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Criminal
justice
systems in underdeveloped Asian societies do not have a functional legal aid
framework. Justice in these lands is elitist. Access to justice is often denied to the
underprivileged minority groups such as the Rohingya in Burma, Dalitsin India, and the
Ahmadi and the Hindu groups in Pakistan. Free legal aid and the prosecution are
poorly funded with no administrative policies to enable judicial reform.
Allowing law enforcement agencies to become ineffective has also become a
deliberate policy. The State that wishes to subdue its subjects will not allow a police
department to become depoliticized. It exerts continual pressure on the police so they
become like puppets, using them as a tool of suppression, rather than operating as a
professional independent State institution.
Pseudo democracies in Asian states continue to perpetuate the colonial mindset:
maintain complete control of the judiciary, the police and the prosecution, and have no
regard for the dichotomy of power. A corrupt government cannot afford an independent
judiciary. In general, there is a lack of political will to promulgate and implement police
reforms.
In India and Pakistan, the police function under the outdated police act of 1861. This
archaic law does not address the complexities of modern suburban, urban, and
metropolitan policing. It does not criminalize torture as a mean of extracting evidence.
Widespread corruption in the police department also adds to the problem of
politicization.
Governments have not established forensic laboratories to assist in criminal
investigations, so the police are not trained in the latest forensic techniques. Countries
with good governance have a transparent policing and judicial system that ensures a
speedy and efficient dispensation of justice.
Given these realities, nothing short of a complete re-engineering in the system of
administration of justice is needed in these nations to bring an end to torture with
impunity. While this is the primary requirement, a small beginning can be made if
torture is treated as a criminal act and this law begins to be enforced.
Torture is Not Yet Criminal
The United Nations Convention Against torture (UNCAT) provides the most
comprehensive definition of the term torture widely used in local legislatures:
Torture means any act by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person for such purposes as obtaining from him or a third
person information or a confession, punishing him for an act he or a third person has
committed or is suspected of having committed, or intimidating or coercing him or a
third person, or for any reality of instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity. It does not include pain or
suffering arising only from, inherent in or incidental to lawful sanctions.
While UNCAT has created a legal framework against torture, the edifice built is
somewhat of a faade that has failed in reducing the incidences of torture.
Furthermore, the UN is not playing an active role in clarifying inconsistent
interpretations of the convention. It has allowed signatory states to enact toothless
laws that do not provide redressal for the victim. In terms of Pakistan, the State has
signed the UNCAT in 2008, and ratified the same in 2010, following pressure from civil
society. However, there is still no law in Pakistan that criminalizes torture. Bangladesh
has a model law that criminalizes torture. However, the law is sitting idly in the books,
while the Bangladeshi police and paramilitary agencies go about torturing citizens with
impunity. India, for its part, has not even ratified the UNCAT. These three nations in
relation to a law that criminalizes torture shows just how much more work needs to be
done even in terms of this small step to create a legislation that is enforced.
Torture Must Be Made History
Throughout history, dictators and monarchs have used state institutions to perpetuate
their hold over the masses by silencing opposition. In Rome, during the medieval ages
torture was used as a reformatory tool a way to interrogate a slave. A slave's
testimony was admissible only if was extracted by torture, on the assumption that
slaves could not be trusted to reveal the truth voluntarily.
The use of torture, however, had its critics even earlier, as far back as the 4 thcentury.
Aristotle, in his book Rhetoric has discussed the issue of torture he has thought the
practice to be unjust and inhuman. He is quoted to have said that those under
compulsion are as likely to give false evidence as true, some being ready to endure
everything rather than tell the truth, while others are really ready to make false
charges against others, in the hope of being sooner released from torture.[1]
In 1798, Napoleon Bonaparte, seemed to echo the words of Aristotle when he wrote to
Major-General Berthier regarding the validity of torture as an interrogation tool:
The barbarous custom of whipping men suspected of having important secrets to
reveal must be abolished. It has always been recognized that this method of
interrogation, by putting men to the torture, is useless. The wretches say whatever
comes into their heads and whatever they think one wants to believe.[2]
The reality is however that torture has accompanied human civilization with the
medieval era being particularly barbaric. And, while human life has progressed in
some parts of the world in the last century, if one looks dispassionately, there are still
so many areas where conditions seem to have become worse in terms of the
prevalence of torture, as if those parts have regressed to the medieval era.
More and more horrendous and inhuman forms of torture seem to be used today to
destroy a persons sense of orientation and self esteem. Not merely physical but also
psychological and spiritual torture is being used, such as attacking cultural religious
beliefs in a programmed and systematic manner.
To circumvent international law a new term enhanced interrogation techniques has
been coined post 9/11 that glosses over the legal repercussions of torture. This move
has diluted public reaction to the extent that it has engineered societys consent to use
torture as a means to extract information from an alleged militant.
Rape in custody is another form of torture that is being increasingly used against
women held in custody. The Indian woman SoniSori is a classic example. A
schoolteacher in the Indian state of Chhattisgarh, Sori was arrested on suspicion of
supporting the Maoists. She suffered gang rape while in custody, with stones being
inserted into her vagina and rectum. The Supreme Court has granted her interim bail,
but no case, to date, has been registered to begin the process of justice.
Despite extensive lobbying by civil rights defenders to create awareness about torture,
there is a rise in the incidents of torture. Perhaps defenders are answering questions
not being asked?
There is certainly a need to mobilize the masses make them question and seek
answers. A complacent populace that will not question or rise against state atrocities
cannot be helped. No amount of advocacy will make any difference.
Lessons from history are needed. What Gandhi and Martin Luther King managed to
do, in the days when access to communication and information was limited, is
remarkable. With meager resources at their disposal they succeeded in generating a
public conscience.
Recently, Edward Snowden has been able to do just that. He has embarrassed the
most powerful country and state organizations with the truth about their illegal actions.
The power of one individual can cause a snowball effect and move society to action.
Human rights defenders should focus on becoming catalysts of change while
generating a sense of hope among the masses to demand changes in their criminal
justice systems to create a world that is free from torture.