Circumstances Facilitating Torture in Sri Lanka and Malaysia

Dwight Newman

[Ed. Note: Torture is a major thematic focus of the work of the Asian Human Rights Commission (AHRC). Because of the importance that AHRC attaches to this issue, we are dedicating the space in this issue of Human Rights SOLIDARITY to a report by Dwight Newman, a Canadian lawyer doing graduate legal studies at Oxford University in legal theory and human rights. The author wrote the report below as part of his summer internship with AHRC.]

"They heard the thud of wood on flesh. Boot on bone. On teeth. The muffled grunt when a stomach is kicked in. The muted crunch of skull on cement. The gurgle of blood on a man’s breath when his lung is torn by the jagged end of a broken rib. . . .[T]hey watched, mesmerised by something that they sensed but didn’t understand: the absence of caprice in what the policemen did. The abyss where anger should have been. The sober, steady brutality, the economy of it all." [1]

"I was boxed very hard on my lower jaw and left eye. I was also boxed on the right of my head, and they hit me on the left side of my neck very hard. I was slapped very hard left and right until blood came out from my nose and my lips cracked. Because of this, I could not see and walk properly." [Anwar Ibrahim, former deputy prime minister of Malaysia, describing conditions in detention after he was arrested] [2]

"Two children studying at Millika Mahavidyala School in Hiniduma, Sri Lanka, were arrested by officers attached to the Hiniduma police station who were investigating a theft which had taken place in the school canteen. One 10-year-old child was in Grade 5, T. K. Hiran Rasika, and the other 12-year-old child was in Grade 8, E. A. Kasun Madusanka. At the police station, they were asked to admit their involvement in the theft. To force them to confess, they were hung on beams by their legs and beaten; their hair was pulled with pliers and pins were inserted under their fingernails. Because of this torture by two police officers in the Hiniduma police station, the boys have been hospitalised."[3]

I. Law and beyond Law

A Gap between Law and Lived Reality

Torture is illegal. Period. In all circumstances and all situations, and without any exceptions, torture violates international legal instruments, the human rights standards they protect and jus cogens principles of international law (principles that apply to all States whether or not they have signed any treaty endorsing them and that no treaty can override.)

Nonetheless, torture occurs. And it does not just occur. It is perpetrated on a massive scale. International human rights groups have identified dozens of countries around the world where torture is perpetrated. And the number of victims is enormous.

There is thus a gap between law and lived reality. This article is an attempt to confront that gap and to understand better how torture is perpetrated despite formal legal prohibitions against it.

The Absolute Prohibition on TortureThe absolute prohibition on torture is beyond question. In the most detailed international instrument on torture, Article 2 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, or the CAT, is very clear that States must not engage in or permit torture:

1. Each state party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction;
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture;
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

The convention defines torture broadly:

"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."

The prohibition, however, is not contained only within the CAT. The 1949 Geneva Conventions, signed by a large proportion of the world’s States, prohibit torture in international conflicts and, in their common Article 3 containing basic humanitarian standards, in non-international armed conflicts. Torture is also prohibited under Article 5 of the Universal Declaration of Human Rights (UDHR), Article 7 of the International Covenant on Civil and Political Rights (ICCPR) and other key international human rights instruments.

Even for States not signatories to these agreements, torture is prohibited. Torture is a jus cogens norm of customary international law, meaning that it is a norm that applies without any treaty, without any exceptions and with no derogation permitted (i.e., States cannot change this legal obligation). This has been widely recognised by scholars and legal authorities [4] and is implicit in the terms in which torture has been rejected by the world community. Such treaties as the ICCPR (Article 4) and regional human rights instruments specify that the prohibition on torture is a norm from which no derogation is permitted. Torture is universally condemned, and no State publicly supports torture. The moral horror of torture is something on which all of humanity can agree and which is thus part of the bedrock of international human rights law.

Thus, the law is clear. Torture is universally condemned and is illegal. How do we then reconcile this condemnation with the terrible, pervasive and persistent reality in which torture is still perpetrated?

Beyond Law: Considering Systemic Factors

Sometimes, to change a situation, we need to consider systemic factors. This search for other factors must not be interpreted as giving an excuse to people who engage in a practice that is wrong. It simply recognises that merely telling people not to do something does not mean that they will not do it, especially if other factors continue to exist that make it easy for them or encourage them to do it. We must look for the deeper changes that can help us understand and prevent abuses and violence.

An analogy helps make this approach clearer. Torture and the pain and devastation that it causes are unique, and we must never be seen to minimise the effects of torture by comparing it inappropriately with other issues. This being said, when thinking about how to eliminate torture, we can, however, draw on experiences on other issues with parallels in terms of causes or solutions, and we might gain interesting insights. For example, corruption is an issue that has a parallel aspect to torture. Typically, any complaint about torture or corruption involves a complaint against the same person who would ordinarily receive complaints. These kinds of issues pose special challenges when we are thinking about how to eliminate these practices. We cannot adopt a simple legal solution where lack of respect for the rule of law is part of the problem.

Hong Kong’s experience with corruption can thus potentially offer useful insights. In the mid-20th century, Hong Kong had major problems with corruption. Over time, the people refused to accept this. In the early 1970s, they demanded an end to corruption. Today corruption has been dramatically reduced in Hong Kong. This result was achieved through the creation of an effective Independent Commission against Corruption (ICAC) in 1974. The ICAC’s strategic plan today summarises the ICAC’s policy objective: "to pursue the corrupt through effective investigation and prosecution, eliminate opportunities for corruption by introducing corruption resistant practices, educate the public on the evils of corruption and foster their support in fighting corruption." [5] Merely passing a law against corruption would not have been enough. Hong Kong recognised the need for a real, more holistic solution to a systemic problem of corruption, which would have resisted a purely legal solution. Law is important, but we also need to go beyond law.

Looking at matters in this way admits the fallibility of law. This is not an easy thing for many lawyers to do, especially Western lawyers from societies where the law seems generally effective. Lawyers are often trained to assume that there are simple legal solutions to problems, but this assumes the functioning of the rule of law, which is a false assumption in the context of many countries. When we realise the false assumptions behind the infallibility of law, we must admit the fallibility of law.

Lawyers may also be trained to analyse incidents of violence as individual incidents, which essentially amounts to analysing them as exceptional occurrences. As recognised by the editorial board of article 2 produced by the Asian Legal Resource Centre (ALRC), this is also often the approach of human rights monitoring mechanisms that focus on the correction of individual violations, thus failing to study all the components of the system that permits, produces and perpetuates violations. [6] Analysing incidents of torture as individual incidents of violence treats them as exceptions to a generally peaceful society governed by the rule of law. It is a misguided approach in a society where there is a pathology of violence or other breakdowns in the rule of law.

Garth Meintjes has written an interesting paper entitled "Proving Torture: What Lawyers Can Learn from Scientists." [7] Some of the things that lawyers can learn from scientists include the approach of looking for patterns. This may mean looking forward at patterns rather than backward to legal causation. For example, Meintjes writes, "A scientist might find that an increase in the number of detainees kept in solitary confinement is a reliable indicator of an increase in the use of torture. If so, then this indicator is useful in alerting human rights monitors about a potential increase in the number of torture violations." This does not fit within a framework of analysing legal causation, but it may be more important.

Another lesson Meintjes points to is that each pattern tells a story. He notes that, "because torture is a tool and not simply a violent crime, it is usually used selectively or systematically. Scientists know that the selective or systematic use of an independent variable, such as torture, will result in an identifiable pattern among any dependent variables. This will, in turn, tell them about the identity and policies of those who use the independent variable." For example, when every child in a village is killed, a government explanation that they were civilians caught in a crossfire does not withstand scrutiny. When there are patterns of torture, we can try to identify what they say about the perpetrators, policies and solutions.

Analysis of systemic factors facilitating torture can both flow from and illuminate these patterns. This approach is about trying to make a difference in a situation where simply passing laws to tell people not to do things may not work, but it has two other important advantages.

First, this approach is forward-looking. It is focused on preventing abuses from occurring rather than simply punishing those that have occurred. While punishing abuses may have a deterrent effect on abuses, it is still backward-looking. It inherently deals with rights violations that have already occurred. There is no such thing as a full remedy for torture, no way to heal completely a mind scarred by pain, so there are important reasons to prefer a forward-looking approach.

Second, this approach seeks to respond honestly and directly to difficulties that people have with the protection of human rights. It is easy to say that torture is wrong and illegal. However, even if they do not say so publicly, many people may think something like the following, which was an actual response to reports by the Asian Human Rights Commission (AHRC) on torture in Sri Lanka:

"In a country such as Sri Lanka, where police resources are limited and crime is high (mainly due to poverty), it is not possible to have the niceties of police methods as in developed countries. The police use brutal methods. It is not right, but that is the way they know of apprehending criminals and keeping the crime statistics down. If the police were to use ‘legal’ means in all their dealings in criminal investigations, it is likely that ‘law and order’ in the country will deteriorate further. . . . The army could not fight the terrorist war in Sri Lanka by the ‘book.’"

Given that States have responsibilities to protect people from crime and from terrorism, many may have the same reaction. This is an important reason why it is not enough to simply say "do not torture." It is essential to look at the systems that permit and perpetuate torture and show how society can be made to work without torture. This is the real challenge, one of how to really make a difference through this attention to systemic factors. The last part of this essay will seek to face up to it by trying to open further the conversation on how to tackle some of the circumstances facilitating torture in Sri Lanka and Malaysia.

A Challenge and Opportunity for Human Rights: Interrelated Factors

"Merely to condemn violations and demand cures without exposing the way violations take place is futile." [8]

Implementing changes that ensure respect for human rights is not easy. Saying this is no excuse for not making the necessary changes though. It recognises a challenge that activists, in their well-intentioned enthusiasm, sometimes forget and that will ultimately open new opportunities for those changes.

This reality that the changes are not easy is actually written in the basic principles of human rights. One principle of human rights is the indivisibility of rights. In the context of torture, indivisibility can help us recognise that torture and other human rights abuses are often interdependent. Where torture exists, there are consequences on other human rights issues because torture legitimises violence and makes a peaceful society impossible, creates a state of fear that discourages cooperation and destroys the ideals of institutions meant to protect other rights. Consequently, AHRC has aptly described torture as the "Mother of All Human Rights Violations." [9] The continued presence of torture in a country helps discourage advocacy on other human rights issues, thus, in turn, facilitating other abuses.

If we make people see these connections, we can live out the hope expressed by Suraiya Kamaruzzaman at the Religious Group for Human Rights seminar on torture: "We must try to make people see the phenomenon of torture as something happening in their own lives so that people will not just look on torture as something outside." Basil Fernando expressed a similar perspective at the same meeting, saying that "torture is not only about individuals, but the most important aspect of torture is the collective imprint it leaves on the people." [10]

The converse principle is that the continuation of other human rights abuses can also make it difficult to speak out against torture. Where due process rights and rights of access to judicial remedies are not protected, there may be no legal means to combat torture. Where the people are in poverty and disempowered, there may seem to be limits on their contesting power to struggle against torture.

Human rights abuses are thus often interconnected in a way that makes it difficult to know where to begin. However, this also means that, once there is progress on one issue, progress on other issues may follow very rapidly. If we can tear down the mechanisms of torture, we tear down some of the mechanisms that constrain advocacy on other issues.

Sometimes finding the contesting power to struggle against torture is a matter of finding resistance that may be in scattered forms. In Sri Lanka, an exhibit on the elimination of torture opened at the public library auditorium in Colombo on April 16, 2002. The exhibit, organised by Janasansadaya, a local organisation working towards the elimination of torture, and AHRC, included exhibits on individual cases of torture, paintings and posters. [11] There is nothing particularly law-related about this, but every piece of such an exhibit is part of the struggle against torture. Every survivor’s account or poem or painting is part of the resistance against torture. We can create contesting power.

We must refuse to accept supposed conditions that facilitate and perpetuate human rights abuses. We must not take them as givens, as fixed realities. Torture is not a fixed reality but a gross human rights abuse that we can and must end. The conditions that facilitate and encourage torture are not fixed realities but factors that we can seek to understand and find ways to challenge and overcome.

We need to be prepared, of course, to look deeply into these factors. As Basil Fernando has noted in describing the principle of micro-studies, "Merely to observe that a particular state party lacks the political will to remove impunity is not much of a discovery. While political will is necessary to solve any violation of rights, the lack of it is not a satisfactory explanation for why violations take place. Putting blame on the lack of political will often becomes a way to avoid developing understanding of how impunity occurs." [12] Understanding the factors more deeply can equip us to fight them and to find new allies in fighting them.

Those challenging torture in a multiplicity of ways need not remain isolated but can join together in solidarity. We must see as united a struggle against every factor perpetuating the structures that thrive and rely on torture. Every word against torture is a word for the victims and survivors, and every act against torture is an act for humanity.

II. Theoretical Background on Circumstances Facilitating Torture

"[I]f torture is to be prevented, it must first be understood." [13]

Before we began, it might have seemed tempting to say that we do not need theory on an issue like torture. The absolute prohibition on torture is clear, we might have said, and any decent human being in the midst of torturing someone must know that it is wrong. When we look at the issue, however, through a lens in which torture persists despite laws against it and in which we are prepared to look at systems and mechanisms that perpetuate human rights abuses, then we begin to realise the importance of theory. Why does torture occur? Why do people torture other human beings? How can they do such a monstrous thing? What is the psychology of torture? What leads police forces to resort to torture? And, most importantly of all, how can we use the answers to these and similar questions to help prevent and eliminate torture?

