Kishali Pinto Jayawardena
1. Introduction
At each historical juncture, the framers of Sri Lanka’s post independence
constitutional documents suffered from a deep rooted distrust of giving
practical effect to the rule of law and the idea of justice. The 1972
‘autochthonous’ Constitution subordinated the judiciary and only
superficially embodied a Bill of Rights while declining to grant the Supreme
Court, explicit jurisdiction over the determination of violations. Thereafter,
the 1978 Constitution entrenched the concept of the all powerful Executive
President whose actions were virtually above the law, besides (in a most absurd
paradox), omitting the right to life and inflicting a constitutional rights
chapter with procedural restrictions that diminished the protection of those
very rights.
This deviously subversive rationale outlined each and every measure
ostensibly agreed to in the name of constitutional democracy, whether it was the
enactment of laws setting up to monitor abuse of human rights, curb police
indiscipline or the implementation of a constitutional amendment meant to
restore public confidence in the governance process. The familiar adage of
‘giving with one hand and taking with the other’ took on terrible meaning in the
gradual but relentless destruction of Sri Lanka’s political, constitutional and
legal systems.
From this core political objective of subversion of the rule of law, sprang a
rabidly intolerant response to legitimate dissent; the constitutional documents
of 1972 and 1978 were used to deny justice to both the majority Sinhalese and
the minority Tamils and Muslims. The failure of the justice system and the
breakdown of the ordinary law enforcement process impacted on all communities,
resulting in the deaths, enforced disappearances, physical and mental torture of
thousands during the past three decades.
Ominously, this phenomenon was manifested not only during active conflict but
also in times of relatively normal functioning. The very foundations of the
liberal democratic polity, such as protection of human rights, independence of
the judiciary, a democratic electoral system and the concept of separation of
powers were used as weapons to twist the constitutional process to suit
political exigencies and to strike at the heart of the public’s understanding of
the rule of law.
However, in trying to analyse this problem, much effort has been expended on
problems of constitutional theory and the niceties of one system as against
another (viz; a parliamentary system as against a presidential system, a
proportional representation electoral system as against a first-past-the-post
electoral system or a unitary state as against a federal state). Such efforts
are premised on the assumption that Sri Lanka’s democratic institutions are in
proper working order and that what is required is merely to decide on suitable
models of governance.
This paper departs from the above premise in unequivocal terms; it reiterates
the failure of the democratic process in a most profound sense and
systematically dissects the centrality of the breakdown of the justice system
within this context. The point, albeit controversial, is re-iterated; the
ongoing conflict in the North/East is the effect rather than the cause of a
destructively cyclic perpetuation of coercive violence. Granted, the
brutality of the Sri Lankan State has been practiced against minorities with the
ultimate consequence of alienating them and abandoning them to the ferocious
mercies of separatist forces that are not propelled by a liberation ideology but
only by a thirst for totalitarian power.
Fact remains that such brutality has been practiced also against the majority
community to devastating effect. The redressing of the brutal nature of the
State must therefore be seen as a problem common to all ethnicities. This indeed
is the approach that the Asian Human Rights Commission (AHRC) and its partner
organizations in Sri Lanka have followed in their work. The theme of the failure
of justice is pragmatically manifest in their campaigns and case studies.
The paper critically questions past thinking wherein the authority
of the constitutional order has been situated primarily around the failure of
constitutionalism to provide for the needs of ethnic minorities and to ensure
the multi-ethnic character of the polity. While conceding the importance of
these intertwining themes, it contends strongly that this struggle should have
been centered round broader and primary questions of the failure of justice and
of human rights in general and the failure of law enforcement in particular. In
doing so, the paper re-iterates the following rationale;
A discourse on justice is separate from a discourse on politics. This
does not mean that the two are unrelated – only that they are distinct. And for
the discourse in justice to influence the political discourse in a country,
thereby breaking its tautological nature, there must first exist something akin
to a discourse on justice. However, sadly such a discourse is quite absent in
Sri Lanka.
The limited approach taken, of focusing only on minority rights and the
‘ethnic conflict’, it is argued, has detracted from a more profound exploration
of fundamental problems of protecting life and liberty confronting all Sri
Lankans today. In direct relevance to the peace process for example, this has
resulted in downplaying of the critical question of human rights protection for
civilians consequent to the 2002 Oslo brokered ceasefire agreement with the
putting into place of credible monitors rather than ‘political
facilitators/mediators’ which deprived the entire exercise of that vital
element of public ‘ownership’ and legitimacy.
The research does not focus exclusively on theory but instead, takes the
‘praxis’ approach by exploring the above premise through the diverse
findings that have emerged from sustained and pro-active campaigns against the
endemic prevalence of torture, carried out by and associate organizations
during the past several years. Informed and driven by the determination of the
victims and grassroots activists, this has been a singularly successful approach
to learning that has distinguished itself by reflecting felt needs of the people
as opposed to arid theories.
2. The ‘schizophrenic’ Sri Lankan State and the Gradual
Breakdown of the Rule of Law.
The assumption that traditional democratic legacies carry with them all the
formulae for building equitable and just societies is common in South Asia. This
rationale is underpinned not only by the perception that the state is the key
arbiter in ensuring the rights of citizens but that its role is at once, both
non-conflictual and benevolent. So also, (and as a matter of natural logic), are
asserted to be the institutions that it constructs.
In the immediate post-colonial era, such naiveté was natural and perhaps
necessary for the emergence of new national identities. The state was perceived
as having certain essential responsibilities of defining territorial integrity,
looking after the welfare of the people and enacting laws and regulations in
order to maintain order and good government within the territory. It was thus
that the state derived its legitimacy to speak on behalf of all its citizens
against external influences, friendly or aggressive and justify the right to use
force in order to safeguard its own existence. The notion that the state existed
for the common good prevailed almost to the point of automatic acquiescence of
all its actions. Belief in the normative power of constitutions was an essential
part of this formidable authority. Inherited British traditions of parliamentary
democracy asserted the power of transformative reform through constitutional
institutions and constitutionalism as the ideal condition of democracy.
