Basil Fernando
Introduction
This paper begins with a caveat about probable difficulties a reader from
developed nations might encounter in understanding certain matters discussed
herein.
The general assumption is that persons from developed countries are
habituated to the way of life in liberal democratic systems. The histories of
development of such democracies may vary, but most developed countries have
experience of liberal democracy for at least a few centuries. In contrast, the
political system of Sri Lanka never was a liberal democracy as is the case with
many other developing and under developed nations. It might not be absolutely
right to say that in the political history of Sri Lanka, there never was any
attempt to establish a liberal democratic polity, but they were short stints of
a few decades. Even during these periods, the liberal democratic set ups were
turbulent with many crucial challenges. The situation took a turn for the worst
in 1978, when a constitution of an authoritarian model was imposed on the
country.
This constitutional configuration has seriously undermined the institutional
framework of liberal democracy. The chasm between democratic aspirations
of the nation and the rulers’ intentions make democratic discourse irrelevant
under the present constitutional structure. Added to this, if not as a
consequence, internal conflicts have developed in all parts of the country; the
south, the north, and the east resulting in large scale disappearances and other
forms of gross abuses of human rights.
In this milieu of internal clash, democratic discourse has been conveniently
jettisoned and military rule and power became the vanguard. It is within such a
context that this study about different aspects relating to the prevention of
torture in Sri Lanka has been done. Here, expressions like the police,
investigations, prosecutions, and the judiciary are not accompanied by meanings
attached to similar terminology in functioning liberal democracies, but as they
exist in Sri Lanka. Understanding this difference is essential for grasping some
of the matters discussed below.
About the Paper
This paper is a study about the processes and strategies of torture
prevention employed by the Asian Human Rights Commission (AHRC) and its network
in the context of Sri Lanka. The experience of the AHRC, a voluntary
organization working in the field of human rights, and a network of
organizations in Sri Lanka is being reflected in this paper. The information
generated and the knowledge acquired by the AHRC and the network is employed to
analyze the problem, study the ramifications, draw conclusions and propose
suggestions. This paper is a sketch of the experiences of working on the issue
of torture in Sri Lanka. The endeavour is to study the strategies and work
pattern adopted by the AHRC and the network groups to combat torture, some of
which are specific to Sri Lanka.
Framework of the Study
Components: The focus of work on the issue of
torture is on two main components, human and institutional. It may be noted
that, sometimes, the institution is nothing but the sum total of humans working
within a system. The two major human components are the victims and the
perpetrators of torture. The institutions are those charged with investigation,
prosecution and adjudgment of torture incidents. The following is the list of
components which are the targets of study in this paper.
a. Victims of torture
b. Alleged perpetrators of
torture
c. Criminal Investigation Department
Explanation:
Institutions that are required to investigate torture. The focus is on their
role in the investigation of torture
d. The prosecuting branch
Explanation: In Sri Lanka, the prosecuting branch is the Attorney General's
Department
e. Judiciary
Explanation: Judicial activities relating to
torture take place at the Magistrates Courts, the High Courts (where trials
under the Convention against Torture, Act No. 22 of 1994 are heard) and the
Supreme Court where fundamental rights cases are taken up and where the issue of
compensation against torture is decided. Actions can also be taken in civil
courts regarding compensation on torture.
f. The Human Rights Commission
of Sri Lanka (HRCSL) and the National Police Commission (NPC).
Explanation:
Both institutions are national in character
g. UN agencies such as the
UN Rapporteur against Torture, the CAT Committee, UN Human Rights Committee and
others
h. Media and other avenues available for lobbying both locally
and internationally
Approach: Each component is specifically studied in
the larger canvass of prevention of torture. The regular work pattern of the
AHRC and the network involves constant interaction with all the components
mentioned earlier. The experiences and observations from this process are always
documented, and data about each constituent, at times, is generated. Study and
analysis of the components vis-à-vis strategy employed with each is carried out
in this paper. The predominant work design employed with these components is
maintenance of close contact with relevant persons and institutions together
with constant scrutiny.
The documentation is the stepping stone for further actions, for instance:
prosecution, judicial intervention, reporting to the U.N agencies and lobbying
to fetch results both to the individual victims, and to make differences in the
system.
Analysis of Components
Victims of Torture
Maintaining close links with torture victims is the foundation of our work
and study. The predicament of each victim may vary, but there are certain
essentials every victim might seek. The AHRC is working in tandem with six
groups in Sri Lanka, which are located at various regions. They are the primary
units where victims approach initially or who locates the victim in need of
support. They receive victims, record complaints, assist the victims to lodge
complaints with the authorities and in the courts, help with physical and
psychological treatment, provide solidarity, extend community based witness
protection, and offer humanitarian assistance. Based on the demands of the
circumstance, they involve themselves and facilitate many more means to assist
the victims in their struggle for legal redress and justice.
The process: Victim’s experiences are reduced into
writing by one of the members of the network, competent to interview and record
statements. The persons who record testimonies are trained to look for the
essential details as well as to check the veracity of the story by detailed
interviews.
Statements are also recorded from witnesses to the incident or other persons
aware of the incident and are willing to support the claims. Interviewers have
skills to ponder the essentials that make a strong case. The fundamental
information includes details of incidents, injuries, places and circumstances in
which the incident occurred, details about the identities of perpetrators and
whatever actions the victims may have already taken. These vital facts are taken
down in the form of statement authenticated by the victim or witness as the case
may be.