Theoretical perspectives on the circumstances facilitating torture are found in writings on the history of torture, in some reports on torture in particular situations and in observations of various people who have relevant experience on the matter. The circumstances that facilitate torture may initially seem varied, but a number of important common points gradually emerge.

We can survey some theoretical sources of these kinds in order to grasp some of these common themes. It would be impossible, of course, to survey every piece of relevant theoretical writing. However, some of the common themes will come across even from this survey of just some relevant theoretical writing. This theoretical writing will also provide a context for the more micro-level discussion of Sri Lanka and Malaysia that follows.

The Abolition of Torture in Europe

Some historians have written on the history of torture. Their writings often point to important theoretical understandings on circumstances giving rise to torture and give us better understandings on the matter. Edward Peters, writing based primarily on the history of torture in Europe, is a prime example to which we will turn in a moment.

Many European countries abolished torture in the late 1700s or early 1800s. Traditionally, many have understood this to have been in reaction to the works of several important writers, notably Cesare Beccaria, whose 1754 work, On Crimes and Punishment, criticised elements of the justice system that included the practice of torture and called for a more enlightened way of dealing with crime. While there was a major moral element to the criticism, Beccaria also framed his criticism in scientific terms. This approach foreshadowed the terms in which utilitarians, like Jeremy Bentham, who acknowledged the great influence of Beccaria on his work, would argue for penal reform. Today Utilitarianism is often criticised for the fact that it could theoretically allow gross abuses like torture, and Bentham is infamous for having referred to human rights as "nonsense upon stilts." But in Beccaria’s analysis, it was very clear that torture was not just morally wrong but ludicrous from a scientific penological point of view.

In a chapter on torture for investigative purposes, Beccaria began with a moral question: By what right could we ever punish someone in such a way when there is still doubt on the person’s guilt? He also criticised the supposed usefulness of torture. Torture could create so much pain that one would do anything to get out of it, including confessing to crimes of which one was innocent. Thus, Beccaria said, "All distinctions between the guilty and the innocent disappear as a consequence of the very means which was meant to discover them." Indeed, if anything, the innocent were made worse off than the guilty, for criminals would have the chance to be acquitted by withstanding torture whereas innocent people would always suffer unjustly. Thus, torture for investigative purposes was both immoral and irrational.[14] Beccaria also criticised torture as a punishment on penological grounds, as inappropriately excessive and difficult to control. Again, there was a moral element to his criticism as he asked, "What reader of history does not shudder with horror at the barbaric and useless tortures that so-called wise men have cold-bloodedly invented and put into operation?" [15]

The insight that historians like Peters bring to bear is to help us see why Beccaria’s criticism of torture, which was also made by other Enlightenment writers, such as Montesquieu and Voltaire, seemed to grab attention at this moment in time. People had certainly criticised torture in the past, but these criticisms came at a time when other factors meant the system was more ready than in the past to abandon the use of torture.

First, judicial discretion in sentencing and a use of incarceration as a punishment in place of the death penalty in many circumstances opened new possibilities. Second, there were major changes in the law of evidence that made it easier to abolish torture. Under Roman canonical law as it had developed in the Middle Ages, confessions had a very important role because there were such stringent conditions on other forms of evidence that confessions were often the only way to establish guilt. Getting a confession was thus crucial, and torture was the way to get confessions. According to Peters, this helps explain why torture was never widespread in the ordinary criminal law context in England. English laws of evidence had never put as much priority on confessions as evidence. Consequently, torture was used in England basically just in limited circumstances by special order of the Crown or Privy Council. This was why in 1769 Sir William Blackstone, a great historian of common law, could say that the rack "was an engine of the State, not of law." With changes in the law of evidence in continental Europe at this time, confessions became less crucial as courts were more ready to use other forms of evidence, and thus, torture was, as in England, less necessary to the functioning of the judicial system. The historians say that this is why torture was already declining in continental Europe even before it was abolished. [16] The abolition of torture was a complex process based not just on moral arguments but also on systemic changes.

Therefore, the moral and scientific arguments of writers like Cesare Beccaria were important, but their success also depended on appropriate changes in the justice system. We can take this as a further lesson in terms of the importance of systemic considerations when we advocate for the end of torture today.

The Return of Torture for ‘State Security’

Even after they abolished torture in the 1700s and 1800s, European countries returned to the use of torture in the 1900s, often on some claim about state security. Nazi Germany and Stalinist Russia are gross examples of totalitarian regimes that used torture as part of the state security apparatus. The military dictatorship in Greece after World War II also used torture, allegedly for state security purposes, and even democratic countries that claimed to be facing serious security situations fell back into the use of torture. France turned to torture in Algeria in the 1950s, for instance, and the United Kingdom used torture at various points in its conflicts in Northern Ireland.

Some authors have included these latter uses of torture in a broader pattern with Lisa Hajjar being a good example of one who links several situations. [17] In South America in the 1970s and 1980s, economic crisis led to military rule that attempted to protect national security against "international communism," and the paramountcy of national security was seen by the military governments as justifying the use of torture. In Northern Ireland, the threat of terrorism was seen by even the United Kingdom’s democratic government as a serious threat to national security, and emergency laws enabled violent interrogation techniques that descended into torture. A similar pattern is manifest in Israel where a democratic State has put such priority on national security in the face of terrorism that it could descend into the use of torture.

We should not be surprised then to see that there was open public discussion in the United States after Sept. 11 of the potential use of torture in the "war against terrorism." Once some threat, real or perceived, is seen as threatening national security, a State that puts priority on state security is soon in a situation where torture can begin to seem tempting. This is especially the case once state ideology makes it possible to cast some group within the populace as part of the enemy.

European Colonialism and Torture

Of course, even as European powers were abolishing torture at home, their colonial forces were often still using torture abroad. [18] The nature of colonial governance was such as to grant colonial rulers relatively absolute power, which facilitated abuses of authority that included torture. These were especially likely given the racist and ethnocentric attitudes of colonial rulers. Colonised peoples were legally powerless against these abuses, facilitating them all the more; and if they opposed abuses in the only way they could through revolutionary movements, this gave rulers all the more supposed reason to use torture.

Peters also suggests that police forces of the type European colonisers imposed on their colonies were a new form of power in many colonial settings. As a result, there were no clear conventional restraints on the police forces as would have existed, for example, in Britain based on centuries of experience with these institutions. [19] The lack of established restraints on police forces may also have been important in facilitating their use of torture.

Apartheid Policing in South Africa

Torture was used in South Africa under Dutch colonialism. Under Dutch law at the time, torture was permissible to extract confessions. However, when the English took South Africa from the Dutch, they apparently attempted to abolish torture. Torture returned, however, after South African independence and the development of the apartheid regime.

Under South Africa’s apartheid regime, with tens of thousands of political detentions to protect an undemocratic regime, torture was both widespread and systematic.[20] Under the infamous "Ninety-Day Law" which permitted incommunicado detention of political prisoners without trial for 90 days, security forces enjoyed circumstances that facilitated torture and other gross human rights abuses. These methods of torture included beatings, electric torture, suffocation, mental torture, posture torture and sexual torture. [21] Such abuses became rampant, not only against political detainees, but also against ordinary criminal suspects as an entrenched pattern of police conduct. [22] Several factors emerge as having contributed to torture: incommunicado detention, state security in defence of an undemocratic regime and the entrenchment of habits of torture.

South Africa’s Truth and Reconciliation Commission, conducting a wide-ranging inquiry into human rights abuses in South Africa, also recognised that torture has continued past the apartheid era. Referring to the early 1990s, its report described "ongoing reports of torture and deaths in custody, which have reached alarming levels. . . . It has been suggested that such methods were and are routine methods in police criminal investigations and to a large degree replace routine investigative work." [23] This parallels the insight of Basil Fernando in the Asian context: "Wherever there is torture, there is an underdeveloped criminal investigation system." [24] There is an interaction between dysfunctional criminal investigation systems that lead police to use torture and impunity for torture, which, in turn, makes it more difficult to improve the criminal investigation system. Theoretical examination of the South African experience today thus confirms suggestions that an underdeveloped criminal investigation system can be a factor that encourages police officers to engage in torture. South Africa has made improvements in its police training along with the establishment of civilian oversight over the police and a specific anti-torture policy with safeguards on all detentions an important element of overcoming its violent past.

Unsupervised Police Forces in Russia and the United States

As hinted at already with reference to South Africa, a lack of supervision over the police can be a factor as well, especially in situations of incommunicado detention. Historians also point to examples where independent, unsupervised police forces have engaged in brutality. [25] In the United States, there was much attention in the early 1930s to the "third degree," referring to the beating of suspects and other forms of brutality by the police to try to get confessions. The police attempted to get confessions outside any judicial knowledge of torture. Because they were so independent and unsupervised, they were in a position where they could turn to brutality. Historians also say that this was how the police returned to torture in Russia in the 1860s and 1870s despite an official abolition of torture. The police were entirely independent and began using more brutal methods. After 1881, the Russian czar Alexander III created a secret police, the Okhrana, to fight terrorism, and the use of torture increased even more. An unsupervised police force may thus be a factor facilitating torture.

Military Policing in Greece

A section of a report by Amnesty International (AI) about Greece described [26] how torturers were made in that country through the formation of elite military police units indoctrinated to see themselves as saving the State from its enemies. It was also through the particular training and rewards given to members of these units. In their training, members of these units were trained to ignore pain and underwent various forms of humiliation that was designed to make members of the units bond together. They also received special privileges and rewards, such as cars and vacations, so long as they remained in these units. Police training and the police system can affect individuals in major ways. As Peters has described this context, "Torturers are deliberately trained in such a way as to alter their personalities, make them accept a fabricated political reality in which their victims have been set outside the pale of humanity and sustain this illusion by both coercion and reward." [27]

The Psychology of Torturers in Brazil

Martha Huggins has undertaken a study in Brazil in which she attempted to interview police officers who had used torture during the military dictatorship. She did so by seeking interviews with police officers at stations known to have been places where torture had been used, thereby getting some to admit in their interviews that they had themselves been torturers. [28] This is an interesting study because it helps to shed some light on how the individual torturers explained or rationalised their behaviour.

This study revealed four broad ways in which torturers explained or justified their conduct: (1) blaming others, such as by saying that the victims had brought it on themselves through their behaviour; (2) diffusing responsibility, such as by saying that the individual torturer was only part of a group that had used torture; (3) arguing a "just cause," such as by saying that the situation was equivalent to warfare and that torture was part of a patriotic duty; and (4) citing a professional mandate as a police officer (which Huggins links with police autonomy insofar as police autonomy allows the construction of a different ideology that would expound on this autonomy).

Modern Torture

Evans and Morgan have tried to set out the features of the modern form of torture in a very generalised form.[29] They see it as having re-emerged in the service of new state ideals, shaped by new technologies of power and linked with globalised violence. Torture is used for a variety of purposes, both to get a response, such as information, from an individual victim and to send a message of terror to dissenting groups by punishing some people. It is generally, though not exclusively, status-related and directed against marginalised groups. The time of initial police custody is the time of greatest vulnerability.

According to Evans and Morgan, modern torture differs from torture in the past in that, although States secretly see it as appropriate in desperate circumstances against crime and terrorism, they officially deny it. As a result, torture is secret rather than open and hidden rather than rule-governed. Thus, it is facilitated, especially by conditions like incommunicado detention. This makes it difficult to end the practice because it first needs to be exposed. In the end, modern torture functions as a tactic of state control that limits democratic participation.

Recommendations of the U.N. Special Rapporteur

Aside from the kind of theoretical writing we have examined thus far, we can also draw insights from reports of bodies concerned with work on torture issues. They work with the issues and often make comments that reveal their perspectives on circumstances that facilitate torture.

Recent reports from the U.N. special rapporteur on torture have referred to particular factors as facilitating and encouraging torture. The special rapporteur has drawn special attention to incommunicado detention as a particular factor facilitating torture on various occasions. The 1999 report states, "Based upon information received over the course of the past seven years, the special rapporteur is of the view that incommunicado detention is the most important determining factor as to whether an individual is at risk of torture. As such, the special rapporteur reiterates the recommendation of his predecessor and urges all States to declare incommunicado detention illegal." [30] However, this is still not the only factor, and there is recognition of the web of factors. The 1999 report, for instance, adds that "the special rapporteur is of the view that impunity continues to be the principal cause of the perpetuation and encouragement of human rights violations and, in particular, torture." [31]

Some of these have been consistent themes over time for the special rapporteur. The special rapporteur’s first report in 1986 recommended certain steps to deal with the issue of torture: criminal prosecution of those who engage in torture; the exclusion of evidence extracted under torture; restrictions on incommunicado detention; protections of habeas corpus; restriction of interrogation to official interrogation centres; the recording of interrogations where possible; the training of security personnel; regular visits to detainees by a commission dealing with conditions of detention, which would include medical personnel; judicial inquiries into any reported cases of torture; compensation for torture victims and their families; and restrictions on the trade of material and equipment used for torture. [32]

We can draw from the recommendations a number of concerns, especially about circumstances of impunity and incommunicado detention, for each of these issues would sustain several of these recommendations.

The European Committee for the Prevention of Torture

The European Committee for the Prevention of Torture is an interesting body under the auspices of the Council of Europe that is concerned especially with trying to prevent torture. [33] It is meant as a non-judicial preventive mechanism against torture, a complement to the judicial mechanism under the European Convention on Human Rights that provides remedies to those who have already suffered torture. It works cooperatively with States, assisting them in finding ways to respect rights, rather than through public condemnations. This is largely through a programme of visiting detention centres in the relevant States and reporting on these visits and recommendations that flow from them to the States.