This was however, soon realised to be a misplaced faith. As communities
fragmented, there began the search as to how best the state and institutions of
the state could be reconstructed. But the subsequent discourse of correction
continued to operate within the old parameters that defined the state as being
central to any form of reform. Thus, the focus shifted to issues such as a
justiciable bill of rights, an independent judiciary, a multi party system and
competitive electoral processes. This shift was however accompanied by a sense
of overwhelming despair arising from the failure of constitutions in many
societies to uphold human rights or democratic values and the appalling
disparity between constitutional theory and constitutional practices. The
tension between these two was palpable.
Insofar as Sri Lanka is concerned, a number of instruments, both
constitutional and statutory purport to protect the rights of its
citizens. However, on the other hand, the State itself remains the chief
violator of these rights either by way of commission or by omission. The
Constitution has not become a living law and the aspiration of equality and
equity based on social justice remains unrealised.
The modern Sri Lankan state therefore possesses a schizophrenic personality
as far as the protection of human rights is concerned. It combines the ability
to unleash violence and execute an internal war with a remarkably duplicitous
capacity to superficially affirm commitment to the democratic process as the
following analysis would make clear.
2.1. A Culture of Violence
Social and political violence encompassing a continuing war in the North and
East and two youth insurrections has transfixed the country’s human development
during the past three decades. Sri Lanka has a long record of violent conflicts.
The youth rebellion of the Janatha Vimukthi Peramuna (JVP) in the seventies,
methodically crushed by the then United Front Government, was only a foretaste
of worse things to come.
With the entering of the opposition United National
Party (UNP) into government in 1977 and the centralization of powers in an
elected Executive President, a new culture of political violence set in.
Violence was practiced to systematically wipe out all opposition to the
government. Not only did the UNP reorganise its trade unions to act as thugs to
incite and carry out violence, certain politicians were allowed to have their
own private armies and mobilize large crowds and mobs to wreak violence without
impunity. Para military organisations set up during this period, supposedly to
help the armed forces and police fight the Liberation Tigers of Tamil Eelam
(LTTE) fighting for a separate state in the North/East, also expanded the UNP’s
armed sphere of influence.
The violent politics of this era culminated in the re-emergence of the JVP in
the late 1980’s. The JVP intended to capture state power and establish a
socialist state, but was suppressed by the State in an equally violent fashion.
The violence thus unleashed only subsided in 1991 after the leader of the JVP
was arrested and summarily executed by the army. At this point of time, the
ongoing ethnic conflict in the North-East lent a continuing brutal dimension to
this pervasive violence and Sri Lanka ranked as having the second highest count
of disappeared persons (an estimated 12,000) in the world, next to Iraq.
It was in this background that the 1994 general elections were held. The
Peoples Alliance (PA) government came to power in 1994 on the promise of
ushering in new political ethos in the country. But the resumption of the war
against the LTTE and the defensiveness generated by a constant struggle to
maintain a moral high ground against the “dushanaya” and ‘beeshanaya” (corrupt
and violent) record of its predecessor, the UNP, quickly propelled the PA into a
morass of its own making. In the background of much of the violent political
apparatus still remaining intact as far as the JVP and the UNP were concerned,
there was precedence and a certain seemingly legitimate space for PA
politicians, to engage in political violence. This ‘politics of violence’ has
continued thereafter with succeeding alliances of one or the other major parties
capturing political power
The law itself was commonly used as an instrument of repression. The Public
Security Ordinance (PSO) No 25 of 1947 as amended and in the Prevention of
Terrorism Act (PTA) of 1979 as amended have governed the country for the better
part of the past decades and virtually replaced the ordinary penal laws and
criminal procedure/evidence statutes.
These emergency laws gave wide powers of arrest and detention to the police
and the armed forces. Other powers included the absence of minimum or any
safeguards relating to conditions of detention, admissibility of police
confessions to senior police officers and relaxing of the normal procedure in
relation to deaths in custody in respect of inquests, postmortem examinations,
disposal of bodies and judicial inquiry. The Criminal Procedure Code which
required a suspect to be produced before a Magistrate within 24 hours of his
arrest and the Evidence Ordinance which prohibited the making of confessions to
police officers were completely overridden by the emergency laws. These laws
were used to fight Tamil separatism in the country as well as control Sinhalese
extremism. Their abuse led to deaths, extra judicial killings and enforced
disappearances in thousands and aggravated overall brutalisation of Sri Lankan
society.
3. Failure to Question the Subversion of the Justice
System and Defeat of Constitutional Oversight of the Governance
Process
The inability, by a majority of domestic as well as international
non-governmental organizations to view the failure of justice as underpinning
human rights activism in Sri Lanka has had a direct impact on the perpetuation
of a culture of violence. A specific feature of the pervasive breakdown of the
rule of law in Sri Lanka is the problematic failure of the justice system to
bring to book, the perpetrators who commit abuses, whether in times of ordinary
law and order or in periods of emergency.
This failure of justice system is evident at all levels, from the highest to
the lowest courts and deserves close scrutiny by virtue of the central theme in
this paper; that the failure of the justice system has been a factor in the
deterioration of constitutional governance, including proper law enforcement,
resulting consequently in pervasive violence. In this context, the phrase ‘the
justice system’ infers much more than theoretical judicial pronouncements;
rather, it is used to span the entire gamut of the legal system from
prosecutions to decisions and thence to practical implementation of those
decisions. Safeguarding of the independence of the judiciary as well as
preservation of the credibility of the prosecutorial system is exceedingly vital
to this discussion.
3.1. Subordination of the Rule of Law to ‘Rule by
Politics’
The gradual politicization of Sri Lanka’s judiciary and the subordination of
the rule of law to ‘rule by politics,’ referred to in the introduction to this
paper, are important as it frames this analysis. The absolute inability of
‘civil society’ non-governmental organizations based in Colombo to mount a
vigorous campaign regarding the blatant politicization of Sri Lanka’s Supreme
Court from 1999 onwards was a particular consequence of the inability to posit
the failure of justice as central to their work and, in some measure also,
pointed to the political choices that these organizations made.
