| 1. Background 1. 1. The Asian Legal Resource Centre, (hereinafter referred to as the ALRC) a
Regional Non-Governmental Organisation with General Consultative Status with the
Economic and Social Council with its registered office at 19/F, Go-Up Commercial
Building, 998, Canton Road, Mong Kok, Kowloon, Hong Kong, Special Administrative
Region, China, wish to submit this proposal to the Honourable Secretary General
through the Secretariat of the Sub-Commission on the Promotion and Protection of
Human Rights in furtherance to its former letter of intent dated 29 March 2004
to propose an item for the provisional agenda under Rule 5 (4) a (i) of the
Guidelines for the Application by the Sub – Commission on the Promotion and
Protection of Human Rights of the Rules of Procedure of the Functional
Commissions of the Economic and Social Council and other Decisions and Practices
Relating thereto to the Sub Commission to conduct a study on the exceptional
collapse of rule of law in Sri Lanka (hereinafter referred to as ‘State’) and
thus to make recommendations to the Commission on Human Rights as per the
mandate of the Sub-Commission.
1. 2. The purpose of the proposed study is to aid the State to recover the now
collapsed public trust and confidence in the institutions pertaining to the rule
of law in Sri Lanka and thereby to augment the state’s effort to establish
stable and sustainable peace. As rule of law practically must be understood in
an institutional framework where effective and functioning administration of
justice is the foundation, this is the basis of effective protection of human
rights. The ALRC expects that the proposal would further substantiate the
content and purpose of the letter of intent mentioned above.
2. Scope of the study mentioned in the proposal
2. 1. The scope of the proposal is within the ambit of the UDHR and in
furtherance with Article 2 of the ICCPR & the ICESCR which provides for
international cooperation and assistance to provide effective remedy through
competent judicial, administrative and legislative process and enforcement of
such remedies thereby establishing the rule of law within the State. The failure
of the State to provide for such remedies due to the exceptional collapse of
rule of law has interrupted the realization of the obligations of the State as a
signatory to the international conventions and to all its citizens, including
the minorities. The cases attached along with this proposal will prove the above
statement. These are cases received from various reliable sources including
local non-governmental organisations and individuals seeking urgent
intervention. Many of these cases are reported by the UN Special Rapporteur in
his report E/CN.4/2004/56/Add.1.
2. 2. Rule of law is also a precondition for economic development. In Sri Lanka
the high state of insecurity resulting from the break down of the institutions
that should safeguard rule of law has led to increase in crime. A common concern
has been expressed by all sections in the society including business sector,
political leaders and civil society about the high level as well as the
increasingly more cruel nature of the crime that is taking place in the State.
Often, this is referred to as a societal collapse. In this situation, labour
dispute that in normal circumstances could be resolved by negotiations often end
up in continuous strikes.
Of particular concern is the suspension of work in the
health sector - by the doctors, nurses and other hospital staff. Such situations
affect the population, particularly the less affluent sections that are more
vulnerable and depending on the functioning of such state provided services for
their survival. The present situation affects economic, social and cultural
rights badly. The way poverty alleviation programmes are affected by the absence
of rule of law is a matter of particular concern. Donations received for poverty
alleviation is arbitrarily used, creating divisions among the poor and the
system has developed clusters of control, manipulation and violence. The
situation reported form 1977 continues even now and has even turned worse.
2. 3. The issue of the poorer sections of the country losing the opportunity for
better medical care remains a concern. The quality of the medical service to the
general public in some decades back has been better than what it is now.
Therefore, there is a lowering of the standards that were once assured.
2. 4. The available mechanisms for protection of human rights and for prevention
of torture in particular and for further redress of grievances, are the courts
and the national human rights commission. However, the National Human Rights
Commission is not empowered or geared by way of sufficient resources to provide
adequate remedies for violations of the rights of ordinary citizens due to soft
legislation and incapacity for execution. In this context the statement issued
by the Asian Human Rights Commission, a sister concern of ALRC explains what has
gone wrong with the National Human Rights Commission of Sri Lanka and what
remedial measures should be immediately adopted to cure this problem. The letter
is as follows:
A statement by the
Asian Human Rights Commission
The inadequacies of the torture prevention policy adopted by the Human Rights
Commission of Sri Lanka
(The Human Rights Commission of Sri Lanka has announced that it will launch a
Torture Prevention and Monitoring Unit on 22 May 2004. On February 19 its
Chairperson issued a short policy paper on torture. In this statement the Asian
Human Rights Commission, together with its partners in Sri Lanka, examines this
policy and makes recommendations for the improvement of both the policy and
practices of the Commission.)
We welcome the inauguration of the Torture Prevention and Monitoring Unit within
the Human Rights Commission (HRC) of Sri Lanka. However, we hasten to add that
we hope this will not prove to be a mere gesture intended only to make Sri
Lanka’s human rights record look good in the reports that the government submits
to agencies abroad, including the UN agencies for human rights. There are many
such ‘units’ referred to in various reports, but people living in Sri Lanka are
often unaware of them, as they do nothing much to redress the grave violations
of human rights taking place in the country.
Perhaps one way to reflect fruitfully on the task of this new unit is to examine
why the HRC has failed to develop even a moderately effective programme to deal
with the endemic torture that is taking place in Sri Lanka. The oft-repeated
answer is that the Commission does not have sufficient financial resources. One
hopes that the new unit will not be offering the same excuse after some time.
Whatever the validity of this explanation, it is also very clear that the
Commission has lacked a clear policy regarding the elimination of torture in
keeping with the UN Convention against Torture. Even now, going by an official
HRC statement made on 19 April 2004, the Commission has not shown a serious
understanding of how torture is deeply embedded in the country’s criminal
justice system. The HRC’s statement was as follows:
“From May 2004, the Human Rights Commission of Sri Lanka will institute a
zero-tolerance policy on torture. The elements of the policy are:
“The setting up of a 24 hour special unit for torture and emergency cases,
investigation on torture cases will begin within 24 hours of the incident being
reported, whenever there is a death in custody with an adverse medical report,
the OIC [Officer in Charge] of the police station will be summoned before the
HRC, discussions with Police Commission to secure interdiction of police
officers found guilty of torture by the Human Rights Commission or the Supreme
Court.
“In addition the HRC will work with the police to implement the Memorandum of
understanding between the HRC and the IGP [Inspector General of Police]. The
elements of that understanding were:
“Posters with regard to the rights of suspects shall be displayed in all three
languages in all police stations, training programmes on human rights at the
Police Training Institute will be strengthened. Family members and lawyers will
be able to visit anyone held in detention. Officers-in-Charge (OIC) of stations
to be held directly accountable for cases of torture at the police station. The
HRC, the Inspector General of Police (IGP) and the Police Commission to consider
the possibility of indicting police officials who been held guilty of
fundamental rights violations before the Supreme Court.”
It is worthwhile to examine this brief statement to assess even whether it can
be realized, and in so reduce, if not eliminate, the type of torture that exists
in Sri Lanka. In doing so we will make reference to some specific cases.
‘Zero-tolerance’: A soft expression hiding an inadequate policy
In terms of the Convention against Torture (CAT) and corresponding CAT Act (No.
22 of 1994) in Sri Lanka, ‘zero-tolerance’ is not in itself a policy objective.
Under international law torture is regarding as one of the most heinous of
crimes. Under the law of Sri Lanka, torture has been defined as a serious crime.
When it comes to crimes such as murder, rape, etc., we do not talk of
‘zero-tolerance’; we talk of them as crimes, and the perpetrators as criminals.
To begin with anything less is to soften the fight against torture. The clear
message that the perpetrators of torture should receive is that they are
criminals and that they will be dealt with as such. What message does
‘zero-tolerance’ carry to torturers? Had the Commission said that it would
consider it a priority to implement and to improve the CAT Act in Sri Lanka and
punish the perpetrators, it would have carried a message to those who engage in
this practice despite there being a law against it since 1994.
The soft expression used by the HRC speaks to its past practices on torture.
Until not very long ago HRC officers settled torture cases for small sums of
money, if anything. In some cases the settlement was Rs 1000 (about US$10).
Torture inquiries were reduced to arbitration. The idea that they were dealing
with a serious crime under domestic law and a heinous crime under international
law did not enter into the minds of these officers. They adopted a scandalously
careless approach, to the great relief of the perpetrators. The present
zero-tolerance approach does not show a significant break from that thinking.
What does dealing with torture as a crime imply?
a. Criminal investigations: A criminal investigation takes place whenever there
are complaints of torture. Anything less betrays both the domestic and
international law on torture.
b. Criminal trials: It may be argued that the HRC does not have the mandate or
resources to deal with torture as a crime. However, this argument is meaningless
when it comes to how the HRC should approach the issue. If it does not have
resources and power to take on torture as a crime (as required by law) it should
be ready to work critically and seriously monitor other state agencies that are
required to deal with torture as a crime. According to government reports to UN
agencies such as the UN Human Rights Committee and the Committee against
Torture, the official function of making criminal investigations into offences
under the CAT Act is assigned to a Special Investigation Unit (SIU). The SIU
functions under the Prevention of Torture Perpetrators Unit (PTPU) out of the
Department of the Attorney General. The government claims that this Unit has
filed about forty cases in High Courts, though so far there has not been a
single successful prosecution. Whatever the defects are—and many are
visible—torture has not yet once been dealt with as a crime in Sri Lanka.
c. Studying existing procedures: The starting point for any serious discussion
on the elimination of torture in Sri Lanka should be to study the existing
procedures for investigation and prosecution and their limitations, and
thereafter to develop an effective strategy to overcome them. Such a study and a
counter-strategy could lead to improvements.
d. Improving existing procedures: How could the HRC contribute to the
improvement of criminal investigations and the prosecution procedure as existing
now?
i. Treat all investigations into allegations of torture as possible cases for
prosecution. This would imply that torture complaints would be investigated with
a view to gather all the evidence with which to prove an offence of torture in a
criminal case, which at an appropriate stage would be shared with the Department
of the Attorney General, to pursue prosecutions.
ii. Critically monitor the PTPU investigations and prosecutions and make
official representations where reason exists to be dissatisfied.
iii. Engage civil society on torture and the ways by which legal redress can be
obtained for acts of torture, through education and other means.
iv. Engage the National Police Commission (NPC) and the Police Department and
instruct police officers that torture is a crime for which they will be
punished, thereby establishing a different set of principles in dealing with
torture.
‘A 24-hour special unit for torture and emergency cases’: Nothing new
Such a unit has been in existence for several years. In spite of many defects,
it has done a useful service by receiving calls, talking to—and sometimes
visiting—police stations. This is a good practice coming from the time of the
earlier Task Force. However, this work needs considerable improvement if it is
to prove capable of dealing with reports coming from various parts of the
country and to deal with them effectively.
In the case of Mr. K.P. Tissa Kumara, for instance, a young artisan who was
severely beaten by an officer of the Wellipena Police before a TB patient was
made to spit into his mouth, a prompt complaint was made to the HRC. The
incident took place on February 3, but there has been no real help offered to
this person by the HRC. On April 30 doctors suspected that he had caught the
disease. All this time he was in the remand prison with serious bodily injuries
and unable to take any precautions to prevent the spread of TB in his body.