The committee has, in the course of its work, identified certain safeguards as especially fundamental. For those in police custody, the committee has identified three fundamental safeguards against ill-treatment that should be protected from the moment of deprivation of liberty: "the right of the person concerned to have the fact of his detention notified to a third party of his choice (family member, friend, consulate), the right of access to a lawyer and the right to request a medical examination by a doctor of his choice (in addition to any medical examination carried out by a doctor called by the police authorities)." [34]

However, the committee has considered other safeguards also to be important. These include: informing detainees of their rights; rules on interrogations and records of interrogations; the establishment of custody records; and the existence of an independent complaint mechanism concerning abuse while in police custody. [35] These recommendations reveal again that circumstances of more secret detention are circumstances of concern with respect to torture.

Discussion on Torture Prevention in South Asia

We can also gain some perspective from others who have discussed factors conducive to torture. One organisation that has been prepared to take such an approach toward torture is the Association for the Prevention of Torture, which has participated in discussions on the issue in various regions, including South Asia.

Walter Kaelin, vice president of the Association for the Prevention of Torture, delivered the concluding remarks at the South Asia Seminar on the Prevention of Torture in Kathmandu, Nepal, on Sept. 9, 2000. He listed key factors that have been conducive to torture in South Asian countries:

• anti-terrorist, emergency and similar laws (the practice of not registering an arrest at the time when it is carried out, of not promptly informing relatives about an arrest, of not conducting and registering medical examinations of those arrested, of not allowing arrested persons to access a lawyer or even of using forms of deprivation of liberty that amount to detention but are not recognised as such)
• delayed decisions about granting compensation to victims of torture and ill-treatment (weak supervision of higher police and administration of prison agencies, corruption and legal or de facto impunity of perpetrators)
• lack of political will and action to combat and eradicate the practice of torture [36]

Some of these factors, of course, need to be broken down further. For instance, as discussed earlier, to merely say that there is a "lack of political will" does not tell us anything about how to end the lack of will. Consequently, some of these factors need a deeper investigation. However, they too can enrich our theoretical framework and help identify some factors.

AHRC Lessons on Torture

We can also recall factors that AHRC has mentioned previously. In a Human Rights Correspondence School lesson on torture, AHRC highlighted a number of factors conducive to the occurrence of torture. [37] These include:

• an undemocratic and non-transparent government
• police or military personnel who are not under government control (including a lack of control due to low salaries or corruption)
• organised crime operating with impunity
• an inability to organise citizens’ groups to oppose torture
• perpetrators of torture who are not tried or removed from society
• cultural or religious support for torture
• undemocratic legislation to prevent human rights advocates from speaking out against torture

Again, these factors could be broken down further. Some of them reflect, in turn, other laws or other issues. The non-prosecution of perpetrators, for instance, needs to be considered further, for we need to consider why there is no prosecution in these cases. However, considering these various theoretical materials together, we can begin to create a picture of circumstances that facilitate and encourage torture.

Conclusions

From a variety of theoretical sources, we can thus summarise some of the factors that have historically or currently facilitate torture in States around the world. Some of the factors overlap between categories, like legal and social factors, which is not surprising since law is part of society and society determines law, but we can now roughly group the factors.

Some of these are legal factors that can include: an emphasis on confessions in the law of evidence; the legal powerlessness of some people; a lack of legal protections, like habeas corpus; laws limiting the ability of people to protest against abuses; legal impunity for perpetrators; and excessive emergency legislation.

Some are factors related to the police force: use of incommunicado detention; a lack of investigation skills; a lack of independent supervision over the police and detentions; a lack of conventional restraints on uses of police power; a lack of record-keeping related to detention and custody; and inappropriate militarisation of the police.

Some are social factors: a lack of societal awareness on torture issues; cultural support for torture in some circumstances; ideologies of state security; concentrations of absolute power; and a lack of contesting power in groups of the people who might be subject to torture.

Some are factors more at the psychological level: use of involvement in a group to try to rationalise conduct; the effect of ideologies that can be used to rationalise torture; and specific training for torture.

All of these different kinds of factors can contribute in different ways toward facilitating and encouraging torture. A society determined to end torture ought to think about how to structure itself as a society without these factors or with careful controls in response to these factors.

Taking meaningful action against torture also requires understanding that this variety of factors can conspire in various ways to facilitate and encourage torture in a particular State. The experience of a particular State will be particular to it. These factors are not some magic checklist, but States may fit broadly into similar patterns. Realising the presence of these patterns elsewhere can increase our understanding of the problems and potential solutions as well as helping to inspire global solidarity on torture issues.

III. Sri Lanka and Malaysia

Sri Lanka and Malaysia are two Asian countries where torture continues to be perpetrated. They are by no means the only two Asian countries where torture is perpetrated, for torture presently plagues many countries in the region. They are, however, two Asian countries where torture is a serious issue in different ways. If we can use some of the theory in Part II to better understand these States, we have already accomplished something, and we can endeavour to work on the specific issues of other States in other papers. This section thus seeks to examine some of the patterns of factors that seem particularly relevant to torture today in Sri Lanka and Malaysia.

This section is based on secondary sources rather than on any form of direct fieldwork. Nonetheless, it will hopefully contribute toward an understanding of how torture is perpetrated in both Sri Lanka and Malaysia despite the law formally being opposed to torture. It may not identify every factor, but some of the factors that facilitate and encourage torture emerge readily from these secondary sources. The presence of these factors shows how Sri Lanka and Malaysia both fit within the patterns identified by theory, though in slightly different ways, which is suggestive of how the theory can be a starting point but also how we need to carry out a careful micro-study of particular situations.

This section will thus seek to identify some of the key factors that seem to be at work in Sri Lanka and Malaysia that facilitate and encourage the ongoing use of torture. The issue in Sri Lanka is oriented largely around dysfunctional police forces gone wrong and impunity for torturers while the issue in Malaysia revolves around national security legislation that facilitates torture and makes it difficult to expose and fight. Some of the complexities, however, can unfold only as we examine these States more closely, and it is to this exercise that we now turn.

A. Sri Lanka

Sri Lanka is known as a country with serious human rights issues in the context of its ongoing civil war over the past few decades. It is a country where there have been killings, gross human rights abuses and tens of thousands of disappearances. Yet today Sri Lanka is in a time of hope. With a cease-fire declared and peace negotiations scheduled, there are prospects for resolution of the long-standing conflict and the abuses linked with it.

The hopes of human rights will be fulfilled fully only if there is a frank recognition of the depths of the problems in Sri Lanka. Human rights abuses, like torture, have been pervasive in the context of the civil war but have also infected ordinary policing. Today there is a situation of impunity for torturers despite legislation designed to make torture a serious crime. This section explores some of the factors that facilitate and encourage torture and this ongoing impunity. These include: incommunicado detention and other forms of lack of oversight of the police; the militarised nature and ideology of the police and its consequent failure as a police force; the ways in which the Sri Lankan police function like a "gang"; and a lack of public consciousness on torture issues.

Impunity for Torturers despite Legislation against Torture

Sri Lanka has legislation that has been enacted that is directed against torture and police brutality. This is in the form of both specific anti-torture legislation and in the form of other laws, such as the law of evidence that has been designed to try to discourage torture. Nonetheless, there is no question that torture is perpetrated in Sri Lanka on a widespread basis. AHRC has documented dozens of cases of torture in ordinary criminal investigations, let alone torture in the anti-terrorism or military context of the war. The section of AI’s 2002 report on Sri Lanka explains: "Torture continued to be reported on an almost daily basis." [38] Sri Lanka’s president has even recently admitted to AI, which expressed concern over the reinstatement of police officers who have committed human rights abuses in the past, that the government continues to violate human rights and victimise people.[39] The goal in the section of this paper dealing with Sri Lanka will be to identify some of the factors facilitating and encouraging torture even when it is formally illegal in order to help identify what must be done to end torture in Sri Lanka.

It helps to consider briefly Sri Lanka’s anti-torture legislation at the outset. The key piece of legislation is Act 22 of 1994, entitled the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Act. The act begins with immediate promises of accountability:

1. any person who tortures any other person shall be guilty of an offence under this act;
2. any person who (a) attempts to commit; (b) aids and abets in committing; (c) conspires to commit an offence under subsection (1) shall be guilty of an offence under this act.

The act is not a long piece of legislation. There are some additional provisions related to jurisdiction and certain technical matters, and there a few more key provisions that are meant to ensure serious accountability for torture:

5. an offence under this act shall be a cognisable offence and a non-bailable offence within the meaning, and for the purposes, of the Code of Criminal Procedure Act, No. 15 of 1979.

For the avoidance of doubts, it is hereby declared that the fact that any act constituting an offence under this act was committed

a. at a time when there was a state of war, threat of war, internal political instability or any public emergency;

b. on an order of a superior officer or a public authority shall not be a defence to such offence.

4. A person guilty of an offence under this act shall on conviction after trial by the High Court be punishable with imprisonment of either description for a term not less than seven years and not exceeding 10 years and a fine not less than 10,000 rupees (US7) and not exceeding 50,000 (US6) rupees.

In other words, every act of torture is supposed to be a very serious offence for which the perpetrator should be prosecuted and imprisoned for at least seven years and fined. Formally, Sri Lanka thus has a powerful law against torture.

However, a law alone does not mean that a practice will end, particularly if it is facilitated or encouraged in other ways. Sri Lanka’s police tasted blood when it became involved in the tens of thousands of disappearances that have been documented in Sri Lanka. While there were always formally laws against murder, and thus of extrajudicial killings, other aspects of the law facilitated these disappearances. This was particularly the case when officers over a certain rank were given the authority to dispose of dead bodies without any coroner’s report, which effectively authorised them to perpetrate disappearances. Consequently, while a formal law against murder existed, other factors in the system were actually facilitating and encouraging disappearances. Therefore, while there may be a formal law against torture in Sri Lanka, we must also probe below the surface to see how the system truly deals with torture.

Just slightly below the surface, the problem in Sri Lanka is that the anti-torture legislation is not enforced. At this writing, despite numerous cases with solid evidence, there has never been a conviction under Act 22 of 1994. Of course, to say simply that the legislation is not enforced does not so much identify the cause of the problem as the consequence. We need to probe more deeply behind this factor to examine why this kind of impunity exists. Perpetrators of torture do not face repercussions. Why not? This section on Sri Lanka and the pathology of a system is an attempt to help answer this question. We must probe deeply into this pathology and not be content simply with what we see at or near the surface. We can see at once though that the formal law is less significant than it looks when there is no enforcement of its sanctions.

Sri Lanka’s law is also directed against torture in another way, which is in the law of evidence. We can recall from the historical experience in Europe discussed in Part II that England’s criminal justice system was less dependent on confessions and that this made torture unnecessary and discouraged it. In fact, under common law, confessions were not even usable as evidence. Only by way of the 1898 Criminal Evidence Act [40] did English statute give criminal suspects the option of confessing to the police.

Sri Lanka generally adheres to a legal position on confessions comparable to the old English position, one designed to help limit police brutality. Under Section 25(1) of Sri Lanka’s Evidence Ordinance, "No confession made to a police officer shall be proved against a person accused of any offence." Under Section 26(1), "No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a magistrate, shall be proved as against such person." In other words, confessions that the police extract by any means should not be useful to them, and they should not have an incentive to torture for the sake of extracting a confession.

First, we should note that this law of evidence applies only in the ordinary criminal context. Section 17 of Sri Lanka’s Prevention of Terrorism Act (PTA), to be discussed further below, overrides these sections of the Evidence Ordinance in the contexts covered by that legislation. However, at least in the ordinary criminal context, it would seem that the Evidence Ordinance should remove the incentive to torture for the sake of extracting a confession.

In reality though, the police can still gain an advantage from extracting a confession. Some observers note that information extracted through torture as the most common method of criminal investigation can serve as a shortcut to other witnesses and evidence (and the police may be using torture only against a prospective witness), [41] meaning the police still gain an advantage. When the police are dealing with disempowered people who do not know their legal rights, they can also use the confession as a powerful tool to encourage a plea bargain arrangement. Thus, although the law is supposed to mean that the police do not gain an advantage, they actually still gain an advantage by extracting a confession.

With both Sri Lanka’s anti-torture legislation and with its law of evidence meant to help prohibit police brutality, we need to look carefully beyond the formal law to the real incentives that exist, to the real situation that affects the plane of action. Indeed, there are ways around these laws so they are less effective than one might think at first glance. Let us turn now to other considerations that also facilitate and encourage torture despite these laws and that help to undermine laws meant to end torture.

Incommunicado Detention

Incommunicado detention, as noted in Part II of this article, has been recognised as an important factor that can facilitate torture. Forms of incommunicado detention exist in Sri Lanka, formally in the military context and less formally, but just as real, in the ordinary criminal context.

In its military context, Sri Lanka enacted the Prevention of Terrorism Act (PTA) Act 48 of 1979 that allows for incommunicado detention. After being detained for up to 72 hours by police authorisation (Section 7), the minister may order a further detention of up to three months "in such place and subject to such conditions as may be determined by the minister" (Section 9). Moreover, the detention can be extended three months at a time for up to 18 months with no judicial involvement. Such orders "shall be final and shall not be called into question in any court or tribunal by way of writ or otherwise" (Section 10). There are further detention possibilities under the Emergency Regulations.