Some context is necessary to this critique. The question of the independence
of Sri Lanka’s judiciary is not a novel dilemma that has arisen in recent times.
Soon after independence, attempts were made by the political establishment to
reduce its independence but met with valiant resistance by the judges. When the
separation of powers articulated by the Independence Constitution was sought to
be overset by legislation attempting to give the Minister of Justice authority
in the appointment of judicial officers, the Supreme Court responded by
declaring the legislation invalid. Further attempts to fetter the
independence of the judiciary were also outlawed. The Court was, in these
early stages, conscious of the need to safeguard the rights of the
minorities.
Predictable political outrage at this perceived flouting of its authority
resulted in the sweeping aside of the Independence Constitution by the 1972
constitutional document. The subordination of the judiciary was one immediate
consequence thereof. The 1972 Constitution abolished judicial review,
established a Constitutional Court with the limited power to scrutinize bills,
and this, too, in 24 hours when the bill was certified as being urgent in the
national interest and allowed the declaration of a state of emergency to be
passed without a debate. Fundamental Rights were included in the Constitution
but made impotent by open ended restrictions and no specific enforcement
procedure.
The change in political leadership brought about the current second
Republican Constitution in 1978, which theoretically protected the role of the
Supreme Court as the highest and final superior court. The Court was given
special jurisdiction in respect of election petitions, appeals, constitutional
matters, fundamental rights (now made justiciable) and breach of the privileges
of Parliament. The appointment of judges of the superior courts was by an
elected President “by warrant under his hand.” In practice however, the
spirit of authoritarian disregard for the independence of the judiciary
continued. A constitutional clause which specified that all judges of the
appellate courts shall, on the commencement of the new Constitution, cease to
hold office was soon used by the President to radically “reconstitute” the
higher courts.
Police officers found responsible for the violation of fundamental rights
were not only promoted, but the damages and costs were paid from the Government
exchequer. Procedural difficulties in judicial officers taking the oath of
allegiance under the Sixth Amendment resulted in the police locking and barring
the Supreme Court and the Court of Appeal and refusing entry to judges who
reported for work. Following unpopular decisions, judges’ houses were stoned and
vulgar abuse was shouted at them by thugs.
In the wake of the sustained political barrage, decreased efforts by the
judiciary to protect the rights of the people was not surprising. In 1982, when
the UNP government flouted honoured electoral traditions and substituted a
referendum for the general election that was then due, the Supreme Court upheld
the decision of the Government. In the subsequent Thirteenth Amendment case, the
Court again refused to engage in a debate on the substantive merits and demerits
of devolution while approving the amendments on the technical basis that they
did not violate the unitary nature of the state.
From about the 1990’s however, judicial restraint of politicians, state
agents and particularly officers in custodial authority such as police officers
and prisons officers was far more substantive. This was in part due to a
widespread public acknowledgement that the abuses of the past could not be
tolerated further and part due to the efforts of some liberal judges on the
Bench at that time. Working within the limited confines of a constitutional
document that did not permit public interest litigation, did not allow
challenge of legislative acts, did not allow judicial review of even
unconstitutional laws if they were enacted before 1978 and did not include
the right to life, the judiciary did as much as it could. Importantly, the
vicarious liability of officers in authority who did not intervene when their
subordinates violate rights was specifically affirmed.
Insofar as abuses of power under emergency was concerned, the Supreme
Court’s response was far more sensitive than in the past; it relaxed
procedural rules that prescribed strict compliance with the manner in which a
petition must be filed in court and thus allowed hundreds of persons detained
under emergency to file fundamental rights petitions. The power of the
defence authorities to arrest and detain using emergency regulations and
provisions of the PTA was also restrained and the Court went on to disregard an
ouster clause in the Public Security Ordinance (under which emergency
regulations are issued) to strike down the validity of a regulation itself.
This judicial ‘activism’ resulted in a hostile reaction from the political
regime; the Supreme Court and those perceived to be ‘liberal’ judges came under
scathing criticism from government ministers and indeed, then President
Chandrika Kumaratunge herself. In 1999, with the appointment of Chief Justice
S.N Silva who had close personal connections to President Kumaratunge, the Court
became characterized not only by a withdrawal in articulating restraint on
government actions but indeed, by a positive upholding of powers of the
government against citizens and by distinct arbitrariness in its
functioning. Benches were constituted by the Chief Justice without any
consideration for seniority, but only with a view to ‘packing’ the bench
with favourites who would be amenable to whatever decision that was
desired by the political establishment. The flood of fundamental rights
applications progressively decreased; whatever isolated ‘rights friendly’
judgments that were delivered awarded only small amounts of compensation.
Settlements in fundamental rights cases were evidenced by judicial coercion of
lawyers and/or petitioners.
The Court declared itself not bound by views of monitoring bodies established
under international human rights treaties entered into by the executive,
thus giving the formal stamp to an informal process whereby, for years, the
Government had been ignoring the Views of the Human Rights Committee.
Public confidence in the ability of judges to act as a last measure against
government authoritarianism has decreased. All this took place without
significant protest from the Colombo based non-governmental community, excluding
a few seminars held by one or two organizations.
At the level of the lower courts, the capacity to function independently from
government was predictably affected. Transfers, disciplinary control and
dismissal of lower court judges which are handled by the Judicial Services
Commission (JSC) were made at the whim and fancy of the JSC, most often at
the nod of the Chief Justice. The negative impact that this had on the
credibility and internal discipline of the judicial service is
incalculable.
3.2. Failure of Civilian Oversight Mechanisms and Constitutional
Governance
Any effort to remedy a politically influenced approach to governance has had
a short lifespan in Sri Lanka and/or has been thoroughly ineffective. The
collective fate that befell two important commissions; the Bribery and
Corruption Commission and the National Human Rights Commission evidenced this in
no uncertain terms. The first was set up by a law unanimously passed in
Parliament in 1994 , however it has been wholly ineffective, holding only
insignificant and lower ranking public officials in its net while stupendous
frauds and corrupt acts by heads of institutions and politicians have been
bypassed. During long periods of its existence, it has been almost
non-functional due to its infiltration by political elements, the infighting of
its officials and efforts by successive governments to use it for their own
political ends.
