While we are talking about legal remedies we also need to recognise the conditions for prosecutors and police. Prosecutors in India are poorly paid and under a lot of pressure from their work. They usually look for the easiest and fastest way to get something done, which causes damage to the accused and the system. Policemen are living in slums. These things need to be reformed.

F: This is not just about salaries but a kind of culture that is promoted. In Bangladesh people in rural areas know only that if one of their family is arrested they have to collect money and send it to the police station to prevent the accused from being beaten. People know only to give money.

P: It is true that conditions for police in India are bad. Most of them are on 24 hour-a-day duty, with little time for their families and poor wages. Most have very low education and appalling social conditions. Up to the level of inspector this is the case. The lower ranks they need to be humanised and given orientation programmes.

F: Our police force is what our political leaders want it to be: an agency to do their bidding, to cover up their malpractices. Here in Kerala a community police system was shot down in parliament because it didn’t fit with what the politicians want from a police force.

F:We have a lot of facts about conditions for police, their education levels and so on. The question is, how does a human rights movement approach all this?

Collection of facts is important. But the responsibility for a remedy is with the state. So how much of a critique is being made on the role of the state? What has been said here is nothing new. But to what extent have civil society organisations documented these things? How much have these issues been brought into discussions? What recommendations have been made for reform? What are your opinions of how all this can be corrected? We have a duty to have informed opinions on solutions, otherwise we become apologists for the system.

It is no excuse to say that police are living in slums. We didn’t put them in slums. We didn’t abuse them. When people need police they have a right to efficient services. It is the state we should critique for this. The problem is that this area is not considered important enough for the state to devote resources to it. On an issue like terrorism, enormous resources are devoted. Why is that which is happening to the citizens so unimportant? We have to come together, study and keep on agitating, otherwise we will get poor service, because poor service is consciously given. We must take it from the point of view that this is a state failure. If we don’t do that, all these other matters will remain a dream.

P: Improved housing and living conditions for police are only one factor. Number two is improved training and resources. Number three is a vigilant civil society. Number four is effective legal investigative mechanisms in the event of human rights violations.

F: Living conditions are one aspect, but do you think if living conditions are improved the same people would be police?

None of them would be there. Others would take the jobs. They need uneducated people who will work for that type of wage. They want people who will work under inhuman conditions because they want them to behave in an inhuman way. At the moment the state doesn’t want an enlightened system.

P: Another aspect of the problem is that senior police lack respect for their subordinates. Junior police have no redress and in turn take out their frustrations on ordinary people. That is a very widespread phenomenon in South Asian countries. Another aspect is that sometimes local leaders and groups pressurise the police to catch a culprit and extract a confession quickly. Also, our society is sympathetic to the use of torture. We are insensitive to the problems of others. This indifference has given the police much room to inflict torture.

P: Police training is less important at the bottom than at the middle and the top. The men at the bottom do what they are told by their bosses. So we must critique training programmes that just focus on the lowest ranks and numbers of people trained. We should not get trapped into this type of training. We have to focus on procedures.

IN SUMMARY:

Normally the state prosecutes private persons who have committed a crime against the state. But here it is the state that is committing the crime. So the question is, who can prosecute the state officer in violation of the Convention? In some countries officers are prosecuted by a special department of criminal investigation. So there may be a need for a separate department for prosecution of police committing torture.

There is a need for police reform in criminal investigation. Two types of reforms are needed:

One is in the investigation section, where there must be people who have the power to investigate and are independent.

The second is regarding who has the right to prosecute. In Sri Lanka, for instance, it is the Attorney General who decides. If a case file does not come or is incomplete he may not investigate. The police report the crime to the Prosecutor General, who then instructs them regarding the investigation. So right from the start the files are both with the Police and the Prosecutor General, who will direct the investigation. By the time the investigation is over both will complete files. The burden of the prosecution is with the Prosecutor General and not with the Police.

WE NEED

• defective systems to be reformed;
• civil society to be committed to promotion and defense of human rights;
• to study the systems to identify defects;
• to work to change the defects;
• training of police forces.

How conversant are the police with national laws, international conventions or human rights principles? Today the police are what political parties want them to be. A community police system was tried in certain areas of India. It worked sometimes but was discontinued due to perceived failure. However, a clear examination reveals that the state worked against its success. The agents of the state felt they had lost control of the police so they worked against the programme. It is by state policy that police behave inhumanely and it is by state policy that they are ill paid. The argument that the police tend to be corrupt due to the treatment meted out to them by their superiors is not acceptable. They are corrupt due to a series of other reasons for which the state is responsible.