Massive torture has been perpetrated in this military context. According to the bishop of Mannar concerning this issue, about 240 victims of torture are brought monthly to Sri Lanka’s public health institutions for treatment. In a statement to Action de Chretiens pour l’Abolition de la Torture (ACAT), Bishop Rayappu Joseph has suggested that the true figure of torture victims is even higher:

"Those not brought to these institutions, I am certain, would be several times this number [240 torture victims per month]. The types of torture resorted to by the national armed forces and prison authorities on Tamil suspects and prisoners in remand are horrible and beyond description. Tamil youths are indiscriminately arrested on the slightest suspicion, kept for months and years without proper inquiry and are subjected to inhuman torture until they accept false accusations made against them. Thousands of Tamils are still languishing in detention centres and prisons." [42]

The bishop also stated that most torture victims in Sri Lanka’s war zones would not reveal their experience, even to judicial medical officers, because they had received death threats from the perpetrators. This is thus an incommunicado detention that continues, even when there is formal contact with a medical officer. We need to be prepared to look at incommunicado detention in such wide terms. After all, even if there is no formal legally permitted incommunicado detention, there may informally still be effective incommunicado detention.

Such is the case in the ordinary criminal context in Sri Lanka. In theory, the police are not supposed to hold suspects incommunicado. In reality, there is a period during which they do. Part II mentioned that the time of greatest risk for torture is at the time of initial custody. It is at this time that the Sri Lankan police effectively manage to hold people in what is, in essence, incommunicado detention.

In case after case where there is a fundamental rights application before the Sri Lankan Supreme Court alleging a breach of people’s constitutional rights against torture under Section 11, there is a simultaneous claim for the breach of other rights. The other rights breached along with Section 11 almost invariably include Article 13(2) concerning the mode of arrest, for those arrested are routinely arrested in some improper way with no notice of their rights and often by police officers in civilian clothing who do not handle the case in an official manner.

This can create an effective incommunicado detention. Relatives and other witnesses may only have seen the person dragged off in a jeep. The detainee will not have a chance to have access to legal or medical personnel. Under these conditions, police officers will have ample opportunity to make use of torture techniques before any formal mechanisms of legality are involved. Therefore, in the ordinary criminal context too, there can be an effective incommunicado detention during the initial period of arrest.

In the context of the current peace process, there have been discussions about reviewing the PTA. To review and change this legislation would be a kind of "peace dividend." In the absence of a people-centred peace, however, there will remain formal legal authorisation for incommunicado detention, an important factor facilitating torture. Even with changes to the PTA, there will need to be more changes to eliminate informal incommunicado detention in the ordinary criminal context, which relates to the general question of oversight of the police from the moment of custody.

Lack of Independent Oversight of the Police

These forms of incommunicado detention are in a context where there is very limited independent oversight of the police. Following earlier government reports on police reform that had recommended oversight mechanisms, panels were established to hear complaints, but these panels were still composed primarily of police members so they were still not independent or seen to be independent.

Today Sri Lanka has a National Human Rights Commission (NHRC), but there are concerns about its approach in torture cases. In particular, it has often proceeded toward the settlement of torture cases as opposed to helping to pursue a full public inquiry and criminal prosecution. This approach helps torture cases remain secret and indirectly leads away from, rather than toward, full accountability. AHRC has objected to this practice. For now, it means that the NHRC is playing a less vibrant role than it could in terms of providing some degree of independent oversight of the police. [43]

Recent government-commissioned reports about disappearances in Sri Lanka, a different issue, but an issue raising the same concerns, have also advocated for independent oversight of the police. They have urged the keeping of careful custody records, the creation of a lay visitor panel to help monitor detentions and the establishment of an independent investigation and prosecution unit to deal with complaints against the police. In a frank recognition that much needs to be done to give individuals the power to complain against the State, they have also urged that citizens’ advisory offices be established and that state funding for habeas corpus applications by people in detention be made available.[44] This last point is particularly important. All the rights that formally exist and in theory will do no good if there is not access to justice for the impoverished and disempowered citizens of Sri Lanka.

A lack of supervision of the police, like incommunicado detention, which is a type of lack of supervision, is a risk factor for police brutality as identified in Part II and may be a factor facilitating torture in present-day Sri Lanka.

The Military Role and Nature of the Police

Another factor that can facilitate and encourage torture is an overly militarised police force, especially if it is immune from oversight. This factor too is present in Sri Lanka. Given the civil strife in Sri Lankan society over the last few decades, security forces have faced enormous challenges. In facing these challenges, the police have become militarised to some extent. However, looking further back in Sri Lankan history reveals that the militarisation of the Sri Lankan police has deeper historical roots.

Throughout the 1900s, Sri Lanka’s police forces have been called upon to serve in riot control and paramilitary operations. Government-commissioned studies have recognised this development as having had consequences for the nature of the police. Indeed, the 1946 commission report on the police discusses how the police had fallen into a "riot complex" after the need to control riots earlier in the 1900s. This had led to the police being "shaped and trained mainly to meet the emergency of riots," manifested partly in the emphasis placed on military parades and drills which "occupied most of the time of members of the force." [45] This same theme has appeared in later commission reports on the Sri Lankan police as well. The 1970 commission report again mentioned too much effort going into military parades and drills as well as overly military-style uniforms, which we can interpret as indicating an overly military character to the police.[46] The recent 1995 committee report also mentioned concerns about the police being turned into a military force through the specific creation of full-fledged paramilitary police units in response to recent civil strife. [47] Thus, official government studies recognise that Sri Lanka’s police forces fell into a more military character early in the 1900s and have not escaped this confusion of role.

This is how the Sri Lanka police force currently describes itself on its web site:

"Currently, the police are engaged in a paramilitary role, dominating the areas recaptured from the terrorists. This has necessitated the police to undergo special training to use highly sophisticated weapons. The Special Task Force (STF), the elite paramilitary unit of the police set up in 1983, is totally committed to military operations, and they dominate a major portion of the Eastern Province. They also play a significant role in providing VIP security.

"The police force today has deployed almost 30,000 police personnel to face the challenges posed by the terrorists in the Northern and Eastern provinces. This is in addition to their normal commitments of law enforcement in the rest of the island." [48]

Clearly, the police have begun to see themselves as engaged in a special mission and following a paramilitary approach.

The use of paramilitary approaches can open possibilities for the abuse of police powers in a variety of ways. Some of these flow obviously from the fact that war is a blood-soaked operation. Others are more subtle. Sri Lankan newspapers reported recently on one police division in Sri Lanka where an order had been issued for police personnel to be in uniform at all times while on duty. In the past, police officers had often worn civilian clothing in order to be less identifiable to military attackers. However, police officers wearing civilian clothing have also been accused of criminal activity. [49] In many torture cases that AHRC has documented, police officers have come to individuals’ homes in civilian clothing, taking advantage of that military prerogative but ending up with greater anonymity to engage in torture. Thus, the militarisation of the police is of serious concern for a variety of reasons.

As identified in Part II of this article, these are factors conducive to the police moving toward the use of torture. Military-type attitudes among police officers represent a breach of an important separation between different kinds of security forces that should function in different ways. Therefore, the militarisation of the Sri Lankan police can be a factor contributing toward torture.

Lack of Investigative Skills

A related aspect of the nature of the Sri Lankan police is a lack of investigative skills. This is not surprising. The police have been recruited and trained as soldiers. To be an investigator of crimes involves different skills than to be a soldier. Sri Lanka’s Commission of Inquiry into Involuntary Removal or Disappearances of Persons has noted this: "The long years of recruitment and training of [police] recruits as assistance to the military in border areas has resulted in a police force sadly deficient in the requisite skills in investigation." [50]

The Sri Lanka police force’s own statistics show that it solved only 2,174 of 4,281 serious crimes reported in the first six months of 2001, or about 51 percent, [51] and this statistic counts as "solved" cases where the police were able to beat a confession out of someone who might have been innocent, meaning that the figure of crimes actually "solved" is actually lower. This overall statistic also hides large variations with some police divisions reporting official rates of crimes solved at lower rates — some even less than 20 percent.

A lack of investigative skills, as noted in Part II, is a risk factor for torture. Police officers who lack the skills to investigate crimes in other ways will feel driven to try to coerce confessions out of suspects. Confessions may become the only means of proof, as was the case in medieval Europe, but not because the law does not allow for other means, but rather because the police do not possess the skills needed to deal with other kinds of evidence. By not facing the necessary requirements of a police force directly, the criminal justice system of a society can revert to feudalism.

The ‘Gang Behaviour’ of Sri Lanka’s Police Forces

AHRC has used the term "gang behaviour" to describe the conduct of Sri Lanka’s police forces. This has stemmed from a particular pattern in the conduct of the police, though we might well apply it more broadly. Based on a survey of dozens of torture cases in the course of ordinary criminal investigations, AHRC wrote the following:

"In the case of Gerard Perera, about eight people participated in torturing him. He was hung and assaulted by the group. The case of Gresha de Silva was similar. He too was hung and beaten up by a group. The beating was stopped when they obeyed a command. When the body was to be taken down from the hung position, they obeyed. When the body was to be hung and assaulted, they did that also.

"In the case of Nandini Sriyalatha Heart, the behaviour of a male gang was very evident. One officer, on seeing the woman as their victim for that particular evening, said, ‘Today we have a good bite.’ They all participated in beating the woman, in stripping her, and watched while one officer put a pipe-like object into her vagina. They continued to beat her even after that. At a later stage when one officer wanted to beat her up again, another signalled him not to, and he stopped. Thus, the group did work according to commands.

"In the case of Lalith Rajapakse too, it was just routine behaviour of the gang at that police station to spend the evening beating up people. A similar pattern is shown in cases from the Ja-ela police station. When the case of Angelina Roshana came to light, it was revealed by a woman warden who did not want to be named that within the few days before Angelina’s incident two other woman were brought to the same police station and they were stripped, hung and beaten up. Such seems to be the evening pleasures of these officers.

"In all cases, AHRC has recorded torture took place at night, and it was done by more than one person. In most cases, there were also references to officers who were consuming liquor. [52]

There is something about working in a group that can facilitate and encourage torture. As we noted above in Part II in the section on the psychology of torturers, torturers can try to rationalise their behaviour by saying that they were not alone in conducting the abuse. In South Africa, when the police force implemented an anti-torture policy, one element of this policy was a rule that interrogations must not be conducted by more than two police officers at a time. There is something about police officers conducting interrogations in larger groups that can help break restraints on torture. Where Sri Lankan police officers conduct interrogations in groups of eight or more, this is a factor facilitating and/or encouraging torture as a kind of gang behaviour.

Ongoing Impunity for ‘Gang Members’

The Sri Lankan police function like a gang in another way as well. This is in the protection they are able to give to their members and the impunity they thus attempt to assure to perpetrators of abuses.

Something is very wrong inside the Sri Lankan police forces. H. M. G. B. Kotakadeniya, deputy inspector general (DIG) of the force, recently accused his own police force’s officers of being involved in underworld activities, such as running brothels and drug trafficking. The response from the inspector general of police (IGP) was not to say that such activities must be investigated and rooted out but to deny that they exist and to begin to make threats against the DIG who had revealed them. [53] This is the kind of self-protective instinct that seems to be regularly at work in the Sri Lankan police forces.

Why do complaints that police officers have engaged in torture go nowhere? In some cases, the senior gang members may have actually ordered the torture. Consider this report:

"Girissa de Silva was the manager of the Green Garden Hotel in Katugoda. He was taken into police custody on March 22, 2002, together with one Buddhika, a relative of his, while travelling in a three-wheeler taxi by police officers from the Habaraduwa police station. Both of them were taken to the Habaraduwa police station in a police jeep. Both were asked to sit on a bench, and the officer in charge [OIC] — OIC of the police station — talked to someone over the telephone. Girissa heard the OIC saying, ‘We have brought in Girissa! OK, sir! Right, sir!’

"Then Girissa was told, ‘Tell the truth if you want to be saved.’ The officer was talking about a murder, which took place on March 9. Girissa answered, ‘On that day, I was with a group of tourists at Nuwara Eliya. I do not know anything about this.’

"Then the OIC took Girissa to the police barracks at Ahangama. Girissa’s cloths were removed by force. His hands were tied from the back. He was hung on the beams. He was beaten with wooden poles and S-Lon pipes by OIC Satisgamage, SI [Sub-Inspector] Ariyaratne, SI Lekamvasam, Sgt. Chandra Soma and others in civilian clothes. He was hung and beaten five times the same way by the same persons. He was also hung by the fingers. He asked for water and was told, ‘When you tell the truth, the water will be given." [54]

In addition to the shocking nature of this man’s ordeal by law enforcement officers, the startling detail here is that the attempt to extract a confession came after a telephone conversation with a superior officer in which the superior officer was obviously giving orders. We do not know what those orders were, but we can interpret from the results that the superior officer either ordered torture or gave orders he knew were likely to be implemented through torture.

Even if superior officers may or may not have ordered torture, they do not interfere with torture. In many cases that AHRC has documented, torture victims were screaming from the pain. Anyone in the police station would have heard and known that someone was suffering. Even if superior officers were not in the interrogation room, they knew that torture was being perpetrated. When complaints do not move forward, when officers are not disciplined, when police structures are not working to see that officers are criminally charged, superior officers are protecting their junior "gang members" rather than the people and the law of Sri Lanka.