This is one of many cases where the HRC’s unit for dealing with complaints could
have made a difference, but to do so it needs guidelines, and proper
supervision. Has the HRC made any such guidelines and arrangements for
supervision of this new unit? If not, its use will be very limited, and many
will continue to suffer like Mr. Tissa Kumara.
‘Investigation on torture cases will begin within 24 hours of the incident being
reported’: What does it mean?
This is a welcome change from the present position, where often even months
after a report no investigation really takes place. However, what the
‘beginning’ of investigation means has not been made clear. To make it clear it
is necessary to have an investigation procedure.
The need for an investigation procedure: One of the criticisms of the HRC from
its very inception has been the lack of an investigation procedure. Despite its
administration changing hands, there has been no attempt at all to lay down such
a procedure, which may explain the cheap settlements easily arrived at in the
past. If the beginning of an investigation is to be a meaningful exercise the
HRC must lay down a procedure for its investigations and make it known to the
investigators and the public. That way, the investigators will know what to do
and the public will know what to expect.
Though it is said that the investigation will begin in 24 hours, nothing has
been said about when it will end. There are so many cases where complaints have
been made to the HRC and the complainants even up to now do not know what has
happened to their cases. The case of Chamila Bandara, the 17-year-old boy
severely beaten by the Ankumbura Police, is one instance. The complaint was made
in July 2003. However, up to the present day the inquiries are continuing. In
some cases where victims have allegedly been kept in remand custody on
fabricated charges after torture, the inquiries have gone on for up to a year
while these people remain in prison.
Will it be different now that inquiries are to begin in 24 hours? There is no
reason to think so, unless a clear investigation procedure is laid down and the
complainants are made aware of how proceedings are going. The harsh distancing
of the complainants from the investigating systems, and making everything appear
as if they have no right to know anything about the investigation will only
ensure that things will remain as they are.
Dealing with rogue investigators and corrupt Area Coordinators: Further
questions can be raised regarding investigations conducted from Area Offices.
Who will conduct these inquiries? Will it be the same people as before, i.e.,
the Area Coordinators? How about the Area Coordinators who are known to be
collaborators with the perpetrators of torture, such as the Area Coordinator of
Kandy, whose betrayal of victims of human rights violations and whose partiality
to the perpetrators is well known? Many parties have placed complaints regarding
this Coordinator with the HRC for a long time now without any results. If such
‘investigators’ continue, what will be the effect of beginning inquiries within
24 hours? Would it mean that as soon as complaints are made perpetrators will be
alerted so that they can do all they need to subvert the inquiries and to harass
the complainants?
The need for witness protection:
Everyone knows that the most difficult obstacle
in eliminating torture is that the complainants fear the consequences after
making complaints against security personnel. The fear is well founded, as the
poor in particular have been subjected to harsh punishments after making
complaints. Most frequently they have been implicated in crimes which they did
not commit. For example, after Lalith Rajapakse made a complaint about brutal
injuries caused to him by the Kandana Police, he was charged with two counts of
robbery.
Having attended court for almost two years he was acquitted from the
charges, as there was no evidence at all against him—not even an adverse witness
statement. Angelina Roshana, a girl brutally tortured by the Narahenpita Police,
was also falsely charged with stealing a gold watch worth about Rs 500,000, but
later acquitted because there was no evidence at all against her. Chamila
Bandara, mentioned above, has been falsely charged with several counts of theft,
without the slightest evidence. Tissa Kumara, also mentioned above, is still in
remand falsely accused of possessing a bomb. A long list of similar cases can be
cited.
There are other measures used to intimidate persons who make complaints. Chamila
Bandara’s family was exposed to so much harassment that they had to leave their
home. They did so in late July 2003 and to the present day have been unable to
return. They lodged a complaint with the HRC, but no attempt was made to provide
protection for their return. Michael Anthony (Tony) Fernando, who has complained
of being tortured when he was in remand custody, later escaped a kidnapping
attempt and has been in hiding for several months now.
Any serious attempt to deal with torture must be accompanied by a programme of
witness protection. The United Nations Human Rights Committee made
recommendations to the government of Sri Lanka to this effect on 2 November
2003.
‘Whenever there is a death in custody with an adverse medical report, the OIC of
the police station will be summoned before the HRC’: A highly flawed proposal
Why the qualification? The qualification for HRC intervention in custodial
deaths only ‘with an adverse medical report’ is surprising. A major cover-up in
custodial deaths takes place well before medical reports are made. For example,
when a person is said to have hanged himself inside a police cell, the scene is
easily pre-arranged and doctors called merely to certify the police version of
what happened. The victims’ families need help before that stage, but lawyers
are not usually allowed in while investigations are taking place inside police
stations.
In the case of Garlin Kankanamge Sanjeewa, whose body was found hanging in a
police cell at the Kadawatha Police Station, his mother alleged that she was
called to the station under the pretext that her son was in police custody. Only
several hours after arriving at the station was she brought to the place where
her son was hanging, and merely to identify his dead body. The doctor was
already present. She had no assistance to protest the manner in which the
investigation was conducted. Later she buried her son’s body in a relative’s
compound with a view to getting a second post mortem. It is really at the
earliest stage of death in custody taking place that the HRC must make its
intervention, otherwise in many cases it will be too late.
Why summon the OIC? It is very difficult to understand what objective would be
served by summoning an Officer-in-Charge (OIC) of a police station after a death
in police custody. The HRC has not explained what it would do after summoning
the OIC. Earlier it had made an announcement that whenever torture takes place
at a police station the OIC would be held responsible. However, it never
explained exactly what action would be taken against such an OIC. Since that
announcement literally hundreds of torture complaints have been made but not one
OIC has ever been summoned to the HRC. The public has a right to know how an OIC
will be held to account, and what consequences are envisaged. Making empty
threats only makes a bad situation even more ridiculous.
OICs are criminally liable: Under domestic and international law, an OIC can be
held liable as a person aiding and abetting an offence. As the chief
investigator of all crimes taking place within a police station, he is estopped
from denying knowledge about what took place during a criminal investigation
under his jurisdiction. He can also be held for conspiring in the offence of
torture taking place within his station. Therefore the HRC must examine the
criminal liability of an OIC for any act of torture taking place within his
station and recommend what should happen to such officers under the CAT Act.
The liability of an OIC also arises from the principle of command
responsibility, under which an OIC can be held responsible for a violation of
fundamental rights. The HRC has a right to conduct inquiries on violations of
fundamental rights and there is no reason to exempt an OIC from liability for
fundamental rights violations taking place within his police station.
ASPs are also responsible: There is no reason for command responsibility to stop
with the OIC. In fact every Assistant Superintendent of Police (ASP) has direct
responsibility for supervising the police stations in his area. In terms of
disciplinary control, his liability matters even more than that of the OIC. In
the past there had been some instances when ASPs were summoned by the HRC. When
the ASP Kodithuwacku was summoned he challenged the authority of the inquiring
officer. How the matter was resolved remains a mystery to the public. In dealing
with torture it is essential that the command responsibility of the ASP be
addressed. In fact the Supreme Court has held, in the case of Gerald Perera,
among others, that the responsibility continues on up to the Inspector General
of Police. The HRC should at least begin by upholding the legal developments
that have taken place in the country so far. To set standards far less than
these will undermine the human rights struggle to eliminate torture. In fact,
the HRC is duty bound to uphold the norms and standards of the United Nations
regarding torture.
Doctors are also liable: One of the major impediments to torture victims seeking
redress are the inaccurate and even sometimes false medical reports filed by
some District Medical Officers and Judicial Medical Officers. Often local
relationships and other obligations cause medical officers to issue misleading
medical reports. The HRC should discuss with the Medical Council about ways to
prevent this practice. Where the HRC has evidence of false reports being issued,
the doctors should be summoned to the HRC and also officially reported to the
Medical Council.
‘Discussions with Police Commission to secure interdiction of police officers
found guilty of torture by the Human Rights Commission or the Supreme Court’:
The Establishment Code versus the Constitution
The position so far held by the Police Department is that as judgments of the
Supreme Court on fundamental rights applications do not amount to criminal
convictions these should not affect the promotions of the officers concerned.
The argument is based on the Establishment Code, which stipulates disciplinary
consequences for state officers who are convicted in criminal offences. The
implication is that the fundamental rights enshrined in the Constitution do not
matter. The HRC must challenge and defeat this position. Mere discussions with
the National Police Commission (NPC) are not likely to yield any significant
result until the Police Department and NPC admit their duty to uphold the
Constitution and police liability when provisions of the Constitution are
violated.
We will now turn to examine some areas of concern not yet addressed by the HRC.
Trauma and Post-Traumatic Stress Disorder
Torture has a terrible effect on the mind and emotions. As a result, literally
tens of thousands of people across the country are suffering from trauma and
Post-Traumatic Stress Disorder. One does not have to go very far to discover
persons suffering acutely. All that one needs to do is to interview a few
torture victims and the stark reality of extremely deep psychological problems
will soon surface. But what services are available to deal with such problems?
In fact, they are extremely limited and very inadequate. Some good doctors have
tried to be of some help, however, their work has meant little overall in an
ocean of deep distress and trouble.
The Sri Lankan government is obliged under international laws to which it is a
party to provide facilities for persons suffering from the psychological effects
of torture. However, it has not at any stage created a facility for the
treatment of torture victims, nor allocated any funds for this purpose. It has
no plan at all to address this issue.
The HRC likewise has to date done no work in this area, and nor does its recent
policy statement make any reference to the psychological consequences of
torture. This is a very serious lapse of policy that needs to be corrected as
soon as possible. Its first obligation is take up the matter with the government
and persuade it to comply with international law. This could be done by way of
recommendations and lobbying. The HRC can also help the government to draw up
specific plans. By engaging the public on this issue the HRC can also educate
people to exercise influence over the government to establish such facilities.
While persuading the government to honour its obligations the HRC can also try
to influence the community to assist torture victims. Strong appeals by the HRC
would likely find responses from psychiatrists, doctors, counsellors and other
concerned persons. Victims coming forward to make complaints about torture could
then be directed to such persons, and organisations dealing with trauma and
psychological problems. In fact, the HRC should have a unit to deal with this
issue alone, or in the interim at least a volunteer group under its supervision.
As for finances, it is quite likely that there would be both local and
international donors to help if such a unit were established.
Institutional liability for torture
The HRC has approached torture purely from the point of view of individual
liability. However, torture is primarily an institutional problem. The endemic
torture as found in Sri Lanka is a result of a tacitly accepted policy that
torture is necessary and unavoidable. Successive commissions appointed to
inquire into the police—Justice Soertsez’s Commission of 1947, Justice
Basnayake’s Commission of 1970, Subasinghe’s Salaries Commission of 1978, and
Jayasinghe’s Commission of 1995—all pointed to institutional problems. Later
commissions inquiring into forced disappearances also laid bare the grim reality
that torture is entrenched in policing in Sri Lanka.