The next step in the process is to convert these statements into the form of
duly signed affidavits. This is done either immediately or within a short time,
depending on the availability human resources. To transform the statements of
facts into legally amenable affidavits, the assistance and advice of lawyers are
sought.
While these activities are in progress, we simultaneously employ the strategy
of pressure building, lobbying and intervention from the AHRC centre. The
initial information about the torture is communicated to the AHRC's Urgent
Appeals (UA) desk in Hong Kong through email or fax within the shortest possible
time. This information is then studied in Hong Kong by the UA desk, comprising
of persons with specialized knowledge on Sri Lanka. If required, verifications
regarding the information sent are done with the sender, as quickly as
possible. When the UA desk is satisfied with the authenticity, accuracy
and adequacy of the information, the case is prepared and issued as an Urgent
Appeal. Such Urgent Appeal’s are used to trigger interventions locally and by
the United Nations (UN). The same information is also circulated to a much
larger audience for lobbying purposes as well as to create perceptions on the
issue of torture. This is an activity carried out routinely, round the clock, in
the AHRC.
The strategy: The statements reduced into writing
are the basic material used by the members of the network for inquiries into the
incidents of torture. The advantages of having a record for further work have
helped the partners in network to recognize the importance of written statements
in the process of torture documentation. The practice of documentation has more
than mere statistical value. The persons engaged in these activities are aware
that their work has many objectives; the primary one to assist the victims in
the legal process, and the second to document torture and related matters for
the purposes of inquiries into the issue of prevention of torture. Getting
persons motivated to undertake both missions concurrently was a daunting task.
Over a period, both skills as well as consciousness about the responsibility
have improved.
The initial documents are about factual details of a case, later inputs are
about the institutions with which the victims interact and the details of these
transactions. Thus, we develop enormous amounts of documentation on what happens
at police stations, courts, national institutions and other places where victims
attend for legal redress.
On the personal link front, the duration of maintaining close contact with
the victims, whose cases we have taken up and study, could vary from one to six
years. But from a documentation point of view, a case never ends.
Personal contact is maintained by constant interactions. These interactions
could be to meet the requirements of law such as appearances before various
inquiring bodies and courts, or solidarity meetings to boost the morale of the
victims and their family. Contacts also take place for the purposes of providing
psychological or medical assistance.
The documentation is the base material for study and analysis. The documents
ranging from the initial story, to all those generated on the way down for
several years, are constantly analyzed with a view to understand the multitude
of aspects relating to prevention of torture in Sri Lanka. This analysis is
constantly shared with local and international audiences. This is achieved by
means of statements, articles, papers, shadow reports submitted to UN bodies and
publication of periodicals and books.
Alleged Perpetrators of Torture
Knowing your adversary is imperative for success in any combat. So it is in
addressing the issue of torture. The AHRC closely observes and study the
perpetrators of torture. We believe that understanding the perpetrator is
equally important in fighting the perils of torture, as understanding the victim
and the causes of torture. Perpetrators of torture do not exist in a vacuum.
Therefore they ought to be studied in context. In state sponsored torture, it is
all the more relevant. This requires profiling of the person and the system in
which she/he functions. Consequently, the next component of focus is the
perpetrators of torture.
The process: The initial information about the
perpetrators is gathered from the individual cases of torture. The victims and
their families provide a certain amount of basic information about the
perpetrator(s). The information thus received is used by the network groups to
address the authorities about the incidents of torture and demand justice. The
network often receives replies from official sources as a result of their
interventions. Such communications usually include statements from the
perpetrator(s) and may also contain copies of documents in their custody. More
often than not the reason for such statements and documents is to deny
allegations against them.
Victims and witnesses are further addressed with the content of the statement
and documents from the perpetrator. This exercise is done to generate counter
evidence to challenge the version of the perpetrators.
The documents from the perpetrators together with the information gathered by
the interviewer from the victim and family help us to build the profile of
perpetrator(s). In consultation with lawyers, we demand more documents
from official sources and compile them for prosecution, study and analysis.
These processes help us to generate a fair amount of material for cross checking
and comparative study.
The strategy: Though the content of the replies
from official sources most often are in the tones of denial, it is critical
material to understand how the system works. It also enlightens us about the
structure and accountability pattern of the system or reveals the utter lack of
the same.
Beyond this, in the long run, such documentation aides us to check the
veracity of the official claims from victims and be resourceful for prosecution.
The earlier mentioned practice of further communication with the victims about
the official version helps us to anticipate the strategies at the time of
prosecution. More importantly, lawyers of victims get the opportunity to request
further documents and in this process a great deal of material becomes
available, not only regarding the particular case but also about the whole
system. This also gives us the opportunity to compare materials collected about
perpetrators in different cases.
The study of the perpetrators is not limited to the direct elements, i.e.
those who have actually participated in the act of torture. It includes those
who bear command responsibility by virtue of being in a superior position. This
necessitates gathering documents like departmental orders and other materials
concerning how superiors keep control over subordinate officers.