Naturally, there are various mechanisms of impunity to protect officers accused of torture. First, the police may engage in outright thuggery in an attempt to preserve their impunity. These efforts, of course, can take place through unknown channels. In the Lalith Rajapakse case, the victim’s grandfather, Elaris Alwis, was threatened to withdraw the petition he had sent to the NHRC about the case. A neighbouring dry fish dealer, Lal Appuhamy, also swore in an affidavit that the police had threatened him with ongoing harassment unless he would agree to kill Alwis. [55]

The police may also alter their records in more subtle attempts to cover up what has occurred. This was a finding of the Sri Lankan Supreme Court in its recent decision in the case of Angeline Roshana Michael, who was severely tortured by the police after being accused of stealing a watch from the family for which she worked. After establishing that the petitioner’s affidavits were substantially true and the police counteraffidavits lacked credibility, Justice Fernando noted that he could not draw anything from the police records about the times of arrest. Justice Fernando writes of omitted periods in the certified copy of the police notes, adding that "it is far more likely that entries were made to cover up an illegal arrest on the 3rd [of December 2000]." [56] In other words, mechanisms of police impunity may extend even to the falsification of records.

More subtly yet, the police may attempt to alter evidence in deceptive ways that they hope will withstand the limited scrutiny they might expect. One way to do this is to try to hold detainees for a few days so that their wounds have time to heal. This is what appears to have had happened in the case of Brahmanage Aruna Sheron Suranga Wijewardane, who was taken into police custody at the headquarters of the Criminal Investigations Dept. in Colombo at 9:45 a.m. on Aug. 26, 2002. He was then hung and severely beaten by police officers, who also used a high pressure hose to spray water on Mr. Wijewardane’s genitals, causing him immense pain and making his genitals swell. Only at 7:00 p.m. on Aug. 27 was Mr. Wijewardane produced before a magistrate, who ordered that he be produced before the court the next day. The magistrate on Aug. 28 ordered that Mr. Wijewardane be immediately produced before the judicial medical officer (JMO). The police did not do so immediately though, presumably so that his wounds would begin to heal. On Aug. 30, AHRC issued a statement that brought attention to the case, [57] and their attempted subterfuge thus backfired, but a similar tactic undoubtedly works in other cases.

Consider the case of Jayakodige Anura Wijesiri, who was apparently tortured before dying in police custody. The police claimed he had committed suicide. After the family received an order from the magistrate for the JMO to conduct a second post-mortem after the district medical officer backed the police’s account, the JMO’s investigation was hampered. The body provided had two hearts and four lungs. The police had presumably decided to prevent any further inquiry from being undertaken by putting organs from other people into the body, thus covering up the truth about what had happened. [58]

Another approach that the police sometimes seem to employ is to generate their own medical evidence through which they can put on the record what they want on the record. Consider this edited extract from the facts of a case:

"The next day the petitioner was brought to the hospital and shown to a doctor. She inspected the petitioner and said that he needed to be admitted to the hospital. Then the officers took the petitioner back into the jeep and brought him near the police station. The first respondent got off the jeep and told the police constable who was on duty near the clock tower: ‘Go and get this job done and come.’

"The policeman got into the vehicle and took the petitioner to a house in Katukurunda. Then they took him into a room in that house. It was a clinic. The doctor there inspected him and wrote something on a paper. The petitioner told the doctor all the details of the police assault on him. The petitioner told him that he felt a lot of pain and asked him to prescribe some medicine, but the doctor did not give any medicine. He gave the paper he wrote on to the police."

While the people of Sri Lanka might rightly place their confidence in JMOs and in public hospitals, it is doubtful whether they can trust the special doctors that the police know and hope to use to get special reports. Again, the mechanisms of the police structure can find ways that might help to cover up what is really occurring.

This overview partly explains how the "gang" works. It tolerates no dissent. It seems to order torture in some cases and at least tolerates it in others. When inquisitive people ask questions, the "gang" finds ways to threaten them or to try to deceive them. Impunity works through a complex mechanism.

Lack of Public Consciousness about Torture

There is also support outside of the police for this ongoing conduct. According to some observers, one of the factors making it difficult to overcome torture is that even more informed and educated segments of society tacitly approve of torture as a method of criminal investigation. [59] We might even wonder if this is especially so among the so-called "informed" and "educated" segments of society. Although not universally so, torture is generally used against people from lower classes and castes. Ordinary people understand the pain of torture, for it is perpetrated on their communities. The elites may not have the same understanding.

Consider the recent complications that have arisen in the prosecution of perpetrators of the torture of H. P. Nandini Sriyatha Herat. [60] The attorney general was considering laying charges under Act 22 of 1994 when the DIG of police for Wayaba filed criminal charges against five police officers, including the OIC of the Wariapola police station. These charges though were for the comparatively less serious offence of causing simple and grievous hurt, the kind of charge that would be laid against a civilian.

Ordinary people, however, understand the seriousness of the conduct perpetrated by these police officers. A huge crowd of villagers came to the court and expressed frustration that these police officers would continue to serve as police officers. [61]

The elites, including powerful politicians, have naturally lined up with the police officers. As described in an AHRC press release, "The minister of women’s affairs, who lives very close to the police station where Ms. Heart was tortured and sexually harassed, has throughout tried to defend the police officers. When asked by the BBC Sinhala service whether she talked to the victim to find out her side of the story, she admitted she had promised to talk to the victim. However, the women’s minister has not yet spoken to the victim. Instead, it is widely believed that she is trying to protect the police officers."

The police are also trying to bring pressure against the DIG who brought even these fairly minor charges, and some people are supporting their effort. This reaction shows the lack of awareness about the realities of torture among many people in Sri Lankan society, not just including, but especially, its elites.

This too is a factor that facilitates torture. When there are attempts to overcome impunity, people whose consciousness has not been raised on torture issues may, at least secretly, support torture. It is difficult to get society to move unless there is consciousness-raising on the issue.

Consciousness-Raising and Overcoming Impunity

In a positive development, a struggle is under way in the Sri Lankan courts that is raising public consciousness about torture and is also beginning to overcome impunity for those who have perpetrated these abuses. Over the past few months, there have been a number of successful claims for compensation under fundamental rights applications before the Sri Lankan Supreme Court. The judges are clearly having their consciousness raised and are trying to send a message to the State that this conduct must end, for they are making orders for increasing amounts of compensation and are becoming more direct about ordering criminal investigations of perpetrators. This development is also gaining public attention and making people aware of this ongoing struggle.

It is helpful to see the progress over the course of just a few months through some of the verdicts that have been rendered by the Supreme Court during 2002.

Jan. 24, 2002: The Supreme Court (Justices Mark Fernando, Ameer Ismail and C. V. Wigneswaran) recognised rape in custody as torture for which the State is responsible. It awarded compensation of 150,000 rupees (US,758) and costs payable by the State to a woman who was raped in custody at the Maradana checkpoint. The State also indicated it would file criminal proceedings against two police constables and a soldier. [62]

Feb. 28, 2002: The Supreme Court (Justices P. Edussuriya, C. V. Wigneswaran and Asoka de Silva) awarded compensation of 25,000 rupees (US3) to M. D. W. Norman after he was arrested and assaulted by Kirulapona OIC Inspector Edirisinghe and six other officers before being released four hours later. The arrest was based on complaints from the OIC’s relative. [63]

May 1, 2002: A Supreme Court bench headed by Chief Justice Sarath N. Silva criticised the torture of suspects in police custody. This was in the context of a fundamental rights petition against the Ampara Special Investigating Unit by a Tamil youth in Batticaloa. [64]

May 2, 2002: The Supreme Court ordered compensation of 25,000 rupees (US3) to a Trincomalee resident, V. Vijayakumar, who was blindfolded and tortured by the police when he was arrested by the Countersubversive Unit in November 2000. [65]

May 12, 2002: The Supreme Court (Justices Mark Fernando, Ameer Ismail and C. V. Wigneswaran) awarded compensation of 25,000 rupees (US3) to K. H. Samankumar, a father of three children who was tortured during a six-month period of detention by the Terrorism Investigation Dept. The Supreme Court also directed the attorney general to consider withdrawing the indictment that had been brought based on the confession extracted. [66]

June 24, 2002: The Supreme Court (Justice Dr. Shirani A. Bandaranayake with Chief Justice Sarath N. Silva and Justice Ameer Ismail concurring in the judgement) awarded compensation of 25,000 rupees (US3) and 5,000 rupees (US) in costs payable by the State to Lance Cpl. W. A. D. Nilusha Hemali. She had been tortured by several army officers after she refused to make a statement against another army officer against whom they had a grudge. She was assaulted on her legs, arms and spine with a rod, had her arms pricked with a sharp instrument and was chained to a window and kicked.[67]

July 31, 2002: The Supreme Court (Justices Mark Fernando, D. P. S. Gunasekara and Hector S. Yapa) issued compensation orders against several high-ranking police officers. The judges held that the former director of the Criminal Investigations Dept. (CID), DIG Punya de Silva, and Bandula Wickremesinghe, a senior superintendent of police (SSP), had violated the fundamental rights of R. A. Saranapala through illegal arrest, detention and assault. Each defendant was ordered to pay 50,000 rupees (US6) personally and the State another 50,000 rupees (US6). The court also ordered a disciplinary hearing against the officers. [68]

Aug. 2, 2002: The Supreme Court (Justice Fernando with Justices Gunasekara and Wigneswaran concurring in the judgement) made an order of 70,000 rupees (US0) in compensation by the police and 30,000 rupees (US2) by the OIC who violated the fundamental rights of Angeline Roshana Michael by illegally arresting and beating her based on the complaint of her employer who alleged that a gold watch was missing. [69]

Aug. 21, 2002: The Supreme Court granted leave to proceed in the case of Shiran Sashika and Gamaarachchige Kasun Madushanka, 11- and 13-year-old boys who had been tortured by the Hiniduma police. The mothers of the children seek 1 million rupees (US,718) in compensation. The hearing will be held on Oct. 22, 2002. [70]

Aug. 23, 2002: The Supreme Court (Justice D. P. S. Gunasekara with Justices Mark Fernando and Ameer Ismail concurring in the judgement) ordered 250,000 rupees (US,929) in compensation and costs to Y. Vijitha in a sexual torture case. Of this amount, 150,000 rupees (US,758) is to be paid by Reserve Inspector Wijesekera of the Negombo police, SI Saman Karunaratne of the Terrorist Investigation Dept. and Inspector Solanga Arachige Muditha of the Negombo police in equal shares. The remaining amount of 100,000 rupees (US,171) is to be paid by the State. The court also ordered the attorney general to consider taking steps under Act 22 of 1994 against police personnel and others responsible. [71]

These latter cases were particularly horrific examples of torture. The two children tortured by the Hiniduma police were hung and beaten, had their hair pulled with pliers and had pins driven under their fingernails to try to force them to confess to stealing money from a canteen. The Aug. 23 case concerning the sexual torture of Y. Vijitha was also a gruesome example of the kind of crime being perpetrated:

"While she was inside the garage, the police accused her of being a LTTE [Liberation Tigers of Tamil Eelam] suicide bomber and assaulted her with a club on her knees, chest, abdomen and back that caused unbearable pain. After assaulting her, she was put in a cell in the Negombo police station and was detained there until June 28, 2000, on a Detention Order R2 issued by Daya Jayasundera, DIG of Western Province (Northern Range), under Regulation 19(2) of the Emergency Regulations for 90 days. While in detention between June 21, 2000, and June 26, 2000, she was subjected to torture. The petitioner alleges that her ear studs were removed and [her ears] slapped with force. Her face was covered with a shopping bag containing chilli powder mixed with petrol, which led her to suffocate. On one occasion, she was asked to remove all of her clothes except for her underwear and brassier, and her face was covered with a shopping bag containing chilli powder and petrol after which she felt a burning sensation all over her body. She was asked to lie flat on a table; and while four policemen were holding her, pressed to the table, four other policemen pricked paper pins under the nails of her fingers and toes. She was assaulted with a club and wires; and when she fell down, she was trampled with boots. On another occasion, she was hung; and while she was hanging, she was assaulted with a club all over her body.

"On or about June 25, 2000, the policemen who were torturing her asked her to place her signature on some statements prepared by them; and when she refused to sign, one policeman showed her a plantain flower soaked in chilli and said it would be introduced into her vagina unless she signed the papers. When she refused to sign, she was asked to remove her blouse and cover her eyes with it and asked to lie on the table. While she was lying down on the table, four policemen held her hands and held her legs apart, and the plantain flower was inserted by force into her vagina and pulled out for about 15 minutes. She experienced tremendous pain and a burning sensation. She became unconscious; and after a few minutes, she was asked to lie on the table until 9:30 p.m. After some time, some sheets of paper typed in Sinhala were brought by them, and she was asked to place her signature on them. Being unable to bear the torture, she signed them. The contents of the documents she signed had neither been read nor explained to her. After some time, she was put into a cell with strict instructions that she should not wash her genital region. When she was crying in pain inside the cell, one policeman on duty showed mercy on her and at about midnight permitted her to use the toilet. The acts of torture meted out to her as set out above have affected her physically and psychologically, and her matrimonial prospects have been shattered as a result of the mental and physical trauma that she has undergone at the hands of the police. She states that she is suffering from depression, a loss of sleep, a loss of appetite, a loss of concentration, fear and nervousness." [72]

The struggle in Sri Lanka’s courts thus continue against the most inhumane acts imaginable. As more cases are reported, public consciousness is raised, and the judges become more willing to send a message to the perpetrators of these terrible acts and the state mechanisms that allow them to do so.

