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.

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. 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".

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".

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".

Hon. Mr. K. C. Kamalasabesan Attorney General
Attorney General's Department Colombo 12
SRI Lanka

Fax: +94 11 2 436 421 Email: [email protected] or [email protected]

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.

• 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.

• 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.

• 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;

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.