Human Rights Online Philippines

A Paper by the Asian Human Rights Commission
ASIA: Torture prevention and rehabilitation in Asia
by Danilo Andres-Reyes

Obstacles in the implementation of norms & standards of rights in
developing countries

Reading from the abstracts of papers from other participants and
guest speakers for this Conference, the idea of ‘access to justice’,
as a theme to improve work on torture prevention and rehabilitation of
victims is given strong importance. To lay the basic orientation of
this paper, I resolved to review first the literature on how this term
were originally conceptualized; and, in developing countries in Asia,
where all of the participants have enormous experience in terms of
torture prevention and rehabilitation, how they operate in reality.

A simple Google search on this topic revealed this article from the
website of the World Bank, titled “Access to Justice”3, tells us of
its origin and also how this was presumably first conceptualized.
Here, it claimed the “concept arose in an era of the welfare state and
growing rights consciousness” in the 60s; and Italian jurist Mauro
Cappelletti contributed in his study that further “popularized the
idea of access to justice” in the 70s.

Thus, the idea of ‘access to justice’ is a product of realization by
welfare states, usually developed countries with rich resources, of
the need to invest resources not only in their territory but to
developing countries, to poor countries, to be able to enhance
delivery of justice for the poor and the disadvantaged groups.
However, while the concept itself reaffirmed the international human
rights norms and standards, how it has been understood and how it is
applied in developing countries in Asia is problematic.

There is a profound gap in understanding why developing countries
grossly fail to have ‘access to justice’, as it is conceived in
developed countries, in enhancing administration of justice for the
poor and the disadvantaged sectors of the society despite enormous aid
from donors. In this paper, I will attempt to explain the obstacles in
the application of norms and standards originally conceived by legal
experts, jurists and scholars in developed countries in the developing
countries in relation to ‘access to justice’ for torture victims in
Asia. To guide the conceptual framework of this paper, it must be
clear that the meaning of ‘access to justice’, as it is originally
conceived is not questioned; but rather, serves as norms as the basis
of this discourse in examining its application in Asia.

Access to justice: developed v developing countries

I agree with the observation of Gary Haugen, an American lawyer, that
in the last two decades of global human rights movement, the
development of norms and standards “has been predicated, consciously
or unconsciously, upon assumptions of a functioning public justice
system in the developing world.”4 Haugen argued that the development
of norms and standards of human rights is on a flawed assumption
systems of justice exists and operates in the developing world as it
is in the developed world. His observation affirmed what my
organization, the AHRC, has been observing for many years.

Taking from this observation, it is therefore not an overstatement
that this notion of ‘access to justice’ as it is originally conceived
is based on an assumption that a particular ‘system of justice’ is
functioning and operates in Asia as it is understood in the west. The
ongoing discourse on ‘access to justice’, for example in the UK, is
related to the State obligation to ensure a fully funded legal aid
system. This was spurred by the proposal of Justice Secretary Kenneth
Clarke “plans to slash £350m a year from the legal aid budget”5 in
November 2010.

In the UK’s perception of ‘access to justice’, the protest is more on
ensuring its citizens, with the use of government’s resources, are
able to seek remedies and redress for the grievances from its
institutions of justice via legal aid. As shown in this report, the
debate focuses on the strong opposition to plans to cut the budget on
legal aid but not on the question as to the quality and substance of
the legal aid service; nor, is it concerned with the functioning of
the UK’s justice system. It is assumed as a concern that without
publicly funded legal aid, the citizens are either deprived or would
be deprived from ‘access to justice’.

Here, these assumptions are evident: lawyers and the legal practice
is credible; that when lawyers invoked, say their client’s ‘right to
remain silent, the police investigators strictly observed; that the
prosecutor’s, in prosecuting cases that legal aid lawyers are
representing, thoroughly examine evidence collected by the police; and
once the client’s complaints finally reach the court for adjudication,
there are independent and competent court judges to decide on the
basis of established norms and law.