Conditions have shifted a great deal from when AHRC began campaigning against torture in Sri Lanka. The insight that the country’s own law could be used is working to some extent. Clearly, torture can continue despite the existence of a law against it, but this does not mean that the law against torture is useless. On the contrary, groups in other countries might consider campaigning for similar laws against torture. Once such a law has been enacted, there is a new contesting power granted to groups struggling against torture. No longer are they demanding that the government follow an international standard; they are demanding simply that it follow the law. To whatever extent the courts are functioning properly, such a law can also provide a vehicle to bring torture issues before the courts and bring to bear a new source of pressure on the government to end torture. Such legislation will not end torture on its own, but it can be a major tool for advocates and part of a way forward.

There obviously remain challenges ahead, but there are hopes for both advocacy and change. This is not easy, for there is a deep-rooted pathology in the Sri Lankan police forces that must still be overcome.

B. Malaysia

Especially in the West, mention of Malaysia does not immediately awaken the same associations of grave human rights abuses as does mention of Sri Lanka. Malaysia is not involved in the same kind of internal conflict. Nonetheless, the conflict is arguably merely in different forms, and there is no question that Malaysia is a repressive state where serious human rights abuses, including torture, are perpetrated on an ongoing basis.

Malaysia has not signed important international human rights treaties, such as the CAT, but is nonetheless bound by jus cogens principles of international law. Torture is still illegal under norms of international human rights law.

Nonetheless, torture occurs in Malaysia as accounts from those who have experienced detention in Malaysia make clear and as the world learned through the publicity surrounding the abuse of former Deputy Prime Minister Anwar Ibrahim.

This section focuses on how the Malaysian State has set up a pretence of legality that facilitates and hides torture through the establishment of preventive detention under several laws. This is not real legality, however, for Malaysia has either tried to keep judges out of the issues or to get them to support the state ideology in their decisions. This set of laws also makes it difficult to fight torture. Marginalised groups lack contesting power, and these laws act to help repress anyone who speaks out on behalf of marginalised groups and detainees facing torture. This section will thus attempt to shed some light on how torture is perpetrated in Malaysia.

‘Security’ and ‘Emergency’ Legislation and Incommunicado Detention

Formally, Malaysia’s federal Constitution provides protections for human rights. For example, Article 5 protects the rights of those taken into detention:

5(1) No person shall be deprived of his life or personal liberty, save in accordance with the law.

5(2) Where a complaint is made to a High Court or any judge thereof that a person is being unlawfully detained, the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court and release him.

5(3) Where a person is arrested, he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.

5(4) Where a person is arrested and not released, he shall, without unreasonable delay, and in any case within 24 hours (excluding the time of any necessary journey), be produced before a magistrate and shall not be further detained in custody without the magistrate’s authority:

Provided that this clause shall not apply to the arrest or detention of any person under the existing law relating to restricted residence, and all the provisions of this clause shall be deemed to have been an integral part of this article as from Merdeka Day.

5(5) Clauses (3) and (4) do not apply to an enemy alien.

We can note that Subarticles (4) and (5) already begin to put limits on the rights in Article 5. The Constitution imposes further limits in Articles 149 and 150. Article 150 allows the proclamation of an emergency and then the derogation of rights. Article 149 allows limits on rights, which include Article 5 rights, merely for the protection of the public without any declaration of an emergency.

Based on Article 149, the government has implemented the Internal Security Act (ISA) of 1960 and the Dangerous Drugs (Special Preventive Measures) Act of 1985. Based on Article 150, the government has implemented the Emergency (Public Order and Prevention of Crime) Ordinance of 1969; and based on Article 5(4), the Restricted Residence Act of 1933 remains in effect. All of these acts were implemented long ago to deal with particular threats but still remain in force today.

These laws allow for preventive detention, meaning detention without charge. Essentially, the police can detain a person for up to 60 days on their own authority, and the minister can extend a detention for up to two years at a time. This is indefinite detention without charge. There is no requirement even to produce the detainee in court.

As noted above in Part II, the period of initial police custody holds the greatest risk for torture, yet this is the period in which there is absolute incommunicado detention under Malaysia’s laws. During the first 60 days of police detention (if there is authorisation by higher-level officers under ISA 73[3]), the detainee has no right of access to family members or even to legal counsel. Indeed, the police may choose not even to confirm that the person has been detained. The location of detention may be similarly secret. [73]

Even though the Malaysian Human Rights Commission (Suhakam) is supposed to have the right to visit detention centres (see Section 4 of the Human Rights Commission of Malaysia Act of 1999, Act 597), it has been denied access to detainees during initial periods of detention. Following the detention of activists under the ISA on April 11, 2001, Suhakam wrote to the police on April 13 indicating its intention to visit the detainees. It was not able to visit them though until May 29 and on that date was able to meet them only in the presence of police personnel due to so-called "security reasons." [74] This means that through a mixture of draconian security laws and delays in the face of human rights law the State is able to achieve an initial period of full-fledged incommunicado detention.

Extracts from the sworn testimony of some ex-detainees reveals what can occur during this first 60-day period in complete secrecy: [75]

"During the first two weeks of my detention, I was interrogated very vigorously by Special Branch officers about my personal faith and my religious activities. I was not allowed sleep for days at a stretch and was warned that I would not get my food if I did not cooperate. One inspector threatened to disturb my girlfriend. . . . On one occasion, I was knocked down to the ground, and I injured my back. Since then, I have been passing blood in my urine and have suffered pain in my lower back constantly. . . . On one occasion, [an] inspector . . . forced me to strip naked and enact the crucifixion of Jesus Christ. [He] also forced me to crawl on the floor in a naked state.

"A police officer put fear into me . . . by saying, "If I squeeze your balls, how long can you last?" . . . I was also subjected to the cold treatment during interrogations with very cold air directed through louvres onto my head causing me to shiver. . . . I experienced hallucinations and woke up in a cold sweat. For two or three nights, I hallucinated that a big cobra was crawling beside me. . . . It was under such harsh and oppressive conditions that I was requested to make statements.

"I was forced to stand on a leg with my arms outstretched and my head bent backwards for long periods until I collapsed onto the floor. . . . Immediately I was kicked by the police officer to stand up again on one leg, and this was repeated many times. . . . I was forced to walk blindfolded towards the wall, resulting in knocking myself against the wall, and this was repeated many times. The police officers stamped on my toes and fingers causing excruciating and prolonged pain. . . . I was forced to strip naked. A police officer . . . rolled a bundle of newspapers, lit one end and threatened to burn my genitals [by] bringing the lighted end close to my genitals."

This is the torture and degradation that the law conceals. Numerous accounts say that confessions are routinely extracted under duress during the detention periods provided by these laws.

The Pretence of Legality

All of these various forms of torture function in terms of a pretence of legality. The government is able to claim that detainees are merely being treated in accordance with fine-sounding laws with important objects and justifications, such as "internal security," "public order," and "dangerous drugs (preventive measures)." The reality is that detainees suffer the most illegal and inhuman abuses one can imagine and that there is inadequate protection of their legally entrenched human rights. The legality is all a pretence.

The government’s real attitude to the rule of law is apparent in the words of Prime Minister Mahathir Mohamad when the government amended the emergency legislation to try to abolish judicial review. [76] These amendments limit judicial review under the emergency legislation to procedural questions only. The prime minister explained why:

"The interventionist role of judicial decisions and the trends of foreign courts should not be copied because such actions were against the concept of separation of powers between the executive and the judiciary which was upheld in Malaysia. If the courts can reverse the executive’s decision, it would make it impossible for the executive to make any decision for fear that the courts would intervene." [77]

When a court actually released two detainees based on its remaining judicial power in cases of procedural error, the limited meaning of this judicial power became clear. In December 1997, a court upheld the habeas corpus applications of two Muslim academics, Prof. Lupti Ibrahim and lecturer Fadzullah Shuib, who had been detained a month previously under the ISA. The police detention order was not dated so it was procedurally flawed. Thus, the court had the power to release them. Both were rearrested, however, as they left the courthouse. [78]

The legality that this legislation implements is not the true rule of law. Nonetheless, the government is able to pretend to be acting in accordance with the law.

The Subversion of Constitutional Rights

Where they have not been cut out of the process, some judges have been sucked into the system that makes these pretences at legality and have rendered interpretations that have supported government repression.

Under Section 5(3) of Malaysia’s federal Constitution, people in detention are supposed to have the right to a lawyer, which would be an important protection for detainees. In practice though, they do not. The gap between law and reality does not come just from illegal government action. It also comes from the interpretation that certain judges have given to the constitutional guarantee.

In two cases in 1975 and 1977, the Malaysian Federal Court interpreted this constitutional provision. [79] The court said that, although this right arises immediately at the time of arrest, it should not be interpreted in such a way that impedes police investigations.

Even this expression of the principle may not differ from other countries where detainees do have access to lawyers. In Canada, a similarly expressed principle means that an impaired driver is not able to phone a lawyer immediately when his or her vehicle is stopped by police and when there is a roadside screening for alcohol. To interpret the right to counsel in that way would genuinely interfere with police investigations as it would delay the initial test and affect its results. However, once the driver is asked to go to the police station for further alcohol tests, there is a right to counsel. Consequently, the principle that the right to counsel does not override every facet of police investigation is accepted in other countries, but this does not mean that those arrested cannot contact counsel at all. Rather, there may be very temporary limits on the right to contact counsel, i.e., essentially to prevent the destruction of evidence.

The problem is that Malaysia seems to maintain that any contact with a lawyer impedes police investigations. Even for the NHRC, Suhakam, to visit detainees apparently interferes with police methods of investigation as noted above in the obstacles imposed on Suhakam’s attempts to meet ISA detainees. The lengthy denials of access to counsel after detention seem to assume that a mere consultation with a lawyer to ascertain one’s legal rights will interfere with the police’s ability to do their work. Clearly, this is a mistaken interpretation of the principle.

Marginalised Groups in Malaysia’s Immigration Detention Camps

Immigration laws allow detention similar to that allowed under the emergency legislation. The detention camps, housing thousands of detainees, have become places of abuse. Those detained are marginalised groups which are sometimes scapegoats for problems in Malaysian society or sometimes undocumented migrants. The detention of marginalised groups that society does not care about can have implications for torture in a country.

In 1995, Tenaganita, a Malaysian women’s group, published a memo detailing the abuses taking place in immigration detention centres based on information from several hundred detainees. Instead of confronting these problems, the government decided to prosecute Irene Fernandez from Tenaganita for allegedly maliciously spreading false news. Her trial is now in its sixth year.

Former detainees who have testified at the trial have confirmed accounts of beatings and sexual abuse in the immigration detention camps. Human Rights Watch has also published a report on the fate of the Rohingyas in Malaysia, many of whom have suffered in the camps. In interviews, it heard of guards beating prisoners with PVC pipe, rubber and rattan (palm branches), of rape and of detainees being forced to perform sexual acts with one another for the guards’ amusement.[80]

In the context of the reports of sexual abuse, Human Rights Watch has pointed to the recommendation of the U.N. special rapporteur on torture that female security personnel should be present during the interrogation of women detainees. This is based on the recognition that detention and interrogation by only male personnel "constitutes conditions that may be conducive to rape and the sexual abuse of women prisoners or the threat or fear thereof." [81]

Thus, there are serious concerns about the risk of torture faced by marginalised groups in detention in Malaysia. The situation of undocumented migrants has recently become even worse with new legislation subjecting them to caning if they do not leave and with deportations in conditions that risk the lives of those being deported.

In short, the pattern in Malaysia over the past several years has included the detention of people who belong to marginalised groups, a factor facilitating torture.

Restrictions on Advocacy

Malaysia’s government has restricted the ability of civil society groups to organise, thereby limiting the ability of people to contest torture and other human rights abuses.

For example, there are severe limits on the registration of organisations in Malaysia. Stringent conditions under the Registration of Societies Act mean many non-governmental organisations (NGOs) have tried to register under the Registration of Businesses Act. There are indications the government may now limit this approach and refuse those registrations. As in neighbouring Singapore, it may become very difficult to register a human rights group, thus to organise and to have full contesting power against human rights abuses.

This has extended to lawyers advocating for human rights. The government even brought sedition charges against Karpal Singh, one of the lawyers defending Anwar Ibrahim, for statements he made in court that suggested concerns about the process by which charges had been brought against Anwar. Such a move is of grave concern for the rule of law, which depends on the ability of lawyers to speak freely and to advocate strongly for their clients in court. [82] This is another variation on the limits on dissent, which are a factor that can facilitate torture by limiting the contesting power of people to protest against torture.

Punishing the Messenger

Limits on dissent highlighted in this section of the article are not related just to lawyers in the courtroom but are associated with human rights advocates more generally: those who speak out against torture are at risk from the state machinery that is interconnected with the torture machine.

When Tenaganita published a memo on abuses in immigration detention centres, Irene Fernandez, as noted above, was charged with committing a "crime." In this case as well as others, the State sought to punish the person who raised awareness about these problems. This prosecution has also created a state of fear among other activists.

Human rights workers from other Malaysian human rights groups have also been persecuted. On April 26, 2001, AHRC forwarded an urgent appeal about the ISA detention of Baharuddin Ismail, who worked for Suaram, a highly respected Malaysian human rights group. Like others arrested under the ISA, he was considered at risk of being tortured. The ISA thus serves as a mechanism to help suppress dissent.

