TORTURE: ASIAN AND GLOBAL PERSPECTIVES | AUGUST 2012
VOLUME 01 NUMBER 03
interviewed by NILANTHA ILANGAMUWA
The elimination of torture is not an isolated experiment. It is a project that requires significant social interaction and team work. How do we prepare the ground to address the political powers for institutional reforms to eliminate torture? We are trying to find insights for these basic facts. As a regional organization, how does the Asian Human Rights Commission act to prevent torture? Mr. Wong Kai Shing, Executive Director of AHRC, shared with Nilantha Ilangamuwa , editor of the Torture Magazine his understanding and experiences of torture prevention.
Nilantha Ilangamuwa ( NI) : Every country has agreed to so many conventions in order to eliminate torture and other inhuman cruelty. But torture continues to be an ongoing social phenomenon. How do you look at this problem and why have we been unsuccessful in eliminating torture?
Wong Kai Shing (WKS ): Torture is still prevalent in many countries in the world. In Asia, torture is widely practiced in police stations in many countries. The purposes of police torture include extracting information and confessions, inflicting punishment, extorting money, etc. Torture is used as a means of criminal investigation by the police to extract confessions and information. Torture is also used for inflicting punishment and fear by the police for political purposes, such as suppressing opposition and silencing dissent. In some social contexts, discrimination on different grounds such as ethnicity, religion, caste, or gender is the reason for torture. Torture is a way of extorting money by forcing people to pay not to be tortured in police custody.
It is difficult to eliminate torture in these countries due to the following reasons:
Torture becomes a means of benefitting corrupt police officers. Bribes are taken to fabricate charges against innocent people and to extort confessions through torture. Money is extorted from people to avoid torture under police custody.
First, most Asian countries lack a functioning and effective domestic framework to combat torture. Although many Asian countries have ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), there are serious deficiencies in adopting effective legislative, administrative, and judicial measure to prevent acts of torture as required by Article 2 of the CAT. In particular, most countries have not made torture a crime as required by Article 4 of the CAT. At the same time, there is a lack of independent and effective mechanisms with the criminal justice system for the lodging and investigation of complaints against torture. Torture victims face great difficulties and often threats from perpetrators when they make complaints. Executive interference on prosecution and judiciary as well as judicial delays undermines the judicial process for fair and effective legal redress for victims. As a result, the possibility of impartial investigations, prompt prosecutions and proportionate punishments are limited or non-existent, and impunity for the perpetrators of torture continues.
Second, most Asian governments lack the political will to eliminate torture. This is shown by their reluctance to criminalize torture or adopt effective reform measures to prevent torture. Sri Lanka and the Philippines have specific laws to criminalize torture, but the implementation of these laws is very weak. Many governments not only tolerate police torture as a means of criminal investigation, but also use torture to silent dissent and maintain a climate of fear so as to prevent greater participation of people in social and political life.
Third, the high prevalence of corruption in many Asian countries has undermined the proper functioning of all public institutions, especially the administration of justice by the police, the prosecution, and the judiciary. Torture becomes a means of benefitting corrupt police officers. Bribes are taken to fabricate charges against innocent people and to extort confessions through torture. Money is extorted from people to avoid torture under police custody. At the same time, judicial corruption blocks the way to justice.
Fourth, a lack of professional knowledge and skills among police officers, as well as resources for criminal investigation, has maintained the practice of torture as a means of criminal investigation. In many Asian countries, police officers are poorly trained and equipped to conduct criminal investigation scientifically, while torture is tolerated as a means of criminal investigation. This is closely related to the neglect of the governments to take the establishment of a professional and credible police force as a priority to ensure the proper functioning of the criminal justice system and the due process.
Fifth, the public awareness towards the nature and the impact of torture on victims and society as a whole is still weak in many parts of Asia.
NI: As you’ve said, some countries have not even passed laws against torture. Do you think torture can be solved by laws?
