Practice of torture with or without Anti-Torture Law

A study on the Philippines, Burma,

Indonesia & Thailand

Danilo Reyes, Programme Officer, AHRC June 26, 2012, Hong Kong University

The Philippines Without a law (pre-November 2009)

• Abadilla Five • They were tortured in

June 1996, falsely charged for murder, convicted on evidence taken by way of torture in 2010

• In 1996, the CHR concluded:

• “…finds prima facie evidence that respondents could have violated..the Law on Custodial Investigation.”

The Philippines

• In convicting, the court ruled:

• “…they cannot simply rely on those violations of constitutional rights during custodial investigation.”

• In January 2011, the Ombudsman concluded the complaint CHR filed. Two of the policemen charged are already dead. One of them, Supt. Bartolome Baluyot, was also involved in many other torture cases

The Philippines

• Gensan 3

• Arsul Ginta, Abubakar Amihalsan and Jehjon Macalinsan

• They were tortured in April 2004

• Falsely charged with possession of explosives, acquitted after eight years

• Arsul’s wife died due to depression eight months before he was acquitted.

After Anti-Torture Act of 2009

The Philippines With a law (post-November 2009)

• Lenin Salas and others • They were tortured in August

2010, falsely charged with illegal possession of firearms.

• They filed charges for Anti-Torture Act of 2009 against the police

• On July 21, 2011 the prosecutor dismissed their complaint of torture for “insufficiency of evidence”:

• "there exists a probability that they (victims) were tortured", but they "did not have the opportunity to see him considering that they were blindfolded".”

In South-East Asian countries

Burma - Without a law Phyo Wai Aung

• Arrested and tortured on 22 April 2010, after the explosions at the annual water festival, police chief declared him a terrorist in a press conference.

• His lengthy testimony to support his defense of alibi that he was not at the place where the bombing took place was ignored

• There is a heavy reliance on torture to extract confession as the basis for a conviction in criminal cases.

In South-East Asian countries Indonesia - Without a law

• Selfius Bobii and 41 others

• On 30 April 2012, he and 41 others were tortured by prison guards at Abepura Correctional Facility.

• Selfius is detained for his role in the Third Papuan Congress in October 2011. They were tortured for asking permission to hold activities in the prison

In South-East Asian countries Indonesia - Without a law

• They were told: ‘You are all stupid, that is why you ended up here’

• They were beaten, kicked, hit with wood blocks as well as iron sticks and some of them were trampled by the prison guards.

In South-East Asian countries Indonesia - Without a law

Munawir Alamsyah

• On 7 April 2012, he was tortured by police officers of Narcotics Department of North Sumatra Provincial Police.

• Lawyers told: ‘there is no use asking for legal assistance from lawyers. It’s just a waste of money.

In South-East Asian countries Thailand - Without a law

• Mr. Suderueman Maleh and others

• Arrested and tortured to confess to a gun robbery in January 2004. On March 2004, his lawyer, Mr. Somchai Neelaphaijit, was abducted and disappeared.

• In March 2005, they testified:

• “electrocution, urination on the head and face, smacking on the base of the ears, and assault on the body”.

In South-East Asian countries Thailand - Without a law

• Maleh was criminally charged for giving ‘false statement’ to the Department of Special Investigation (DSI) and the Office of the National Anti-Corruption Commission (NACC).

• The pre-trial of his case was heard on 25 June 2012 at the Criminal Court on Ratchadaphisek Road in Bangkok

• In two years, a series of cases of on providing false information were filed against Mr. Suderueman.

Observations

• With or without a law, torture is practiced as a method of investigation

• Having laws is good—they establish a normative framework; however, unless the manner on which how the law is applied and the system of justice operates is clearly understood, this right will remain only on paper and without remedy.

Observations

• The law operates not only to prevent crime and to afford remedy, but also to commit criminal acts and to defeat any sort of remedy;

• Ex. To commit crime - jurisprudence on the supremacy of procedural rights over Constitutional rights; the interpretation of prosecutors and so on

• Ex. To defeat remedy - retaliatory prosecution of victims on ‘false information’, delays in investigation, absence of protection to witnesses and complainants

Questions for discussion

• In your country, is there a law against torture?

• If there is, will you file a complaint to prosecute the perpetrators?

• If there is none, will having a law is a sufficient remedy for torture victims? If not, how should we develop discourse on the importance of this law?

Questions for discussion

• Will you prosecute knowing it takes 15 years to conclude an investigation? That they would be dismissed despite compelling evidence?

• Will you prosecute knowing that neither you as a complainant nor your witnesses have adequate protection?