The justice system throughout Asia has numerous defects that not only hinder the protection of human rights, but in fact give leeway for the violation of rights, particularly by the police. This lesson examines these systemic flaws.

A. Criminal justice system

Existing laws, particularly with regard to the country's criminal justice system will affect the behaviour and outlook of the police force. In its 2003 human rights day statement, the Asian Human Rights Commission (AHRC) warned of the increasing politically expedient laws and practices that are being favoured over international law throughout the world.

In recent years…the absolute prohibition against torture has been steadily undermined, under the guise of the war against terrorism. Alarmingly, in more developed democracies, particularly the United States, several centuries of international jurisprudence are being brushed aside in favour of politically expedient and highly dangerous policies and regulations.

The argument that torture is justified has both corrupted intellectual debate and led to increased torture throughout the world. While in the United States torture is proposed as a means to defeat terrorists, in other countries it is justified on many grounds, such as a means to fight growing organised crime. As a result, other abuses - particularly extrajudicial killings - are also on the rise, and are likewise openly justified by the perpetrators. Behind these developments lies a change in the way punishment is itself being understood. Torture, murder and other extrajudicial means are being openly advocated as a means to deter others from crime. The guilt or innocence of the accused is of little relevance. Law enforcement agencies are being freed from the need to produce evidence of guilt, and from the fear of punishment should it be found that they acted outside of their authority. Impunity is becoming ideologically acceptable. The draconian powers enjoyed by investigators and prosecutors in earlier centuries are being steadily reinstated [AHRC Human Rights Day Statement, 10 December 2003].

It is for this reason that throughout Asia, laws intended to violate rather than protect human rights are being perpetuated: the Internal Security Act in Malaysia and Singapore, the National Security Law in the Republic of Korea and the Prevention of Terrorism Act in India all permit detention without trial and threaten the rule of law. These laws are inevitably used widely and indiscriminately, as has been seen in numerous instances in the region.

As for punishment of crimes, Sri Lanka has reintroduced the death penalty as an irrational means to abolish the increase of crime within the country. Under Malaysian law, whipping and caning are acceptable punishments to be exercised by police officers.

In Nepal, while the Torture Compensation Act prohibits torture, it does not consider it a criminal offence. Thus, the act in no way inhibits police and security forces from committing torture. Furthermore, complaints made against the act are treated as civil cases and the amount of compensation to be awarded is minimal.
Nepal's domestic legislation regarding torture is thus weak even though it has ratified the CAT. India on the other hand, has yet to ratify. Although custodial torture and death are enormous problems in India,

The Indian government often excuses itself from ratifying the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT) on the ground that all the provisions of the CAT are already in the constitution. The argument is spurious. For a constitutional remedy, a victim must go to a High Court or Supreme Court. Such action is beyond the means of most persons in the country, and certainly these courts could not manage even a fraction of the existing torture cases in India today.
 
There is no specific legislation on torture whereby a case can be filed at a local court. Under the Indian Penal Code, torture is not mentioned as a crime. There is only a section providing that 'excesses committed by a police officer' or forced confessions are illegal. However, under this section it has to be proved that the offence was committed in conjunction with the person's authority in order to demonstrate the gravity of the act. Under the Criminal Procedure Code, a magistrate can order an inquiry into a complaint of torture. However, this inquiry will likely be undertaken by the same police station where the accused is on duty. The result of such an inquiry is easy to imagine. For these reasons, few complaints are ever filed, and even fewer are actually taken to court.
 
Despite some judicial interventions against torture committed by the police, such as the Supreme Court's recommendations in the D K Basu case, the situation has not improved. Even though India is a common law country, in practice, the D K Basu recommendations are not followed. There is also some question as to how many police officers are actually aware of these recommendations. In any case, the Indian government must come up with actual remedies to address torture, which can only be done by effective domestic legislation, in other words, ratifying and implementing the CAT.
 
In the rare instances that cases of torture are actually heard in court, minimal compensation is awarded, and after a very lengthy procedure: in one case, it took the victim 25 years. Under any circumstances, compensation alone is not redress for torture. If a police officer is ordered merely to pay compensation, the gravity of torture has not been addressed. Therefore, there should be a procedure whereby the perpetrator is tried for having committed a heinous offence, and punished accordingly. The Indian government should establish a special unit to take and investigate complaints of torture, and prosecute the perpetrators accordingly ['Bringing the Convention against Torture to India', article 2, vol. 3, no. 2, April 2004, pp. 27-8].