In fact, there is no controversy on this point. The 17th Amendment to the
Constitution was itself based on the need to address the problems of some public
institutions, including the police, which have collapsed due to developments in
recent times. Some researchers who have held high positions in the Police
Department itself have revealed the inherent limitations of the system as it
exists today. In a letter dated 6 May 2004 to the Attorney General, written on
behalf of the Asian Human Rights Commission, Basil Fernando pointed to this:
“It would be quite naïve on our part to think that the police in Sri Lanka would
want suggestions from any of us if they really want to stop torture taking place
at police stations or elsewhere during criminal investigations. They would
already know HOW to do this, if they really WANTED to do this. The real problem
is that there is a firm belief that torture is necessary and unavoidable. The
ratification of the CAT Convention against Torture and even making it into a law
through the CAT Act (Act No.22/1994) was done without the proper engagement of
the police in the exercise. The result was that the police were not confronted
with the need to abandon a well-entrenched practice in their institution. Thus
the police themselves did not have a part in making one of the most fundamental
reforms that was required by the CAT and CAT Act.
Even after the making of such a law and the undertaking of such serious
international obligations the police were not constructively engaged in looking
into the new law and exposed to the obligations and implications it entailed.
The result was that almost always in private conversations, the police officers,
including those of high rank, spoke and continue to speak of the practical
impossibility of doing away with torture. Until this problem is internally
resolved by way of genuine and open engagement within the police force itself no
amount of external compulsion will be able to bring about the required mindset
and the institutional conviction to honour the obligations under the CAT and to
implement the CAT Act. In this regard your position as the country’s highest
legal officer would be useful in engaging the police, particularly the
higher-ranking officers, into a serious internal dialogue of the thinking,
history and philosophy behind the CAT. I do not mean human rights education for
these officers, I believe they are broadly aware of the arguments in favour of
the CAT Act. In fact what I mean is a more practical institutional dialogue
within which they could openly discuss the views that they hold. If in such a
dialogue they agree to eliminate torture, I feel sure they will tell us HOW.”
Without a clear change in policy arrived at by way of a decision within the
Police Department itself there is no possibility of eliminating torture. So long
as the police tolerate, encourage and think of torture as necessary and
unavoidable the HRC’s ‘zero-tolerance’ will be of little consequence.
The educational role of the HRC towards eliminating torture
A strong educational component is missing from the HRC’s policy on torture, as
it has been since the beginning of its work. This is interesting, as some other
national human rights commissions, even where they have failed in other areas of
their mandate, have tried to fulfill their educational function.
Strong educational work via electronic media and other means would do much to
eliminate torture. Widespread education on the CAT Act would benefit civilians
as well as security officers. Education on legal remedies and how to obtain them
would be useful to everyone. Public education would create the pressure needed
for policy changes. The HRC can have free access to public media channels. Even
private media channels are likely to respond to a call to support this mission.
Creative persons in the human rights field, legal field and in the media can
collaborate and achieve results within a short time.
Recommendations
To develop a serious strategy towards the elimination of torture we urge the HRC
to
a. Make a clear policy statement on the elimination of torture based on Sri
Lanka’s obligations under the International Covenant on Civil and Political
Rights (ICCPR) and CAT, as well as the CAT Act of Sri Lanka. Such a paper will
help the public to understand and cooperate with the HRC on this matter.
b. Concentrate on implementing the CAT Act while at the same time trying to
improve it in line with the CAT. Develop strategies and methodologies to
cooperate critically and monitor criminal investigations and prosecutions
currently taking place under the ad hoc arrangements of the Prosecution of
Torture Perpetrators Unit. Critical cooperation means studying how
investigations and prosecutions are done now and taking suitable action to
ensure improvements. The HRC can also monitor investigations and prosecutions to
ensure EFFECTIVE REMEDIES in terms of article 2 of the ICCPR.
c. Develop and adopt a complaint receipt and investigation procedure without
delay, to serve as the basis on which all investigations are conducted and
reported. This implies abandoning earlier procedures for dealing with torture
cases, such as the reaching of settlements. The procedure should be made
available to the public so that people will be aware of what actions will be
taken when they make complaints.
d. Set a time within which to complete inquiries, and require that complainants
be kept informed about the progress of their complaints.
e. Inform the Department of the Attorney General where prima facie evidence of
torture is uncovered, and ensure that proper criminal investigations and
prosecutions follow.
f. Establish and enforce a disciplinary procedure over inquiring officers who
deliberately sabotage the process and side with the perpetrators. Take other
measures to prevent negligence by investigating officers. Take prompt action to
investigate and make appropriate decisions, particularly where corruption is
alleged.
g. Enforce command responsibility for torture, from OICs of police stations to
ASPs and all others up to the IGP.
h. Give special priority to trauma and Post-Traumatic Stress Disorder among
torture victims. Take appropriate action for the government to recognize and
respect its responsibilities in this regard. Establish a unit within the HRC,
even with volunteers, to provide services to such victims. Refer all torture
victims who make complaints of torture to the HRC to qualified professionals for
medical and psychological examination and treatment.
i. Treat torture as an institutional problem arising from the nature of the
police force as it exists now. Make suitable studies and generate public
discussion and debate on the ways to overcome the institutional limitations
legitimating torture. Engage the NPC, Police Department, and other responsible
agencies—such as the Department of the Attorney General—in a policy discourse
for institutional reform. Provide the necessary technical assistance to the NPC
and Police Department to evaluate and adopt practices that eliminate torture. In
this regard, engage the government as well as the civil society for quick
implementation of the Public Complaints Procedure envisaged by Article 155G(2)
of the amended Constitution, which requires that the NPC establish such a
procedure.
j. Undertake nationwide education on the CAT and CAT Act of Sri Lanka, and the
ways to implement legal obligations arising from these.
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2. 5. The courts, prosecution and other mechanisms have completely failed and
justice is tainted taking away the literal meaning of the term. As mentioned
earlier, even the Apex court ignores torture thereby recognizing torture and
augmenting the culture of impunity. Newer commissions such as the National
Police Commission, despite its one year of existence, has also not taken any
effective steps towards redressing this situation, even though constitutionally
empowered to set up a public complaints procedure against police officers who
commit violations of human rights.
3. Country situation vis-à-vis ratifications
3. 1. In terms with the obligations of ratification of the international
conventions mentioned above and the spirit of UDHR, the State has enacted
domestic legislation to prevent torture. However, ALRC believes that the
implementation of these domestic laws have miserably failed due to the
exceptional collapse of rule of law. This has paved way for total impunity and
lack of adequate prosecution in cases of human rights violations in the State,
especially in cases of disappearances, custodial deaths, summary executions and
torture. Apart from the legal anomalies contrary to the State’s international
human rights obligations and thus in violation of the stipulations of the UDHR,
the situation in the State, as far as the actual working of its domestic
mechanisms to give effect to those international obligations are concerned, is
completely negative.
3. 2. There are umpteen observations and recommendations by various
international bodies regarding the necessity for immediate action by the State
in this regard. The UN bodies like the Human Rights Committee, CAT Committee,
CEDAW Committee, CERD Committee, ESCR Committee, Committee on Rights of Child,
reports of the Working Group on Arbitrary Detention, Working Group on Enforced
or Involuntary Disappearances, reports of the Special Rapporteurs on Extra
Judicial and Summary Execution, on Independence of Judges & Lawyers and on
Torture, have several times requested and recommended the State to make internal
arrangements so as to address the issue of rule of law in the State. The treaty
bodies and the extra-conventional mechanisms named above also had occasion to
deal with numerous individual complaints from the State indicating an
exceptional collapse of rule of law.
3. 3. Apart from these UN bodies, report of the International Bar Association (IBA),
various reports and statements by the ALRC, Amnesty International, World
Organisation Against Torture (OMCT) and other international, regional and
national non-governmental organisations have emphatically notified the State as
well as the UN bodies about the total collapse of rule of law in the State. The
ALRC, Amnesty International and the OMCT have on various occasions called upon
the international community and the State to address the exceptional collapse of
rule of law in the State with reference to specific cases.
3. 4. In spite of recommendations and appeals the situation of rule of law in
the State has not only failed to yield any change but seems to have nose-dived
into absolute failure. Currently, there seem to be no internal arrangement
capable of moving out of the worsening situation.
4. Observations by UN bodies – The Human Rights Committee.
| 4. 1. As mentioned earlier the Human Rights Committee has aired its concern
through remarks and recommendations to the state on several occasions. In its
concluding remarks dated 01-12-2003, the Committee expressed concern about:
4. 2. “[P]ersistent reports of torture and cruel, inhuman or degrading treatment
or punishment of detainees by law enforcement officials and members of the armed
forces, and that the restrictive definition of torture in the 1994 Convention
against Torture Act continues to raise problems in the light of article 7 of the
Covenant. It regrets that the majority of prosecutions initiated against police
officers or members of the armed forces on charges of abduction and unlawful
confinement, as well as on charges of torture, have been inconclusive due to
lack of satisfactory evidence and unavailability of witnesses, despite a number
of acknowledged instances of abduction and/or unlawful confinement and/or
torture, and only very few police or army officers have been found guilty and
punished”.
4. 3. “The Committee also notes with concern reports that victims of human
rights violations feel intimidated from bringing complaints or have been
subjected to intimidation and/or threats, thereby discouraging them from
pursuing appropriate avenues to obtain an effective remedy”.
4. 4. “[The state] should ensure in particular that allegations of crimes
committed by State security forces, especially allegations of torture, abduction
and illegal confinement, are investigated promptly and effectively with a view
to prosecuting perpetrators. The National Police Commission complaints procedure
should be implemented as soon as possible. The authorities should diligently
enquire into all cases of suspected intimidation of witnesses and establish a
witness protection program in order to put an end to the climate of fear that
plagues the investigation and prosecution of such cases”
4. 5. “The Committee is concerned about the large number of enforced or
involuntary disappearances of persons during the time of the armed conflict, and
particularly about the State party's inability to identify, or inaction in
identifying those responsible and to bring them to justice. This situation,
taken together with the reluctance of victims to file or pursue complaints (see
para. 9 above), creates an environment that is conducive to a culture of
impunity”.
4. 6. “The State party is urged to implement fully the right to life and
physical integrity of all persons (Arts. 6, 7, 9 and 10, in particular) and give
effect to the relevant recommendations made by the United Nations Commission on
Human Rights' Working Group on Enforced or Involuntary Disappearances and by the
Presidential Commissions for Investigation into Enforced or Involuntary
Disappearances. The National Human Rights Commission should be allocated
sufficient resources to monitor the investigation and prosecution of all cases
of disappearances”.
4. 7. “The Committee notes with concern that overcrowding remains a serious
problem in many penitentiary institutions, with the inevitable adverse impact on
conditions of detention in these facilities”.
4. 8. “The State party should strengthen the independence of the judiciary by
providing for judicial, rather than parliamentary, supervision and discipline of
judicial conduct”.
