State V iolence and Torture in Asia

1. State Violence and Torture in Asia 2nd International Conference on State Violence and Trauma Gwanju Trauma Center May 17, 2014 Ms. Edeliza Hernandez, RN Executive Director, Medical Action Group

2. State Violence According to Macfarlane, state violence is the legitimate use of force by a state to defend or protect itself from external and internal threats. There are 2 major forms of state violence: To wage war against other state (National Defense and Security); and To organize a systematic violence to regulate its citizens (Law and Order, Crime Prevention) Alan Macfarlane a Professor Emeritus of King's College, Cambridge. He is the author or editor of 20 books and numerous articles on the anthropology and history of England, Nepal, Japan and China.[1] He has focused on comparative study of the origins and nature of the modern world.

3. State Violence State violence is often used by authoritarian regimes as a means of maintaining control and suppressing dissent. It is less prevalent in some places than in others which have an open and free political process that protects the political opposition and creates checks and balances. However, some countries which have undergone political changes towards democratization, remnants of authoritarian rules still prevail over political reforms despite the best efforts. This is the challenge and the hope for most countries in Asia today.

4. Torture in Asia Torture is one of the worst and horrendous forms of state violence. Torture is happening everywhere in the world despite being considered as a crime under international law. Torture is most prevalent in Asia.

5. Torture in Asia Based on the study made by the Asian Human Rights Center in October 2003 that looked into the existing policies and practices of selected Asian countries, torture remains prevalent to a varying degree in most countries in the Asian region.

6. Torture in Asia While each country situation differs, there are certain common structural problems and deficiencies that account for the prevalence of torture and lack of remedies for victims across the region particularly: The entrenched culture of violence and disregard for human rights that characterises law enforcement agencies and security institutions in most countries; This institutional culture is reinforced by the absence of an adequate legal and institutional framework for the prevention and punishment of torture and reparation for victims; Lack of human rights training among State agents and widespread corruption; Poverty and marginalisation significantly heighten vulnerability; Socially and economically disadvantaged groups, including women, ethnic minorities and others, find themselves at an increased risk because of discrimination, and a lack of awareness and means to access justice; and This is frequently compounded by victims’ fears of bringing lawsuits, complaints or testifying against authorities due to the risk of reprisals.

7. Torture in Asia The political and cultural context in Asia are said to be the underlying reasons why torture and other forms of violence are being committed by most Asian states.

8. Torture in Asia The legacy of prolonged armed conflicts or political instability has contributed to enhanced recourse to security policies and laws that grant unfettered powers to law enforcement agencies and security forces and perpetuate immunity. (e.g. Bangladesh, India, Nepal, Pakistan and Sri Lanka)

9. Torture in Asia While other states which are considered more democratic still lack political commitment and adequate institutional rule of law guarantees, which include a genuine separation of powers, a strong and independent judiciary and an accountable government. (e.g. Philippines, Thailand, Indonesia)

10. Patterns of Torture in Asia Torture is used by police and security forces to extract confessions and information about alleged criminal activities or as a form of punishment against suspected rebels and terroristsas well as persons suspected of ordinary crimes.

11. Patterns of Torture in Asia Torture appears to be regarded de facto as an acceptable method of criminal investigation in most Asian countries due to reliance on confessions as a principal form of evidence and a quota system of “resolved cases”.

12. Patterns of Torture in Asia Torture and ill-treatment of convicted prisoners and persons detained in correctional facilities by prison officials as punishment for alleged misconduct or violations of prison rules.

13. Patterns of Torture in Asia Torture as an integral part of armed conflicts and counterinsurgency strategies.

14. Patterns of Torture in Asia There is a strong link between torture and poverty as the suspects coming from poor sectors has no ability to hire a lawyer often combine to make members of such groups prone to victimisation by law enforcement officials who deprive them of access to justice and even used to extort money.

15. Patterns of Torture in Asia Torture in the form of sexual violence against female detainees is also very common.

16. The Philippine Experience The Philippines is a State Party to CAT since 1986. Although more than thirty years have passed since the Marcos dictatorship was overthrown, the police and the military still use the same torture methods employed during Martial Law. From February 1982 to October 1992, human rights groups recorded a total of 3,171 torture cases. 179 cases happened during the Ramos administration (1992-1998), and 53 cases during the Estrada administration (1998 to January 2001). The decreasing trend in the occurrence of political torture from Marcos to Estrada administration was reversed during the present Gloria Macapagal-Arroyo government because of its war on terrorism and heightened counter-insurgency strategy. During the period of January 2001 to December 2008, there were 139 torture cases documented affecting 285 individuals.

