Criminal Responsibility for Torture: South Asian Perspective

Justice K. M. Hasan

(Justice K.M. Hasan is a former chief justice of Bangladesh. He gave the following speech at a regional meeting on criminal responsibility for torture organised by Odhikar in Dhaka on October 11.)

International law considers torture as a crime, falling under jus cogens, that is among the worst of crimes. However, jurisprudence expressed by law and by interpretation in the courts of South Asian countries does not reflect the adoption of the developments that have taken place in the international law as these courts do not take torture seriously. The soft approach of the law has been encouraging the torturers to engage in this crime more; whereas the seriousness of the criminal act should have been recognised by imposing severe penalties against it.

Torture to a high degree is practised in the countries of the region and its widespread prevalence appears most disquieting. People belonging to the marginalised sections such as workers, prisoners and the poor remain victims of the abuse of the system. Another section of the society that is constantly subjected to ill treatment by the agencies of the justice system is women. The same situation remains regarding children. The neglect of women and children's rights is present through the system. 

In fact, the institutional arrangements encourage the use of illegal methods such as torture and there is no effective system of control. Compared to many other countries of the world criminal investigation, machineries in these countries are appalling. The procedural developments regarding investigation and trials have been neglected to such an extent that both are kept primitive. 

The consequent demoralisation has caused the faith in justice system as a whole erode to a great extent. 

This leads us to conclude that immediate enlightened reforms in the administration of the justice system in the countries of South Asia are needed to restore national functioning of these systems. No doubt there is an urgency for this meeting to discuss and consider the plight of the people who are subjected to torture, try to find ways to determine the criminal responsibilities of the perpetrators and examine the society's responsibility to those who are powerless and vulnerable. With this in mind this meeting may focus on certain specific points and pursue the discussion to ensure that those who indulge in committing the crime of torture are brought to justice. 

It is time to voice concern about the provisions of the Penal Code which so far have failed to keep abreast with the developments in the international field. There should be more specific provisions for the offence of torture in the Penal Code and legislation should create more protective framework for the socially disadvantaged and marginalised people. Torture be treated as a criminal offence and be punished with imprisonment and compensation be paid to the victims of this heinous criminal act. 

Do Justice for Victims

Despite a plethora of international standards on reparation, the needs for reparation in South Asian countries continue to be treated with no importance. It seems that there is an unavoidable tension between political considerations and the requirements of international standards. More thought needs to be given to ways in which criminal justice can operate without compromising the rights of victims of torture to reparation. 

It is true that one cannot compensate physical and moral injury with material rewards. But people's feeling should never be underestimated. Pursuit of reparation is fundamental for the successful recovery and reintegration of the victims. There are many ingrained social prejudices against the victims and the denial of the rights to reparation is one of them. It prolongs and reinforces the victims' sense of powerlessness and isolation.

Efforts should be made to improve the quality of the administration of justice by the courts so that respect for the rule of law and the need for justice are preserved by the courts. The justice system must ensure that those who commit crimes of torture are brought to justice. The seriousness of the criminal act must be recognised by the penalties imposed against it. Reparation becomes inadequate if the perpetrators of torture are not brought to justice.

Among the law enforcement agencies, often the sensitivity towards people does not exist. It demands today a deliberation to find a way to sensitise the concerned agencies so that the faith in the justice system as a whole does not collapse. It would be a tragedy if in the name of justice law enforcement agencies involve themselves in torture. There is a need for understanding and tolerance rather than intolerance towards the unfortunate.

To ensure a fair investigation, an independent investigation unit with constant supervisory power may be given the legal responsibility of investigation of all cases of torture and other inhuman or degrading treatment or punishment. Such a body can play a positive role in introducing international standards through education, investigation and recommendations.

Communities of the South Asian countries are subjects to massive social and legal manipulation. The solution can come only from the people themselves. Mass mobilisation for the reform of the system is a primary need so that we may move away from treatment of violence as abstract phenomena and put emphasis on the subjects of violence, both victims and perpetrators. 

Lastly it is heartening to note that the media, civic societies and non-governmental organisations like Odhikar are showing their concern to the plight of the victims of torture. A poor justice system generates a social environment detrimental to the rule of law. If we are to improve the justice system we need a comprehensive community-wide response. By working closely, different branches of the government, law enforcement agencies, responsible members of the community and the non-governmental organisations can craft a strategy how to improve the criminal justice system.