Therefore, it is evident the concept of ‘access to justice’ in the
UK, a developed country, is not difficult to be concluded as
consistent with how it was originally conceived; and of the assumption
its institution of justice functions and operates in a rule of law
system. But this is not the case in countries in Asia. There is a
fundamental difference, however, when this concept is applied in the
developing countries, particularly in Asia.

Torture, extrajudicial killings in Asia

In the UK the ongoing discourse on the ‘access to justice’ is no
longer concerned with the questions as to how its institutions of
justice function, but rather of how its citizens should be given the
opportunity to have access to its evidently functioning system.
However, in Asian countries the concern is twofold: taking on the
legal aid issue, governments not only do not invest adequate resources
for legal aid for the poor but also, even if there is a legal air
system available it is available only on a limited scale, the
operation of its system of justice does not adhere to the notion of
rule of law as is understood in developed countries.

To argue my point, I take the cases selected below as an example
followed by the summary of “the current political and institutional
conditions for the combating of torture country-by-country”6. The
summary, which completely expressed the observations I had, is not my
formulation but that of the AHRC’s result of their work on torture.
These cases are not at all exceptional in these countries.

In Bangladesh,

FMA Razzak is the President of the Human Rights Development Centre
(HRDC) and Editor of the Pakkhik Gonomichhil in Paikgachha of Khulna
district, Bangladesh. On April 29, 2011, Razzak and his younger
brother, Mr. Bodiuzzaman Bodiar; brother-in-law, Mr. Bakkar, were
attacked after having been kidnapped by the relatives of an army
major, Mustafizur Rahman Bokul, upon the latter’s order.

After they were kidnapped and in custody of the Mustafizur Rahman’s
relatives, the three were beaten severely. They gouged Razzak’s eye
socket with screw drivers. They deliberately delayed, with the
tolerance of the local police, to have Razzak and the two other
victims taken to hospital to be treated. Even when they were inside
the hospital they were not given the immediate medical attention they
needed. Had it not been due to pressure and publicity on their case,
they would have probably been left to die.7

Another activist who has been helping him after he was attacked,
Dipal Barua, briefly disappeared on May 24, 2011 returning home with a
terrifying story of abduction, interrogation and torture. He was
abducted by four men in a car as he was returning home a friend’s
house in Sayeedabad, city of Dhaka. At an unknown place, they took
Dipal out of the car, and into what seemed like a room. There, they
took of the handcuffs and told him to remove his clothes. He removed
his shirt but not his pants. He told them that he did not want to be
naked. They told him, “You should decide on that, otherwise we know
how to do it”. Then he removed his pants. The men put him inside a
cold room naked, and the door was closed.8 They questioned him about
his relation with Razzak and his connection with the AHRC.

In Burma,

In 2010, Lt. Col. Aung Thaik Htun, was tortured to death and his body
dumped by officials in an attempt to cover up the murder, while three
other men associated with him have been imprisoned for three years
each without fair trial because of alleged contacts with insurgents.
On July 2010, Lt. Col. Htun, commander of Infantry Battalion No. 8,
went with his men on two dates to arrest six villagers accused of
having contact with the anti-government Karen National Union.
Relatives of the men allege that the accusations of involvement with
insurgents emerged because of local disputes and because of the
corruption of local council officials.

One of the six accused men escaped, but the other five the army took
into custody and tortured them to extract confessions. The methods of
torture allegedly included setting fire to plastic and dropping it
onto the men’s bodies, including the genitals. As a result of the
torture, San Shwe, 38, died in custody on July 11. According to a
witness, officials dragged his body “like a pig” to a treed area and
buried it in an attempt to cover up the murder. Of the other four
accused, relatives of one paid for him to be released. The other three
men, Hla Hpone, 37, Maung La, 69 and Paw La, 54, were taken to court
in two separate cases and after short hearings each was given three
years in prison.