In the course of such studies, we gather a large amount of materials of
consequence. They are generally about problems relating to command
responsibility, internal critiques, documentation on government commissions and
committees, and also testimonies of officers who are unhappy about the manner in
which the system works.
Institutions Investigating Torture
The alleged act of torture is expected to be inquired into for meeting the
ends of justice. The agencies that investigate offences of torture are mainly
four in Sri Lanka. The latest one is the Special Inquiry Unit (SIU). This
is a specialised unit within the Criminal Investigation Department to inquire
into incidents of torture. It is worth mentioning here that the SIU is an
outcome of the interventions of the UN Rapporteur against Torture. The office of
the UN Rapporteur sought explanations from the Government of Sri Lanka as a
state party on cases of torture, most of which had been submitted by the AHRC
network since 2002. As an upshot of this and many other interventions, the
government mobilized this special unit to investigate allegations of torture
under the CAT Act (Act No. 22 of 1994). It is officially claimed that so far
over sixty cases have been filed in the High Courts of Sri Lanka regarding
police torture against about one hundred officers.
Besides the SIU, investigations are also conducted by senior police officers
in charge of specific areas. Often, these investigations are carried out at the
area headquarters in different provinces or districts. The two national
commissions, namely the Human Rights Commission and National Police Commission,
are the other two institutions of relevance here. The process and strategy
adopted with these two institutions will be separately dealt at a later point in
this paper.
The process: The network groups get ample
opportunity while they assist the victims to be in direct contact with
institutions and officers that investigate torture cases. It was mentioned
earlier that the SIU have filed over sixty cases in the High Courts of Sri
Lanka. The procedure at the High Court starts with an indictment, which includes
all the documentation that the prosecutor will rely upon during the trial.
Logically, an indictment is a wealth of information. This includes, the
statements collected from the victims and witnesses, statements from alleged
perpetrators and witnesses they rely on, medical reports from doctors, extracts
of records from police books, sketches drawn by the police investigators and
their investigative notes. In some cases there will also be DNA reports and
other forensic reports. The network has collected a large number of indictments
which form tremendous resource materials to study about practices of torture in
Sri Lanka. Otherwise inaccessibility of many of these documents enhances its
significance.
Thus far, the SIU has been about to file indictments in very few cases. This
is indicative of the non availability of officers for investigations. These
officers are senior in rank and position. The experiences of these persons are
highly valuable. We document the experiences of these officers in a systematic
manner, for which a research project has already been launched.
The police officers who conduct inquiries into torture, other than those
attached with the SIU, is also our target of study. The network uses the
opportunity they get while assisting the victim to gather information and
generate ideas about the functioning of these officers. In this process we
gather departmental circulars and other forms of instructions concerning various
matters of discipline in the police and about the disciplinary process.
The strategy: The study and analysis about persons
and institutions inquiring into torture is of critical relevance. The strategy
adopted to reach this end is twofold. The members of the network group generate
data about the process of investigation and officers, through the interaction
they have with these institutions and the personnel. Such information is the
windfall they gain while working with the victim; it might not always be focused
though highly relevant.
The strategy next is to employ a dedicated study about the work of these
agencies. The research project earlier mentioned is designed for meeting as many
officers as possible. The research team includes a retired senior police officer
who would facilitate inquiries with the police officers. They interview
the officers on the basis of questionnaires and interview schedules on a range
of aspects of their work. Already many facets of investigations into torture
have been revealed by this process.
The Prosecuting Branch
The Attorney General’s Department is in charge of prosecutions in Sri Lanka.
Investigation and prosecution divisions work in mutual exclusivity in Sri Lanka.
The Attorney General’s office does not exercise any supervisory power over
investigations of torture cases conducted by the police department or by the
SIU. So is the case with any other criminal investigations by the police. This
absence of a supervisory role has been criticized by various persons including
some committees headed by officers of the Attorney General’s Department itself.
The crucial decision, whether or not to prosecute, is made at the department
of Attorney General. The files are expected to be studied and a decision to be
made as to whether to drop or proceed with the charge on the basis of existence
or otherwise of sufficient evidence. On the decision to proceed, the department
drafts the charge sheets and prepares the indictment file, which is to be placed
before the High Court.
Some observations may be worthwhile here. The Attorney General’s powers to
prosecute have so far not been used for prosecuting any officer above the rank
of Inspector of Police. There had been glaring incidents where officers higher
than that of ‘Inspector’ were accused of commission of torture. So far they are
not indicted. A further remark is that the Attorney General’s Department is yet
to file an indictment on the basis of command responsibility. Liability on the
basis of failures of higher officers is usually not dealt with as matters of
criminal liability in Sri Lanka. In the case of Gerald Perera (For details, see
infra, note 55), the Supreme Court found that the involved Inspector of Police
had violated the victim’s rights. Initially, this Inspector’s name was included
in the list of accused in the indictment filed at the High Court by the Attorney
General’s Department. However, his name was withdrawn by a senior counsel
representing the Attorney General’s Department on the basis that Inspector’s
responsibility was vicarious liability falling under the civil law, not
amounting to criminal liability.
The process: The network groups pursue cases with
the Attorney General’s Department often by official communications through the
AHRC or by communications on particular cases via lawyers. The documents thus
received form part of the treasury of information for analyzing the role of the
prosecution branch.