The National Human Rights Commission (NHRC), on the other hand, was
established through a law that was significantly flawed in many respects; it
allows the body to engage only in conciliation and mediation with the end result
that its directions are substantively ignored by not only the police hierarchy
but also other government departments and officials, its members are not
stipulated to be full time, thus resulting in their giving only part time
commitment to the work, Section 31 of the Act confers powers on “the Minister”
to make regulations regarding implementation, including conducting
investigations and the Commission is not empowered to approach courts
directly as petitioners in instances of grave human rights violations or even
refer such questions to the appropriate court.
Though some Commission officers have been engaged in useful work in, at least
documenting human rights violations particularly from the conflict areas and in
bringing their persuasive efforts to bear on illegal arrests and detentions, the
efficacy of the body as a whole has never been great due to the inherent
limitations in its mandate. Specific deficiencies in its functioning will be
highlighted in the course of consideration of the particular cases forming part
of campaigns as discussed below.
The lack of legitimacy in the NHRC has been further aggravated in recent
times by the unconstitutional nature of the appointments of its currently
sitting members, who have been appointed by Presidential fiat ignoring a
specific constitutional amendment which specified that the appointments be
approved by a 10-member Constitutional Council (CC). The
17th Amendment also established two new monitoring bodies; namely the Elections
Commission and the National Police Commission (NPC). The CC was, in fact,
in existence only for a relatively short period, from March 2002 to March
2005. The terms of office of its six appointed members expired in
March 2005. But the vacancies arising therein were not filled, which resulted in
the lapsing of the CC itself.
The incumbent President, Mahinda Rajapakse, then made his own appointments to
the commissions, including the NHRC and NPC, predominating with his supporters
and personal friends. At the time of writing this paper, the unconstitutionally
appointed Commissions remain. Though a Parliamentary Select Committee has been
appointed to examine as how the 17th Amendment may be ‘rectified’ in its
substance, this Committee has been sitting for the past many months with no
visible result.
The constitutional ‘experiment’ of the 17th Amendment illustrates the huge
resistance that is manifested from the political establishment in regard to any
attempts to de-politicise the governance process. Early on, the relatively
feeble attempts of the National Police Commission (NPC) to discipline the police
and restore the service to some measure of independent functioning met with
blatant antagonism from politicians. Frontline ministers remarked that the
‘independence of the NPC’ was not needed and maintained amazingly that the
Inspector General of Police (IGP) should be involved in the decision making
processes of the NPC. Public hostility was evidenced between the IGP and the NPC
where the former considered that the creation of the NPC had imposed an
unwarranted fetter on his powers.
The response from the non-governmental community in regard to the political
subversion of the constitutional process was again muted. Though some protests
were evidenced at the start, (perhaps to an extent that was more than at other
times, including the refusal of some former members of the NHRC to be
re-appointed on the basis that this would be conforming to an unconstitutional
process), these protests did not gather momentum as a collectively outraged
reaction and were, moreover, confined only to that time at which the
unconstitutional appointments took place.
4. Exposing the Failure of the Rule of Law: A
Practical Analysis of the Campaigns of and its Partners
The approach followed in this instance was a full frontal critique of the
justice system, focused on a plethora of cases which took the victims through
the whole process by providing them not only with legal help but also physical
protection and counseling in order to provide a conducive environment for their
rehabilitation. A significant factor was that these cases were from parts of the
country not affected by the war. This was a deliberate choice in order to
examine the pervasive nature of the problem in a manner that de-links it from
the conflict.
Two positive consequences could be inferred from the outset as a result of
these campaigns. In the first instance, the ‘victims’ of torture became
transformed from the ‘powerless’ to the ‘powerful’ purely by articulating their
grievances in a collective manner. This process became instructive as a best
practice example in regard to activist interventions. Secondly, a normally
unresponsive media became part of the campaign, engaging in the daily reporting
of torture.
Torture by the police is now almost daily reported in newspapers,
television, radio and other media. Public actions have been held against
torturers. Heavy pressure has been placed upon defective state institutions. The
judiciary is under attack for its failure to deal effectively with the
problem.
Some specific facets of this phenomenon will be examined now. While the case
studies referred to in this regard are those engaged in by and its partners,
principles and perspectives emanating from case law of the Supreme Court and
High Court will also be adverted to, where necessary.
4.1. The Endemic Nature of the Problem of Police Abuse
The vast majority of custodial deaths in Sri Lanka are caused
not by rogue police but by ordinary officers taking part in an established
routine.
Philip Alston, UN Special Rapporteur on Extrajudicial, Summary or
Arbitrary Executions.
The ‘safe’ assumption harboured by most Sri Lankans that the practice of
torture remains confined to a particular segment of the societal undesirables;
terrorists or hard core criminals as the case may be is now comprehensively
debunked to all intents and purposes. Instead, police brutality has been
practiced against diverse individuals; a labourer assaulted with batons and
sticks while in army detention the cleaner of a van assaulted after being
blindfolded an attorney-at-law pulled out of his car and assaulted another
attorney-at-law who was a bystander at a protest demonstration (and not a
participant) shot at close range and an alleged army deserter tortured to
the extent that he died in police custody.
However, as the case studies engaged in by indicates, torture is most
evidenced against the poor and the marginalized; the most gruesome torture could
be practiced against a teenager accused of stealing a bunch of bananas or some
such petty theft. The actual criminals and the underworld characters are allowed
to escape with the nexus between senior/junior police officials/politicians and
the underworld linchpins being too strong to allow their apprehension.
As reflected in the observation by the UN Special Rapporteur on
Extrajudicial, Summary or Arbitrary Executions above, the studies also expose
the fact that torture is not resorted to by a few ‘rogue’ policemen but is
widespread due to many factors; the lack of good investigative training, public
pressure to apprehend suspects and the general feeling that torture is not a
condemned practice but is implicitly allowed and even expressly ordered by
senior police officials despite laws and regulations prescribing otherwise.