The convictions of the three men were unlawful because they were
based on confessions obtained in army custody that were then given to
the police for lodgment in the court. The army also held the men
illegally and gave them to the police just prior to their trials. It
was only then that cases were opened against them and remand was
sought to keep them in custody legally. The police officers that
supposedly investigated the cases in fact neither interrogated the
accused nor examined any evidence against them before the cases were
brought to court.9

“Still an effective military dictatorship. No role exists for
independent institutions. The police and the courts are subordinated
to the military, and totally incapable of addressing the incidence of
torture. Civil society is yet to emerge in any substantial way.”

In Cambodia,

After the first election in post Pol Pot Cambodia in May 1993, the
new constitution promised a liberal democracy and a system of
governance based on the rule of law. However, the country is still in
a state of abysmal lawlessness and ordinary Cambodians are powerless.
There are no institutions in the country which can offer them any kind
of protection. The Cambodian police is in a rudimentary stage of
development, is known to be corrupt and completely under the political
control of the regime and those who are rich and powerful. Cambodian
courts are also known to be corrupt and are used as instruments of
political control by way of jailing opposition politicians; people
resisting land grabbing; those who express independent opinions and
civil society activists who express solidarity with victims of abuse
of power. There are no institutions that people can turn to make any
complaints or to turn to any kind of help when faced with injustice.
And the injustices that the people face are many.10

“Still emerging from one of the world’s worst human catastrophes,
in which established political and legal structures were completely
destroyed. Though there is a transition to democracy by way of a new
constitution, hardly any independent institutions exist. There is
hardly any role for the legislature or judiciary. The system is
entirely controlled by the executive. The military has a major role.
The police have no independence.”

In India,

Mrs Paru, 65, filed a complaint against her neighbor, Subish, at the
Malakkapara Police Station on October 6, 2011 alleging he had stolen
her money and the newly bought mobile phone at her home. A young
police constable at the police station recorded her complaint. She was
promised that when the Assistant Sub-Inspector arrives, he will seek
permission from the officer to investigate the complaint.

Paru later received information that she should present herself at
the same police station on 10 October. Here, Subish returned the
stolen telephone and said that he would return the money soon. Then
Paru and Subish shook hands and decided to leave the station. But when
Paru shook hands with Subish, Mani and Manikandan said that instead of
shaking hands, the police should cane Paru.

Hearing this, the Assistant Sub Inspector Joy grabbed a cane and hit
Paru on her right thigh. Then the officer pulled Paru holding her
right hand and forced her on to the floor. Then the officer caned Paru
on her foot until it started bleeding.11

“A democracy in which social contradictions such as caste and
tradition have created serious obstacles to the development of
democratic institutions — a system of civilian policing exists and
the military does not have any influence over government — there is
widespread corruption — there is however greater room for civilian
interventions and protests.”

In Indonesia,

On 14 December 2010, activists organized a rally at the Penerangan
Sanggeng field in Manokwari to mark the 22nd anniversary of the
Proclamation of West Melanesia. The activity had already been
registered with the police and thus was legal. A second group of
activists conducted a peaceful protest march against human rights
violations by the Indonesian security forces against Papuans and other
justice issues. The peaceful march continued until the participants
met with the people celebrating the anniversary of West Melanesia.
During the ceremony, Melki Bleskadit raised the Morning Star Flag, a
symbol of West Papuan independence. The riot control forces of the
Manokwari District Police immediately dispersed the crowd and arrested
at least eight persons, including Simon Banundi, a member of the local
legal aid organization, LP3BH from Manokwari, who was there to monitor
the actions of the security forces against protesters.