The network engages in public campaigns when the department fails to launch
prosecutions, mostly due to obvious reasons. Such campaigns and lobbying put
pressure on the department to act, despite their initial negative stand. The
experiences of such campaigns are also documented.
The strategy: The basic purpose of engagement with
the prosecution department is to put across the point of view of the victim. In
the labyrinth of official process at the Attorney General’s office, the interest
of the victim is often affected. That apart, there are many considerations,
political or otherwise that mars the claim of victim for justice through the
prosecution wing. The holdup of files that occurs in this office is highly
condemnable. This situation warrants close monitoring of the affairs of the
prosecution branch.
This is done by constant communication with the concerned office. These
communications are done by the AHRC and the network groups. Communication of
intentions through mass action is also a strategy which has been thus far
favourably employed.
By these involvements, the network is able to gather detailed information
about the manner in which the department deals with indictments and
prosecutions. Such information is documented and analyzed as part of the overall
study on the prevention of torture.
The
Judiciary
Formal legal process relating to torture takes place mainly at three levels.
It can be either at the Magistrate's Courts, the High Courts, where trials under
the CAT Act takes place or at the Supreme Court where fundamental rights issues
are taken up. The issue of compensation against torture is also decided by the
Supreme Court.
In conjunction with these or by itself, civil courts could be approached with
claims of compensation for torture under the civil jurisdiction. Furthermore,
applications can be made to the Court of Appeal by way of Writ Applications on
torture related matters.
The network has recourse to all these avenues, and more than hundred cases
are pending before either of these courts. A case filed in any of the courts in
Sri Lanka is likely to take several years for completion. Many of the cases,
that the network has taken an active interest in pursuing, have gone beyond five
years. The delay in the system of justice is one of the major problems that
prevent proper remedies for human rights abuses including torture. The network
is able to study the process of judiciary by a simple method of attending the
cases.
The process: The ways of law can be bewildering. A
victim may be attending more than one court for cases originating from the same
incident, but for different offences or purposes. It could be to prosecute in
one case and to defend another, which has been set up as a counter case by the
police to set off the damage or as a pressure tactic. It could be explained
thus. While the Attorney General’s Department may file a case against police
under the Torture Act, the police may file a fabricated case before the
Magistrate’s Courts against the victim of torture by making him an accused for
theft, or assault on police or any such offences. The fall out being, at the
High Court the torture victim appears on behalf of the prosecution to give
evidence against the police. At the Magistrate's Court the police will be on the
prosecution side trying a case against the torture victim. The victim is
compelled to defend a fabricated case to save himself.
Each of these cases in the Magistrate’s Court and the High Court are
postponed many times. The usual duration of postponement is around two
months. Thus, in each court, a person will have to appear at least 6 times
during a year. Having cases for different reasons before the High Court as well
as the Magistrate's Court would imply at least 12 appearances in a year.
Fundamental rights cases are heard before the Supreme Court of Sri Lanka.
When these cases are being heard, the victim and/or his/her lawyers have to
attend the court. This means a few visits to the Supreme Court as well,
sometimes for as long as 6 years.
The information gathered by attending these court proceedings are of two
kinds. On the one hand, there is knowledge gained about the nature of
proceedings in each of these courts relating to torture. This involves, court
procedures, trial procedures, issues relating to evidence, issues relating to
application of forensic science and all matters that relate to the adjudicating
process that takes place in each court. The network closely monitors and
documents every proceeding in the court. It could be by filing copies of
documents produced in the court to entering one’s own observation as to what
transpired in the court that particular day and why it happened so. On the other
hand, there are enormous amounts of documentary evidence collected by way of
certified copies of court proceedings. These include complete files of trials
from beginning to end; the files of applications and replies and other documents
in fundamental rights cases and also judgments delivered by courts.
The strategy: The observations gathered in this way
are important materials for understanding the problems of judicial redress in
Sri Lanka. These source materials of actual cases that are fought in courts are
some of the primary materials which can provide an array of information.
The court proceedings give an insight about wider issues such as delays in
court, witness protection, nature of legal profession and the problems that
members of the legal profession face in court as well as the lack of access to
legal redress. Direct observations gathered through the participation is a
valuable source of information in the study of wide-ranging aspects relating to
prevention of torture in Sri Lanka.
The Human
Rights Commission Sri Lanka and the National Police Commission
Two national institutions which are relevant to this study are the Human
Rights Commission (HRCSL) and the National Police Commission (NPC). Torture
victims can make complaints to the HRCSL as well as the NPC. The HRCSL is
empowered to inquire into human rights violations. Members of the network
as well as the Urgent Appeals desk in Hong Kong send letters on behalf of the
victims to both of these national institutions on an almost daily basis.
The NPC was appointed in the year 2002. It was established by virtue of the
17th amendment to the Constitution with laudable intentions. The amendment
provided for the appointment of certain national commissions with constitutional
powers over appointments, promotions, dismissals and disciplinary control of
employees to depoliticize important national institutions. The NPC, so
appointed, enjoys all such powers over the police department except in relation
to the office of Inspector General of Police. Article 155G 2 requires the NPC to
establish a procedure for entertaining, investigating and redressing complaints
against police personnel and the police service.
The process: The network assists victims to file
complaints and pursue proceedings in these institutions, especially the HCRSL.