One specific feature that emerges from these case studies is the brutality
manifested in use of torture. In one case taken up by Koralaliyanage
Palitha Tissa Kumara from Halawala, Mathugama, was a respected local artisan of
that area, engaged in painting and carvings for the past thirteen years, for
which he had been awarded a gold medal by the Hotels Corporation as well as
certificates from the Housing Development Authority and the National Apprentice
Board. This thirty one year old father of two sons had been returning home from
the southern city of Galle where had had undertaken carving work in early
February 2004, when he was suddenly arrested by the Wellipenna Police simply
because he had given food to a person who allegedly committed some serious
crimes.
After his arrest, Tissa Kumara was subjected to severe assault by a
sub-inspector attached to the Wellipenna police station. Thereafter, with
extraordinary brutality, that same police officer had brought a tuberculosis
patient who was in the same police station, to spit into Tissa Kumara’s mouth,
telling him that he too would die within two months of the same disease. After
that, he was put into the remand prison on fabricated charges of possession of a
grenade and for robbery. After fears of being inflicted with tuberculosis arose
following a severe cough and blood in his saliva, Tissa Kumara was put in a
solitary cell. Food was passed through to him by a narrow opening in the door as
the prison authorities were nervous of contamination.
His wife made frenzied appeals to the various monitoring bodies in Colombo,
including the National Human Rights Commission (NPC) and the National Police
Commission (NPC) but her husband continued to lack proper medical treatment.
Tissa Kumara’s case was distinguishable in its extreme perversion from the
ordinary cases of police brutality being reported.
4.2. Militarisation of Law-Enforcement Agencies
The failure of the law enforcement process has been a persistent and central
feature of the failure of the justice system in Sri Lanka. The precise extent of
corruption within the police ranks, police brutality, lack of investigative
skills, inefficient and time consuming procedures in dealing with complaints of
torture, and the virtual militarization of the police service accustomed
to using emergency powers for long decades is clear.
The study refers to two discernible patterns of torture, firstly where
torture is resorted to for interrogation purposes and secondly where it is
apparent as a pure abuse of power. Into the first category of cases falls
the denial of all of the commonly accepted rights available under the normal
criminal procedure laws such as the right to be given reasons for the
arrest and the right to be speedily brought before a magistrate.
In this regard, the trauma of persons mistakenly arrested by the police
and tortured in the belief that they are criminals, is common as is the
arbitrary arresting and torturing of individuals possessed of a criminal record
purely as a convenient cover for crimes lacking a suspect. Palitha Tissa
Kumara’s case (detailed before) and the case of Lalith Rajapakse who was
severely beaten on 19 and 20 April 2002 by officers from the Kandana Police
Station and remained in a coma for 3 weeks are two latter examples.
Numerous judgments of the Supreme Court have held that even a hardened criminal
cannot be tortured with impunity. In the Wewelage Rani Fernando Case, (where it
was contended that the deceased had stolen two bunches of bananas), the court
observed that this allegation of theft should not have detracted from the duty
to afford to the deceased, the protection of his constitutional rights of
personal liberty. Thus;
…[T]he petitioner may be a hard-core criminal whose tribe deserve no
sympathy but if constitutional guarantees are to have any meaning or value in
our democratic set-up, it is essential that he be not denied the protection
guaranteed by our Constitution.
However, these judgments have not had any effect on the law enforcement
machinery.
The Madiliyawatte Jayalathge Thilakarathna Jayalath case in which
the first conviction under the Anti-Torture Act, the absence of due process at
all stages of the investigative process was well illustrated. The case involved
the alleged theft of four gems from the office of a gem dealer who alleged that
the victim, a business acquaintance and a broker, was responsible. The victim
stoutly denied that he had stolen the gems but was threatened by the gem dealer
that, if the gems were not handed over, he would get the police to assault him.
Some time later, while traveling to Colombo in the bus, the victim was arrested
and taken to the Wellawatte police station where he was mercilessly assaulted
with a plumbing pipe by the accused police officer, then attached to the crime
division as an acting officer in charge. Thereafter, he was kept in the police
station for two days. It was only after the members of his family had protested
asking why he was not produced before court, that he was taken before a
magistrate. He did not make any complaint of assault to the magistrate or the
officer in charge of the Wellawatte police station. When asked why, he said that
there had been ‘no point’ in doing so. The medical evidence showed injuries on
the victim, which had been caused by a blunt weapon, including the fracture of
his hand.
The accused police officer contended that the victim had been arrested on
suspicion of being involved in the theft of gems and had hurt himself attempting
to run away at the time of arrest. Somewhat more interestingly, it also turned
out that the gem dealer, who had lodged the complaint, later found the gems and
had informed the police that his allegations against the victim had been
unfounded. In assessing these facts, the Colombo High Court determined
that the prosecution had established beyond reasonable doubt that the accused
had assaulted the victim in order to obtain a confession from him, which he had
done in his official capacity as a police officer and therefore, a public
officer. The absconding accused was convicted to the minimum seven years
rigorous imprisonment (RI) and payment of a fine of Rs. 10,000, in default of
which, a further two years of RI was ordered.
The case illustrated the various points at which the system fails to work in
Sri Lanka. At the most fundamental level, immediate deficiencies in the law
enforcement process are apparent where basic investigation skills and training
is replaced by brute force on the part of not only junior but also senior police
officials. This is buttressed by the impunity that law enforcement officers can
claim for their actions, a continuing legacy of extraordinary emergency laws
which, at one point, gave them virtual powers of life and death. The element of
supervision that should normally be operative at the chain of command is also
rendered completely nugatory by this breakdown in the systems of policing.
In all these cases, what the police officers are, in fact, doing is
producing substitute suspects for crimes that they have not resolved. In some
instances, the police may be aware of the identity of the real culprits who were
allowed to ‘escape’ after undue influence. In these cases, it is even more
essential for the police to find substitutes. Producing substitutes creates the
impression-among the department as well as the public-that the police are
efficient and crimes are being solved. This paves the way to financial rewards
and promotions.
