TORTURE: ASIAN AND GLOBAL PERSPECTIVES | JUNE 2012
VOLUME 01 NUMBER 02
interviewed by NILANTHA ILANAGMUWA
Mr. W.J. Basil Fernando is a Sri Lankan born jurist, author, poet, human rights activist. He is author of dozens of books and has published hundreds of essays on politics, literature and human rights, and presently is Director of Policy at the Asian Human Rights Commission. In this interview he shared some basic ideas about torture and how we can achieve a torture free society. According Mr. Fernando, compared to the last few decades, most Asian countries have achieved progress in realizing values of good governance. Here is extract of our interview;
What is torture?
Torture is use of any kind of physical or mental pressure by state agencies. It is important to recognize that the agency, either police or the military or any other agency which has devolved power from a State in order to achieve an objective of the State, either to collect information or to intimidate people or to harass them or anything similar to those aims, may be motivated by torture.
So as far as the definition is concerned, I think everything is very clear for the Government and also for at least lawyers and other legal personnel to appreciate that torture is something that should not happen. It is a very simple definition and quite open. What is important to understand is that the State simply doesn’t have a right to carry out any form of physical or psychological torture on any one.
However there is a widely accepted definition of torture, internationally, set out in Article 1 of the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT): “… ‘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 reason based on discrimination of any kind, when such pain or suffering 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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”
Can you explain more about Torture from the point of view of the rule of law?
The whole question of legality means – something that the law has the power to do in a democratic country where the rule of law is the authority. Only legitimate law which is mandated by the parliament in a democratic style could be implemented. The parliament which is the product of the rule of law cannot accept that you can torture one another. Torture is illegal and is a crime. It is also immoral and is completely unacceptable. It is against the very idea of law. Law cannot tell you to assault people or kill people.
Well, you talked about State agencies and their activities, but if we turn to the other side of the coin it is very clear, that non- state actors, for example various militant movements are continuously engaging in torture. So why are we always highlighting one side, while sidelining the other?
Here again we should not confuse the prime responsibility of the State and its supportive agencies with various kinds of militant movements. Some movements seek changes in government, but they don’t advocate violence as their principal objective. It’s obvious that the use of violence will not achieve sustainable solutions for rooted problems.
“The majority of torture doesn’t occur for political reasons. It more often takes place in order to conduct criminal investigations so in that process, instead of properly investigating a crime and using methods of investigations, through the use of forensics and other methodologies, people are just beaten and forced to confess.”
As far as Asia is concerned, the predominant power is the State and if the State is not torturing people I don’t think any non-state actor is going to either. That doesn’t mean I’m trying to justify any use of torture by non-state actors, but before we come to non- state actors we have to be concerned about the State. In fact, non–state actors are a minor aspect of the wider problem. The majority of torture doesn’t occur for political reasons. It more often takes place in order to conduct criminal investigations so in that process, instead of properly investigating a crime and using methods of investigations, through the use of forensics and other methodologies, people are just beaten and forced to confess.
There may be some militant groups in small areas where members engage in torture to control those areas. In that sense those groups are also responsible for it, but we should not and cannot put this on equal footing with the State because it is a very minor problem compared to state agencies and their acts of torture. Obviously, we cannot use militant organizations to justify the State’s and its agencies’ use of torture. So first of all we must concern ourselves with the major controller of society. In most societies the major controller is the government and therefore we should be concentrating more on the responsibilities of governments. The government is a core notion of freedom.
Torture is endemic. Do you identify with this?
That is also factually not an accurate statement because when you say endemic it means that they use torture for everything like they do in less developed countries. If you catch a thief, you will start beating him up. That kind of torture is finished, by and large, in most developed countries. Today, crime investigation is done with questioning, finger prints, and scientific methods and they have to go to court to prove cases with evidence, which is a significant achievement in human society. It took years to develop effective investigation techniques for crimes while accepting the core notions of common law.
The system needs to be changed in developing countries. When you are talking about developed countries and how their processes of torture prevention evolved, it is a model for other countries as well. However, many developing countries do have laws accepting that torture is criminal, but the decline of law and order is closing the door on torture prevention, as well as other basic fundamental rights. What do you say?
There is a lot of history which is important to go understand on this subject. Just a century ago, use of torture was widely accepted. The development of new legal systems took place much later and with that the idea of the fair trial was developed. That is, if you convict a person you must do so
with reliable evidence. With that grew the prime notion that evidence received through torture is unreliable. In the meantime, there has also been a general spread of science and communication.
People began to go to doctors. When they go to doctors they normally don’t go to the types they went to in the past, instead looking for someone who has scientific knowledge. So too did this new way of thinking come to the Justice System. Institutions of justice must also function on a rule of law basis or on the basis of rational argument, and nothing else, so this whole revolution took place in terms of modern consciousness.
“We don’t want that kind of police; we don’t want those kinds of courts which accept these things, but we want something that we can respect.”
The compelling reason for eliminating torture has very long history. In different countries there was legislation and people said this was unacceptable. “We don’t want that kind of police; we don’t want those kinds of courts which accept these things, but we want something that we can respect.” With that, an idea of administration of justice can be rationally respected. What has not happened in Asia is that these institutions of justice, including police investigators, their prosecutors, and the judges, have not been able to receive the same respect because they, directly or indirectly, accept the old methodologies. The same thing was happening in developed countries for a long period of time, but their tremendous struggle motivated them to develop genuine systems of justice which can be respected. Most Asian countries are yet to achieve this and an unacceptable system continues to exist. The policeman behaves like a barbarian. The policemen are taking bribes in order to assault a person and these kinds of barbarous acts continue to exist in the name of police, and sometimes military, action, which must be stopped. We cannot have good governance that will be respected by the people as long as these kinds of methods are being used by the State.
You can’t have bad government and a torture free society, though these all combine and overlap each other. This is how you develop consciousness for overall political change in these countries.
Do people need to struggle against this trend to archive good standards?
There needs to be greater realization amongst governments, appointed by the people, that it is their duty to change. The idea of change should flow from top to bottom. It is not possible to achieve this kind of change by some kind of direct confrontation. There has to be an understanding by the State to stop torture and other forms of human rights violations.
How can we trust the Government, though? Nowadays the electoral system is fraught with “cynical manipulations” so aren’t we unable to see real facts to confirm social trends?
I agree with you to some extent, but we have to find a solution within the system, though we cannot adopt a new system of the old system. We have to find a way to change the root of the problem while using the small path, which is only an entry point. Without understanding or sincerely addressing the real situations of each society we will not be able to find solutions for any problem. The very central part of manipulation is torture. In other words, through use of these methods you create manipulatable systems, or manipulatable systems create torture, but you cannot give one formula and say, “Do it this way.” If people want freedom, people have to find a way against the system. You can’t have bad government and a torture free society, though these all combine and overlap each other. This is how you develop consciousness for overall political change in these countries