Attending these institutions, the network documents the proceedings therein. The
network has accumulated valuable information, through direct involvement and
also by collecting relevant documents about these national bodies.
The strategy: Transform through engagement is the
motto adopted by the AHRC with these institutions. Where ever possible,
the network uses the process of these institutions which in turn reveals their
strengths and shortcomings.
The constant engagement we have with these institutions and the materials
gathered on them enabled the AHRC to write several articles and statements about
the nature of these organizations. These commentaries on the HRCSL reveal the
inherent nature of the institution with several fundamental flaws. The fault
lies both in the law and functioning. The experiences of the torture victims
with these establishments also reveal other problems regarding administrative
matters and the limited competence of the officers of the HRCSL.
As for the NPC, the network has worked very closely with it up to the time
when the commission functioned under commissioners elected in conformity with
constitutional provisions. This was from 2003 to the end of 2005. During this
time, on the basis of work by the network, the AHRC had submitted documents for
the development of a public complaints procedure as required by the Constitution
(Document titled “Procedural Implementation of Article 155 G (2)-17th Amendment”
was submitted to the National Police Commission (NPC) in December 2005. A
further discussion paper on the same theme was also submitted to NPC. Both
documents are available in, Basil Fernando, State of Human Rights 2005, Law
Society and Trust, Sri Lanka, pp 119-158). This document submitted by the
AHRC was partially adopted in January 2007. Since the beginning of 2006, the
commissioner of the NPC has been appointed in contravention to the
constitutional mandate. The legitimacy of the whole institution has been shaken
due to the deliberate deviations from the constitutional spirit. The AHRC
together with many others is engaged in prolonged lobbying and generation of
public opinion to bring the 17th amendment to the Constitution back into
operation. Copious number of articles and statements are written on this issue
and the cause is pursued.
International Agencies - Specifically the
UN
The AHRC has been consistently using the scope of international
agencies to address the issues relating to torture. The major among them
are the UN agencies, which includes the UN Rapporteur against Torture, the CAT
Committee and UN Human Rights Committee.
The process: The AHRC is communicating with UN
agencies such as the UN Rapporteur against Torture on an almost daily basis
regarding cases of torture in Sri Lanka. This is done by way of detailed letters
with information about cases to enable him to request responses from the state
party. The study of the reports of the Rapporteur against Torture to the Human
Rights Commission and UN Human Rights Council shows that since 2002, the
Rapporteur has sought explanations from the government for more than thirty
cases submitted by us each year.
Reports of the Rapporteur, which are published every year, show the actions
taken by the Rapporteur and the responses of the government. In many instances
the government has acknowledged that the allegations are accurate and that
actions are being taken to investigate and/or prosecute the offenders.
The network has also made shadow reports to the CAT Committee and the Human
Rights Committee. The network has also sent representatives to the meetings of
review of these committees and sometimes have had occasion to give oral
explanations in private sessions with the committee or to lobby the members on
the basis of information submitted by the network.
The network also makes reports to other UN bodies such as the Rapporteur on
Extra judicial killings, Special Representatives on Human Rights Defenders,
Working Group on Disappearances and other UN agencies dealing with the rights of
women and children.
The communications with these agencies and follow up actions provide a great
deal of education in itself. The experience of working with and stimulating
these institutions for actions is carefully documented by the network. By all
these direct involvements, the network has gathered massive amounts of materials
about the working of the UN agencies and the manner in which the human rights
movement can employ particular methods in the process of the prevention of
torture.
The strategy: Using the available mechanism to the
optimum is the principle employed. By communicating with the agencies and
feeding them constantly with accurate information about the local situation, in
contrast with the official versions, helps to build the larger case against
torture. Filing of individual cases often serves a dual purpose, attention to
particular cases and also as an exposure of a failing system within the country.
In the recommendations of these committees, one can find the efforts to
pursue the information made available to them, and often they have made similar
recommendations as those put forth by the AHRC on behalf of the network. It is a
fact that the number of cases submitted by the AHRC on behalf of the network on
police torture is much larger than those submitted by anyone else.
The AHRC and the Sri Lankan network are involved with a project to promote
the Optional Protocol in four countries in Asia under a programme initiated by
Rehabilitation and Research Centre for Torture Victims, Denmark. The volume of
activities of this programme also brings out a large amount of information about
problems relating to the prevention of torture.
Media and other Avenues for Local and International
Lobbying
The media could be a beneficial ally for furthering the cause of human
rights. Presently, the scope of Information technology is immense and the AHRC
makes use of it to a great extent.
The process: Through the AHRC, the network in Sri
Lanka has access to an extensive network in Asia on the prohibition of torture.
The AHRC has developed its own IT capacity that is capable of transmitting
information on a routine basis to a massive audience in Sri Lanka and rest of
the world. All major human rights groups in Europe and the USA receive
information on torture related issues on a daily basis from the AHRC’s IT
network.
The strategy: Linking with people and institutions
through the internet for the cause is the rule for us and so far it has worked
well. Such a network not only disseminates information, it also brings in new
information. When information is published constantly, we receive responses from
persons who provide additional information to what the network already knows.
Thus the media network in itself is a means of collecting information by way of
linkages.
A media network could be a method of verification of information as well.