4. 9. “The Committee is concerned about persistent reports that media personnel
and journalists face harassment, and that the majority of allegations of
violations of freedom of expression have been ignored or rejected by the
competent authorities. The Committee observes that the police and other
government agencies frequently do not appear to take the required measures of
protection to combat such practices”.
4. 10. “The fifth periodic report should be prepared in accordance with the
Committee's reporting guidelines (CCPR/C/66/GUI/Rev.1) and be submitted by 1
November 2007. The State party should pay particular attention to indicating the
measures taken to give effect to these concluding observations. The Committee
requests that the text of the State party's fourth periodic report and the
present concluding observations be published and widely disseminated throughout
the country”.
4. 11. ”In accordance with rule 70, paragraph 5, of the Committee's rules of
procedure, the State party should provide information, within one year, on its
response to the Committee's recommendations contained in paragraphs 8, 9, 10 and
18. The Committee requests the State party to provide information in its next
report on the other recommendations made and on the implementation of the
Covenant as a whole”. |
4. 12. No action whatsoever has been initiated neither is it likely to be
initiated regarding the above recommendations made by the Human Rights Committee
in the state.
4. 13. This observation was not an isolated incident taking into account of any
recent developments. The Human Rights Committee while considering the third
periodic report of Sri Lanka on 27-07-1995 also emphatically requested the state
to:
| 4. 14. “The Committee notes with particular concern that an effective system for
the prevention and punishment of such violations does not appear to exist. In
addition, concern is expressed that violations and abuses allegedly committed by
police officers have not been investigated by an independent body, and that
frequently the perpetrators of such violations have not been punished. The
Committee notes that this may contribute to an atmosphere of impunity among the
perpetrators of human rights violations and constitute an impediment to the
efforts being undertaken to promote respect for human rights”. 4. 15. “The Committee is concerned that the rights under article 10 of the
Covenant of persons deprived of their liberty in prisons and other places of
detention are not fully respected. It regrets that conditions in places of
detention other than prisons are not regulated by law and that prisons and other
places of detention are not regularly visited by magistrates or other
independent bodies”.
4. 16. “It also urges the State party to take into account that investigation
and prosecution of criminal offences should be carried out by an independent
body and that punishment of criminal offences should be carried out by the
judiciary”.
4. 17. “[T]he Committee recommends that as a matter of priority all legal
provisions or executive orders be reviewed to ensure their compatibility with
the provisions of the Covenant and their effective implementation in practice”.
|
4. 18. The above recommendations by and large remained recommendations. The
failure in implementation was due to the exceptionally collapsed rule of law in
the state. One significant factor in this regard was that not a single
conviction had taken place for the past nine years since Sri Lanka’s CAT Act of
1994 was enacted, ostensibly to give effect to the UN Convention Against
Torture. Thus the culture of absolute impunity, horrendous torture,
non-dependability of the system in toto, continues.
5. The CAT Committee.
5. 1. Similarly the Committee against Torture vide its report on the 20th
session in 1998 expressed serious concern on the issue of torture and
disappearances reported from Sri Lanka due to the exceptional failure of rule of
law. The Committee specifically points out that:
| 5. 2. “The serious internal situation faced by the State party, which however in
no way justifies any violation of the Convention”. 5. 3. “The fact that for years in the past police officers appeared to be immune
from prosecution”.
5. 4. “The Committee is gravely concerned by information on serious violations
of the Convention, particularly regarding torture linked with disappearances”.
5. 5. “The Committee noted that, while the Convention against Torture Act 22/94
covers most of the provisions of the Convention, there were certain significant
omissions”.
5. 6. “The Committee urges the State party to review Convention against Torture
Act 22/94 and other relevant laws in order to ensure complete compliance with
the Convention, in particular in respect of: (a) the definition of torture; (b)
acts that amount to torture; and (c) extradition, return and expulsion”.
5. 7. “Ensure that all allegations of torture – past, present and future – are
promptly, independently and effectively investigated and the recommendations
implemented without any delay”.
5. 8. “While continuing to remedy, through compensation, the consequences of
torture, give due importance to prompt criminal prosecutions and disciplinary
proceedings against culprits”.
5. 9. “Take the necessary measures to ensure that justice is not delayed,
especially in the cases of trials of people accused of torture. Strengthen the
Human Rights Commission and other mechanisms dealing with torture prevention and
investigation and provide them with all the means that are necessary to ensure
their impartiality and effectiveness”. |
5. 10. As quoted above internal strife is no excuse for the state to derogate
from its obligations. The deep silence due to sheer fear from further
persecution has engulfed the community, the poor and marginalized in particular.
The internal mechanisms are no more able to implement the recommendations
without international assistance. The stalemated situation of the peace process
if to be improved should start with establishment of rule of law in the state.
This requires specific study by independent bodies, especially by the UN or its
ancillary bodies immediately.
6. The CEDAW Committee.
6. 1. The CEDAW Committee in its Concluding Observations dated 07-05-2002
observed that:
| 6. 2. “The Committee is alarmed by the high and severe incidences of rape and
other forms of violence targeted against Tamil women by the police and security
forces in the conflict areas”. 6. 3. “The Committee urges the State party to monitor strictly the behaviour of
the police and the security forces, to ensure that all perpetrators are brought
to justice and to take all necessary measures to prevent acts of violence
against all women”. |
6. 4. The assault on women, in particular the rural women and those belonging to
the minority community are left unchallenged and the perpetrators enjoy absolute
impunity. The proposal will prove that the atrocities committed against the
women in the state are not limited to the minorities, but also extends to any
other citizen. The proposal will enumerate the extent of horrendous violence
committed against women and the reason why such violence is left unchallenged.
6. 5. Violence against women is a common tool for intimidation and threat. The
widespread violence against women is a pertinent feature of any state that
suffers from exceptionally filed rule of law. History is not short of examples
to prove this. The Japanese practices during World War 1, the mass rape in
Rwanda and Burundi, the cases from former Yugoslavia are to name a few. If the
situation in Sri Lanka is allowed to continue at the current state, the same
will happen in Sri Lanka in a worse proportion. The exceptionally collapsed rule
of law in the state is a fertile ground for such history to repeat in alarming
proportions in very recent future.
7. Working Group on Enforced or Involuntary Disappearances.
7. 1. The Working Group on Enforced or Involuntary Disappearances has reported
regarding the situation in Sri Lanka through its various reports. The report
E/CN.4/1995/36 dated 21 December 1994 comments upon the situation in Sri Lanka
in pages 354-369. The Working Group observed that between the period 1980 to
1994 there are 11,441 cases of disappearances reported to the Working Group.
7. 2. Similarly the then Working Group on Enforced or Involuntary Disappearances
vide its report E/CN.4/1992/18/Add.1 had opined that the situation in Sri Lanka
regarding torture, disappearances and racial discrimination must be a matter of
immediate concern. Referring to this report the CERD Committee in the year 1995
requested the state to facilitate demonstrable results to the concern of the
Working Group through effective domestic law enforcement mechanisms.
7. 3. However, the subsequent observations by the CERD Committee in the year
2001 on its 59th session expressing concern of allegations of human rights
violations in the country involving racial discrimination and bringing to
justice the responsible persons shows that the situation remains the same
without any considerable change and is thus an indicator to the failure of rule
of law in the country.
7. 4. The Working Group on Enforced or Involuntary Disappearances in its report
dated 21st Januray 2003 further recommended the Government to:
“The Group wishes to remind the Government of its obligations under article 10
of the Declaration to hold persons deprived of liberty only in officially
recognized places of detention, to bring them promptly before a judicial
authority and to make available promptly accurate information on the detention
of such persons to their family members, their legal counsel, or to any other
persons having a particular interest”.
8. Special Rapporteur on Independence of Judges & Lawyers
8. 1. In the report of the Special Rapporteur on the Independence of Judges and
Lawyers the Rapporteur observed referring to the report of the International
Commission of Jurists that:
8. 2. “[T]he perception of a lack of independence of the judiciary was in danger
of becoming widespread and that it was extremely harmful to respect for the rule
of law by ordinary citizens”.
8. 3. This observation is further fortified from the fact that innumerable
judgments of the Supreme Court in finding state officers responsible for
violations of human rights have directed that their departmental heads,
including the Inspector General of Police, the Army Commander etc. should take
disciplinary action against those officers responsible, have been ignored.
Police officers in charge of stations, who have been held responsible for
heinous rights violations, continue to remain at their posts.
8. 4. This trend has taken a new turn with the Court itself, in recent times,
making statements that has detracted from its own authority. Thus, for example,
in a recent verdict of the Supreme Court of Sri Lanka, the court among other
issues answered the issue regarding torture and the resultant inquiry against
law enforcement officers while considering their claim for promotion. While
deciding the case the court opined that even though the respondents were
subjected for departmental inquiry against fundamental rights violation and
torture and thus punished, this would not in any way, be held as a
disqualification for promotion.
9. Special Rapporteur on Torture
9. 1. The Rapporteur on Torture in his report E/CN.4/1994/31 dated 6 January
1994 narrates the practices followed by the law enforcement mechanism within the
state. The report narrates:
9. 2. “It was also reported that in the north-east torture and ill-treatment of
prisoners continued in military, Special Task Force and police custody. Methods
of torture include severe beatings; electric shocks; burning with cigarettes or
matches; pouring petrol into prisoners’ nostrils and then placing a plastic bag
over their heads; suspending prisoners from their thumbs and beating them;
beating with barbed wire and repeatedly submerging prisoners’ heads in water
while they were suspended from their ankles. Women have reported being raped by
soldiers. Torture was also reported to occur in both police and military custody
in the south with respect to political detainees arrested under the Emergency
Regulations and the PTA, as well as criminal suspects. It was further reported
that, in the majority of cases, victims of torture do not file complaints or
report their cases to governmental or non-governmental bodies for fear of
reprisals”.
9. 3. The Rapporteur in his subsequent report in the year 1999 shares the same
concern of the CAT Committee that the situation of internal strife is no excuse
for practice of torture or any violation of human rights. The Rapporteur also
shares the concern of the Committee regarding numerous instances of torture and
disappearances reported from the state. The report narrates 40 cases of
horrendous torture practiced by the law enforcement agencies in the state.
9. 4. In the report for the year 2000 the Rapporteur reported that:
“It remains evident that more prosecutions and convictions will be required in
order significantly to affect the problem of impunity. In any event, personnel
responsible for injury leading to compensation should be removed from office”.
9. 5. Further in the year 2003 the Rapporteur mentioned:
“The Special Rapporteur notes with concern that no response has been provided to
a number of cases brought to the attention of the Government since 1998. The
Special Rapporteur considers it appropriate to draw attention to the views
expressed by the Committee against Torture after consideration of the situation
in the country under the procedure provided for by Article 20 of the Convention
against Torture, a summary of which may be found in report A/57/44, paras
123-195”.
9. 6. The practice of horrendous torture and the culture of impunity prevail
only in a society where there is absolute failure of rule of law. Sri Lanka is
an example. The proposal will prove that the practice of torture in the state
has further worsened and rule of law is beyond the scope of any recovery by
itself.