The police then questioned seven detainees without legal counsel,
five of which were students attending the protest march: Jhon Wilson
Wader, Penehas Serongon, Yance Sekenyap, Alex Duwiri and Jhon Raweyai,
who conducted the peaceful march joining the anniversary rally. Police
arrested two more political activists from the anniversary
celebration, Melki Bleskadit and Daniel Yenu. In detention, the
victims had to sleep on a wet floor with poor hygienic conditions and
were given stale foods. They contracted malaria and loss weight
significantly. The victims’ families were denied access to visit them
and the victims themselves were not allowed to receive food from their
families. Bleskadit said his repeated calls and requests for medical
attention were ignored by the guards. It was only in January and
February 2011 that they were given access to medical treatment.

In Nepal,

In 2002, Hom Bahadur Bagale, a former police officer, was tortured
and illegally detained for having refused to obey an illegal order
from his superiors. The police neither admitted that they kept him in
detention nor had arrested him the Kathmandu District Police Office,
Hanumandhoka from November 28 to December 5. He was only examined by a
doctor nineteen days after he was first tortured. He was released only
after the Appellate Court ordered the police officers to produce him
within 24 hours following a habeas corpus petition filed by his wife.

As a result, he filed two complaints in relation to the illegal
arrest, detention and torture of him but nine years on his complaints
had no substantial progress. Because he filed a case against the
police, he has been subjected to ongoing harassment, threats and
intimidation, obviously for him to withdraw his complaints. He was
fired from his job, arbitrarily arrested and further tortured in 2006.

On October 31, 2011 the Supreme Court heard his complaint in 21
August 2008 after it had been rejected by the lower court. The case he
filed is under the Torture Compensation Act against his perpetrators
in the Kathmandu District Court on 31 December 2002, nearly nine years
ago. The District Court earlier ruled in 13 July 2004 in favor of the
perpetrators. Bagale filed an appeal in the Patan Appellate Court on 6
December 2004, which also upheld the decision in favour.

The medical report indicates that the bruises and marks on the
victim’s body could be due to torture; however, both the district and
appellate courts rejected this medical report. The court argued it is
no longer reliable as evidence because it was conducted ‘too long
ago’. Also, both courts held they found no proof that the victim was
kept in detention during the said period.12

“(Nepal was) A monarchy for a long time, and now in transition to
democracy. Due to long years of internal conflict there is enormous
instability. There is not yet an agreement on the nature of the
constitution. Political conditions at time border on anarchic. There
is also widespread corruption. Civilian policing has not been
established. The military still plays a strong role.”

In Pakistan,

On September 6, 2011, popular poet Mr. Mohummad Anwar Sahar, son of
Mehmood, was summoned by the Langrana Police Station in order to have
his statement in relation to the murder of one Zahid Arain by unknown
persons on August 14 recorded. Sahar reported in the presence of some
notables of the area. The Police Station House Officer (SHO) sub
inspector Zaffar Witto and investigation officer (IO) of the murder
case, Assistant Sub Inspector (ASI) Jafar Wittoof told the notables
that they would only question him as part of their murder
investigation and that he would be freed after some time so they
should return to their work. However, in the evening of September 7
Sahar was shifted to another police station, the Bhawana police
station, in his severe condition. In September 8, the people came to
know that Sahar died of the severe torture inflicted on him during the
investigation.

The five police officials allegedly responsible for torturing to
death a poet in their custody are still at large. They have not been
arrested and the investigation to book them is still ongoing after one
month. It is reported that because of the influence of a provincial
minister and other legislators from the ruling party the two police
stations of the Chiniot district of Punjab province have become known
of its use of torture. Examination of the Sahar’s corpse revealed 29
torture marks. His fingernails had been pulled out. These injuries
were inflicted upon the victim within a period of only 24 hours while
he was in the custody of the police.13

In Philippines,

John Paul Nerio was a 17 year-old high school student when he was
tortured in police custody on December 11, 2010. He was tortured while
being questioned without a counsel inside the Women and Children’s
Desk (WCD). The policemen in Kidapawan City falsely accused him of
being involved in a fight at a bar. He suffered injuries to his chest,
due to the trauma he stopped going to school and fears seeing
policemen. He did not tell his parents of his torture until March
2011.