The second category of cases includes infliction of torture as a sheer abuse
of power, with many concrete examples to illustrate this point. Saman
Priyankara for example, was illegally detained on January 5, 2004 and
severely tortured by the policemen attached to the Matale police station.
Boiling water was poured down his right leg from the hip downwards, severely
burning him. The perpetrator sub inspector of police (acting on the
instigation of Priyankara’s neighbour), claimed that he was going to make sure
that the victim would not be able to have a normal sex life anymore. Afterwards
he was given some ointment to apply on his wounds but was warned not to report
the incident to anyone and not to take any treatment at the hospital.
In many cases, torture has been practiced as a result of a legitimate query
by a citizen. For example, Saman Jayasuriya, was driving a van with two
others when his vehicle was stopped by two policemen in civilian clothes who
asked for his license and insurance. In response, he asked for their identity
and was instead, pulled out and assaulted. He managed to escape, but a
contingent of policemen from the Kadugannawa police station visited his
residence and mercilessly assaulted him in the presence of his wife. He was the
arrested and taken to the police station with his son.
Another well known instance concerned the alleged death of a restaurant
manager, H.Quintus Perera for refusing to sell liquor on a religious holiday
(the Poya Day). These cases illustrate the most heinous depths to which
law enforcement has degenerated; namely the illegal punishment of individuals
for trying to uphold the law by brutalized law enforcement officials who have
long since, lost any respect and adherence to their office.
4.3. Maintenance of a Culture of Impunity
A specific feature of the culture of impunity is the blatant disregard with
which implicated police officers falsify official documents, including the
Information Book. In one case where the court found that Grave Crimes
Information Book and the Register/Investigation Book had been altered with
impunity and utter disregard for the law, the view was taken that it was unsafe
for a Court to accept a certified copy of any statement or notes recorded by the
police without comparing it with the original.
It is a lamentable fact that the police who are supposed to protect the
ordinary citizens of this country have become violators of the law. We may ask
with Juvenal, ‘quis custodiet ipsos custodies?’ Who is to guard the guards
themselves?
Even where police officers (junior as well as senior) have been identified as
personally responsible for acts of torture by the courts of law, no internal
departmental action has been taken against them. Directions of the Supreme Court
to the police hierarchy to initiate disciplinary action against erring police
officers are blatantly ignored. Official resistance to these
pronouncements by the Court has always been high and the police department has,
in fact, set up funds to provide for lawyers to appear for the accused police
officers as well as to pay the sums of compensation due personally from the
implicated officers.
The National Police Commission (NPC) was the
first serious legislative attempt to restore discipline in the police force. It
comprises of a body of seven persons whose security of tenure is explicitly
provided for. Its powers are two fold. Firstly, it is vested with
the powers of appointment, promotion, transfer, disciplinary control and
dismissal of all officers other than the Inspector General. Secondly, and
most vitally, the 17th Amendment stipulates mandatorily that the NPC "shall
establish procedures to entertain and investigate public complaints and
complaints from any aggrieved person made against a police officer or the police
service…”
However, the NPC, during its first term of existence, did not fulfill its
constitutional expectations to any great extent, though it does deserve credit
for its decision to interdict police officers indicted in terms of the
Anti-Torture Act and its prevention of police officers being arbitrarily
transferred during the pre-election period. Most importantly, it failed to take
significant steps beyond a few preliminary discussions with members of civil
society, to implement the Public Complaints Procedures as constitutionally
mandated.
4.4. Ineffective Prosecutions
The politicization of the judiciary was accompanied by a corresponding
decrease of public confidence in the office of the chief law officer of the
land; the Attorney General (AG). Its record of strong prosecutions for grievous
human rights abuses has not been marked. Indeed, in all the decades of enforced
disappearances and extra judicial killings, there have been two successful
prosecutions, namely the rape and killing of a Tamil schoolgirl and thereafter,
the murder of her mother, brother and friend who went in search of her, by
Sinhalese army soldiers in the North in 1996 (the Krishanthi Kumaraswamy case)
and the enforced disappearance of twenty five Sinhalese schoolchildren (though
the numbers that were abducted and never found were much larger) by Sinhalese
army soldiers in 1990, acting in collusion with the school principal motivated
by a private vengeance (the Embilipitiya case). This well illustrates the
duality of the failure of the prosecutorial and justice process in respect of
extraordinary crimes, irrespective of ethnicities.
Undeniably the record of successful prosecutions in respect of grave
crimes as well as in regard to ‘ordinary’ torture cases has been extremely
unsatisfactory. From the time that the Anti-Torture Act was enacted into
law in 1994, no convictions for torture resulted up to 2004. Thereafter, two
convictions were made by the High Court, but this remedy continues to be
inefficacious due to long delays in filing indictments, filing faulty
indictments and delays in the substantive trial
proceedings.
According to the Attorney General's department, while
a few (five) cases indicted under the Anti-Torture Act have resulted in
acquittals, the vast majority of cases are still pending. Though some
indictments have been sent to the relevant High Courts almost two years to the
date, they have yet to be served on the accused and the reason given for this
has been the severe backlog of cases in many high courts. On its own part,
the Department, which is responsible for the issuance of the indictments, is
accused of delay.
However, in many cases, it was found that despite evidence of grievous
torture being disclosed, prosecutions are not ensured. For example, in the
Nandini Herath case, indictment was not filed under the Anti-Torture Act but the
police merely pressed charges for simple hurt. In Jagath Kumara’s
case (where he was arrested, detained and tortured by the Payagala
police station officers in June 200 and died at the Welikada prison thereafter),
though the information and relative files were handed over to the Attorney
General, no prosecution was the result. Yogalingam Vijitha’s case is also
instructive in this regard. The Supreme Court ordered compensation and
costs to be paid to a Tamil woman who had been arrested, detained and sexually
tortured. The Court stated as follows;
As observed ‘the facts of this case have revealed disturbing features
regarding third degree methods adopted by certain police officers on suspects
held in police custody. Such methods can only be described as barbaric, savage
and inhuman. They are most revolting and offend one’s sense of human
decency and dignity particularly at the present time when every endeavor is
being made to promote and protect human rights.