The questions for us now are:

• What have we done as members of civil society?
• How many cases of (police) violations have been recorded or documented by us?
• Do we consider the investigation of crime by police to be a priority?
• Why is crime apparently so unimportant?
• Do we also look into the plight of police personnel?
• Don’t the people deserve a better system of investigation?

Avenues for police reform include

1. improving police pay and living conditions;
2. offering effective training and educational programs;
3. building a vigilant civil society;
4. creating an effective legal mechanism for investigation.

 

Poem 2 by Ms. Arogyamary

Start briskly for the sake of dalith country

Work for change the change of the history

Of your country

This is the land of the dalith

The history is going to change

We shall give a call for unity

Let us work for harvesting human rights

Let us work for the growth of women rights

Let us struggle for the equality of the women in the society

Fight for the Panhami movement

And saw the seeds for Tribal Growth

You are in a dalith millenium

This is what we have said during Dr. Ambedkar’s ………….

Awake along with the dalith morning star

F: Is compensation the sole remedy for torture?

Can compensation reduce the gravity of the crime? Even when compensation is given, cases of torture have to be investigated and those responsible punished. The need is to agitate for criminal investigation and convictions. At least half of the compensation must come from the torturer who violated the law.

W e can discuss further the role of national human rights commissions. Often all they do is ask for compensation to settle the matter. To get compensation is considered a victory, but this is to diminish the gravity of the offense, that under pressure the government may just pay some money and then get away. It does not deal with the issue. When challenged, the national human rights commissions respond that they don’t have powers of prosecution. This is true, but one thing they can do is make recommendations for policy changes, and that is something they don’t do at all.

At the UN meeting that led to the Paris Principles, the standards upon which national human rights commissions should be built were agreed to. Included in the Paris Principles is the mandate to make recommendations to the state or government agencies for policy changes. But to make policy changes you need to study and undertake extensive consultations. In this sense the national human rights commissions have not done much, and civil society groups don’t know about what they can and cannot do. In fact, our groups can write policy papers and submit them to the national human rights commissions in our countries. Point out where under their mandate they are obliged to deal with policy issues and request them to make policy recommendations to the government on the basis of our proposals. Then give publicity, follow-up on the submissions and engage them continuously. It is wrong to think of the human rights commissions only as complaint mechanisms.

On the question of whether compensation can be the sole remedy for torture, the answer is no, but on the other hand compensation is a symbolic recognition of what has taken place. But in this regard the amount is relevant. In another respect, compensation is a fine on the government for what has occurred. If the government is compelled to pay increasingly large amounts of compensation they will have to react. In India the National Human Rights Commission has given orders for compensation to be paid where non-payment has been justified on the pretext that the offending government or agency has no money. There is no use in announcing compensation that is not received by the aggrieved party.

P: The commissions themselves may be under a lot of pressure. Here in Kerala the state human rights commission investigated a particular incident that earned the wrath of the ruling party. That day a member of the human rights commission at the rank of High Court judge found his house attacked and a large amount of human excreta was thrown into it. He telephoned the police for two days but none came. That is the plight of the state human rights commissioner. So what of the ordinary person going to the commission?

F: That is the kind of issue that can be taken to the international level and an enormous amount of pressure can be applied. The extent of change will depend on the willingness of society to expose these abuses. Such events as this should be reported to the UN. Everyone needs to learn about the mechanisms available in the UN system and how to use them.

We cannot take a soft approach to any of this. So long as we see remedies merely in terms of payments, there will be no progress. We need to focus on getting convictions. This will lead to a breakthrough.

One problem is that, in Sri Lanka at least, there is no single organisation to follow-up on incidents of abuse. One incident comes up and the whole focus is on that event, then later there is another incident and the earlier one is forgotten.

F: The next issue is, “Should a person found guilty of committing torture be allowed to continue to be employed by the state?” Consider what is the current situation. How do you view that and what should in fact happen?