17. The Philippine Experience The Aquino government stated that human rights would be a pillar of his governance, a basis of his development plans and the core of the paradigm shift in the security sector. However, human rights violations still persist up to now while the culture of impunity remains to be a glaring reality in the country.

18. The Philippine Experience In most incidents in the Philippines, individuals ending up as torture victims were the ones initially arrested without warrant or merely “invited” for questioning and taken to detention centers, safe houses, and military camps. Although the Philippine Constitution and other statutory laws accord protection to both legally arrested and “invited” persons, but their rights are brazenly violated.

19. The Philippine Experience The detainee’s deprivation of liberty and the opacity surrounding places of detention such as military camps and safe houses create a situation of powerlessness and isolation on the part of the captive which in turn encourages the captors to use torture. A case in point was the horrible experience of Raymond and Reynaldo Manalo who were abducted by the military on 14 February 2006 on suspicion of being New People’s Army (NPA) members. They were subjected to various forms of torture and their tormentors kept transferring them from one military camp to another where they also witnessed the torture of SherlynCadapan and Karen Empeño both missing to this day.

20. The Philippine Experience Women under arrest and in detention are also exposed to high risks of torture and other forms of cruel, inhuman and degrading treatment, including rape by State agents and even jail guards particularly between the time of arrest and detention at the police station or military camp. Torture of children is also a widespread phenomenon in the Philippines. This is brought about by the glaring gap between the relatively sound policies promoting juvenile rights and welfare and what is actually happening in the field. For example, during clearing-up operations, police arrest and detain children as young as 11-12 years old in cells unfit for humans and sometimes with adult inmates but the law requires that minor offenders should be immediately turned over to rehabilitation centers.

21. The Philippine Experience The torture situation in the country is the inadequate and unsystematic medical documentation and reporting of such incidents. Usually, human rights and health organizations are given the run-around and barred from jails and detention centers and when they are allowed to see the victims, they are prohibited from bringing medical and documentation equipment inside these holding facilities. The country’s malfunctioning criminal justice system also strengthens the reigning culture of impunity of which torture is a major component along with extra-judicial killings, enforced disappearances and other human rights violations. Ironically, this distorted judicial system has increasingly focused on prosecuting the victims of torture instead of the torturers and perpetrators.

22. The Philippine Experience The mechanisms in addressing complaints of alleged human rights violations by the police and the military are dubious and in fact impede the right of the victims to redress and effective remedy. An example is the deeply flawed implementation of the Witness Protection Program under RA 698113 which is supposed to play a crucial role in successfully prosecuting alleged human rights violators such as the police and the military are being manned by personnel who are linked or closely associated to the security forces. The ineffective investigation by concerned government agencies particularly by the Commission of Human Rights (CHR) left victims without redress while perpetrators remain unpunished. - 2009 Joint Civil Society CAT Report

23. Torture cases The Philippines has passed the Republic Act 9745 or the Anti-Torture Law in 2009. However, non-compliance and complicity by law enforcers have rendered the law ineffective in providing justice to victims.

24. The Philippine Experience a. Lenin Salas, etal. Salas’ case, with police as alleged perpetrators, was dismissed because the victims could only identify their assailants through their voices. The victims were blindfolded during their ordeal. The prosecutor disregarded the fact that blindfolding itself is prohibited act under the anti-torture law and the arresting police officers were responsible for it.

25. The Philippine Experience b. RonelCabais The prosecutor found the Cabais case meritorious and had the court issued a warrant for the arrest of alleged torturers. However, the warrant could not be served because AFP officials claimed that the suspects’ names were not in their roster.

26. The Philippine Experience c. Abdul-Khan BalintingAjid Abdul-Khan BalintingAjid, a Muslim baker in Basilan was illegally arrested and tortured by members of the 39th Scout Rangers of AFP. Hereportedly experienced beating, water cure and burning of his forehead and abdominal area. His arrest was illegal because the warrant was intended for one KannehMalikil. Despite Ajid’s insistence that he was not that person by showing identification card, the soldiers brought him to a camp where he was allegedly tortured. The case caught media attention forcing the military to dismiss the two personnel allegedly involved while the officer implicated was still under investigation.