Though it was directed that the culpable officers be prosecuted, this was not
done.
A primary problem in this regard is that prosecutors depend solely on police
investigations for the establishing of a prima facie case on which
indictment is issued. In many cases, good investigations are simply not
forthcoming by police officers who are essentially, investigating their own
colleagues.
4.5. Exposing Deficiencies in the Nature of Litigation at the Supreme
Court
Even at a point when fundamental rights litigation was at its zenith, the gap
between judgments and their implementation was immense. Judgment upon
judgment was delivered by the Supreme Court finding torture to have been
committed by officers in custodial authority but none were implemented in order
that these officers would be disciplined or prosecuted.
At the least, these officers were not even removed from their positions or
interdicted with catastrophic effect as seen in one particularly poignant
instance of Gerald Perera’s case, The rights petition that
he filed was upheld by the Supreme Court. However, no disciplinary action was
taken as recommended against the responsible police officers who continued
serving in their posts. A year later, as he was due to testify in the case
instituted in the High Court under the Torture Act against the police officers
who had tortured him, he was shot and killed at point blank range by some of
those very same police officers. The murder trial is ongoing.
With the gradual politicization of the Supreme Court examined early on in
this paper, an increased arbitrariness on the part of some judges was evidenced
in response to fundamental rights petitions. In one particular case, the Court,
by the order of the Chief Justice, sentenced a lay litigant to one year rigorous
imprisonment on the basis that he had talked too loudly in court and filed
numerous motions in support of his application. Despite the manifest injustice
of this sentencing, no perceptible outrage was shown by non-governmental
organizations, including those specifically working with the legal system and it
was left to a few domestic lawyers to take up the cause of the arbitrarily
sentenced litigant, Tony Fernando with the single support of the AHRC. The UN
Human Rights Committee later found Fernando’s rights against arbitrary detention
to have been violated.
Another distinct feature in recent times has been judicial inconsistency in
granting of compensation to victims of torture in fundamental rights cases.
Earlier, such sums had been considerable, indicating that the Court wished that
the imposing of these amounts would have a deterrent impact. In Silva vs.
Iddamalgoda , an alleged army deserter arrested by the police, died whilst in
remand custody. The Court gave relief to his widow on the basis that she and her
minor child were entitled to the compensation that the deceased would have
received, but for his death. A sum of SLR 700,000 was directed to be payable by
the State and SLR 50,000 each by the two errant police officers personally.
In one case where death was due to assault by prison officials rather
than by the police, the State was directed to pay a sum of SLR 925,000 while
each of the three prison officials were directed to pay SLR 25,000, amounting to
one million in equal shares. In awarding this considerable sum as
compensation and costs, the Court took into account the fact that the deceased
was a father of three minor children. The treatment meted out to him while he
was at the Negombo prison, which “painted a gruesome picture where a hapless
prisoner was brutally tortured and left alone, tied to an iron door, to draw his
least breath,” was a contributory factor to the high award.
While these two cases involved the ultimate death of the victim, in Gerald
Perera’s case which concerned severe torture, the Court granted the sum of
SLR 800,000 as compensation and costs for the violation of the petitioner’s
rights, payable both by the police officers found to be responsible for the
violations and the State. Additionally, the Court granted the petitioner’s
claim to reimbursement by the State of his medical expenses, including treatment
obtained at a private hospital due to the gross torture that he suffered,
despite the contention of the respondents that the charges were exorbitant and
treatment could have been obtained at a state hospital. At that time of his
killing by the very police officers who were responsible for torturing him, a
major portion of the medical re-imbursements had yet not been paid to him.
As contrasted to these awards, smaller amounts of compensation is being
awarded in recent cases as exemplified in Tissa Kumara’s case as well as in some
others. In the case of BA Surange Wijewardene , the amount awarded was a
paltry SLR 15,000, split between the three respondents while in D.A. Nimal Silva
Gunaratne v Kodituwakku , the petitioner was given only a nominal sum of SLR
50,000 and SLR 20,000 as costs despite the loss of one eye as a result of
torture as well as the finding that his right to freedom from arbitrary arrest
and detention had been violated. In Erandaka and Anor vs Halwela, OIC, Police
Station, Hakmana where the petitioners were assaulted while in prison as
evidenced by the medical records, payment of compensation in the sum of SLR
25,000 by the State was awarded to each of the two petitioners, in the absence
of the identification of the particular prison officers responsible for the
assault.
4.6. Inadequate Magisterial Supervision
In Madiliyawatte Jayalathge Thilakarathna Jayalath , a particular
feature remarked upon by the High Court was the paucity of magisterial
supervision of the victim of torture when he had been produced before the
judicial officer and specifically, the failure to question the suspect as to
whether he had been tortured. This is a common problem in Sri Lanka. A recent
judgment of the Court articulates this breakdown of the element of magisterial
supervision in the detention process.
In Weerawansa v Attorney General , remand orders by the Magistrate,
Harbour Court, made under the ordinary law were held to be in violation of the
Petitioner’s rights in that several such orders of remand had been made even
though the Magistrate or the acting Magistrate did not visit or communicate with
him. This was ruled to offend a basic constitutional safeguard in Article 13(2),
that judge and suspect must be brought face to face before liberty is curtailed,
which safeguard was not an obligation that could be circumvented by producing
reports from the police. An earlier view that remand orders, where they
concern a patent want of jurisdiction, cannot be safeguarded under the cover of
being ‘judicial acts’ with consequent immunity from fundamental rights
challenge, was agreed with.
4.7. Complicity of Politicians in Abuses
The unconcern and indeed, the complicity of politicians in regard to the
occurrence of torture is also interesting. In Nandini Herath’s case, for
example, the Minister of Women’s Affairs at the time that Nandini was tortured,
who lived close to her house, at all times, only defended the accused police
officers.
