Basil Fernando, Executive Director, Asian Legal Resource Centre
What characterises victims of torture by the police in Sri Lanka? First, they are poor people. Secondly, they are innocent of whatever they have been accused.
Why are the poor always victims of torture? Clearly it is because the police have for a long time believed that they can do anything to the poor without serious repercussions. If an affluent person is abused, repercussions are guaranteed. If a serious criminal is tortured, even worse can be expected. But a poor person can apparently be beaten, raped or killed without fear of consequences.
That the victims are innocent is manifest by the fact that despite the police using all their energies to fabricate cases, they fail. The police are of course concerned with covering themselves when their superiors raise questions, when inquiries result, and in the event that the victim or family members bring a case to court. Inquiries from further afield, including those by the United Nations Special Rapporteur on torture, give further impetus to fabrication. Yet, despite their efforts, police have been unable to prove torture victims guilty of any crimes of which they have been accused.
Why is it that innocent persons are arrested and tortured? In most cases, police need substitutes for crimes where they have been unable to identify and arrest the real culprits. Officers in Charge of police stations are under pressure from their superiors to take effective action on reported crimes. Higher-ranking officers are under pressure from the public and politicians to show results. Under all this pressure, when police cannot produce real results, they attempt to produce anything at all.
Deaths in custody
In this report, ‘Endemic torture and the collapse of policing in Sri Lanka’, there are several cases of deaths at the hands of the police. While torture survivors may live to tell what happened to them later, only those inside a police station at the time of a death know the truth. Most of them are police. There may also be other detainees, but usually they are justifiably scared to speak about what they have witnessed. As for police witnesses, there is almost always a bond of secrecy between them, even when some officers may not have approved of what was done to a prisoner. Thus, the families of persons who die in custody are severely disadvantaged when pursuing their cases, or even simply trying to find out the truth.
In Sri Lanka there has been no attempt either by the police authorities or the judiciary to lay down guidelines for proper inquiries into deaths in police custody. Added to this is a police culture from the not so distant past when tens of thousands of disappearances after arrest occurred because procedures permitted disposal of bodies without legal accountability. By examining some of the cases in this report, the impediments faced by family members of the deceased are apparent.
Garlin Kankanamge Sanjeewa (case no. 9)
In a sworn affidavit, Sanjeewa’s mother states that the police came in the early morning and told her that her son had been arrested, asking her to go with them immediately. However, she later discovered that her son was already dead by the time they came to her. Had she been informed of the death prior to accompanying the police to the station, she would have told other relatives and gone to the inquiry prepared. Instead, she was kept waiting at the police station without being told of his death, and only when doctors and a judge arrived was she was shown his body hanging from a beam in the cell. She could do nothing more than protest the police version of events. She had no time to get support from a lawyer or anyone else. Within a short time the inquiry was closed, with only the police account of what happened on record. To overturn the findings of this first inquiry, Sanjeewa’s mother would have to fight an uphill battle in the courts. She is a poor widow without the means to do so. All that she could do was to have her son buried on a relative’s property, to keep his body safe from tampering by the police in the hope that she might get a second inquiry.
Had this woman been properly informed about her son’s death as early as possible, and given sufficient time to attend the inquiry with support from others, including a lawyer, she would have had a chance to challenge the police version of the death. Instead, the persons whom she suspects murdered her son manipulated her presence in order to have her identify his body in the presence of the officials needed to close the case. This was her only function at an inquiry that then expedited disposal of the matter in accordance with the wishes of the police.
Where is the propriety in quickly disposing of deaths in custody cases? Quick disposals of these cases only serve police designs and create further public suspicion about their behaviour. Generally what happens when a death like this occurs is that high-ranking police officers and other powerful officials in the area converge on the police station to clean things up as quickly as they can, leaving very little room for outsiders. Very often, the family of the victim is the last to know what has been decided.
T A Premachandra (case no. 3)
In this case the victim was shot for allegedly refusing to stop his three-wheeler when ordered to do so by two police officers. Similar stories are often heard. But when are the police justified in shooting into a passing vehicle? What instructions are there for how police should act in such instances? In this case no charge had been made that the victim was a dangerous criminal wanted by the police or that he may have been carrying weapons with which he would have attacked them. In fact, no criminal record of any sort has been established against him. The police officers could have followed the vehicle and stopped it if necessary via other means. The explanation that they were shooting at the tires of the vehicle and the bullet ricocheted is not borne out by the evidence. A satisfactory explanation is yet to be given.