His parents had pleaded from the local senior police officers to have
their son’s case investigated but they were ignored. The police
defended the policemen whom the family had accused of torturing their
son. No investigation was conducted and no sanctions were imposed on
the policemen involved despite a formal complaint. After the incident
was exposed, the Public Attorney’s Office (PAO) and the Commission on
Human Rights (CHR) conducted it investigation for violation of the
Anti-Torture Act of 2009. The PAO then filed both criminal charges and
administrative charges against the policemen for torturing the boy.

However, while the hearing on administrative charges was ongoing at
the city’s People’s Law Enforcement Board (PLEB), a citizen’s
complaint, the policemen use third party persons to threaten the
family of the victim and their witnesses. The PLEB did nothing to
afford protection and security to the victim and his family. Also, the
CHR and PAO knew full well of the threat and the risk the family are
into; however, they both failed to provide prompt and adequate
protection as required by the Anti-Torture Act.

Due to threats, the victim and his family had no choice but to
withdraw the charges and settle for the case outside the court in
exchange for monetary offer. The policemen accused in the case were
known locally to have connections with hired-killers, illegal armed
group and with the military.

“Basically a democracy; however, with an internal system of
administration that retains authoritarian features due to the legacy
of the Marcos dictatorship. A military-police nexus prevents effective
reform. Corruption is widespread and affects the independence and
functioning of important institutions. Gun culture is widespread.”

In Sri Lanka,

On 30 October 2011, Mr. M.M. Kushantha Janaka Herath was illegally
arrested, detained and severely tortured by officers of the Wattegama
Police Station. Kushan was on his way home when he was stopped by
three police officers who ordered him to submit to a search. He
voluntarily submitted showing the officers, who he realised were
inebriated, what was inside his pockets. He was then ordered to lower
his pants, which he did because he was frightened and he had to endure
the embarrassment in open view of the crowd.

The police officers, who did not find anything in the way of illegal
substance or stolen property on his purse, then started beating him.
They took him to the Wattegama Police Station where they torture him
further. Here, he was taken to a dark room of the police station. Four
police officers came while three others held his hands. Then Sergeant
Anura kicked him in the testicles five times causing enormous pain and
slapped him several times. When he was unable to remain standing due
to pain, the three officers nevertheless continue to restrain him
while Sergeant Anura carries on beating him.

When Kushan started to vomit the officers dragged him to the front of
the station and lifted him into a police vehicle, all the while
shouting at him in obscene language. He was brought to a medical
dispensary at Wattegama Kandy Road but the doctor at the medical
center refused to accept or treat him stating that he was in severe
condition and that it was the result of torture. The police officers
then took him to the Manikkagama Government Hospital. Here, the doctor
who examined him also refused to treat him or admit him stating that
his condition was severe. The doctor further questioned the police
officers as to why they brought the patient to the Manikkagama
Hospital when the Wattegama Government Hospital is very much closer to
the police station. He was then taken to the Manikhina Government
Hospital where he was produced before the District Medical Officer
(DMO), not at the hospital but at the latter’s residence. Before his
arrival there, however, he was assaulted again by Sergeant Anura
warning him not to tell the doctor that had tortured him.14

“(Sri Lanka is) formerly a democracy, now an authoritarian system
under an all-powerful executive president. Legislative and judicial
power has diminished. There are no independent institutions. Every
aspect of the system is politicized. External agents are in control of
policing. There is widespread corruption. The rule of law has
virtually collapsed.”

In Thailand,

On 16 July 2004, Mr. Kiettisak Thitboonkrong, age 17, was arrested by
the police in Kalasin province on charges of allegedly stealing a
motorcycle. When his family heard this news, they went to the police
station and attempted to talk to him. After returning multiple times,
his grandmother was allowed to witness his interrogation on 22 July
2004 and told to wait for him to be bailed out (the guarantor was a
municipal officer) later that day. But Mr. Kiettisak never came home.
A few days later, his mangled body was found in a neighboring
province.