10. Prosecutors Office
10. 1. Another institution that needs reorganization if there is to be any
change in the practices ensuring impunity that exist now is the Attorney
General's (AG's) Department. The most important aspect of such reorganization
would be the separation of the public prosecution function from the AG’s
department and the creation of a public prosecutor’s office. We would like to
highlight the fact that such a separation has been recommended by numerous
bodies in the past, including the Justice Soertsz Commission (1946), Basnayake
Commission (1970) and Jayalath Committee (1995). In 1973 with the introduction
of the Administration of Justice Act, the position was created but abolished
after 1977.
If the inherent inefficiency in the present set-up is to be negated, a
separate department for the public prosecutor needs to be created wherein
prosecuting functions could be more thoroughly specialized and pursued. If the
existing obstacle for proper prosecution were changed it would remove one of the
major impediments to the rule of law in Sri Lanka. In 1973 the Office of the
Public Prosecutor was created in Sri Lanka.
However, this office was abolished
after 1978. In the subsequent years like all other public institutions the
independence of the Department suffered a great deal. In recent years there has
been some attempt to improve the situation. However, without the development of
an independent public prosecutor's department it is quite unlikely that a
suitable prosecution department dealing with serious crimes can be instituted.
This is particularly so in relation to crimes where the alleged perpetrators are
police officers and other state officers.
Due to the nature of the complete separation between criminal
investigations and prosecutions prevailing in the country, the AG's Department
has a close connection with the police officers in relation to crimes that are
being prosecuted as the department depends entirely on the police for
investigations. The investigation of normal crimes is in the hands of the
police. The officers of the AG's Department base their prosecution on the
investigations done by the police. Thus a close co-operation between such
investigators and the prosecutors is inevitable. Some of these very same police
officers or their colleagues are often being accused of torture, custodial
deaths and the like.
Naturally in such circumstances conflicts and even public
perception of conflicts of interest does arise. Some units have been created
under the AG's Department for the prosecution of state officers, for example,
the Disappearances Investigation Unit (DIU) established in November 1997 and the
Prosecution of Torture Perpetrators Unit (PTPU) established recently. (These
units function under the direction of the AG’s department. While they may be
free to investigate when direction is given to investigate they do not have the
power to initiate investigations independently on receipt of reliable
complaints. Further prosecution into matters entirely depends on the discretion
of the AG’s department).
10. 2. However, the units suffer from the same general defect of the Attorney
General’s department. For example, though the Presidential Commission
"recommended prosecution of a large number of persons only a handful of cases
were filed and even some of them were lost due to the defects of prosecution.
Due to much delay in prosecution, such as 12-year delays before vital witnesses
make their statements in court, the prosecution has been abandoned." (ALRC
written statement "Enforced or involuntary disappearances in Sri Lanka
(E/CN.4/2003/NGO/88) 2003 on disappearances).
Even in torture cases when
complaints are made immediately after the incident, often the investigations
begin quite some time later, thereby creating doubts about the credibility of
evidence and of identification. The impression that such investigations and
prosecutions are delayed or otherwise hampered by the unwillingness of the state
to prosecute state agents is quite prevalent. That often investigations by such
units are conducted only due to pressure particularly from the international
community is also a common criticism.
10. 3. The Executive Director of AHRC issued the following letter to the
Attorney General in relation with the role the Attorney General’s Department
could play in eliminating torture in Sri Lanka thereby to help in establishing
rule of law in the state.
| 6 May 2004
Hon. Mr. K. C. Kamalasabesan
Attorney General
Attorney General's Department
Colombo 12
SRI Lanka
Fax: +94 11 2 436 421
Email: attorney@sri.lanka.net or
counsel@sri.lanka.net
Dear Mr. Kamalasabesan,
Mr. Shaveendra Fernando, Senior State Counsel, has informed me of your wish to
know some of the suggestions of the Asian Human Rights Commission (AHRC) in
dealing with the issue of torture in Sri Lanka. May I thank you for your kind
request. The few thoughts that I am putting down here are a response to that
request which I appreciate very much.
1. It would be quite naïve on our part to think that the police in Sri Lanka
would want suggestions from any of us if they really want to stop torture taking
place at police stations or elsewhere during criminal investigations. They would
already know HOW to do this, if they really WANTED to do this. The real problem
is that there is a firm belief that torture is necessary and unavoidable. The
ratification of the CAT Convention Against Torture and even making it into a law
through the CAT Act (Act No.22/1994) was done without the proper engagement of
the police in the exercise.
The result was that the police were not confronted with the need to
abandon a well-entrenched practice in their institution. Thus the police
themselves did not have a part in making one of the most fundamental reforms
that was required by the CAT and CAT Act. Even after the making of such a law
and the undertaking of such serious international obligations the police were
not constructively engaged in looking into the new law and exposed to the
obligations and implications it entailed.
The result was that almost always in private conversations, the police
officers, including those of high rank, spoke and continue to speak of the
practical impossibility of doing away with torture. Until this problem is
internally resolved by way of genuine and open engagement within the police
force itself no amount of external compulsion will be able to bring about the
required mindset and the institutional conviction to honour the obligations
under the CAT and to implement the CAT Act.
In this regard your position as the country's highest legal officer would be
useful in engaging the police, particularly the higher-ranking officers, into a
serious internal dialogue of the thinking, history and philosophy behind the
CAT. I do not mean human rights education for these officers, I believe they are
broadly aware of the arguments in favour of the CAT Act. In fact what I mean is
a more practical institutional dialogue within which they could openly discuss
the views that they hold. If in such a dialogue they agree to eliminate torture,
I feel sure they will tell us HOW.
2. So far, the response to torture issues in Sri Lanka has been mainly due to
external pressures. Today United Nations agencies and even major donors to
countries like ours exert pressure for the implementation of human rights
obligations. Of particularly interest to the international lobby is the issue of
the prevention of torture, which through centuries of struggle has been
established in the Western world as one of the foundations of modern criminal
justice.
The criticism that even the American administration is now receiving with
regard to the soldiers who engage in torture in Iraq is a clear indication of a
deeply established international principle that torture is a heinous crime and
should not be tolerated under any circumstances. UN interventions are founded on
principal. However, when the principle itself is not assimilated into our own
legal culture what often happens is that we make some public response to the
external pressures and stop at that.
It is perhaps this very approach that you could help the Sri Lankan
administration move away from. This could be done in the manner described above
through an attempt to convince people that it is the principle of the
elimination of torture that we have to assimilate for our own benefit. Such
groupings as the Inter-Ministerial Working Group on Human Rights Issues and
other ad-hoc groupings have been established in the past, not so much with a
view to eliminate human rights violations such as torture, but to engage in
limited activities in response to external pressure. It is this approach that
needs to be changed if we are to acquire as part of our legal culture the
principles enshrined in the CAT.
3. At present and in the near future the best means of ensuring a rapid
acceptance of the CAT is to implement the CAT Act. The impediments to the
implementation of the CAT Act seem to be:
a. The delay in the prosecution of cases already investigated by the ad-hoc
arrangement of the Prosecution of Torture Perpetrators Unit (PTPU) functioning
in your department. Though even the UN Rapporteur has been informed that some
cases have been investigated by the PTPU it takes a long time before the cases
are instituted in courts. This, as you have pointed out in one of your letters,
may be due to the limited number of staff you have at your disposal to engage in
so many varieties of functions.
However, while appreciating the difficulty, it may be a wiser move to make
some special arrangement regarding the preparation of files for torture cases.
As at the moment the persons who deal with the preparation of such files are
also engaged in other work, it may be useful to assign a few persons on a full
time basis to attend to torture cases. From the point of view of developing
deterrence against torture and also getting a more lively debate within the
police institution and the country at large on this issue, such a move would
contribute a great deal. The effort that is put into creating such a full time
functioning unit may be perhaps the most important step needed for the
elimination of torture under the present circumstances.
b. The present arrangement for the investigation of torture through special
units has resulted in some credible investigations leading to the filing of
cases in the High Court. This positive development can be more enhanced by
improving the number of persons engaged in the work and thus being able to cope
with the large number of complaints received. Quick investigation leaves less
room for tampering with evidence and provides greater protection for the people
who make complaints. Further, when the completed files of investigations are
submitted to PTPU, if they are attended to on an urgent basis this is also
likely to enhance the inner enthusiasm of the investigators. The police
investigators can also be specially instructed to attend to any complaints of
threats to those who make complaints against the police.
c. Another impediment to the use of the CAT Act as a deterrent against torture
is the delays in the hearing of the cases in court. It is not difficult to
understand that this is a more complicated problem and the solution does not
directly depend upon your office. However, it may be possible to develop some
means by which there can be quicker disposal of torture cases in court. A final
solution of course is, as you have suggested in one of your lectures, an
increase in the number of courts and judges. However, as this may not happen
immediately perhaps a way could be found to discuss with the judiciary for a
special procedure in the disposal of torture cases.
d. A further aspect of the prosecution of torture cases is that it requires
special training on the part of the state counsels themselves. Perhaps due to
the prevailing legal culture in the country, which has not treated torture as a
heinous crime as has been done in more developed jurisdictions, the lighter
attitudes regarding torture affect everyone including, the prosecutors. Thus, a
thorough grounding of the prosecutors in the seriousness of the crime will
better prepare them for such prosecutions. The UN Human Rights Committee and
other agencies have commented that though there had been a number of cases filed
in the High Court there has not yet been a successful prosecution of a torture
case in Sri Lanka. Perhaps better training and motivation on the part of the
prosecuting counsel can make a difference in this regard.
e. As the National Police Commission (NPC) is responsible for the discipline of
the police it could be useful to engage the NPC in a constructive dialogue on
the implementation of the CAT Act. The joint activity of your office with the
NPC would be quite useful for this purpose. The NPC also has a mandate to
investigate human rights violations. In one of the National Human Rights
Commission's (NHRC) recent statements it speaks of a Zero Tolerance of Torture.
Thus if there is a strong initiative on your part to draw the NPC and the NHRC
into a practical programme on the elimination of torture, these two Commissions
can benefit from such an initiative arising from your office due to the position
you hold as the highest legal officer of the country. Such a common strategy
could help to eliminate the duplication of work and each agency could also
become aware of the actual legal action taking on each complaint.
I appreciate the opportunity of presenting these suggestions to you.
Thank you.
Yours sincerely,
Basil Fernando
Executive Director.
|
10. 4. Role of the Attorney General’s Department relating to compensation for
torture is negative.
As a matter of principle the Attorney General's Department does not appear for
Respondents in Fundamental rights applications under article 126. Though this is
a positive step, representatives of the Attorney General's Department urge the
court to reduce the quantum of compensation that may be granted by the Court.
This does not conform to principles of international law relating to
compensation. Even on cases where the Attorney General's Department admits
violations of rights, as for example in the instance of torture, illegal Arrest
and imprisonment of Kurukulasuriya Pradeep Niranjan, who was in remand for 21
months after being falsely charged with the murder of Fr. Aba Costa and
tortured, the attorney general made an order to release him. However, no steps
were taken to compensate the victim and the family, for having been made to
suffer, in an attempt to protect the real culprits.
