BY Danilo Andres-Reyes1
Obstacles in the implementation of norms & standards of rights in developing countries2
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
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
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."4Haugen 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
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
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
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
FMA Razzak is the President of the Human Rights Development Centre (HRDC) and Editor of the Pakkhik Gonomichhil in Paikgachha of Khulna district,
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
In
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
After the first election in post Pol Pot
"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
Mrs Paru, 65, filed a complaint against her neighbor, Subish, at the Malakkapara Police Station on
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
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
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
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
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
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In
On
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
John Paul Nerio was a 17 year-old high school student when he was tortured in police custody on
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
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
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In
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
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
On
"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
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
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
This can also be said to the four victims whom the policemen had illegally arrested, detained and charged in
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
The rejection of Bagale's complaint of torture in
What can be done?
In
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.
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Footnotes:
1 Danilo Reyes is a staff member of the Asian Human Rights Commission (AHRC) in
2 This conference paper was delivered during the Asian Regional Conference on enhancing capacity of rehabilitation center and civil society in Access to Justice of victims of torture held in
3 World Bank, 'Access to Justice', see at: http://web.worldbank.org/
4 Gary Haugen, 'A New Mandate for Human Rights', see at: http://www.law.uchicago.edu/
5 The Guardian, 'Legal aid spending cuts to total £350m,' 10 November 2010, see at: http://www.guardian.co.uk/law/
6 Article 2,'Launching the Asian Alliance Against Torture & Ill-treatment,' Vol. 10 - No. 03, September 2011, see at: http://www.article2.org/
7 A
8 AHRC Statement No. 66, 2011,'BANGLADESH: A human rights defender returns home, tells story of terrifying abduction and interrogation,' May 25, 2011
9 A
10 AHRC Statement No. 206, 2010,'WORLD: Cambodia -- Abysmal lawlessness and the powerlessness of the citizens,' 7 October 2010
11 Excerpt from A
12 AHRC Urgent Appeal Update Case No. 48, 2011,' NEPAL: Torture victim denied justice for nine years must be granted protection,' 28 October 2011
13 AHRC Urgent Appeals Case No. 189, 2011,'PAKISTAN: Impunity to police officials who tortured a poet to death in custody,' 4 October 2011
14 A
15
16 United States Institute of Peace, 'Necessary Condition: Access to Justice', see at: http://www.usip.org/guiding-
17 Basil Fernando, 'How can lawyers caught up in a dysfunctional system to change the situation?', a speech delivered at the ICJ Geneva on 4 December, 2011, see at: http://www.humanrights.asia/
18 Article 2,'The limitations of the Philippines' Anti-Torture Act,' see at: http://www.article2.org/
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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.
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