At the urging of the relatives of Mr. Kiettisak, the Department of
Special Investigation (DSI) in the Ministry of Justice began
investigating his death in 2005, spent three years investigating his
death. On 18 May 2009, six police officers were charged with
premeditated murder and with concealing Mr. Kiettisak’s corpse to hide
the cause of death. Because this case was investigated under the
Special Investigation Act it was sent to the Criminal Court in
Bangkok. The public prosecutor is conducting the case.

On 7 June 2011 at 9 am at the Criminal Court in Bangkok, the witness
hearings of the defendant will continue in the case of Mr. Kiettisak
Thitboonkrong, who was one of the 28 victims of the Kalasin Killings.
This is the first case in which the DSI has charged police for the
murders that characterised the notorious ‘war on drugs’ and its
aftermath in Kalasin.15

“A monarchical system which is in slow transition to democracy. The
military still plays a major role in the system. Policing is built on
a military model. Corruption is widespread. Most government
institutions operate outside of the democratic process and according
to their own objectives and interests.”

For countries like Pakistan, Bangladesh & Indonesia: “States in
transition from military dictatorships to democratic governments.
Military institutions, practices and legacies continue to have an
enormous impact. Civilian policing is still rudimentary.”

In my five years of work experience as programme officer of the
AHRC’s Urgent Appeals programme, I have documented and read hundreds,
if not thousands, of similar cases. This is what happening daily in
these countries. This data tells us about the grim reality in
developing Asian countries. They are sheer contradiction to the
operation of the public institutions of justice, like the police,
prosecution and the court, from its real meaning. Haugen’s
observations of the assumed “functioning public justice system in the
developing world” is evident as obstacles in stimulating meaningful
discourse in ensuring ‘access to justice’ in developing countries.

Here, the ‘access to justice’ in Asian countries is of little meaning
than its importance in establishing the norms and standards. In
developed countries, for centuries of its own struggle it has achieved
a system of justice that operates strongly on rule of law; but, in
developing countries where operation of system of justice completely
disregards any notion of ‘rule of law’ discourse on ‘access of
justice’ has no meaning.

Access to ‘no justice’: weak & dysfunctional system

What the AHRC has observed is that the absence of justice is a result
of a ‘dysfunctional system’. I argue below that this observation is
not an overstatement. The observation published in the website of the
United States Institute of Peace, titled ‘Necessary Condition: Access
to Justice’16, wherein they identified conditions that is required in
achieving the implementation of ‘access to justice’ in its real sense.
They emphasize the utmost role of the State’s policing, prosecution
and judiciary, as the institution of justice, as fundamental in
implementing its compliance to its legal obligations under Article 2
of International Covenant on Civil and Political Rights (ICCPR).

In Article 2 of the ICCPR, it obligates States that “any person whose
rights of freedoms as herein recognized are violated shall have an
effective remedy”; thus, taking on the United States Institute of
Peace article “where there is a weak justice system” there is no
access to justice concludes that there is no effective remedy in them.
However, the examples of cases I have mentioned above were not merely
violation due to a ‘weak system of justice’. They are violations as a
result of how the system of justice operates in reality.

To make a distinction between ‘weak’ from ‘dysfunctional’, I refer to
the online Mirriam Webster’s dictionary. Here, it defined weak as “not
able to function properly” and dysfunctional as “impaired or abnormal
functioning”. Further, what does a ‘dysfunctional system’ means is
well-articulated in a speech by my colleague, Basil Fernando. He
defined a ‘dysfunctional system’ to mean as an “abnormal or impaired
functioning, especially of a bodily system or social group” and in the
usage of “understanding of mental health, dysfunctional has come to
mean the kind of mental illness which makes it impossible for the
person who is suffering from it, to carry out the functions that a
normal and rational person does”17