Furthermore, the Committee on Reforms of the Criminal Justice System, set up by the Government of India in November 2000, supposedly to assess and propose changes to the way criminal trials are conducted, has proposed measures that allow the police greater control over the judiciary and prosecution, while at the same time curtailing the rights of the accused. For instance, the Committee has suggested that an officer at the rank of Director General of Police be appointed as Director of Prosecution. This appointment would virtually end the separation of the criminal investigation and prosecution functions, as both would be in the hands of the police. This proposal together with the suggestions that the burden of proof be changed from "proof beyond reasonable doubt" to a "clear and convincing" standard of proof as well as that confessions be made admissible by amending section 25 of the Evidence Ordinance, would mean that the police would have greater room to abuse their power and the rights of victims. From what has already been described about the police, no one interested in effective rule of law and human rights principles would say that such proposals are the way towards ensuring justice.

B. Disciplinary procedures and code of conduct

Any institution is governed by its mandate and code of conduct, both of which will be affected by the reasons for its establishment. The police force too, is an institution established for specific reasons, which then shape the behaviour and attitude of those within it. In many Asian countries the police force was created during the colonial era. According to a 1947 commission looking into the Sri Lankan police,

The old order of society in this Island neither required, nor produced a Police Force. Such an institution was new-TO US. It was not a natural growth within the social order, but was introduced under the British regime for specific purposes.

After the British occupation of this Island in 1815 a Malay Regiment was imported to maintain civil order. The Police Force in Ceylon, as it exists today, is the lineal descendant of these mercenaries. Their main task was to suppress rebellion and so enforce the laws established in this country by the new Government…

While, in a sense, the Police Force in Britain was the creation of public opinion in that country, and has been repeatedly reformed and modernized with the approval and support of the public in England through the various Royal Commissions that were appointed for the purpose, in Ceylon, the Police Force continued to expand and develop under an impetus unaffected by public opinion.

The 1861 Police Act in India--which to this day is the guiding legislation over the Indian police force--is an authoritarian instrument devised to suit the specific needs of the colonial rulers. The Indian police force was conceived in the aftermath of the 1857-58 uprising and was "obliged to quell dissent and enforce obedience whatever the costs. [The] basic duty was to provide an ambience of peace and tranquility for the single-minded exploitation of the enormous resources of raw materials and a captive market" [Manoje Nath, ‘Human rights and the police’, Policing India in the new millennium, P J Alexander (ed.), Allied Publishers, New Delhi, 2002, p. 463]. The current government also confers arbitrary power to the police on the pretext of maintaining law and order, thereby legitimizing human rights violations. It follows that there would seem to be little difference between the motives giving birth to the Indian police 150 years ago, and present-day motives for using it to maintain the status quo.

The use of such archaic mandates together with conflicting political stances is the reason that policing institutions throughout Asia are lacking in discipline. Unless this breakdown in discipline is addressed, little can be done to improve the effective functioning of the police, as well as regain public confidence in the institution.

Disciplinary control requires clear guidelines for appropriate action and behaviour of the police, as well as strict sanctions for those that do not comply. In instances where the codes of conduct of the police are centuries old and do not address current circumstances, such as in the case of Sri Lanka, amendments must be made. The Establishment Code, which governs the discipline of all government officials including the police, was also created under colonial rule, when fundamental rights were not recognized. For this reason, there are no provisions regarding fundamental rights violations. Therefore, a prevalent view within the police establishment is that a finding against any police officer by the Supreme Court of Sri Lanka on a fundamental rights application filed under Section 126 of the Constitution has no impact on the officer's promotion or dismissal. To claim that a law enforcement officer can violate rights--which are not only recognized by the Constitution but for which legal remedies are made available constitutionally--and not face disciplinary procedure is an absurdity. Furthermore, whether any police officer found guilty of human rights abuse should ever be promoted or allowed to be a policeman at all, must be considered from a moral standpoint.