11. Policing
11. 1. One of the basic institutions necessary for carrying out the obligations
under the ICCPR by the state party is a proper policing system. Where the
policing system is fundamentally flawed none of the rights in the ICCPR can be
realized. In Sri Lanka the policing system is seriously flawed. The reasons are
acknowledged by the government appointed commissions themselves, such as the
Justice Soertzs Commission of 1946, Basnayaka Commission of 1970, Jayalath
Committee of 1995, Commissions of Inquiry into Involuntary Removal and
Disappearance of (Certain) Persons (Commissions on Disappearances), which were
appointed in 1994 and made their final reports in 2001. Many other official
documents have also acknowledged the serious defects of the policing system. The
creation of the National Police Commission (NPC) under the 17th Amendment to the
Constitution of Democratic Socialist Republic of Sri Lanka (the Constitution)
was for the depoliticization of the police force. The newly appointed NPC has on
several occasions pointed to problems of the police force. The defects of the
system identified by these commissions are as follows:
11. 2. Militarization of the police system
 The police have been used for riot control purposes and later for control of
civil conflict. For over 30 years since the early 1970's Sri Lanka has gone
through a period of violence which transformed the Sri Lankan police force from
a crime detection and law enforcement agency to an insurgency suppression
mechanism. As shown in the reports published by the Commissions on
Disappearances, police stations functioned as detention centres, torture
chambers, and places where thousands of persons disappeared. The police stations
throughout the country were used for these purposes. A profound transformation
of the system took place as a result of this.
The extreme forms of torture, which were used against the suspected insurgents,
became a usual habit within police stations and extreme forms of torture are
being used on persons suspected of petty theft or even arrested for mistaken
identity.
Some examples may illustrate the existing situation. In one case the Supreme
Court found the police officers of the Wattala Police Station having tortured a
person named Waragodamudalige Gerald Mervyn Perera (Supreme Court Fundamental
Rights Application SCFR 328/2002), who was arrested on mistaken identity, and
within a few hours was assaulted to the extent that he suffered renal failure
and had to be put on a life support system for two weeks. Further, there was
serious damage to his arms due to hanging from the roof of the police station.
In another case, a 17-year-old boy named B. G. Chamila Bandara Jayaratne (AHRC
UA-35-2003) was tortured between 20 - 28 July 2003 by the officers attached to
the Ankumbura police by hanging him by his thumbs. The doctors later declared
that he had lost the use of his left arm completely and cannot be cured. The
method of torture was described in an affidavit signed by the young victim thus:
11. 3. "Then my hands were swung behind my back and my thumbs tied together with
a string, and then they put a fibber string between my thumbs and hung (me) from
a beam on the ceiling. One officer pulled the fibber string so that I was lifted
from the ground. When I was lifted, my hands were twisted at the elbow and they
became numbed. Then the OIC kept hitting me on my legs and soles with the wicket
stumps used for cricket." (AHRC UA-35-2003 and Supreme Court Fundamental Rights
Application No. S.C. FR 484/2003) (see Affidavit filed by the victim in his
application to the Supreme Court).
11. 4. Similar forms of torture were also used in the case of 32-year-old
Galappathy Guruge Gresha De Silva (32) (article 2, Volume 1, Number 4, August
2002, p. 24) who also lost the use of both his arms due to such torture. Reports
are received from all over the country of similar types of torture used at the
police stations, which clearly show that the habits formed in the past in
dealing with insurgents are now being commonly and routinely used at police
stations. Thus a central issue in relation to the implementation of article 2 of
the ICCPR is the way to stop such methods and the creation of a police force
that is committed to the rule of law. When the police force itself is seen to be
blatantly breaking the law it is not possible for the state party to implement
the obligations under the ICCPR.
11. 5. Yet another result of the long period of civil conflict on the police was
the impact on the keeping of information books and other records at the police
stations. The extent of tampering with the official books came under criticism
by the Supreme Court in the case of Kemasiri Kumara Caldera:
"I may add that the manner in which the B.C.I.B.s [Grave Crimes Information
Book], R.I.B.s [Register/Investigation Book] etc. have been altered with
impunity and utter disregard of the law makes one wonder whether the supervising
A.S.P.s and S.P.s are derelict in the discharge of their duties or in the
alternative condone such acts. In a case in which I pronounced judgment a few
days ago too, I found that the B.C.I.B. had been altered, and therefore it
appears that, that was not an isolated instance.
Thus, the police force appears
to be full of such errant officers. The question is what is the 5th Respondent
Inspector General of Police doing about it? In my view, it is unsafe for a Court
to accept a certified copy of any statement or notes recorded by the police
without comparing it with the original. It is a lamentable fact that the police
who are supposed to protect the ordinary citizens of this country have become
violators of the law. We may ask with Juvenal, quis custodiet ipsos custodies?
Who is to guard the guards themselves?" [Justice Edussuriya with two other
Supreme Court judges agreeing in the case of Kemasiri Kumara Caldera (S.C. FR
Application No. 343/99)]
11. 6. Further it was widely publicized by the media in July 2003 that at the
Negombo Police Station two information books were kept, one containing original
statements and another containing manipulated records created by some police
officers. The latter was often produced for official purposes and thus the
actual contents were falsified.
11. 7. The politicization of the police
This was the acknowledged reason for bringing about the 17th Amendment to the
Constitution of Sri Lanka. The consequence of politicization of the police is to
disrupt the commanding structure within the police force. The very meaning of
politicization of police is that the politicians have begun to play a commanding
role within the police force by their interference. This means that the normal
principles of an organization driven by a unified command system have been
seriously disrupted. The NPC on many occasions have declared that they would
stop this process and that the police force would be brought within an internal
command system ("No more political interference with police transfers, NPC
Chief," by Jayampathy Jayasinghe, Daily News, 31 March 2003). This objective
needs to be achieved if the obligations under the ICCPR are to be respected and
observed by the state parties.
11. 8. Loss of competence in criminal investigations resulting in fabrication of
cases against innocent persons as a substitute to the real culprits
A study done by ALRC (article 2, Volume 1, Number 4, August 2002) on custodial
deaths and torture in police stations in recent years clearly establishes a
pattern of implicating innocent persons in serious crimes as a substitute for
the actual criminals whom the police have failed to detect. Often when many
uninvestigated crimes are piled up at a police station, innocent persons are
arrested and forced to confess to crimes that they know nothing about. Often
unresolved crimes lead to strong public protest. On the other hand when charges
are filed against someone it appears as a resolved crime and may even lead to
promotions.
| • In the well-known murder case of a 76-year-old Catholic priest named Fr. Aba
Costa on 10 May 2001, Kurukulasuriya Pradeep Niranjan (30) and another male
named Gamini were arrested by the police within 3 days of the murder and
allegedly severely assaulted. Thereafter, they were charged with the murder of
Fr. Aba Costa and kept in remand for a long time. After almost two years the
Attorney General withdrew the charges against the accused on 21 February 2003 as
the actual criminals were allegedly found. It has also been revealed that some
senior police officers of the area were involved in the crime. (Television
reports in the programme called "Thumbprints," broadcasted by Rupavahini,
national television station in Sri Lanka).
• Waragodamudalige Gerald Mervyn Perera (39) (S.C. FR Application 328/2002) was
arrested and tortured on 3 June 2002 by the officers attached to the Wattala
Police Station to be implicated in a triple murder case. The Supreme Court held
that it was a case of mistaken identity.
• Mulakandage Lasantha Jagath Kumara (23) (S.C. FR Application 471/2000) was
tortured between 12 ¡V 17 June 2000 by the officers attached to the Payagala
Police Station. Due to injuries suffered at the police station the victim later
died on 20 June 2000. The Supreme Court on 8 August 2003, held that the police
had tortured the victim. The arrest and detention at the police station was for
the purpose of implicating the victim for several unresolved crimes.
• Lalith Rajapakse (17) (AHRC UA-19-2002) was severely beaten on 19 and 20 April
2002 by the officers attached to the Kandana Police Station to the extent of
causing him to lose consciousness for about three weeks. He was implicated in
two petty theft cases without any complaints against him by anyone and without
any evidence.
• Galappathy Guruge Gresha De Silva (32) (AHRC UA-20-2002; article 2, Volume 1,
Number 4, August 2002, p. 24) was arrested and tortured on 22 March 2002 by the
officers attached to the Habaraduwa Police Station with a view to implicate him
in a murder case.
• Bandula Rajapakse, R. P. Sampath Rasika Kumara, Ranaweera and Chaminda
Dissanayake (article 2, Volume 1, Number 4, August 2002, p. 24), were arrested
and tortured on 19 and 20 February 2002 by the officers attached to the Ja-ela
Police Station. They were made scapegoats in an inquiry into the loss of 46
rails of clothes from a company store without police having any evidence against
them.
• Ehalagoda Gedara Thennakoon Banda (36) (AHRC UA-25-2002) was arrested and
tortured on 12 June 2002 by officers attached to the Wilgamuwa Police Station
and later released without any case. It was an attempt to implicate him in some
illicit liqueur charges without any evidence.
• Eric Antunia Kramer (AHRC UA-36-2002) was arrested and tortured on 28 and 29
May 2002 by the officers attached to the Mutwal Police Station, it being an
attempt to implicate him for a robbery at the company where he worked without
any evidence against him. He was not charged with any offence later.
• 10-year-old T. K. Hiran Rasika and 12-year-old E. A. Kusum Madusanka (AHRC
UA-30-2002) were arrested and tortured on 8 July 2002 by officers attached to
the Hiniduma Police Station, in a case of trying to implicate the children for a
petty theft in the school canteen without having any evidence to support such a
charge.
• V. G. G. Chaminda Premalal (AHRC UA-31-2002), a 16-year-old student, was
arrested and tortured on 9 and 10 July 2002 by the officers attached to the
Aralaganvila Police Station, again in an attempt to implicate him on a petty
theft case without any evidence.
11. 9. The following cases were also attempts to fish for evidence of undetected
crimes by torturing persons against whom there were no grounds for suspicion.
