In their pursuit of justice, Sri Lankans will learn that the real problems
they face come from the dysfunctional criminal justice system itself. Building a
narrative on these difficulties and working to address them is therefore an
essential component of seeking redress for rights violations. Before these
difficulties can be addressed or redress can be sought, it is necessary to
actually know and experience the problems. Collecting ordinary people?
narratives is thus essential, not only to provide detailed information regarding
relevant issues, but also as a record and testimony.
This article will briefly recount one such narrative, that of torture victim
Gerard Perera, and then discuss the lessons learnt from this case.
The case of torture victim Gerard Perera, who was subsequently murdered prior
to testifying in court against his torturers, was one of the most challenging
cases faced by the Prevention of Torture project in Sri Lanka, and that too
while the project was still establishing itself.
Perhaps the biggest lesson that was learnt from Gerard? case, was that all
inquiries into police misconduct stop at the level of the Officer-in-Charge
(OIC) of the police station. Inquiries into higher ranking officers are usually
unheard of, except in special circumstances. This is in fact a major stumbling
block in Sri Lanka? criminal justice system.
For this reason, while Gerard? arrest on 3 June 2002 took place on the
instructions of an Assistant Superintendent of Police (ASP), this officer was
never questioned upon Gerard? murder. This ASP had six officers under his
charge, under the leadership of Sub-Inspector Suresh Gunawardena. The specific
task of this team was the investigation of a triple murder. Nearly 10 days after
the murder, the investigations were unsuccessful. During the course of these
investigations, information regarding Gerard Perera was received, and orders
were given for his arrest. These orders would definitely have come from the ASP.
Similarly, it would also be with the ASP? consent that Gerard was released on
June 4 as an innocent man who has been unnecessarily exposed to harsh treatment.
Despite investigations being conducted into this incident, as well as a high
court torture trial, at no stage was a statement recorded from the ASP, nor was
he called to give evidence at court. All the six accused police officers gave
statements that they were a special team carrying out orders of this ASP. At the
end of the trial, Sena Suraweera, the Officer-in-Charge of the police station
where Gerard was tortured testified that the investigation into Gerard was not
under him, as prescribed in the Criminal Procedure Code, but was rather carried
out under the directions of the ASP.
In these circumstances, it would not be unreasonable to expect the ASP to
have been made a witness. However, even when the inquiry was taken over by the
Special Unit of Enquiry, it did not question the ASP about the circumstances
that led Gerard? arrest, detention and assault. In fact, even though there is
nothing in the law to stop their investigations into the conduct of an Assistant
Superintendent of Police, this is not normally within the purview of their
investigations. According to normal practice, officers above the rank of OICs
are only investigated if there are special orders given.
Gerard? family and friends sought the assistance of the AHRC? network in Sri
Lanka when he was first arrested and tortured. Gerard was well-known in his
village and he was also well-known in the harbour where he worked as a cook. His
many friends supported his wife when Gerard was unconscious. They brought the
relevant information to a young lawyer working with the AHRC, Sanjeewa. Sanjeewa
spent a lot of time at the hospital, partly shocked by the incident, and partly
keeping in touch with Gerard? friends and family and gathering the necessary
information. Sanjeewa would contact the AHRC in Hong Kong through telephone and
emails, where the information would be turned into news dispatches, urgent
appeals and affidavits. All the documents that were to be filed in the Supreme
Court for this case were drafted in Hong Kong.
The Sri Lankan media responded positively, with this news being carried in
major newspapers, as well as on the radio and television. That an innocent man
was lying unconscious and may succumb to death due to police brutality was drama
enough to get people? attention. International support was also prompt, with
interventions from the European Union, the British government and many other
sources. The Sri Lankan government was thus was under considerable pressure to
conduct a proper investigation.
Despite this pressure, no serious inquiries were made into Gerard? arrest and
torture. It was only a year later, after the Supreme Court gave a judgment in
favour of Gerard, one of the most outstanding and outspoken judgments on torture
up to that point, that any investigation began. Subsequently, charges were filed
against those involved in the brutality, and Gerard was to testify against them.
Gerard then received several warnings against giving evidence in court, which he
ignored. Finally however, he was shot on 21 November 2004 while travelling to
work, and he died from his injuries a few days later.
Just a few days before Gerard was shot, a high court judge was assassinated
by an accused facing a murder charge in Colombo. This news shook the nation. The
Special Unit of Enquiry was therefore saddled with two major cases at the same
time, and naturally, the judge? case would have received more attention. We were
later told by inquiring officers however, that international pressure on Gerard?
case exceeded that of the judge. This was possible due to the AHRC? consistent
urgent appeals and news dispatches.