Beginning with Sri Lanka, under Article 126 of the Constitution there is a provision that allows for a complainant to go to the Supreme Court and petition in the event of torture. It is a rare kind of action, not a criminal or civil action, it is done by affidavit. You explain the circumstances of torture, and any evidence to corroborate it. If the Supreme Court finds there is a prima facie case then it issues a notice to the other party, who must answer within a short time. Then the Court calls lawyers from both sides to make arguments. There is no direct hearing of evidence unless the Court wants this. There are two remedies. The first is a declaration of the violation, the second is the right to give an “equitable remedy”. What that is is not detailed. Usually it is compensation. At first it was very small, now it is up to 100,000 rupees.

F: But what happens to the guilty person?

At the very beginning of the legal action sometimes the government promotes him and purposely publicises his promotion. This is of course some form of encouragement. The fact is that despite the finding of guilt by the Supreme Court—and often recommendations by the Court for disciplinary action—no punishment is given to the guilty party. The National Human Rights Commission also has the right to investigate, in a tribunal format. Nowadays the police, in order to avoid action in the Supreme Court, sometimes admit an offence to the Commission. They pay compensation and the matter is finished; they continue as if nothing has happened. Under the CAT Implementation Act of 1994 a person can be punished from seven to ten years, but there have as yet been no convictions. One would have thought that when the Supreme Court finds someone guilty of torture then the Attorney General would proceed to try him under criminal charges, but it doesn’t happen.

P: By contrast, in another case in Sri Lanka three officers were accused of a fairly minor theft of provisions from police stores. Although their case is still pending and they have not yet been found guilty, they have been dismissed without pay and have had to vacate their houses. So this shows how different offences are being treated by the police force.

P: Nepal has not made any legislative provision regarding punishment of torturers, in spite of having two acts, the Torture Compensation Act and the Human Rights Act. Both allow only for compensation through the courts or Human Rights Commission. If a case for compensation is filed in a District Court, it can only recommend action to the concerned ministry or department. The Human Rights Commission was founded last year but its legislation has not yet been passed, so it has not yet started working officially.

P: Article 35 in the Constitution of India very clearly mentions and empowers the High Courts and Supreme Court to issue orders against a criminal perpetrator. Article 35(2) states that the courts may prescribe punishments under relevant legislation. The implications are first that parliament may introduce legislation to prescribe punishment for persons found guilty of committing torture, and second that the courts are empowered to act on that. The National Human Rights Commission Act of 1993 states that the Commission may initiate proceedings to prosecute those whom it deems to have committed violations.

P: If we consider the real situation, quite often the High Courts or Supreme Court pass judgements that do not give specific instructions for suspension or dismissal of persons from government service, but they state that “appropriate action should be taken”. So then the responsibility lies on the head of the department. The result is usually that the person is transferred, and often promoted to a new post elsewhere. In reality then there is no punishment. If there is a lot of media attention, however, the person may be suspended for a short time. Also the National Human Rights Commission may instruct the relevant government to take some kind of action, which the act obliges them to respond to, and often the Commission’s orders may allow for deadlines. So as far as the provisions are concerned it is clear. Whether or not matters are followed up on is another matter.

In Bangladesh two cases in which women were raped and killed led to a lot of pressure on politicians from the women’s movement. As a result, in the first case the officer was dismissed and in the second the officer was suspended.

F: From these reflections on what is happening, how do we build an argument that if a person is found to be guilty of torture it is wrong to keep him in state employment? Campaign building is not just saying it is wrong. We must build arguments to explain what the ill–effects of his continued employment will be. To get people involved in imposing remedies you must convince them that damage is still being done. We must be able to explain this to society, not only to the state.

Two possible avenues are, first, to make an inventory of those cases where perpetrators have either been punished or are still in service, and then we will find where we stand. It will probably show a very poor state of affairs. Second, we go to a campaign to show people how this situation doesn’t serve the purpose of justice.

The question is one of proportionate remedy. The punishment must be proportionate to the offence. If we remain only at the point of saying “these things happen” then we won’t progress. If we want to change this situation, what type of argument do we have to place before society? We have to convince society that what is happening now is a mockery of the law. We have to make people angry that these things are happening. We have to feel angry with ourselves that this is all we have achieved.

When we are talking about education here we are not talking about education to make people “good”. We are talking about education to change certain legal structures, through the implementation of which you can change behaviour. We need to make practical demands to see that people who commit torture are punished criminally.

First we need to build ample evidence against a person and publicly identify them as a criminal.