In the cases mentioned above, none of them could offer any logical
justification as to the existence of a system of justice of any sort.
Their existence is legitimated either by legal instruments or its mere
appearance of its structure, but their function and operation is
completely devoid of any notions of rule of law, legality and the
internationally acceptable norms and standards of what a ‘system of
justice’ must be. Thus, what does it mean to advocate for prevention
of torture and rehabilitation in a ‘dysfunctional system of justice’?
To illustrate my point, I will illustrate below real difficulties in
advocating for ‘access to justice’ in a dysfunctional system.

In Asia: how does police, prosecution and court system operates?

The police

The attack on Razzak and torture of his colleague, Dipal, in
Bangladesh; the murder of Htun, a military officer in Burma; the
illegal arrest, detention and torture of former police officer Bagale
in Nepal, torture of ordinary persons Herath in Sri Lanka and Nerio in
the Philippines; and assault on Mrs. Paru, for filing a complaint in
India; tells us how the policing functions in reality. Here, this is
the character of the policing that we tell the people to seek
assistance from for their grievances when we tell them to access
justice.

The police assault on an elderly minority, Mrs. Paru, for reasons of
her complaining and subsequently agreeing to a settlement for a crime
of theft against her neighbor inside the police station has its impact
extending beyond the mere assault on her. She was assaulted upon the
instigation of the relatives of who she complained for theft. Here,
the police are telling anyone, particularly the minorities which
should have required more protection, that what happened to her will
happen to them should they complain. The police have completely
disregarded the value of filing complaints.

Where filing complaints is possible, like in Nerio’s case, the police
use all means the torture victim and his family withdraws their
complaint against them. The accused use their connections with the
hired-killers, illegal armed groups and the military to threaten them
from pursuing complaints in court. Here, the policemen accused of
torture have succeeded in threatening the victim. For lack of
protection for him, his family and the witnesses to his case, he had
to withdraw his complaint.

The case of Herath, tortured after the policemen failed to find
evidence from him following a body search in open view of the public;
and Bagale, tortured by his fellow policemen for refusing to obey an
illegal order, are clear examples of policemen not a law enforcer but
rather law breakers. A type of policing system condition to operate in
breaking the law rather than enforcing them; and had no regard in
legality, had no credibility that they could ever perform an effective
investigation required from them.

Rather investigations are, like in the case of Razzak, who was
attacked by the military as a result of his human rights work; and
torture of Dipal, who was questioned by the police on who supports him
and Razzak in their human rights work, illustrates a type of an
investigation mechanism designed not to collect information purposely
to prosecute a crime but rather to target any individuals threatening
the authority of the police and the military and the status quo. The
rejection of the country’s National Human Rights Commission (NHRC),
after it was asked to investigate the attack on Razzak, on the basis
of an investigation conducted by security forces also have had records
of committing widespread torture, is a sheer violation to any
effective remedy of any sort.

The death of popular poet Mr. Sahar, who was last seen alive after he
was turned over for custody to the police in Pakistan due to torture,
illustrates how the police do not fear from prosecution. They kill any
person they were investigating for a crime without pretense, they be
falsely accused or otherwise. The notion of policemen having legal
responsibility to ensure protection of detainees in their custody is
pointless.

This can also be said to the four victims whom the policemen had
illegally arrested, detained and charged in Indonesia. The four
detainees slept on wet floor having “poor hygienic conditions”, “given
stale foods” and due to this “contracted malaria and loss weight
significantly” in police custody. The victims’ families were denied
access to visit them and the victims themselves were not allowed to
receive food from their families.

The prosecution and the court

In Htun’s murder, the conviction of the three men, on the basis of
the confessions that were extracted from them by army who took custody
of them, disregards any notion of due process and fair trial. Here, it
is the army, who is obviously more powerful than the police, who are
assumed the role supposed of policing that is civilian in nature. The
notion of effective remedy for any violation is pointless because “the
police and the courts are subordinated to the military, and totally
incapable of addressing the incidence of torture”.