S Hemachandra (case no. 7)
Sunil Hemachandra’s good luck at winning a lottery turned sour when he died in police custody. According to the police, he died from a fall, which may have been caused by drunkenness or a fit. However, a person arrested together with the victim claims that he was assaulted at the station. The autopsy was initially organised by officers of the police station where Sunil died. After public outrage about the death, the inquiry was taken over by another unit. However, when the case came into the court, the police applied to refer the matter to the Attorney General. At the time of writing, it remains pending. This result has caused some confusion for the family of the victim, which was not given any reason for the transfer of the case to the Attorney General. The family members, who are in fact complainants in this case, are being treated not as important witnesses for the prosecution, but as if they are the accused. They feel like the case is proceeding against them, instead of the perpetrators of the alleged murder.
To dispel the widespread impression that in such cases the alleged murderers are also acting as judges, the following general steps ought to be taken when a person dies at the hands of the police.
- The nearest relatives to the victim should be informed of the death in writing immediately afterwards.
- The National Police Commission (NPC) and National Human Rights Commission (NHRC) should also be informed of the death without delay. As these agencies have area officers, those personnel should be informed in writing and invited to attend any inquiry. They should then submit their own independent reports to their respective agencies.
- The relatives of the victim should be given sufficient time to attend any inquiry, with adequate safety, and be allowed legal representation.
- In all cases, the inquiry into the death should be handed immediately to an officer outside the police station, and preferably outside the area of the Assistant Superintendent of Police (ASP) under whom the station is situated. This is because of the common perception that in most instances ASPs connive with their subordinates and feel obliged to protect them.
- Autopsies should be videotaped. This is now done in many countries. It is no longer expensive, and can enhance the credibility of the inquiries as well as be useful when a case goes for review.
- The Department of the Attorney General should act promptly on cases it receives and help the prosecution to proceed without delay, in order to avoid confusing and discouraging witnesses, especially family members of the deceased.
What remains to be done
A change in this situation can come about only if civil society organisations take up this issue of torture and deaths in custody resolutely, and generate public discourse. As the victims of custodial death are, like victims of torture, from extremely poor backgrounds, they are not in a position to begin such public debate. Civil society organisations must be blamed for their failure to take up this issue, instead often preferring to deal only with the concerns of more affluent people. The NPC and NHRC have also failed to adequately address deaths in police custody in Sri Lanka.
As the poor and innocent are tortured and killed without reason in police stations throughout the country, the business of policing has lost all credibility among the population. The cynical remarks made constantly in private conversations are a damning indictment of this institution, speaking to its utter degradation in the eyes of the public.
What makes this worse is that a section of opinion-makers from the upper classes and in the media seem willing to ignore what is taking place, despite their hue and cry about the increase of crime in the country. It is as if there is silent conspiracy against the establishing of a credible criminal investigation system in Sri Lanka, lest it hurt the status quo of recent decades.
All this makes the government’s failure to take effective steps to eliminate torture even more reprehensible. It can be said without any exaggeration that the government of Sri Lanka has turned a blind eye to the whole issue of torture, despite enormous local and international pressure. Neither the President nor the Prime Minister has made a single statement condemning torture.
In light of the above, there needs to be serious reexamination of the role of the Attorney General. The Prosecution of Torture Perpetrators Unit (PTPU) was set up under his department some ten years ago in response to strong international and local pressure. When it began its work, the PTPU functioned efficiently and conducted investigations properly. However, the department has been slow to take up prosecutions, with adverse results. Now the PTPU investigations are slow, and no one knows when an actual prosecution will occur. The Attorney General blames delays on inadequate staffing. Whatever the reason, the result is that perpetrators of torture continue to feel safe in the belief that no serious repercussions will follow their wrongful actions.
As for the Inspector General of Police, NPC and NHRC, to date they have not gone beyond piecemeal gestures. It is as if there is a pervasive fear about trying to bring discipline into the police. It is a fear that any attempt to address police discipline seriously may lead to resistance from the rank and file. As manifest in this and ALRC’s earlier report (article 2, vol. 1, no. 4, August 2002), the innocent victims are the ones who pay for price for this fear. The cases reported here are but a small fraction of the total abuse occurring daily throughout the country. The victims in these cases were lucky enough to meet with committed lawyers or local support groups prepared to help them tell their stories and fight their cases. Thousands of others know these stories just as well, but have been unable to tell them.
Finally, all United Nations agencies and concerned parties in the international community should try to understand the nature of this torture routinely taking place in Sri Lanka. Many persons coming from international agencies, especially those from more developed countries, still struggle to comprehend this type of torture. These persons are accustomed to regarding the police as a reasonable institution trying, on the whole, to act in a friendly and responsible manner towards the majority of citizens. Such persons think of torture as an exceptional activity committed by a few bad officers, which no institution can completely eliminate. But this is not what is taking place in Sri Lanka. What has been described here is the routine targeting of the poor and innocent by an institution that considers such acts necessary because it no longer has any sense of proper policing. And that is an institution in dire need of reform.