WKS: Making laws is one of the key measures to tackle the issue. Criminalizing torture is required by Article 4 of the CAT. It provides a legal framework to pursue accountability of torture perpetrators and establishes the norms in society for the prohibition and prevention of torture that torture should not be allowed under any circumstances. However, very few Asian countries have this kind of legislation, such as Sri Lanka and the Philippines. Many governments claim that torture can be dealt with under the related crimes in existing criminal law, such as physical assaults. This cannot fulfill the definition of torture in Article 1 of the CAT. Torture is not an ordinary crime committed by anyone. It is specified in the definition that torture is “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” The acts of torture are performed or sanctioned by people with official capacity. It is a serious abuse of state power. Under international law, torture is one of the most heinous crimes against humanity. Torture should be punishable by appropriate penalties which take into account this grave nature. Furthermore, the crime of physical assault does not include mental torture which is widely used nowadays by the police and intelligence agencies. Therefore, we should promote the making of specific legislation to criminalize torture according to the definition of the CAT.
However, torture is a systemic problem which cannot be solved solely by laws. We should go beyond legislation and advocate for legal and institutional reforms to establish a functional criminal justice system and set up an independent and effective investigation mechanism for the lodging and investigation of torture complaints.
NI: As a human rights activist how do you address the people who have little knowledge about torture as a social and political evil?
WKS: For people who have little knowledge about torture, it is important to present to them the impacts of torture upon victims and the society as a whole. Human rights activists can start with documentation of cases of torture and then exposing the problems of torture among law enforcement agencies and the situation of torture victims in media and public forums. With the documentation of cases, activists can conduct in depth analyses regarding the adverse impact of torture on the proper functioning of law enforcement agencies and public institutions in the protection of human rights. The knowledge generated can provoke public discussion on the problems of torture. Channels and opportunities can be created to allow torture victims to speak out and let others know about their stories and sufferings.
NI: The elimination of torture is long process that we have to walk through carefully. What are some of the challenges that we (activists and ordinary people) could face in this regard and how could we overcome those difficulties?
WKS: There will be many challenges in working for the elimination of torture. They include how to find out about torture cases, how to approach the victims of torture, how to provide support to victims, how to analyse the problems of torture, how to raise public awareness and discussion on the problems of torture, how to lobby the government to make laws and institutional reforms for the prevention of torture, how to raise international concern about torture cases and raise international support for domestic advocacy for reforms, how to develop an attitude against torture among the general public, etc. In the process, activists will also face a lot of pressure or threats from law enforcement bodies and intelligence agencies.
To deal with these challenges, activists should first develop in depth understandings of the problems of torture through documentation of cases of torture and analyzing the institutional problems reflected in these cases. The knowledge generated is the basis for generating public support against torture and lobbying with the government on related reforms by providing evidence, analysis, and reasonable arguments. The use of electronic media and internet communication can be very useful nowadays to raise the issue of torture to a wide audience, both locally and internationally. To develop support for victims not only requires legal knowledge and skills, but also the knowledge about the psychological impacts of torture upon the victims and how to handle this aspect. It is also important to build alliances with other professional groups such as lawyers, doctors, (medical and forensic) and psychologists as well as people in political arena, such as parliamentarians, to strengthen the public campaign against torture and lobby with the government. The protection of activists from threats can be enhanced by developing regional alliances with groups in other countries of the region and maintaining support links with international human rights networks.
NI: Many argue that the United Nations, as a common front or as an international body, has failed to address the root cause of the problems in many countries. Torture is one of them. Do you have a counter argument or can you elucidate on the role of the UN in not only the prevention of torture but also the protection of human rights?
WKS: A key role of the UN is setting international standards. The UN has made the major international human rights treaties and standards in terms of civil and political rights as well as economic, social and cultural rights. These standards form the core of the international human rights laws that every person can claim. One such treaty is the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Different from other international agreements that regulate the behaviors and relationships between states, international human rights treaties stipulate the obligations of states in the protection of human rights within their countries. The states have to ensure the protection of human rights domestically by undertaking legislative, judicial, and administrative measures, as well as providing effective remedies by the legal system. Therefore, the fundamental safeguards of human rights should be provided by domestic institutions, especially the justice institutions that function on the principles of the rule of law.
Bearing its limitations in mind, the UN is still a very important arena for raising human rights concerns. Every country wants to avoid being criticized and shamed in international arenas.