When the information is publicized by the network it is received by newspapers
far and wide and is often reproduced. The publication and reach of the
information provides an opportunity to challenge the network if there is any
flaw in the material published. The very fact that the information goes
unchallenged after being well circulated indicates its veracity.
A media network with modern IT facilities is also a means of preserving
documents and materials collected over the years on the issue of torture made
available through various web sites of the AHRC. In the archives of these web
sites, material collected through years have been preserved for the use of
anyone engaged in the study of these issues.
The responses we receive constantly from many countries and universities
throughout the world give us an indication of the extent to which reference is
made to the material available in these web sites.
Some Observations from the Study
The years of experience had been a great educator. Meticulous evaluation of
the enormous amount of data, study and analysis of the system, institutions and
the personnel has lead us to several conclusions and observations. Some
salient aspects are summarized below.
1. Police Torture
1.1. Police torture is endemic and routinely practiced at all police
stations in Sri Lanka. The reason for torture, unlike common perception, is not
just to extract information but for other reasons such as finding substitutes
for unresolved crimes, showing results to superiors or for statistical purposes.
Sadly, the habit of use of force on anyone under arrest is a major factor. The
reasons could be frustration on the part of the police officer, impression that
proper respect is not paid to him or for bribery, extortion and the like. In
almost all cases the victims belong to the poorest groups with very few to nil
influential social connections.
1.2. Often the officers in charge of the police, i.e. the highest post
in a station, condone torture and directly participate in it. Almost always they
try to cover up the incidents of torture when complaints emerge. The
Departmental Orders have extensive rules to prevent torture, but these are
largely ignored. The Departmental Orders provide for visits by Assistant
Superintendents of Police (ASP) to police stations. However, there is
significant evidence to show that these visits seldom take place as required.
ASPs or Superintendents of Police who take strong views against torture found to
be extremely rare.
1.3. The data available indicate a considerable collapse of the exercise
of command responsibility, ranging from the Inspector General of Police (IGP) to
the lower ranking officers. There are consistent remarks supported by
observations on cases and comments by judiciary that the supervision exercised
by the IGP and other high ranking officers to prevent torture is negligible. In
fact, the Supreme Court has observed that the conduct of superior officers can
give the inference that they ignore or condone torture.
2. The System of Investigation of Torture
2.1. The system of investigation of torture within police seems to work
only under heavy pressure, particularly international pressure such as official
interventions by the UN Rapporteur against Torture. Complaints which are not
accompanied with such pressure are regularly ignored.
2.2. If the investigation is referred to the SIU by intervention of the
UN or due to intense local pressure, investigations are conducted competently
and impartially, suggest the data. Experiences from many cases clearly witness
that the SIU does have the capacity to conduct scrupulous investigations even
against officers of the police. Apparently, investigations by SIU are not
interfered with by higher ups.
2.3. The investigations by higher ranking police officers of the areas
where incidents of torture are alleged to have taken place do not show the same
type of competence and impartiality as the SIU inquiries. In many instances
there are allegations that various forms of pressures are exercised on victims
of torture to discourage them from pursuing complaints.
2.4. The HRCSL inquiries mostly lack competence. Institutionally it is
bereft of proper powers for investigations. There are documentary evidences
which reveal the admission of the HRCSL that “their inquiries do not amount to
proper criminal investigations into torture.” There is also data available to
show that there are enormous delays in the process of inquiries and often they
employ various methods to discourage victims from pursuing their complaints.
Case studies show that in many instances the HRCSL inquiring officers do not
show an understanding of international norms and standards. This has an adverse
affect on the manner in which they conduct inquiries.
2.5. The NPC has the mandate to inquire into allegations of torture from
a disciplinary point of view. Often such inquiries are expected to be conducted
through the local representative of the NPC. However, according to case studies,
it is revealed that the NPC refer the matter to senior police authorities to
conduct inquiries and submit reports. In January 2007, the NPC published a
gazette extraordinary regarding the public complaints procedure against police
officers. How this will function remains to be experienced.
2.6. Considerable delay is observed in the SIU inquiries as well. A
matter has to be referred to SIU for it to commence an inquiry. Such reference
is often done months after a complaint is lodged. The actual commencement then
depends on the work load of the unit. Studies in some cases show a delay
of one year or more before the final report is made to the Attorney General.
2.7. As compared to the number of complaints made, the number of
inquiries conducted by the SIU is very low. This imply that a large amount of
complaints on torture do not go through a proper process of
investigation.
3. Prosecutions
3.1. The filing of indictments and prosecutions is the responsibility of
the Attorney General's Department. The information gathered in this study shows
that out of the numerous complaints made by torture victims relatively very few
are prosecuted.
3.2. Delay is endemic to the AG’s Department as well. From the receipt
of the investigation file, sometimes two years have taken, to file indictment at
the High Court. Statements from the AG’s Department indicate delay in admission
at the court as the problem. The department attributes overall delay to lack of
sufficient staff to deal with all files relating to crime of which torture cases
are only a few. The absence of assignment to attend to the cases of torture on a
priority basis is another impeding factor. Responses from the AG’s Department
suggest that they find no reason to give priority to cases of torture. The
experiences gathered from cases as well as interviews with officers of the
department do not show any concern for the prevention of torture as a policy
influencing the handling of cases.