27. Recommendations 1. Torture must be criminalized Article 4 of UNCAT specifically requires States parties to make torture a criminal offence. Asian states must adopt appropriate domestic legislation to implement their international law obligations by comprehensively defining torture and reaffirmingthe absolute nature of its prohibition.

28. Recommendations 2. Safeguards against torture and preventive mechanisms These safeguards comprise the prohibition of arbitrary detention, the right to inform family members or others of the arrest, the right to be promptly brought before a court after arrest, the rights to challenge the legality of one’s detention, access to a lawyer of one’s choice and the right to regular medical examination and health care.

29. Recommendations 3. Custodial safeguards against arbitrary arrest and prolonged pre-trial detention A need for statutory laws providing guarantees against arbitrary arrest and detention, including the right to a prompt review of the lawfulness of one’s detention by a judicial authority.

30. Recommendations 3. Custodial safeguards against arbitrary arrest and prolonged pre-trial detention Statutory laws providing guarantees against arbitrary arrest and detention, including the right to a prompt review of the lawfulness of one’s detention by a judicial authority must be institutionalized and strictly observed.

31. Recommendations 4. Access to Lawyers Unrestricted early access to a lawyer can help minimise the risks of torture and other ill treatment in detention, and also facilitates the prompt filing of complaints on behalf of those who have been already exposed to such violations. While the right to counsel is generally recognised in most countries, such a right is not usually guaranteed from the moment of arrest.

32. Recommendations 5. Access to an independent medical examination Compulsory and independent medical examination upon and after arrest is an important safeguard against custodial torture and ill treatment, providing the means to establish evidence of such violations. Notably, section 12 of the Philippine Anti-Torture Act recognises the right of a detainee to physical and medical examination by an independent and competent doctor of his or her own choice, both before and after interrogations. The Philippines is also under an obligation to provide an indigent detainee with access to a free medical examination

33. Recommendations 6. Monitoring of places of detention Regular monitoring of all detention centres by independent organisations is another important safeguard against torture. OPCAT states that the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment can be strengthened by non-judicial means of a preventive nature, based on regular visits to places of detention.

34. Recommendations 7. Exclusion of evidence obtained under torture The exclusion of evidence obtained under torture is an important safeguard against torture. Nearly all of the countries have constitutional or legal prohibitions against the use of confessions obtained through torture.

35. Recommendations 8. Non-refoulement Article 3 of UNCAT places an obligation on States both to protect individuals from being subjected to torture within their territory and not to send persons to countries where they may be exposed to torture or ill-treatment.

36. Recommendations 9. Effective Investigation and Prosecution The UNCAT similarly sets out core obligations on States, including the obligation to criminalise torture, to conduct prompt, impartial and effective investigations into allegations of torture and to prosecute where there is sufficient evidence suggesting that torture has been committed.

37. Recommendations 10. Guarantee for the rule of law In the majority of Asian countries, the rule of law are in place but are not backed by strong institutional guarantees, such as a robust and independent judiciary, an accountable executive and a parliament that is capable of acting as a counterweight to the power of the executive.

38. Recommendations 11. Repealing of Draconian laws that provide immunity from human rights violations Most Asian governments seek to use the law to protect their agents from criminal and/or civil proceedings through either requiring prior government sanctions or barring prosecutions.

39. Recommendations 12. Provisions of Reparative Measures Reparation refers to measures aimed at repairing the damage caused by an illegal act and restoring the dignity of of the victim. Article 14 of UNCAT in its General Comment No. 3,98 recognising the five elements ofthe right to reparation as outlined in the UN Basic Principles and Guidelines, namely restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.

40. Conclusions To pursue the aims of the UNCAT for the freedom from torture to be realized in less developed countries particularly in the Asian region, states must institute considerable legal , judicial and institutional reforms. Simple assimilation of international human rights standards into structures of law may not be enough. The enthusiastic response of the victims, human rights organisations and the civil society in many Asian countries is crucial to push their governments to take necessary actions not only to adequately resolve on-going torture cases but to effectively end the practice of torture.