The UN has set up various human rights mechanisms to monitor and promote the implementation of international human rights standards by the states. The functions of these mechanisms, such as the various human rights treaty bodies, are mainly monitoring and interpretation of the standards, not the implementation of rights, which is the responsibility of the state. The UN Human Rights Council provides a regular platform for member states to discuss and act on human rights issues. It plays the key functions of standard settings and monitoring of the performance of states on human rights. The Special Procedures on thematic issues and countries of the Human Rights Council play an important role in developing in depth analyses on the problems of human rights protection and recommendations for improving the existing standards and mechanisms. They also handle urgent appeal cases through communication with related governments. The limitation of these mechanisms is that their capacity of ensuring domestic enforcement of international human rights standards is weak compared to the capacity of other mechanisms to enforce agreements regulating interstate behaviors and relationships. The resources of these mechanisms are also very limited for tackling human rights issues in countries around the world.
Bearing its limitations in mind, the UN is still a very important arena for raising human rights concerns. Every country wants to avoid being criticized and shamed in international arenas. For example, when a human rights issue of a country is raised in the UN Human Rights Council by NGOs and many other countries, this will create great pressure on the government of the country to solve the issue. Particularly in a crisis situation, concerted international actions, backed by the wide support of the international community, can make a difference. Moreover, international pressure is often useful in creating space for local activists to conduct advocacy for human rights and related reforms in the country. This applies to the issue of torture. We should also continue to raise the issue of torture at the UN to improve the standards on the implementation of the CAT and the obligations of the state. It needs long term efforts.
NI: Having been a human rights activist for years, do you have personal experiences on social reforms as found in Hong Kong? I understand that we can’t apply the same model to each and every country, but we could learn from the achievements of others. Can you share your experiences on social change in Hong Kong?
WKS: Hong Kong was a place of rampant corruption before 1974. The government bodies were very corrupt, in particular the police. The police systematically collected bribes from gangsters and protection money from shop owners. Torture was practiced in police stations. Firemen asked for money before released water to put out fire. In the late 1960s and early 1970s, there were mass protests against the rising costs for daily livelihood and rampant corruption. People demanded an end to corruption and called for the prosecution of corrupt high rank police officials. As corruption had made the livelihood of people very difficult, the British government which ruled Hong Kong at that time realized that without resolving the problem of corruption, the social unrests would continue. Therefore, the Hong Kong colonial government set up the Independent Commission Against Corruption (ICAC) to investigate briberies in public sectors as well as private sectors. The ICAC was totally independent from the police and other government bodies. It had its own investigative force, trained by itself, and was provided with wide investigative powers. The corruption in the police was the key target of the ICAC. In a few years, the ICAC succeeded in eradicating the corruption in the police. The ICAC also conducted public education and developed prevention measures against corruption. This threepronged approach – law enforcement, prevention, and education – is considered the key to the success of anti-corruption by the ICAC.
“There are still many problems with Hong Kong. In particular, the political system of Hong Kong is still undemocratic after the reversion of Hong Kong to China. Because of this, the people of Hong Kong have to constantly be vigilant to advocate for democratic reforms and express their voices on government policies that infringe the rights and freedoms of people.”
—At the same time, the Hong Kong colonial government decided to improve the professionalism of the police in conducting criminal investigations and serving the community. In the past, the key function of the police was to maintain public security to safeguard the colonial rule. This could no longer fulfill the rapid social and economic development of Hong Kong and the demands for good governance from society. The key function of the police was changed to protect and serve people in society. The police began putting emphasis on training officers on scientific investigation techniques and in developing forensic facilities and technologies. Police officers were trained to hold the attitude of serving the community and respecting the rights of people. As a result, the Hong Kong police became a highly professional police force and more or less clean from corruption. With all these changes, torture by the police was largely eradicated.
The experience of Hong Kong shows that the situation of rampant corruption and serious malpractices in the police system can be changed by determined reforms with the adoption of effective mechanisms. A key of these changes is the participation of the people in demanding reforms. There are still many problems with Hong Kong. In particular, the political system of Hong Kong is still undemocratic after the reversion of Hong Kong to China. Because of this, the people of Hong Kong have to constantly be vigilant to advocate for democratic reforms and express their voices on government policies that infringe on the rights and freedoms of the people. For example, over half million people demonstrated on the street on 1 July 2003 to protest against the national security bill. Afterwards the Hong Kong government had to shelve the bill. The vigilant people’s movement of Hong Kong is still playing a key role to maintain the rule of law and freedoms in Hong Kong.
Therefore, developing a vigilant people’s movement for the elimination of torture is very important for the success of the campaign.
The experience of Hong Kong also indicates that the eradication of corruption followed by enhancing the professionalism of the police in scientific investigations and in serving the community can help to largely eradicate and prevent the practice of torture.