Second, we have to argue that to have such a person continue in service is to encourage other people to commit such crimes in the future.

Third we have to argue that, in India’s case, if a judgement is given by a High Court or the Supreme Court then in the event of non-compliance the continued employment of the person is unconstitutional.

Fourth, it would also amount to contempt of court if the court instructed that appropriate action be taken against the person and nothing was done. Then those responsible for the failure in compliance may be jailed for contempt. People’s pressure is important to get all these things implemented.

P: Brahmins make up only five per cent of the Indian population but they control everything. They have the government authority, the judicial system, the military and police. So in our country we must start by addressing this imbalance.

F: We have to take steps both to prevent abuses from happening in the future and also to deal with them appropriately if they do. The first step is awareness among the masses about these issues. Then mobilising people, networking, documenting of offenses and collective efforts towards building a culture of human rights.

Once violations occur;

• we must resort to fact-finding,
• then file cases in the courts
• build linkages with other groups in relation to the issue.

After that identify other avenues to proceed on, including through the human rights commissions and also UN agencies if possible. We need to reach out to both international and regional agencies. If there appear to be loopholes that allow perpetrators to go free we must identify them and initiate steps to plug them.

To the question of which agencies can probe the police, human rights commissions are not capable of doing so beyond a certain point.

They don’t have the power, which is the key issue for the investigating agency. The agency must have power to pursue the guilty persons until its findings are implemented. In this respect we must look at other countries’ systems where this is working and ask ourselves how they did it. Before beginning to campaign we have to ask if there are problems with the law. And if so, how may the law be improved? If the law is there but not being enforced, we can act on it. But if there is not yet any law, we have to start with the introduction of an appropriate law. Agitation depends on the stage of legal development. So this kind of analysis is essential. It is micro-analysis. Often NGO analysis is macro-analysis: “This is what globalisation has done”, “This is what the BJP has done”… This is all true, but it doesn’t contain a solution. Those who want to agitate for a solution must engage in micro-analysis.

For instance, on the issue of atrocities against Dalits, there is a law, but it is not enforced. We have to analyse why not. We have to find a way to attack the problems at the micro level. In other cases there are no laws and we have to start by getting the issue recognised; for that human rights commissions can be used. The idea that we just campaign and the campaign will introduce something is dangerous. If it is not possible to achieve the campaign goals then over time participants get tired and frustrated and nothing changes. Campaigns must be developed in a sharper way to be successful.

For example, with the campaign for a better health system in Cambodia we have used a message from the Buddha that a good Buddhist will care for the sick, with a message that affordable health care is a human right. Because it is a Buddhist society this creates a powerful moral basis to the argument and deligitimises counter claims. Also, we have come to certain conclusions about the remedy. We don’t just shout that patients have rights, but we add that the remedy is to make costs affordable. And we make the case as a human rights issue, not as a charity. The whole approach is to demonstrate that we have thought about the issue in depth and can point to the direction that a solution must come from.

In many parts of the Catholic Church in India, especially in the south, there are abuses against members. For example, although Dalits are in many places among the majority of its members, they are treated badly by upper caste members in its hierarchy. Both Dalit lay people and priests are maltreated. So is there anything we can do to expose this kind of abuse?

AHRC’s Religious Groups for Human Rights campaign has as one of its aims exposure of human rights abuses by churches. And also here there is the caste issue involved, which falls into campaigns under that category. We have asked people from religious groups to examine not only the ideas in their religions that oppose torture but also those ideas in their religions that support torture. Historically torture has been very much a part of religious psychology.

In the streets of Trichur

By Basil Fernando

In the streets of Trichur
heavy vehicles move
crude oil, vegetable
people.
Sun , sweat
people reflecting
conflicting identities
tribals, abused children
outcastes
Dishonored Brahmins
conspiring to reconstruct
lost privileges
At the temple celebrations
there are elephants
but, where are gods
History tells of Buddhist places
now transformed into residents of gods
Rituals and legends
city strangulates
the infants
Whatever might the Syrian Christians say
all gods here
are cruel
Loud noise of fireworks
where is the flowering of the humans?
An ancient neglect continues
where is justice
An aged judge living near by
says, till judges can weep
society will not awake
Bitterly complaining people
all the humanity left
only ray of hope..

April,2001
Trichur is a city of the Kerala state, India.