The lack of discipline is also the reason for the corruption that is rife in policing institutions throughout Asia, as well as the links police have with criminals. In the Asian Legal Resource Centre's March 2005 alternative report on Thailand to the Human Rights Committee, 'Institutionalised torture, extrajudicial killings & uneven application of law in Thailand' it is stated that,

13. …It is well known that the police in Thailand are both highly corrupt and highly politicised. This is public knowledge. During 2003, a nightclub kingpin who has now turned politician went so far as to hold a series of press conferences during which he played guessing games with the media about how much he had paid entire police stations to run illegal businesses. In November 2004 a group of academics reported on a study of police stations across Bangkok that found every rank in every police station engaged in some kind of graft on a daily basis [See further: http://www.alrc.net/doc/mainfile.php/unar_hrc_th_2005/].

The Independent Commission Against Corruption (ICAC) in Hong Kong is an example of an independent monitoring body that for the first three years of its existence focused exclusively on eliminating corruption within the police force. This was due to its firm belief that unless the police, the guardians of law, were held accountable for their actions under the very same law they were meant to protect, there could be no improvement in the rule of law situation in the rest of society.

Independent monitoring body

If the police are to sacrifice the rule of law, there is no necessity for any independent body that monitors the police to exist. Without such a body, there is also no way for complaints made against the police to be adequately addressed; one can easily imagine what would occur if an individual went to a police station to lodge a complaint of abuse or harassment against an officer of the same station. Even if a different police station was approached, it is highly unlikely that objective and efficient procedures would be carried out regarding complaints against fellow police officers.

An example of such a body would be the National Police Commission of Sri Lanka (NPC), which although has some defects, is a useful institution. In fact, the power of the NPC under the constitution and its own mandate is quite significant. The Sri Lankan constitution was amended in order to allow for the establishment of the NPC. Under article 155G(1)(a) of the Sri Lankan Constitution as amended, disciplinary control of police officers other than the Inspector General of Police (IGP) is vested with the NPC. Article 155G (2) further states that "The Commission shall establish procedures to entertain and investigate public complaints and complaints of any aggrieved person made against a police officer or the police service, and provide redress in accordance with the provisions of any law enacted by Parliament for such purpose."
 
As the Asian Human Rights Commission noted in one of its statements,

The disciplinary control of the police is, as envisaged by the Constitution, a far more important matter than even appointment, promotion and transfer of police officers.  This is particularly so given the history of the country in the last few decades. It is an incontrovertible fact, the understanding of which is reflected in the NPC Chairman's speeches during the last year. It is a fundamental obligation of the NPC to ensure full control of the discipline within the police service. If the Chairman of the Commission claims there is no legal provision granting the Commission power over the lower ranks of the police, this is a clear misunderstanding of the law as enshrined in the 17th Amendment. However, if the Commission itself has handed back this power to the IGP then this is a completely different matter. If the Commission has done so this is a decision which is fundamentally flawed. However, what seems to be the actual case is that the NPC has not seriously taken any practical steps to use the power it has for the disciplinary control of the police. Its time has been mainly spent on matters relating to appointments, promotions and transfers.
 
It is suggested that the NPC face up to its Constitutional responsibility to exercise direct disciplinary control over all officers. The major problem with the Sri Lankan police is the breakdown of discipline. Nothing can save the institution until this very serious problem is adequately addressed. There is no Constitutional authority other than the NPC that can address this important task. To abdicate from this role is an act of colossal neglect particularly at a time when the country is faced with very serious problems of social instability and increase of crime.  Discipline, particularly within the lower ranks of the police is an essential condition for proper criminal investigations directed towards the deterrence of crime. If the NPC neglects to take its proper responsibility for the disciplinary control of such officers, the fight against crime has very little possibility of success [AHRC AS-21-2004, 20 July 2004].

The lack of such a body ensures greater impunity to the police. With no one to check their actions, and with little hope for victims who complain due to systemic loopholes as well as the support--even if it is only silent or passive--of the perpetrators' colleagues and superior officers, police officers are left to ensure order as they wish. This can take the form of abusing those they or their supporters have grievances against, or delivering 'justice' in exchange for monetary gain.

With regard to authoritarian regimes or extremist ruling parties, a lack of independent monitoring means the use of the police as tools of repression, such as in Nepal, Pakistan, Indonesia.