The notion of punishment for crimes that were supposedly committed is
also absent. When relatives of one “of the other four accused,
(relatives of one) paid for him to be released”, it tells how
sophisticated corruption has become around where this supposed ‘system
of justice’ functions. Freedom can be bought depending on the money
you have in your pocket. But for those who have no money and
connections, they could not do anything. The trial of this case also
disregards any notion of the use of ‘forensic evidence’ or rudimentary
form of ‘medical documentation’ as it should have been in developed
systems.

Even in democratic countries, like the Philippines, “the appreciation
of forensic evidence by police investigators and prosecutors and its
admissibility as evidence in Philippine courts has emerged only in the
last 15 years in court” and “the courts still do not have developed
jurisprudence on matters of forensic investigation, and there is
strong resistance for many practical reasons. Courts still heavily
depend on oral testimonies of witnesses to establish the guilt or
innocence of the accused.18

The rejection of Bagale’s complaint of torture in Nepal court
demonstrates that in their courts ‘forensic investigation’ and
‘medical documentation’ has no importance. To prove his case, he
produced medical proof indicating he had “bruises and marks”; however,
his evidence was rejected twice by the lower courts who “argued (that)
it is no longer reliable as evidence because it was conducted ‘too
long ago'”. The delay in the trial of his complaint, which is a result
also of the failure of the court to resolve cases promptly, was the
reason why his evidence had been rejected. Here, even when victims do
‘access justice’ in reality the obstacle in obtaining justice is its
own system of justice itself.

What can be done?

In Asia, the operation and functioning of the police, the prosecution
and the judiciary, in reality starkly contradicts to how it is
understood in developed countries. The discourse on normative
framework of rights offers no solution. They in fact perpetuate flawed
assumptions of the existence of a justice system by mere repetitions
ignoring the character of how the system operates illegally under our
nose. Thus, as Haugen rightly put it, the work on torture prevention
and rehabilitation for victims should not have been “predicated,
consciously or unconsciously, upon assumptions of a functioning public
justice system”.

To conclude this paper, I urge fellow participants in this
Conference, particularly those involved in work on prevention of
torture and rehabilitation, to seriously reflect upon this. Unless
these are seriously taken as a matter of priority on the discourse on
‘access to justice’, our work would have negligible contributions in
improving the condition in our societies.

The wealth of knowledge that we have in our own countries, for
decades of talking to torture victims in aiding for their
rehabilitation, should form part of this ongoing discourse in our
pursuit of finding solution as to how to deal with this real problems.
They must be articulated in its particular context, as to whether the
discourse on norms and standards, would have any sort of meaning in
our own societies.

The documentation of cases and the analysis of the whole picture, for
example, the interviews we had from victims of torture, their
families; and their quest to seek remedies from the system of justice
in their countries, would have invaluable contribution to our advocacy
on torture prevention and rehabilitation. I argue that our role should
be beyond helping victims recover from their trauma, but also how to
stimulate discussion with victims and families, of their powerful role
in articulating real problems they and ordinary persons faced everyday
in these countries. Here, something can be done.

# # #

About AHRC: The Asian Human Rights Commission is a regional
non-governmental organisation that monitors human rights in Asia,
documents violations and advocates for justice and institutional
reform to ensure the protection and promotion of these rights. The
Hong Kong-based group was founded in 1984.

Visit our new website with more features at http://www.humanrights.asia.

—————————–

Asian Human Rights Commission
#701A Westley Square,
48 Hoi Yuen Road, Kwun Tong, Kowloon,
Hongkong S.A.R.
Tel: +(852) 2698-6339
Fax: +(852) 2698-6367
Web: humanrights.asia
twitter/youtube/facebook: humanrightsasia
Please consider the environment before printing this email.