Individuals who are tortured are themselves discouraged from speaking out through several mechanisms. Those who have surveyed cases of torture in Malaysia note a pattern of those tortured being blindfolded. This immediately makes it difficult to identify the perpetrators. It also undermines one’s formal legal rights. Formally, there is a legal right for a victim of torture in police custody to make a complaint to the magistrate and/or to file a police report. However, anyone who does so after having been tortured while blindfolded is put at risk; for if no perpetrator is identified, the victim can face prosecution for making false accusations.[83] Therefore, instead of the complaints being taken seriously, the victim-messenger who reports about being tortured can be victimised again.

Furthermore, those tortured in Malaysia are often tortured in humiliating ways that help remove the contesting power of a survivor to make a complaint and to seek justice. If you beat a man in a torture chamber, he may say that you have beaten him; if you degrade him, you may remove from him the words even to speak out against you.

This may be aimed at achieving a temporary effect, such as to pressure the victim to say the "right thing," for example, in the courtroom. As one official tortured into testifying against Anwar described his experience, "They degraded me and broke down my will and resistance; they threatened me and my family; they frightened me; they brainwashed me to the extent that I ended up in court on Sept. 19, 1998, a shivering shell of a man willing to do anything to stop the destruction of my being." [84]

However, degrading torture victims may also facilitate or be designed to cause a longer term silence among survivors, which, in turn, facilitates impunity among perpetrators. At the Kemayan detention camp in Pahang, detainees were forced by the guards to perform sexual acts on one another for apparently the guards’ amusement, and they were beaten if they failed to do so. A defence witness in the trial of Irene Fernandez came to court to tell of these gross abuses, but he explained that previously "he did not tell anybody what he had witnessed at the camp as his wife would have a heart attack if she knew what happened."[85] Forms of torture that involve humiliation and degradation will be particularly difficult for survivors to speak out about. This can be heightened for women survivors of sexual torture who must return to communities with attitudes towards women’s sexuality that may make revealing sexual torture particularly difficult. Those survivors who do speak out about degrading forms of torture display enormous courage in their struggle for justice.

This realisation highlights an additional reason why human rights advocates might, or should, become involved in providing counselling and rehabilitation. Aside from the obvious humanitarian reasons for becoming involved in rehabilitation efforts, it may be necessary for counselling to be provided in order for human rights activists to be able to document and expose the abuses that have been perpetrated.

Part of the pattern of factors facilitating torture in Malaysia is thus a set of mechanisms that suppress dissent and that punish the messengers who reveal abuses, including messengers who are themselves torture survivors.

Minimal Accountability for Perpetrators

Another pattern in Malaysia is that the government will occasionally prosecute some perpetrators if it is under enough pressure, but it will do so in a minimal way, focussing on only a few perpetrators and leaving general impunity undisturbed.

In May 1995, Lee Quat Leong, a 42-year-old man arrested on suspicion of involvement in a bank robbery, died in police custody after being beaten to death. An autopsy revealed 45 external injuries all over his body and seven fractured ribs. A judicial inquiry found that 11 police officers were criminally responsible. The government conducted a prosecution but only against two of the most junior officers. [86]

From October to December 1997, media reports revealed at least six reports of assault by police officers, four of these in custody and one being a sexual assault. The government prosecuted in only one case, an incident involving the beating of two reporters by the police — obviously the one that had the most potential to attract unwanted international attention. [87]

A prominent prosecution was undertaken against former IGP Tan Sri Abdul Rahim Noor, who personally admitted to assaulting Anwar while he was handcuffed and blindfolded. He was convicted and sent to jail for two months. This was the only case in 10 years where the cabinet ordered a royal commission of inquiry to investigate police brutality, which surely has something to do with the prominence of the prisoner. This prominent prosecution must not hide the fact though that endless numbers of police officers involved in torture are never brought to public attention and enjoy impunity on a daily basis.

The Struggle in Malaysia

An important focus for human rights advocacy in Malaysia, for reasons including those apparent above, is the emergency laws, like the ISA. The NHRC in the country, Suhakam, has now spoken out against the ISA and is currently engaged in studies on the reform or abolition of the ISA. This is simply a more official body challenging the ISA. NGOs have been engaged in the struggle against the ISA and other laws allowing preventive detention for years. The Malaysian Bar has also spoken out against these laws. Without government willingness to consider serious changes, however, the struggle remains difficult.

Some have bravely turned the State’s oppression against it. As mentioned above, the charges brought against Irene Fernandez have led to a criminal trial that has thus far lasted six years. Rather than surrender to the commands of the State, Fernandez and her team have battled against these charges. This means that there have been six years in which to use the State’s courtroom of persecution as a forum to expose that same State’s abuses. For years now, defence witnesses have been confirming the accounts that were in Tenaganita’s memorandum. Their testimony is helping to document the abuses that are rampant in Malaysia. The State’s attempts to oppress dissent are instead legitimising it by allowing dissenters to expose abuses because of the courage of Fernandez and others working with her.

There have also been brave judges who have used in small ways the government’s pretences at legality against the government’s intended repression. The most striking example was the courageous habeas corpus decision of Justice Mohd. Hishamududdin Mohd. Yunus of the High Court in May 2001. [88] This judgement responded to the call of Article 5(2) of the Malaysian federal Constitution and its protection of habeas corpus, the fundamental right to challenge one’s detention, which the judgement calls a "pillar of freedom" and a "principle of liberty."

Based on this principle, the burden is on the detainer to justify a detention strictly in terms of the law. A detention under the ISA as a detention necessary to prevent acts against state security must, according to the judgement, be based on an affidavit actually providing grounds for the detention rather than just copying its wording. Furthermore, detentions for extra periods of time must be supported by a reason and good faith grounded on careful judgement "without fear or favour."

In the case, the court found that the detentions were in bad faith because there had been a premature decision to detain for a lengthy period of time, because there had been a deliberate and unreasonable denial of access to family members despite formal requests and because there had been constitutional violations in the denial of access to lawyers. Thus, the court used its habeas corpus powers to order the release of the detainee without immediate rearrest.

The court stated a very important principle in the judgement:

"Those police officers responsible for the detention of the applicants must wake up to the fact that the supreme law of this country is the Constitution and not the ISA."

If those in the struggle for human rights in Malaysia can get across this message, that the supreme law is one of constitutional guarantees and human rights and is not based on certain draconian laws masquerading as legality, then there is much hope. We can also hope that other courts will take up this inspiring message as well and that the message resounds far and wide throughout Malaysia.

IV. Implications

Taking note of both general theory and the Sri Lankan and Malaysian experiences on what circumstances facilitate torture is a beginning. This beginning is important because it helps to characterise the content of a prohibition on torture and exposes points on which human rights advocates concerned about torture can and ought to demand change.

The precise pattern of how torture is facilitated, encouraged and perpetrated will differ from one country to the next, but there are broad patterns identifiable in the theoretical writing, and these patterns are visible in both Sri Lanka and Malaysia as contributing to the ongoing use of torture in these countries. Thus, this beginning is useful.

In both Sri Lanka and Malaysia, some of the historic patterns of torture and circumstances that cause modern torture are present. Each of these countries lives out in a daily nightmare these patterns in a different configuration; but in both cases, the patterns are such as to put the States in a position where torture is facilitated and encouraged in spite of whatever formal law there might be. Understanding these situations better and how they exemplify these patterns of torture can bring us to specific understandings on legal obligations, on steps toward genuinely ending torture and on future advocacy and change.

Implications for a State’s Legal Obligations

Even if torture is formally illegal under a country’s laws, it can still occur so long as the circumstances that facilitate it continue to exist. Allowing these circumstances to continue thus amounts to a violation of a State’s duty to prevent torture. Article 2(1) of the CAT states, "Each state party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction." Making torture illegal is just part of this convention requirement or of the parallel jus cogens norm applicable even to States that have not signed the CAT. States must undertake "effective legislative, administrative, judicial or other measures," and they must do their best to "prevent acts of torture." Eliminating circumstances that facilitate torture is actually part of the legal obligation of a State.

States are subject to an absolute legal prohibition on torture and an absolute duty to prevent torture. It does not matter whether they have signed treaties, for these are jus cogens norms of international human rights law. Because the duty is absolute and includes a duty to prevent torture, the circumstances facilitating torture must be considered presumptively illegal, that is, if a particular factor is closely associated with the practice of torture, then this factor will itself violate the law against torture unless the State can prove that it has devised controls that will prevent torture even in the presence of this factor. The onus is on the State, and it must meet this duty to a stringent standard of proof.

To make this argument more concrete, let us consider the factor of incommunicado detention. In the historical record and the experience of institutions concerned with torture issues, incommunicado detention is closely associated with torture. For a State to allow incommunicado detention thus violates its legal duty to prevent torture unless it can prove to the most stringent standards that it has devised mechanisms to prevent torture even in the presence of incommunicado detention. Because States usually will not have devised such mechanisms, the absolute prohibition on torture actually implies a legal prohibition on incommunicado detention.

At the international level, one is gradually seeing old forms of impunity for torturers being torn down. Leaders of countries who maintain mechanisms that give rise to torture should be warned now. If their mechanisms include factors closely associated with torture, they are morally and legally accountable for torture. The world is watching.

Some Steps toward Genuinely Ending Torture

Looking at torture as a systemic problem offers States no excuse. States are still responsible when torture occurs. Indeed, realising the systemic aspects reveals that States are actually under a duty to control or end the circumstances that give rise to torture. Realising the systemic aspects of torture also can help us in working toward ending torture outside of the strict legal sphere. It can help reveal more about how the torture system works and about some of the specific changes that should be advocated and advanced in order to end torture.

This article turned in Part III to a short examination of some of the factors that have been perceived as facilitating and encouraging torture in Sri Lanka and Malaysia. This article is not the single definitive report on all of those factors and their interconnections, but it can hopefully open up the ongoing conversation about torture in these countries by highlighting some of these factors.

In Sri Lanka, this article has discussed the failure of formal legislation against torture in light of the pathology of a police force gone wrong. Sri Lanka’s formal legislation against torture provides an inspiring example of the kind of law that other countries could emulate. However, in conjunction with the formal law, there must be enforcement of the law and a deep examination of the systems that prevent proper enforcement of the law. This means fighting for real, actually practised due process rights for those who come into contact with security forces. The government could signal its commitment by scrapping draconian provisions of the PTA, by developing a network of citizens’ advice offices and by providing funding for the due process rights of detainees.

It also means that the overlap and confusion of roles between the police and military must end. Especially in the context of the new cease-fire, Sri Lanka has a tremendous opportunity to respond to the reports that have been amassing over the decade of a police force that has instead become a paramilitary force. Sri Lanka should draw on the knowledge and experiences that other countries can share on how to structure a civilian police force and how to equip its members with the skills needed for proper police investigations.

Speaking especially from the Sri Lankan experience in which torture has become a part of ordinary criminal investigations, Basil Fernando has said, "You have to say that torture should be prohibited and criminal investigations should be improved." [89] The Truth and Reconciliation Commission in South Africa similarly concluded that one element of overcoming police brutality and torture is that "investigating officers should be trained in proper forensic investigation techniques to replace the current practice of extracting confessions under duress, through violence and by other irregular and unorthodox methods." [90] In situations where torture is part of ordinary criminal investigations, AHRC and South Africa’s Truth and Reconciliation Commission have both recognised the need to break a cycle that contributes to the continual use of torture. A militarised police force without police investigation skills perpetuates a cycle of violence, brutality and torture.

How then to tackle the gang characteristics of the Sri Lankan police? One step might be to follow South Africa’s example and require that interrogations be conducted by no more than two police officers at a time. A formal rule like this, however, will not make a difference on its own. There needs to be deep-seated police reform, a new openness and a new professionalism within the police force. This requires leadership. Human rights advocates must demand that the government put in place people with leadership ability committed to making the right changes in the police. We must also demand investigations of misconduct and proper responses that include suspensions of officers facing serious charges, the removal from the police force of officers convicted of torture and brutality and ongoing efforts to improve the police. To encourage a new professionalism, we should call for higher salaries and better training.

Many of these changes do not happen at once. They require ongoing advocacy. They require persistent solidarity with every victim of a system gone wrong. They require continuing consciousness-raising to draw on other voices in Sri Lankan society so that in the future every act of torture will be an outrage.

In Malaysia, this article has discussed the regime of security legislation and its suppression of dissent as providing the circumstances under which torture can flourish. Most obviously, there needs to be continual work for the abolition or major reform of all the security legislation in Malaysia that provides for preventive detention and other forms of detention without trial. So long as this detention continues, there is incommunicado detention, and the conditions are ripe for abuse.

This campaign also involves showing how there can be a Malaysian State secure against terrorism without such legislation. This effort though has become a more difficult challenge, given that some Western democracies have now adopted preventive detention measures. However, advocates must keep speaking of a path of peace and of alternatives to cycles of violence.

During the process of this advocacy, of course, we can keep trying to document what happens in incommunicado detention and to break down the barriers that keep detention incommunicado. Those wishing to express solidarity with victims ought to support every effort of families to gain access to detainees, of the NHRC (Suhakam) to gain access to detainees and of lawyers to represent detainees. There must also be action to provide counselling and rehabilitation to the survivors of torture, to help them to heal and to help them tell what happened to them so that the terror that the Malaysian State uses to suppress dissent can be exposed.

In addition, there simply must be solidarity with every activist who is speaking out about abuses in Malaysia. Every act of dissent is by someone who is taking great risks in a repressive country. People inside and outside of Malaysia must support those who challenge state repression.

Advocacy and Change

None of this suggested action plan says there are easy answers. There remains a long road ahead on these issues. Systems of local and global violence are powerful systems and will not simply disappear. There must be constant pressure for human rights, constant awareness-raising among the people, constant challenges to state mechanisms that deny human rights.