• Subasinghe Aarachchige Nihal Subasinghe (40) (AHRC UA-01-2003) was tortured by
the officers attached to the Keselwatte Police Station, Panadura;
• Korala Gamage Sujith Dharmasiri (23) (AHRC UA-02-2003) was tortured between
1¡V8 January 2003 by the officers attached to the Kaluthara South Police
Station; Anuruddha Kusum Kumara (15) (AHRC UA-01-2003) was tortured on 29
December 2002 by the officers attached to the Wellawa Police Station, Kurunegala
District;
• Bambarenda Gamage Suraj Prasanna (17) (AHRC UA-05-2003) was tortured on 8
January 2003 by officers attached to the Matugama Police Station; (see earlier)
• K. T. Kumarasinghe alias Sunil (33) (AHRC UA-05a-2003) was tortured from 1 ¡V
4 April 2003 by the officers attached to the Galagedara Police Station;
• Hetti Kankanamge Chandana Jagath Kumar (23) and Ajith Shantha Kumana Peli (32)
(AHRC UA-13-2003) were tortured on 13 May 2003 by the officers attached to
Biyagama Police Station;
• B. G. Chaminda Bandara Jayaratne (17) (AHRC UA-35-2003) was tortured from 20
¡V 28 July 2003 at Ankumbura Police Station and as a result according to medical
opinion he permanently lost the use of his left arm due to being hung by his
thumbs by the police;
• Bandula Padmakumara (14) and Saman Kumara (17) (AHRC UA-41-2003) were tortured
between 20 ¡V 28 July 2003 by the officers attached to the Ankumbura Police
Station;
• Saliya Padma Udaya Kumara (26) (AHRC UA-42-2003) was tortured between 26 ¡V 28
August 2003 by the officers attached to the Wattegama Police Station;
• Garlin Kankanamge Sanjeewa (25) (AHRC UA-41-2003; AP news under the title,
"Fearing police may steal the body [of] her alleged torture victim son, mother
buries body in garden," 1 September 2003) was tortured by the officers attached
to the Kadawata Police Station (though the police have claimed this as a suicide
inside the police station the mother of the victim has openly challenged the
postmortem inquiry held inside the police station and has buried her son's body
in the home garden with a view to get an impartial inquiry and to prevent the
body being stolen by the police);
• Padukkage Nishantha Thushara Perera (23) (AHRC UA-45-2003) was tortured on 7
¡V 10 September 2003 by the officers attached to the Divulapitiya Police
Station;
• Mohamed Ameer Mohamed Rizwan (23), Suppaiya Ravichandran (23) and Abdul Karim
Mohamed Roshan Latif (30) were tortured between 30 August - 6 September 2003 by
the officers attached to the Wattala Police Station and Peliyagoda Police
Regional Headquarters;
• Downdage Pushpa Kumara (14) was tortured on 1 September 2003 by the officers
attached to the Saliyawewa Police Post attached to the Putlam Police Station.
|
12. Torture of children
See above section for details of cases.
13. Extra-judicial killings and custodial deaths
| • T. A. Premachandra (46) (AHRC UA-07-2003) was shot and killed on 1 February
2003 by the officers attached to the Kalutara South Police Station;
• Yoga Clement Benjamin (47) (AHRC UA-12-2003) was shot and killed on 27
February 2003 by the officers attached to the Kalutara South Police Station;
• Sunil Hemachandra (28) (AHRC UA-34-2003) was tortured to death on 26 June 2003
by the officers attached to the Moragahahena Police Station;
• Saliya Padma Udaya Kumara (26) (AHRC UA-42-2003) was tortured to death between
26 ¡V 28 August 2003 by the officers attached to the Wattegama Police Station;
• Garlin Kankanamge Sanjeewa (25) (AHRC UA-41-2003) was tortured to death by the
officers attached to the Kadawata Police Station;
• Okanda Hevage Jinadasa (50) (AHRC UA-48-2003) was assaulted and died of those
injuries on 5 September 2003 by officers attached to the Okkampitiya Police Post
in Moneragala District. |
14. The loss of the disciplinary process of the police
14. 1. The Supreme Court of Sri Lanka made the following observations on this
matter:
"The number of credible complaints of torture and cruel, inhuman and degrading
treatment whilst in Police custody shows no decline. The duty imposed by Article
4(d) [of the Constitution] to respect, secure and advance fundamental rights,
including freedom from torture, extends to all organs of government, and the
Head of the Police can claim no exemption. At least, he may make arrangements
for surprise visits by specially appointed Police officers, and/or officers and
representatives of the [National] Human Rights Commission, and/or local
community leaders who would be authorized to interview and to report on the
treatment and conditions of detention of persons in custody. A prolonged failure
to give effective directions designed to prevent violations of Article 11, and
to ensure the proper investigation of those which nevertheless take place
followed by disciplinary or criminal proceedings, may well justify the inference
of acquiescence and condemnation (if not also of approval and authorization)."
[Justice Mark Fernando, with other two judges agreeing, in Gerald Mervin
Perera's case, S.C. FR 328/2002]
14. 2. In a statement issued by the NHRC of Sri Lanka on 4 September 2003 an
agreement arrived by the NHRC with the IGP (Inspector General of Police)
mentioned the following item:
"The NHRC agreed to draft guidelines together with the NPC and the IGP
(Inspector General of Police) for the interdiction of officers who have been
found to have violated fundamental rights by the Supreme Court (translation from
Sinhala)."
14. 3. Meanwhile the NPC is also engaged in drafting a public complaints
procedure under Article 155 G (2) of the Constitution of Sri Lanka to entertain,
investigate and redress complaints against police. However, while these measures
are pending, at the moment no procedure is operative to take disciplinary action
against the police. In the absence of a proper and impartial disciplinary
process the investigations against the police are left in the hands of other
police officers. Usually, a higher-ranking police officer such as Assistant
Superintendent of Police (ASP), Superintendent of Police (SP) or Deputy
Inspector General of Police (DIG) is assigned to investigate such complaints. It
is quite well known that these officers try to work out some compromise rather
than properly investigate a complaint. Often complainants are even threatened
into withdrawing complaints. The knowledge of ineffectiveness of internal
procedures relating to complaints against the police has created a psychology
among the officers that they are quite safe despite whatever violation they may
commit. A circular issued by the IGP in September 2003 states that higher
officers such as Officers in Charge (OICs) of police and ASPs and others will be
held liable for custodial deaths and torture taking place at police stations.
However, there is no procedure at the moment to hold such officers liable for
such actions.
15. Types of Torture
Types of torture taking place in Sri Lanka:
| • Sitting on the spine or beating the spine--this can result in dislocating
discs in the spine resulting in full or partial paralysis;
• Hitting on the head or sometimes keeping books on the head and hitting with a
pole--this can cause fractures in the skull and brain injuries;
• Tying hands behind the back, tying the thumbs together, putting a string
through the thumbs and hanging the person from the ceiling from the thumbs--this
way a person can lose the use of arms temporarily or permanently;
• Tying the hands and legs and putting a pole though the legs in a way that a
person can be rolled round--while being rolled the person can be beaten on the
head and the soles. This method is named by the police cynically as Dharma
Chakkra (literally meaning the wheel of the universal law especially in
Buddhism);
• Beating while hanging--this can cause renal failure and other serious
injuries;
• Hitting on the genitals;
• Inserting genitals into drawers and closing them to cause pain;
• Pumping water through fire hose pipes on genitals;
• Inserting S-lon (PVC) pipes and other objects like glass bottles into the
vagina;
• Beating on the ear--a person could fully or partially lose hearing this way;
• Dragging on the ground;
• Forcing a person to crawl in public places;
• Hitting the soles with a pole;
• Forcing the fingers into glass bottles making it very difficult to remove
them;
• Threatening to kill;
• Threatening to rape;
• Threatening to implant drugs and file cases in courts for possession of
drugs--punishment for such cases is very high; |
15. 1. Judging by the documentation of torture cases filed and from the Supreme
Court judgments on non-criminal torture cases, we note that these forms of
torture usually take place at police stations.
16. Threats to those who make complaints
Those who make complaints against torture come under severe threat from the
perpetrators. This happens in almost all cases. In the case of Lalith Rajapakse
(cited above), after he made the initial complaint there was a plot to poison
him. He had to make complaints to the NHRC and also to other authorities. AHRC
intervened by writing letters and appeals to save the grand father’s and the
victim’s life. The victim had to live in hiding for about five months. Even now
he has to be kept protected. In the case of Gerald Perera (cited above), he and
his fellow workman received threats of assassination. In the case of Dawundage
Pushpakumara (14 years old) (UA-50-2003), attempts were made by the officers of
Saliyawewa Police Post to prevent the child from obtaining medical treatment for
the torture injuries.
It was only through the intervention of the Child Rights Authority that the
child was removed from the Saliyawewa police area to Colombo to get treatment.
After that the police officers and a prominent politician threatened to burn the
house of the family if complaints against the police were not withdrawn. On this
matter also, the family’s complaint was made known to NHRC, NPC and other
authorities by AHRC. In the case of B.G. Chaminda Bandara (cited above) who was
tortured by the Ankumbura police and lost the use of his left arm completely due
to the torture, his family was constantly threatened by the OIC of the Ankumbura
Police.
The victim went into hiding and is in hiding still. In fact, such situations
arise invariably in almost all cases after complaints have been made. One of the
reasons for this is that despite the complaints, police officers, particularly
OICs, remain at the police station. OIC's have enormous powers in the locality.
Some OIC's remain in the police stations even after the Supreme Court has found
them guilty of having tortured a person. For example, the officer in charge of
the Wattala Police Station, was found to have violated the rights of Gerald
Perera (cited above), but is still the officer in charge of the same police
station. All other OIC's of the police stations named above are also still
there.
16. 1. As mentioned above, the major cause for the use of police torture as it
exists today is the breakdown of the policing system during the period from
early 1970's. As a result the following things have happened:
| a. Breakdown of the command structure of the police: higher authorities of the
police either being perceived as inefficient or corrupt;
b. The OICs of the police stations who are in fact the real authorities within
the police station being incompetent, inefficient and often being accused of
being corrupt;
c. Lack of training in proper methods of criminal investigations and lack of
forensic facilities. In such circumstances torture is perceived as not only a
legitimate means of investigation but also as a necessary means;
d. Increase of crime and public pressure to deal with crimes and having no real
capacity to deal with crimes, often police engage in torture to create
substitutes for actual criminals in order to answer the public criticism against
them. As a result many innocent people get either severely tortured or even
killed;
e. Corruption: a recent survey done by the Transparency International pointed to
the police as being perceived by the public as the most corrupt institution
within the country. It is well known that a person can be tortured by the police
at the request of an opponent;
f. The lack of disciplinary procedure: in the recent past the disciplinary
procedure has been almost completely lost. The only punishment that is resorted
to is a transfer when there is public criticism. Dismissal for misconduct hardly
takes place;
g. Absence of a proper and impartial public complaint mechanism: the complaints
against the police are usually referred to higher police officers for
investigations. It is quite well known that these officers try to work out some
compromise rather than properly investigate a complaint. Often complainants are
even threatened. |
As a result the police officers know that no serious threat will come to them
due to complaints. Psychologically this creates in the officers an attitude of
having complete impunity. The NHRC, which could have dealt with the complaints
against torture in the past, did not take a serious approach to such torture.
They did not have a system of preliminary investigations. Their concern was to
settle torture cases and they exerted pressure in the past even to accept
settlements for such small sums as US$ 10.
In August 2003 the chairperson of the NHRC stated that she has given
instructions to stop this mode of settlements and to seriously investigate
torture cases. Another move is the implementation of the constitutional
provisions requiring the NPC to establish a public complaints procedure to
entertain, investigate and redress complaints against the police. The AHRC has
submitted a draft for such a procedure to the NPC. This is being considered at
the moment by the NPC.