3.3. There is also data to show that there exists lack of understanding
to lack of appreciation of the international law on torture by the AG’s
Department. This is evident from the instances of filing of charges on
torture.
3.4. When charges are not filed with required precision, the accused can
utilize the defects in the indictment as a means to circumvent responsibility
and liability.
3.5. The study reveal that the AG’s Department, as a matter of policy,
do not want to prosecute any officers above the rank of Inspector of Police even
if there is evidence of direct involvement of such officers in torture. Besides,
it is also a matter of policy not to prosecute higher officers or even
inspectors on the basis of command responsibility. There is a disparity in the
way the AG’s Department distinguishes vicarious liability of higher officers as
a matter of civil law and the obligations under the ICCPR and CAT to deal with
torture as a crime.
3.6. The information gathered by this study also points to a policy of
prosecutions based on pressure rather than by way of normal routine based on
legal obligation.
3.7. Delays in filing prosecutions seriously affect the victims and the
witnesses. This is one of the primary factors that discourage the victims to
pursue cases. On the information available from this study it is not
unreasonable to conclude that while filing indictments under pressure the
department encourages the retreat of victims and witnesses which eventually acts
in favour of the alleged accused. In this way while it appears that the
department has done its duty to prosecute, the blame is indirectly shifted on
the victims and the witnesses for the unsuccessful result.
3.8. Information collected through cases also shows that counsels
representing the AG’s Department do not make applications in court for speedy
hearing of torture cases. Unofficial explanation is that such applications often
do not result in being allowed and that the better course is to be prudent and
not to press for speedy trials. Even in an instant where the UN Human Rights
Committee has requested the state party to ensure that the trial is speeded up,
counsel from the department refused to make any such application to the court.
3.9. Despite all the above, several cases demonstrate the exceptional
ability of some of the counsels from the department while prosecuting torture
cases. They do their job with competence and integrity. It has to be noted that
such efforts are against all odds they face.
4. Courts—Trials at the High Court
4.1. So far there are two successful prosecutions in two separate High
Courts and both have taken two to three years for completion. In one case, the
accused officer escaped and fled allegedly out of the country by the time the
verdict was rendered. There are several cases in which there were no successful
prosecutions. There have been many instances in which the victims have come
forward to state that they do not wish to proceed with the case. The study
exposes that in some of these cases serious threats have been made to the
victims or inducements such as money been offered. Some victims have tried to
resist for some time but had succumbed to the pressures from their family and
peers whose backing has been well employed by the accused officers.
4.2. In one well known torture case, the accused was killed about a week
before he was to give his testimony in court. Investigations into the murder
confirmed the involvement of the alleged perpetrators of the torture.
4.3. The High Courts now follow the practice of postponing further
proceedings after recording evidence. This result in delay. Large number of
cases is included in the trial roll for each day which make the time available
for each case considerably brief. The earlier practice was for trials on serious
offenses at High Courts to be conducted on a day to day basis ending within
three or four days of commencement. Abandoning of this practice has brought
considerable difficulties to the victims.
4.4. According to official figures the success rate in overall
prosecutions is a meager four percent. This would be even less on torture cases
due to the official position held by the accused and social, administrative and
political sway in their favour.
4.5. Some judgments at the High Court illustrate considerable confusion
on the part of the High Court judges about the understanding of law relating to
torture. The exasperating fact is that this exists even in elementary matters.
Some judges have held that causing of injuries by police officers on persons in
their custody is not torture as the purpose of the assault was not to obtain
confessions. In another case, a judge of the High Court even held that though
the accused police officer has used excessive and unnecessary force causing
extensive injuries, it still do not amount to torture.
4.6. The observation of torture victims and a number of lawyers is that
prejudices still exist against the prosecution of police officers. It has also
been observed that judges may be discouraged to arrive at convictions due to the
mandatory seven years imprisonment, which is the prescribed punishment in
law.
4.7. The sum total of the effect all these factors on victims of torture
is that more sources exist to discourage the pursuit of complaints against
torture than to encourage attempts to ensure liability of the
offenders.
5. Courts—The Supreme Court
5.1. Available data indicate that while complaints of torture are
increasing, the number of cases filed at the Supreme Court by way of Fundamental
Rights cases are on a steep decline. This drop is attributed mostly to the
advice of lawyers and even human rights activists that success in such
applications is fewer now than ever before.
5.2. The rejection of cases without issuing notice is quite high and
usually no reasons are offered for such rejections.
5.3. In cases where charge of torture is proved, the amount of
compensation granted by the Supreme Court has become ever more meager. While
there were some attempts to set higher standards of compensation for torture few
years ago, for example around US$ 8,000 in serious cases, the quantum currently
has been reduced to a paltry sum of $100 to $250. No reasoning is given for the
decline in quantum. Though the objective of fundamental rights is not
compensation alone, low quantum could discourage victims from filing cases. The
dissuasion should be viewed in the backdrop of expenses of moving the Supreme
Court. Low quantum also is used by the perpetrators and others to their
advantage in trying to dissuade victims from pursuing cases.