C. Police training and facilities

The lack of qualified criminal investigators hampers the criminal investigations in Sri Lanka, the Solicitor General of Sri Lanka was quoted as saying on 5 September 2004. This statement, on which there is complete consensus by officials and political leaders as well as the public, is commonly identified as the reason for the failure to detect crimes and arrest the perpetrators, as well as why unqualified officers engage in torture. Little has been done to resolve the problem however.

Linked to a lack of criminal investigators, is the forensic facilities that are terribly lacking in the majority of Asian countries. Without these facilities, it is not possible for the police to use scientific methods to investigate crimes and arrest perpetrators, leading them back to using their muscle rather than mind.

Torture is the cheapest method of criminal investigation

One of the most common justifications of torture is that it is the cheapest method of criminal investigation. Though not expressed openly, this view is shared by the state, though publicly-and particularly for international audiences-it expresses the opposite view.

How has torture become the cheapest method of criminal investigation? By relying on cheap labour. The average police officer in Sri Lanka counts among the least educated persons in the country. Becoming a lawyer, doctor, or even a teacher takes years of education. Achieving some prominence in these or another profession requires many years of patient practice. No such basic education is necessary to be a police officer. (This is not to deny there are a handful at the top who have a basic degree, and a few with longer training.) Those police officers with hardly any basic skills associated with an inquiring mind are the investigators of crime under normal circumstances. Their sensibilities are so underdeveloped that engaging in acts of brutality does not create much of a problem for them. "The rougher the person, the better", is an underlying principle of selection, though this is not openly expressed. The recruitment, use and manipulation of cheap labour are primary elements of policing in Sri Lanka. The result is that no real selection criteria are applied in practice, though they may be used for publicity purposes.

Professional training of police in many countries now takes several years, after which they are selected on the basis of particular criteria. In some countries it takes three to four years. No such expense needs to be spent when the aim is simply to use cheap labour for policing. Just three months of 'training', if any-most of which is spent on physical exercises-is all there is. In fact, this may be a matter of policy. How can a better-trained officer adjust to the rough and brutal practices that go on in police stations?

Both the elements of cheap labour and inadequate training explain why it is difficult for the institution to impose a high degree of discipline on the average police officer. The subject is not really capable of such discipline. Thus cheap labour implies a high degree of tolerance of corruption within the police institution.

Under such circumstances, nothing more than cheap investigations can be expected. Cheap labour in policing means use of muscle, rather than the mind. Thus, the whole police institution becomes a monster that challenges every principle of decent social dealings and shows its fist to every one, saying, "If you have us cheap, you have no grounds to complain about what we do" [Basil Fernando, ‘Trying to understand the police crisis in Sri Lanka’, article 2, vol. 1 no. 4, p. 46-7].

There was a case in 2004 where a police recruit committed suicide while at training camp in Kerala, India due to the torture and harsh conditions he was made to undergo. Manu K. Paulson, a 27-year-old police constable trainee at the Kerala Armed Police Battalion, Maniyar Police Camp in Pathanamthitta District found the rigorous training physically and psychologically excruciating and started using painkillers to ease his pain. When his superior came to know about this, he seized the medicine and accused the victim of consuming drugs. Manu was taken to the camp commandant and subjected to torture under the supervision of the camp officers. Finding the situation intolerable, Manu applied for leave and left for home. He later extended the leave for a few more days and finally committed suicide on 16 February 2004. Manu's relatives allege that he was a jovial person with high spirits and had no other reason to commit suicide but for the horrendous torture he faced in the police training camp, in the name of strict training.

The training programme for new recruits at the Kerala Armed Police camps is brutal. The camps lack basic amenities including water. The training often occurs in treacherous conditions with the new recruits left at the mercy of their commandants, who often push the recruits to their limits and abuse their power. Any failure to obey the commandants will be dealt with further brutality in the name of discipline.

While human rights training is also given to the new recruits, this training has little value in the face of their physical and combat training; while the human rights sessions may speak of respecting human life, their armed training focuses on committing severe torture without causing external injuries. The very nature of police training and the lack of room for complaints gives the trainees their attitude for future service [See further: AHRC UA-19-2004, 17 February 2004].

Questions For Discussion

1.    How would you describe the rule of law situation in your country? What role do the police play in this situation?
2.    Discuss domestic and international laws governing police behaviour. Are these implemented? If not, discuss the reasons and how these can be overcome.
3.    In your opinion, what is the role played by other institutions such as the prosecution and judiciary in the rule of law situation?