17. Delays in decision-making in Fundamental Rights Applications and Institution
of Prosecutions under Act No. 22 of 1994
Though article 126 of the Constitution was to provide an expeditious remedy for
violations of fundamental rights, the actual time taken for final determination
is still too long. Though an application has to be filed within a month of a
violation, the final determination usually takes two or more years. Persons who
become victims of brutal torture at the hands of police officers and other state
agents are thus required to wait too long before final determination of their
cases. Meanwhile, the alleged perpetrators continue to hold office. Torture
victims in almost all cases come under heavy pressure to give up or settle
cases. They also live in great fear of reprisals for having filed such cases
against the police. They also receive death threats. Thus, delay in hearing such
complaints of violations of rights, helps to continue such violations.
17. 1. The filing of Criminal cases under Convention against Torture--Act No. 22
of 1994 takes even longer. Of the 59 cases submitted by Police Special
Investigation Teams under the Act in 2002 to the Attorney General's Department,
only 10 cases have been filed in Courts. The rest of the files are with the
Attorney General's department, (Lakbima - 11 September 2003). This is despite
claims by the Attorney General's Department to prosecute offences under the act.
Despite the many claims filed during earlier years, as stated above to date we
are not aware of any successful prosecutions under the Act.
18. Complaints of negligence at postmortem and other inquiries by state medical
officers
In many cases of torture it has been revealed that there are serious doubts
about the professionalism of some of the district medical officers (DMOs) and
judicial medical officers (JMOs). In the case of M. K. Lasantha Jagath Kumara,
who was produced before a DMO the day before his death, the DMO did not examine
him properly or prescribe immediate medical attention. There is also the case of
Sunil Hemachandra, who died due to injuries suffered from torture in police
custody. There are several eyewitnesses who saw him being severely beaten by the
police. He was 32 years of age and had no history of epilepsy or any serious
illness. His family specifically denies him having any fits at all. However, the
medical report left out the possibility of injuries due to assault and
speculated on the possibility of a fall due to fits caused by an illness. The
family strongly believes that the medical examination has not been carried out
professionally.
18. 1. In the case of Garlin Kankanamge Sanjeewa (AHRC UA-41-2003) who the
police alleged to have committed suicide inside the police station, the family
of the victim has seriously doubted the verdict of the medical officer and even
keeps the dead body buried in the family garden with the hope of getting an
impartial medical inquiry. The family alleges that even the sketch of the body
as found was fabricated. Further observers have challenged the possibility of an
adult male being able to hang himself with a belt, which the police allege
happened. Further evidence that there were two persons inside the same police
cell at the alleged time of hanging but they had seen nothing at all has also
increased suspicion.
18. 2. In the case of B. G. Chaminda Bandara Jayaratne (AHRC UA-35-2003), who
has lost the use of his left arm due to police torture, the Kandy Hospital did
not even produce him before a JMO for examination despite the fact that they
recorded the allegation of the young boy of having been tortured by the police.
He was discharged without any treatment and it was only possible for him to get
treatment after he had been re-admitted to Peradeniya Teaching Hospital where
after examination the doctors declared that he has permanently lost the use of
his left arm. Many such complaints about failures by the DMOs and JMOs are being
received by human rights organizations. However, there are still a number of
state medical officers who carry out their duties with great care and
professionalism.
19. Legal definition of torture
19. 1. There are several provisions of the Torture Act (Act No. 22 of 1994)
passed by Sri Lanka which do not fully comply with the UN Convention against
Torture. The following observation by Amnesty International on this matter is
relevant:
19. 2. The Torture Act passed by Sri Lanka's parliament in November 1994 and
certified on 20 December 1994 makes torture punishable by imprisonment for a
term not less than seven years and not exceeding ten years and a fine.
Regrettably, however, several provisions in the UN Convention against Torture
were not fully implemented in the Torture Act which uses a more restrictive
definition of "torture" than that contained in the UN Convention against
Torture.
19. 3. As stated above, the UN Convention against Torture defines "torture" as
"any act by which severe pain or suffering ... is intentionally inflicted on a
person for such purposes as..." (emphasis added). In subsection (1) of Article 2
of the Torture Act, however, the causing of "suffering" is not explicitly made
part of the definition of "torture", and the purposes for which torture is
inflicted are listed in an exclusive (rather than inclusive) way by use of the
wording "for any of the following purpose[s]". Thus, torture for other purposes,
such as sadism alone, are not defined as a crime under this Act.
19. 4. In addition, subsection (3) of Article 2 of the Torture Act stipulates
that "the subjection of any person on the order of a competent court to any form
of punishment recognized by written law shall be deemed not to constitute an
offence" under the Act. This means that courts can impose cruel, inhuman or
degrading punishments under the Penal Code and the Children and Young Persons
Ordinance 1939. The latter provides that courts can impose whipping on male
children as an additional punishment for certain offences (see also below).
19. 5. Article 3 of the UN Convention against Torture, which provides that "[n]o
State Party shall expel, return ("refouler") or extradite a person to another
State where there are substantial grounds for believing that he would be in
danger of being subjected to torture", has not been given effect in Sri Lanka.
This means that under current legislation, people who could be subjected to
torture or cruel, inhuman or degrading treatment or punishment in another
country cannot invoke this provision to contest their return to that country.
The failure to include this prohibition in the Act is a matter of deep
concern because Article 3 of the UN Convention against Torture, in contrast to
the UN Convention relating to the Status of Refugees, applies to all persons and
not only to asylum seekers. "The Committee against Torture in May 1998
recommended a review of the Torture Act in respect of each of the above three
concerns. "Prior to the coming into force of the Torture Act, perpetrators of
torture could be prosecuted under Sections 310 to 329 of the Penal Code which
define the offence of causing hurt and an aggravated form of causing hurt,
referred to as "grievous hurt" in order to try and extract information or a
confession which may lead to the detection of an offence or to compel the
restoration of property or satisfaction of a claim. Such an offence of grievous
hurt is punishable by imprisonment for up to ten years and a fine (no minimum
punishment is stipulated)." ["SRI LANKA: Torture in Custody," by Amnesty
International, AI INDEX: ASA 37/010/1999, 1 June 1999]
19. 6. In many of the cases in the report cited above, the type of injuries
suffered by the victims would have qualified the cases to be prosecuted also
under "grievous hurt" or even under "attempted murder" where the prescribed
punishment is greater than under the Act No. 22 of 1992.
In fact despite the criticisms by the Committee against Torture and
international human rights organizations, no attempt has been made to bring Sri
Lanka's anti-torture legislation into conformity with the Convention against
Torture. In fact there is no such draft law before the Law Commission in Sri
Lanka.
20. State-Sponsored Violence against Women in Sri Lanka
20. 1. An increasingly brutal culture of social and political violence resulting
from a continuing war in the North and East and two youth insurrections has
posed serious obstacles to Sri Lanka's human development during the past three
decades.
20. 2. Sri Lanka has a long record of violent conflict. The youth rebellion of
the Janatha Vimukthi Peramuna (JVP) in the 1970s, methodically crushed by the
then United Front Government of Sirimavo Bandaranaike, was only a taste of worse
things to come in the future.
20. 3. With the United National Party (UNP) regime, which came into power in
1977, a new culture of political violence set in. Violence was practiced to
systematically wipe out all opposition to the government. Not only did the UNP
reorganise its trade unions to act as thugs to incite and carry out violence,
certain politicians were allowed to have their own private armies and mobilize
large crowds and mobs to wreak violence with impunity. Paramilitary
organisations set up during this period, supposedly to help the armed forces and
police fight the LTTE, also expanded the UNP's armed sphere of influence.
20. 4. The violent politics of this era culminated in the re-emergence of the
JVP in the late 1980s. The JVP intended to capture state power and establish a
socialist state, but was suppressed by the State in an equally violent fashion.
The violence thus unleashed only subsided in 1991 after the leader of the JVP
was arrested and summarily executed by the Sri Lankan army. At this point, the
ongoing ethnic conflict in the North-East has lent a continuing brutal dimension
to this pervasive violence and Sri Lanka had the second highest count of
disappeared persons (an estimated 12,000) in the world, next to Iraq.
20. 5. This culture of state violence has not abated. Instead, formal entities
of state power continue to be supplemented by 'unformalised' agencies of state
violence. It is through this deeply troubled dual process that questions of
legality, constitutionality and accountability of a variety of state practices
are addressed and most often, circumvented.
20. 6. In this process, the law itself has been commonly used as an instrument
of repression. During this period, the principal legal provisions relating to
public security in Sri Lanka are contained in the Public Security Ordinance (PSO)
No. 25 of 1947, as amended, and in the Prevention of Terrorism Act (PTA) of
1979, as amended.
20. 7. Wide powers of arrest and detention given to the police and the armed
forces under these laws were used to crush the JVP in the 1970s and 1980s. These
laws also lacked minimum safeguards relating to conditions of detention and
admissibility of police confessions to senior police officers, (though
conviction on a mere confession is rare) and they relaxed the normal procedure
in relation to deaths in custody in respect of inquests, postmortem
examinations, disposal of bodies and judicial inquiry. These laws were used to
fight Tamil separatism in the country as well as control Sinhalese youth
extremism.
20. 8. While Sri Lanka currently has no active conflict in any part of the
country and the emergency regimes under both the PSO and the PTA have lapsed
(though both laws remain still in the statute books), a legacy of violence
remains, impacting equally the physical safety and security of Sri Lankan women.
30. State sponsored violence against women in the North
30. 1. In the decades long ethnic conflict, women were the first and easiest
victims. Government statistics estimate a total of 587,399 displaced persons in
Sri Lanka (statistics taken at the end of 1993), of which 80% were Tamils and
40% were women. Displacement has occurred as a result of actions by the
government as well as by the LTTE. The case of displaced women in Puttalam, an
area in the North Western province of Sri Lanka provides one example. Here,
approximately 80,000 Muslims were forcibly evicted from the north by the LTTE in
the 1990s and have since then been living in welfare centres (refugee camps) run
by the government.
30. 2. On the one hand, the catalytic role of violence in this respect brought
women out to a devastating and devastated public arena. Traditional roles of Sri
Lankan women underwent radical change and women were catapulted into hitherto
unaccustomed roles of sole breadwinner and head of household. In this scenario,
women's activity focused on day to day survival issues such as how to get a
pass, how to get food to eat, and to find out what has happened to their
husbands, fathers and sons who had disappeared.
30. 3. With regard to relatives who have been disappeared, the state has
attempted to provide some relief to displaced women, and has responded to
appeals for justice against the violation of human rights of Tamil people by its
own institutions. The courts and other mechanisms of the state, such as the
Human Rights Commission, the Commissions on Disappearances and the Anti
Harassment Committee, have provided a limited space for Tamil citizens to
contest violations of their rights by the armed forces and police, and obtain
some relief and redress. For instance, women from the north and east were able
to obtain compensation from the Disappearances Commissions appointed by the
state for the disappearances of their husbands, sons or fathers.
30. 4. In addition to the drastic change in roles and the loss of relatives,
women have also been subjected to unprecedented violence. During the period of
the active conflict, the police, paramilitary units and members of the
government's armed fo |
UN SUB COMMISSION ON THE