The investigative officers were able to identify and find the person who shot
Gerard, after which the entire story came out easily. All the involved police
officers were arrested, and due to some kind of agreement, they made voluntary
confessions to the magistrate stating the circumstances of Gerard? murder.
From the police arrest and torture, to Gerard? murder, we can see a pattern
in the behaviour of the police, who were adamant to make the investigations as
difficult as possible, as well as keen to destroy evidence. The ASP should have
divulged to his superiors the circumstances under which Gerard was arrested and
tortured, but he instead observed complete silence, leaving the investigators to
conduct their search. Most importantly, the investigation into Gerard? torture
took place nearly two years later.
In a lengthy interview given to a group of women journalists from abroad,
Gerard? wife attributed his murder to this delay in the investigation. She noted
that either the investigations should have been conducted immediately after the
torture and the matter should have been brought to a speedy closure, or the
entire incident should have been forgotten. Instead, the investigators waited
until the Supreme Court gave a judgment; the outspokenness of the judgment
itself inspired fear in the accused. Under these circumstances, Gerard? murder
took place.
Engaging the state and civil society
How to engage an unwilling state on the improvement of basic rights
protection, and how to engage a demoralized civil society are two questions
around which the Prevention of Torture project in Sri Lanka has been occupied
with. The Sri Lankan government has been very reluctant to engage with its own
people, much less with the international community. This could be due to its
preoccupation with security concerns, to the unfortunate detriment of everything
else. Regardless of the reason or its validity, what is to be noted here is the
government? unwillingness to engage with civil society, particularly regarding
the improvement of human rights protection and the elimination of torture.
The failure of the state to engage with its citizens for the development of
its own institutions is a basic problem faced by many ?hird world?societies.
This is not therefore a problem unique to Sri Lanka, and lessons learned from
this work can be shared.
Without engagement with the state, it is not possible to achieve an
improvement in the quality of life, which under modern conditions, includes the
improvement of human rights. It is then unavoidable for civil society and
committed individuals to find ways to make themselves heard and engage with an
unwilling state.
Life narratives
Under such circumstances, the
torture prevention project tried to engage the government by many means, the
most important of which was constant publicity of the problems faced by the
people. The heavy reliance on publicity was not only because publicity is an
important element of change, but also due to the state? peculiar reluctance to
engage in a discussion of people? day-to-day problems. By consistently
developing detailed narratives of people? experiences at police stations, and
publishing them locally as well as internationally, the torture prevention
project created a situation in which these problems cannot be ignored.
Life for the people goes on, irrespective of what the state does or doesn?
do. The strategic thought behind the torture prevention work was to go beyond
the usual human rights model of naming-and-shaming, and to create a faithful
narrative of the lives of as many persons as possible, for its own value. The
centre point of the work was that the life of the ordinary individual is of
ultimate value to democracy. This being the case, individual life narratives are
worth recording, even when nothing can be done to correct the wrongs being
faced. During this time we even introduced the slogan, ?hen nothing can be done,
let us try to do something?
The extent of the state? unwillingness to act was well known; no one was
under the impression that the information collected and taken to courts and
other places would produce results. Rather, it was presumed that despite the
state? unwillingness to act, recording people? experiences is of fundamental
value to the person, to democracy and humanity.
If their bitterest narrative has little meaning to the rest of society,
people lose interest in their own narratives. When a society reaches that point,
it is a fundamental problem, which can lead to greater problems at the
psychological, emotional and societal levels. In addressing societal
demoralization, we believed that a reliance on the detailed life narratives of
people was the way to begin our work.
State and institutional narratives
Recording the
narratives of people facing torture and other acute problems at the hands of the
state has indirectly meant recording a narrative of state behaviour. People?
narratives thus describe the institutional behaviours of the police,
prosecutors, judiciary, as well as policy makers, all of whom would in some way
be involved in an individual? pursuit of justice. The narratives include the way
police officers talk to them, the way they think, the extent of their education
and training. In fact, a wealth of knowledge about the habits and attitudes of
state officers can be found within these narratives. This information does not
pertain to the extraordinary behaviour of extraordinary individuals, but to the
ordinary behaviour of officers. If they beat up someone, it is not because they
were angry or drunk, but because such behaviour is very much tolerated and
condoned within the policing institution. Seeing the behaviour of state officers
in action is essential in understanding how the state works. How these officers
are expected to act, in accordance with institutional norms and standards, has
little to do with how they do act.