5.4. The Supreme Court of Sri Lanka has made some attempts to
incorporate international norms on human rights into domestic law through its
judgments a few years ago. However, in recent years, the Supreme Court has taken
a view that the ratification of the ICCPR is not binding on the courts in the
country. It has also taken an extreme stand that the signing of the Optional
Protocol by the state may even be ultra vires. There is a wide gap between the
law as laid out in the Supreme Court judgments and the international norms and
standards.
5.5. The UN Human Rights Committee have expressed that it has noted
violations of rights by the judgments of courts in Sri Lanka including that of
the Supreme Court. However, none of the recommendations expressed by the Human
Rights Committee are respected.
5.6. The Court of Appeal and the Supreme Court have gone to an extent
that it held the constitutional provisions enabling the Executive President to
be not liable for any action before court as absolute, even when she/he violates
the constitution.
6. National Institutions
6.1. As for national institutions such as the HRCSL and the NPC, the
evidence gathered in this study lay bare that they are ineffective to provide
any remedy against torture.
Some Conclusions
a. The basic institutions such as the police investigation system,
prosecution system under the Attorney General’s Department and the judiciary are
fundamentally flawed. Therefore the contribution they make to the prevention of
torture is minimal to none. Often the defects are of such a nature that it
becomes an encouraging factor for adopting means of torture.
b. At the moment, no reform process is envisaged by the government.
c. Due to the existence of civil conflict, emergency and anti terrorism
laws have been enforced which have a negative impact on the issue of the
prevention of torture. The state obligation to reform the institutions is also
hampered due to such laws.
d. The burden of prevention of torture, at the moment, rests highly on
civil society efforts. The capacity to lobby strongly is an essential component
to get the state into action even marginally. Support for victims by civil
society is the sole avenue to keep interest alive to seek redress through the
exasperatingly prolonged process in courts beset with severe harassments. The
absence of a proper legal process to provide witness protection, transfers that
burden also on civil society and communities. Extensive information is available
about the capacity and the willingness of civil society to face the brunt of all
the impediments involved in providing support for torture victims and to keep up
the discourse for the prevention of torture.
e. There is considerable interest among the public at large to
participate in the discussion on the issue of torture and about the severe
restrictions on civil liberties. It is felt that avenues are limited. Both the
state and private media are actively discouraged from giving serious attention
to this problem. It is the responsibility of civil society groups involved with
human rights to evolve their own capacity to communicate efficiently to keep
this debate active. The experience of the network shows that this is possible
despite extreme difficulties in the present circumstances.
Publication of the Experience
Regular publication of the activities of the prevention of torture is being
done by the AHRC, other publishers and the media. Initial publications of the
AHRC had been through IT networks reaching a regular audience of a few thousand
persons which in turn was picked up by both local as well as international
media. Such publications have been done routinely on a day to day basis for
several years. The resources so generated are available in the archives the
AHRC’s several websites.
The first report on torture was published, as an issue of the bi-monthly
publication Article 2, in August 2002 (Article 2 Vol. 1, No. 4). This report
consisted of details of 22 cases and had analysed various factors that have
contributed to torture. This report was followed in 2004 by another volume of
Article 2 which studied 33 more cases and also analysed legal and other issues
relating to the prevention of torture. This was followed by a book of 300 pages,
titled “X ray of the Policing System in Sri Lanka”, which studied about 65 cases
and contained a number of articles analysing the problems relating to the
prevention of torture in Sri Lanka. In two shadow reports published in 2003 and
2005, submitted to the Human Rights Committee and the CAT Committee, a
considerable amount of factual details regarding torture was tendered together
with analyses and recommendations for the prevention of torture. Besides these,
several articles in different journals have been published on matters relating
to torture in Sri Lanka. Books have also been published in local Sinhala
language. A few hundred newspaper articles have also been published.
Two extensive reports on torture related issues are available in the Annual
Country Report published by the AHRC in 2005 and 2006.
Existing Literature on Prevention of
Torture
In the course of our studies we have tried to find resources from
international publications for further understanding. Though we could find some,
there was a dearth of relevant materials.
a. There is want of literature on institutional causes that encourage or
lead to torture. Studies on endemic torture that takes place regularly at police
stations, due to the very nature of the criminal justice systems, in countries
where liberal democratic systems have not been established to any credible
degree is scarce.
b. Many studies are made on the assumption that credible investigations,
prosecutions and judicial systems exist to investigate and prosecute torture,
while some errant officers or some authoritarian governments have at times
allowed torture. However, torture as it exists in Sri Lanka for the most part
does not fall under this category.
c. Recommendations of the CAT Committee and the Human Rights Committee,
including direct observations in the sessions of these committees, which were
available for this study, shows that so far the recommendations of these
committees have not been detailed enough to address the institutional problems
that obstructs the prevention of torture. Often such recommendations are too
generalized and are not respected by Sri Lanka as a state party. The
recommendations of the Human Rights Committee in 2003 and the committee decision
made under the optional protocol have not been respected even scantly. The CAT
Committee recommendations of 2005 have also not been honoured. Making
recommendations effective would require a better understanding on the part of
these UN bodies about the violations which arise out of the institutional
defects within the rule of law system itself.
The
Challenge
The challenge that this study raises for anyone working in the area of
prevention of torture or to any international experts who wish to contribute is
the need to develop a theoretical framework to deal with the problems of
prevention of torture. It should be connected with fundamental problems relating
to the rule of law and the development of democratic institutions.
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