4.8 Turning upon their own kind
Instances of police officers or military persons being themselves the targets
of violence by their fellow officers is not uncommon. In V.K Swarnarekha’s case,
a healthy thirty year old police woman was ‘disappeared’ in 1993 and there was
suspected complicity of the police. However, the case was hushed up and there
were no inquiries by the CID. There is also the case of a naval officer,
Elmo de Silva being illegally detained and tortured in January 2001 when he
tried to remonstrate with the police officers of the Ja-ela police station for
using bad language to his wife and cousin when they had gone to visit his wife’s
uncle who was in custody.
4.9 Corruption of medical officers and collusion of NHRC officers
with police torturers
In the case of Garlin Kankanamge Sanjeewa whom the police
claimed, committed suicide inside the police station, the medical report
pertaining to his death was seriously impugned by the family. The Chamila
Bandara case is a further excellent example. Whilst being a minor, he was
tortured from 20th to 28th July 2003 at Ankumbura Police Station, ostensibly on
grounds that he had committed a petty crime. He was hung by his thumbs and the
Officer in Charge (OIC) hit him on his legs and the soles of his feet with
wicket stumps used for cricket.
This young boy was not produced before a Junior Medical Officer, for
examination despite being admitted to the Kandy hospital for treatment. It was
only, after being re-admitted to the Peradeniya Hospital, that Chamila was given
a proper medical examination, as a result of which, doctors declared the
impairment of the use of his left arm. The second stage in this saga came when
his case was reported to the district area co-ordinator of the National Human
Rights Commission (NHRC) who, going by only the police version, concluded that
there had been no mistreatment. Desperate by this collusion of the NHRC officer
with the implicated police officers, his family appealed to and its local
partners. It was primarily as a result of this pressure that investigations were
re-opened into Chamila Bandara’s case by the National Human Rights Commission
and the matter was handed over to a one man inquiry committee. Meanwhile, the
members of his family were threatened by the police officers named as those
responsible and Chamila himself had to go into hiding.
While this was ongoing, his case was taken by the AHRC before the
United Nations Human Rights Committee at its seventy ninth session when it
considered Sri Lanka’s combined fourth and fifth Periodic Reports under the
International Covenant on Civil and Political Rights (ICCPR). Chamila himself
gave testimony before the members of the UN Committee. Chamila Bandara’s
grievance was ultimately vindicated by the report of the one man inquiry
committee of the NHRC which concluded that the young boy had, in fact, been
tortured, as a result of which, his rights under Article 11, Article 12(1) and
Article 13(1) and (2) had been violated.
The Officer In Charge of the Ankumbura police and other police officers
serving under his command were found responsible. The final recommendation of
the inquiry committee was that a copy of the inquiry report be sent to the IGP
who should send severe warning to the individual police officers that any
further instances of abuse on their part would result in a termination of their
services. Like in the case of similar directions by the Supreme Court,
this too has been of no practical value in bringing about disciplinary action
against the culpable police officers.
In addition, his case exemplifies a further problematic development at the
stage of fundamental rights litigation. Individual Supreme Court judges now
prefer to lay bye fundamental rights hearings in instances where a parallel High
Court trial is taking place, ostensibly on the basis that the finding of the
Court might influence the attitude of the High Court. For example, in Chamila
Bandara’s case, this is precisely what happened and the matter is now
indefinitely laid bye. This attitude continues to be taken despite the
protestations of lawyers appearing for the victims that the inevitable laws
delays attending the trial will also render the Supreme Court remedy, redundant
and that, in any event, the two judicial proceedings are different and should be
proceeded with differently.
4.10. Impossibility of Ensuring Justice without Witness
Protection
Responsibility for the absence of a witness protection scheme speaks to the
responsibility of the Department itself and the commitment of the State to
ensuring justice. The extent to which this has been a factor in crippling the
criminal justice proces is clear. Chamila Bandara (cited above), together
with his family members were threatened by the OIC of the Ankubura Police and,
in consequence had to remain many years in hiding.
Similar patterns of intimidation are apparent in a large number of cases;
Lalith Rajapakse learnt that there was a plot to poison him after he made
the initial complaint against the respondent police officers and had to go into
hiding. In the case of Gerald Perera, he was, in fact, killed after numerous
threats by the police officers who had tortured him proved to be unsuccessful in
coercing him to withdraw the litigation that he was engaged in.
5. Conclusion
There is no doubt that the failure of effective law enforcement is a central
question in Sri Lanka today. A number of measures that should be taken to
redress this failure have been outlined by the AHRC , including revision of the
prosecutorial and investigative process and the initiation of an effective
witness protection system. A special police unit empowered to entertain
complaints and immediately commence investigations is a necessity, not only in
‘special cases’ of torture (where international pressure is brought to bear on
state authorities) but rather, in all cases.
Ideally, an office of a Special Prosecutor having the appropriate
independence of office with independent investigative staff should be
established. The investigative/prosecutorial machinery set in place should
follow special procedures in relation to investigating and prosecuting
complaints by women victims of torture. Such an office would also better
co-ordinate the present procedures in respect of examining urgent appeals by
victims of torture instead of committees of government officials which is
presently the case. has also urged the application of the doctrine of
command responsibility, the use of developed forensic investigations and a
detailed list of specific suggestions relating to arrest and production in
court speedy investigations and filing of indictment under the
Anti-Torture Act and initiation of community protection mechanisms.
The intensification of the conflict and the
increasing breakdown of law and order in all parts of the country have led to
incidents of disappearances, extra judicial killings in recent months, thereby
creating a climate that is highly conducive to human rights abuses. This has
been further enabled by the return to rule by emergency regulations conferring
extraordinary powers of arrests and detentions on the forces which have had
inimical effect in controlling and preventing practices of torture.
Thus, the essential crisis in Sri Lanka still remains the non-implementation
of the rule of law. The shift from a central focus on this question to nebulous,
(though highly profitable), ventures in peace and conflict resolution on the
part of the country’s non-governmental community has been unfortunate; it has
wasted time and effort in processes that were doomed from the start precisely
due to its flawed conceptualization. More importantly, it has allowed sometimes
insidious and sometimes sledgehammer attacks on constitutional institutions and
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