Human rights advocates, however, have the moral high ground. Only the most hardened person can listen to account after account of brutal torture and remain unmoved. Torture, meant to silence and repress, ultimately speaks to our human consciences and awakens us to a realisation of systems that have become corrupt and illegitimate.

Of course, given the challenge, we must draw on every resource. To spread the message, we may draw on philosophy and poetry, on legal advocacy and religious thinking, on words and deeds. We must draw on those wise and powerful people who will join the struggle against torture, and we must campaign with all the disempowered folk who know the daily realities of torture and its disempowering effects but are ready to find and create the power to make it cease to be a reality.

This then is the challenge. May we find it in ourselves, in all of us, to see it through to the end when torture will cease to afflict our societies.

Notes

1. Arundhati Roy, The God of Small Things (London: Flamingo, 1997), p. 308. [back to content]

2. Quoted in AHRC Urgent Appeal UA981005 Malaysia, Oct. 5, 1998, http://www.ahrchk.net/ua/mainfile.php/1998/44. [back to content]

3. AHRC Urgent Appeal UA-29-2002, July 16, 2002, http://www.ahrchk.net/ua/mainfile.php/2002/277. [back to content]

4. For citation to just some of the authorities indicating the prohibition on torture has passed into jus cogens, see Malcolm D. Evans and Rod Morgan, Preventing Torture: A Study of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (Oxford: Oxford University Press, 1998), p. 62. [back to content]

5. Accessed through http://www.icac.org.hk/eng/0/1/10/16.htm. [back to content]

6. See "Open Letter to the Global Human Rights Community: Let Us Rise to Article 2 of the ICCPR," article 2 1, no. 1 (February 2002): pp. 2-3. [back to content]

7. Available at http://internationalstudies.uchicago.edu/torture/abstracts/garthmeintjes.html. [back to content]

8. Basil Fernando, "The Anatomy of Impunity," article 2 1, no. 1 (February 2002): p.5 at p. 7. [back to content]

9. Torture: Mother of All Human Rights Violations, eds. Philip Setunga and Nick Cheesman, (Hong Kong: Asian Human Rights Commission, 2001), pp. 80-81. [back to content]

10. Ibid., pp. 25, 32. [back to content]

11. AHRC Media Release, MR-09-2002, http://www.ahrchk.net/statement/mainfile.php/2002statement/57. [back to content]

12. B. Fernando, "The Anatomy of Impunity," p. 5 at p. 6. [back to content]

13. Evans and Morgan, Preventing Torture, p. 54.[back to content]

14. Cesare Beccaria, On Crimes and Punishments and Other Writings, ed. Richard Bellamy and trans. Richard Davies (Cambridge: Cambridge University Press, 1995), chap. 16. [back to content]

15. Ibid., chap. 27. [back to content]

16. See Edward Peters, Torture (Philadelphia: University of Pennsylvania Press, 1996), pp. 83-85. Peters follows John Langbein, Torture and the Law of Proof (Chicago: University of Chicago Press, 1977). Evans and Morgan in Preventing Torture have now described this as the consensus position of historians, pp. 8-11. [back to content]

17. Lisa Hajjar, "Sovereign Bodies, Sovereign States: Torture and the Nation," available at http://internationalstudies.uchicago.edu/torture/abstracts/lisahajjar.html. [back to content]

18. See Peters, Torture, pp. 137-138. [back to content]

19. Ibid., p. 137. [back to content]

20. See Final Report of the South African Truth and Reconciliation Commission available through http://www.doj.gov.za/trc/report/index.htm, vol. 2, chap. 3, paras. 91-99. [back to content]

21. Ibid., paras. 91, 134, 102ff. [back to content]

22. See Piers Pigou, "Monitoring Police Violence and Torture in South Africa" (paper presented at the International Seminar on Indicators and Diagnosis on Human Rights: The Case of Torture in Mexico, April 2002), available at www.csvr.org.za/papers/papigou1.htm. [back to content]

23. Final Report of the South African Truth and Reconciliation Commission, vol. 2, chap. 7, para. 35. [back to content]

24. Quoted in Torture: A Crime against Humanity, eds. Philip Setunga and Nick Cheesman, (Hong Kong: Asian Human Rights Commission, 2001), p. 22. [back to content]

25. See Peters, Torture, pp. 112-113. [back to content]

26. Amnesty International, Torture in the Eighties (1984), pp. 7-10. [back to content]

27. Peters, Torture, p. 184. [back to content]

28. See Martha K. Huggins, "Remembering Torture and Justifying Horror: Police Violence in Brazil’s Military Dictatorship," available at http://internationalstudies.uchicago.edu/torture/abstracts/marthahuggins.html. [back to content]

29. Evans and Morgan, Preventing Torture, pp. 52-60. [back to content]

30. Special Rapporteur of the Commission on Human Rights, Report on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Oct. 1, 1999, U.N. Doc. A/54/426 (1999), para. 42. [back to content]

31. Ibid., para. 48. [back to content]

32. See generally Setunga and Cheesman, Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Report by the Special Rapporteur, Comm. on Human Rights, 42d Session, Agenda Item 10(a), U.N. Doc. E/CN.4/1986/15 (1986). A helpful discussion appears in Matthew Lippman, "The Development and Drafting of the United Nations Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment," 17 Boston College International and Comparative Law Review 275 (1994). [back to content]

33. General information is available throughout its web site: http://www.cpt.coe.int/en. [back to content]

34. European Committee for the Prevention of Torture, Second General Report on the CPT’s Activities Covering the Period 1 January to 31 December 1991, CPT/Inf (92) 3 [EN] (April 13, 1992), para. 36, http://www.cpt.coe.int/en/annual/rep-02.htm#III. [back to content]

35. Ibid., paras. 37-41. [back to content]

36. Full text of remarks at http://www.apt.ch/asia/nepal.htm.[back to content]

37. AHRC Human Rights Correspondence School, Lesson Series 7, Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Lesson 2, http://www.hrschool.org/mainfile.php/modules/160. [back to content]

38. http://web.amnesty.org/web/ar2002.nsf/asa/sri+lanka!Open. [back to content]

39. "Govt. Violating Human Rights, President Tells AI," Daily Mirror, June 29, 2002. [back to content]

40. 61 and 62 Vic., c. 36.[back to content]

41. "Statement of the Seminar," in Decline of Fair Trial in Asia: Papers from an Asian Seminar on Fair Trial (Hong Kong: Asian Human Rights Commission, 2000), p. 17; Anthony Fernando, "Fair Trial Issues in Sri Lanka," in Decline of Fair Trial in Asia, p. 217 at p. 228. [back to content]

42. http://www.ahrchk.net/statement/mainfile.php/2001statement/36. [back to content]

43. See AHRC Statement of June 2, 2002, published in article 2 1, no. 3 (June 2002): pp. 23-26, available at http://www.article2.org/mainfile.php/0103/36. [back to content]

44. Final Report of the Commission of Inquiry into Involuntary Removal or Disappearances of Persons, Sessional Paper No. V-1997, chaps. 8 and 14, http://www.disappearances.org/mainfile.php/final_report_srilanka. [back to content]

45. Police Report, Sessional Paper VIII, February 1947. [back to content]

46. Final Report of the Police Commission, July 1970 (Dept. of the Government Printer, Ceylon), pp. 17, 111. [back to content]

47. Sri Lanka Police Service: Suggestions for Improving Its Efficiency and Effectiveness, Report of the Committee Appointed on Feb. 24, 1995, chap. 1, pts. 3.iv and 3.xii. [back to content]

48. http://www.police.lk/history.html. [back to content]

49. "Cops Told to be in Uniform," Daily Mirror, Aug. 15, 2002. [back to content]

50. Final Report of the Commission of Inquiry into Involuntary Removal or Disappearances of Persons, Sessional Paper No. V-1997, chap. 8, http://www.disappearances.org/mainfile.php/final_report_srilanka. [back to content]

51. http://www.police.lk/divisions/crimestat2001.html. [back to content]

52. "Trying to Understand the Police Crisis," Jana Sammathaya 1, no. 12 (2002), http://asiafolkschoolonline.ahrchk.net/js/mainfile.php/0112/72. [back to content]

53. Daily Mirror, July 5, 2002. [back to content]

54. From AHRC Urgent Appeal UA-19-2002, May 29, 2002, http://www.ahrchk.net/ua/mainfile.php/2002/245. [back to content]

55. "Complaints of Police Thuggery from Kandana," Daily Mirror, June 14, 2002. [back to content]

56. SC (FR) No. 1/2001, decided Aug. 2, 2002. [back to content]

57. http://www.ahrchk.net/statement/mainfile.php/2002statement/70. [back to content]

58. AHRC files, Jan. 11, 2001. [back to content]

59. A. Fernando, "Fair Trial Issues in Sri Lanka," p. 217 at pp. 228-29. [back to content]

60. Discussed in a recent AHRC media statement, MR-20-2002, Aug. 19, 2002, http://www.ahrchk.net/statement/mainfile.php/2002statement/69. [back to content]

61. Ibid . [back to content]

62. "Rape Victim Gets Rs. 150,000: Suspects to be Charged," Daily Mirror, Jan. 25, 2002. [back to content]

63. Daily Mirror, March 1, 2002. [back to content]

64. "SC Takes Tough Stand on Torture," Daily Mirror, May 2, 2002. [back to content]

65. "State to Pay for Torture," Daily Mirror, May 3, 2002. [back to content]

66. "Supreme Court Awards Rs. 25,000 to Victim," Daily Mirror, May 13, 2002. [back to content]

67. "Compensation to a Woman Soldier," Daily Mirror, June 25, 2002. [back to content]

68. "Top Policemen Ordered to Pay Compensation," Daily Mirror, Aug. 1, 2002. [back to content]

69. SC (FR) No. 1/2001, Aug. 2, 2002. [back to content]

70. "SC Grants Leave in Torture Case," Daily Mirror, Aug. 22, 2002. [back to content]

71. "Sexual Torture Victim Gets Rs. 250,000 Compensation," Sunday Times, Aug. 25, 2002. [back to content]

72. Quoted in http://asiafolkschoolonline.ahrchk.net/js/mainfile.php/0117/98. [back to content]

73. Charles Hector, "Administrative Detention in Malaysia: A Brief Overview," in The Decline of Fair Trial (Hong Kong: Asian Human Rights Commission, 2000), p. 175. [back to content]

74. See Suhakam press statement, http://www.suhakam.org.my/press_29_may_2001_bm.htm. [back to content]

75. Quoted in Hector, "Administrative Detention in Malaysia," pp. 176-177. [back to content]

76. These amendments were under several pieces of legislation: Internal Security (Amendment) Act 1989 (Act A739, Aug. 24, 1989); Emergency (Public Order and Prevention of Crime) (Amendment) Act 1989 (Act A740, Aug. 24, 1989); Dangerous Drugs (Special Preventive Measures) Act 1985 (Act A738). [back to content]

77. Quoted in Hector, "Administrative Detention in Malaysia," p. 166. [back to content]

78. Discussed in Amnesty International, "Human Rights Undermined: Restrictive Laws in a Parliamentary Democracy," ASA 28/06/99, http://web.amnesty.org/ai.nsf/Index/ASA280061999?OpenDocument&of=COUNTRIES\MALAYSIA. [back to content]

79. Ooi Ah Phua vs. Officer-in-Charge of Criminal Investigation Kedah/Perlis [1975] 2 M.L.J. 198; Hashim bin Saud vs. Yahya bin Hashim & Anor [1977] 2 M.L.J. 116. [back to content]

80. Human Rights Watch, "Malaysia’s Treatment of Undocumented Rohingya," in Living in Limbo: Burmese Rohingyas in Malaysia, http://www.hrw.org/reports/2000/malaysia/index.htm#TopOfPage. [back to content]

81. UN Doc. E/C/V.4/1995/34, para. 24, cited by Human Rights Watch, "The Role of UNHCR," in Living in Limbo, fn. 175. [back to content]

82. For discussion, see Gail Davidson, Tami Friesen and Michael Jackson, QC, for Lawyers Rights Watch Canada, "Lawyers and the Rule of Law on Trial: Sedition in Malaysia," www.lrwc.org/news/news_rules.htm. [back to content]

83. Hector, "Administrative Detention in Malaysia," p. 159 at p. 166. [back to content]

84. Dr. Munawar Ahmad Anees, speechwriter of Anwar Ibrahim, convicted for being sodomised by Anwar, revealing how he was tortured by the Special Branch as reported in the Bangkok Post, March 3, 1999, and quoted by Hector, "Administrative Detention in Malaysia," p. 159 at p. 166. [back to content]

85. "Detainees Beaten for Refusing to Perform Oral Sex," New Straits Times, May 13, 2000, p. 10. [back to content]

86. Suaram, Malaysian Human Rights Report, 1998, pp. 244-245; Far Eastern Economic Review, Dec. 14, 1995. [back to content]

87. Suaram report, p. 246. [back to content]

88. Encik Abdul Ghani Haroon and Encik Gobalaknshnan a/l Nagappan vs. Ketua Polis Negara, [2001] 2 M.L.J. 689. [back to content]

89. Quoted in Setunga and Cheesman, Torture: A Crime Against Humanity, p. 23. [back to content]

90. Final Report of the South African Truth and Reconciliation Commission available through http://www.doj.gov.za/trc/report/index.htm, vol. 5, chap. 8, para. 54. [back to content]