Their actions also reveal their expectations of the institution they work
for, as well as their attitudes and prejudices. Be it a police officer or a
judge, all of this is indicated in the way they perform their duties; how they
deal with witnesses for instance, or how they assess evidence. Their attitudes
are so contrary to international norms and standards that it behoves the
international community to reconsider the problems involved in the actual
implementation of these standards.
Gap between norms and narratives
While considerable success has been achieved by the international community
regarding the promotion of international norms and standards, including the
ratification and adoption of various conventions and principles, and even the
enactment of corresponding domestic legislation, it would be an illusion to
believe that those principles are actually applied in daily life. The narratives
collected clearly reveal an enormous gap between the attitudes of state officers
engaged in the administration of justice, and the relevant international norms.
This gap between theory and practice is only made worse by the impatience of
international experts who come to train local human rights activists. These
?xperts?are usually preoccupied with international norms and standards without
any genuine understanding of local realities. They assume that once these norms
and standards are ?ntroduced? they will be implemented in no time as well. The
problems involved in developing local institutions and mentalities to the extent
that they are able to assimilate international principles are entirely
overlooked by them.
Understanding how human rights implementation actually occurs (or does not
occur) can only be done through a close observation of local human rights
stories. How torture happens or does not happen was learnt through the
narratives of persons facing torture, or persons who are able to resolve
problems without the use of such torture. It is important to appreciate that
local experiences do not come in accordance to specific standards. International
experts in many cases want to find situations according to the measurements they
have in their minds. If reality does not fit these measurements, they would
rather deny or reject the reality, than re-examine the method for dealing with
the problem. Casual condemnation of this or that institution and the lack of any
sustained work to understand why institutions behave in certain ways is common
within the human rights field. Such impatient criticism is often made with the
expectation that the authorities will soon adjust and instruct their
subordinates to conform to international standards. What in fact happens is that
the senior officials exposed to such criticism learn to hide local narratives.
Unlike the international experts, local human rights activists are primarily
concerned with understanding why human rights violations take place; why do
policemen beat up people they arrest for petty offences, for instance? In this
attempt to understand, local activists will confront many problems associated
with the elimination of torture, which international experts may not even want
to know, in their impatience to solve the problem before understanding it. Local
activists cannot afford such methods however, as they are aware that to change
local circumstances it is essential to develop a relevant public debate and
consensus.
The more narratives that are collected, the more material there is for
analysis and understanding. The huge number of stories of persons being
assaulted and tortured at Sri Lankan police stations has led to discussions on
torture for the purpose of extortion and intimidation. This is very different to
the explanations discussed in international seminars and forums, which tend to
focus on military torture, or various torture methods developed to extract
information by different governments.
Feudal attitudes
The assumption that Sri Lanka?
society is a law-based one is very much challenged by the data gathered through
local narratives. Rather, the narratives reveal a system of social control,
based not on law, but on the constant creation of fear, particularly among the
rural population. Though Sri Lanka has experienced a certain amount of
modernization, its society is still, by and large, rural-based. In these
circumstances, police officers play a big role; while their power may be minimal
in terms of total state structure, they exercise enormous power locally.
In fact, much of the local political establishment is itself based on links
with the policing institution. For this reason, any changes in the policing
institution will affect the country? political terrain as well. At present, Sri
Lankan society is ruled by old, feudal methods of social control, where power
and feudalism are greatly linked. The way power is exercised within the country
is mirrored in the way the police exercise its authority over ordinary folk;
through the use of physical force rather than the use of rational laws and
procedures.
Sri Lanka? rule of law crisis is therefore not just a question of police
officers not conforming to the law. The police are in fact expected to act as a
power by themselves; as social controllers, the use of physical force is
expected from them. This situation worsens when political or social crises
occur. In so called emergency situations, the police are given unlimited power
to ensure order and security. With such power, the disappearances plaguing the
country were not extraordinary; police officers could now engage in murder and
the disposal of bodies with impunity.
Overlooking local realities and narratives, and merely focusing on
international standards can only lead to absurdities. These narratives describe
not only the difficulties and suffering faced by individuals, but also the
nature of various public institutions, the problems within the institutions, the
attitudes and mentalities prevalent within the institutions; all of which work
to create an abuse of human rights protection. Local facts are therefore the
basis of understanding how power is exercised within Sri Lankan society, and how
rule of law functions. Human rights studies that ignore these factors only
result in being ignored by both the authorities and the people.
Today, the human rights movement in Sri Lanka needs to win back public
confidence. International norms and standards cannot be forced down the throat
of an unwilling society or authority. The existing system of power needs to be
studied and analyzed, and a discourse needs to be created to transform society
from a non-rule of law based one into a rule-of-law based society. Only during
such a process of transformation can society gain respect for international
norms and standards.
Printer Friendly Page 