Asian Legal Resource Centre & World Organisation Against Torture
Footnote: This is the edited text of the general recommendations of the alternative report to the United Nations Human Rights Committee by the Asian Legal Resource Centre (ALRC) and World Organisation Against Torture (OMCT) on 30 September 2003. It was based on the work and research of ALRC and OMCT together with the following organisations in Sri Lanka: Centre for Rule of Law, Families of the Disappeared (Kalape Api), Human Rights and Development Centre (SETIK), Janasansadaya (People’s Forum), and People against Torture.
1. Review the implementation of article 2 of the ICCPR [International Covenant on Civil and Political Rights] by the State party [Sri Lanka] by examining the institutions of the police, prosecutions under the AG [Attorney General] and the functioning of the Bribery Commission.
2a. Review the implementation of Act No. 22 of 1994 [Convention against Torture Act] and the work of the Prosecution of Torture Perpetrators Unit functioning under the AG’s Department, with a view to improving its capacity in investigations, and particularly its use of documentary evidence. Unlike in many other criminal cases, there can be lots of documentary evidence in torture cases, in the books maintained by police indicating who was at a police station at a given time, and giving information about duties of police officers. Also circumstantial evidence can be used, as in other cases. For example, when a torture victim is blindfolded inside a police station, he can identify those who blindfolded him, but not those who beat him up. In Gerald Mervin Perera’s case, (SCFR 328/2002), he identified those who hung him before he was blindfolded, however, no one has been prosecuted on the grounds that he has been unable to identify who actually beat him while blindfolded. Thus, a huge advantage is given to torture perpetrators, as they can choose the place and manner of torture. This Unit also does not use the legal provision that everyone who is aware of a crime must report the matter. When torture is taking place in a police station, it is known to every one there. However, witnesses have not been compelled to reveal what they know.
2b. Recommend the Supreme Court issue instructions to magistrates in the country on dealing with complaints relating to torture by the suspects and accused brought before them. Magistrates are the initial judicial officers to come across torture suspects, and they could make a great difference if they deal with complaints relating to torture with sufficient care and diligence. The present procedure is clearly inadequate. At best what happens is that a magistrate will order a medical examination of the alleged victim. However, in the very first instance a magistrate can make his or her own observations on the condition of a torture victim. For example, if a victim is brought before a magistrate in an almost paralysed condition, as in the case of Lalith Rajapakse (AHRC UA-19-2002) it is quite easy for the magistrate to note down the condition of the victim. There are many persons brought with many types of physical injuries. The victims should also be separated from the police at the time they are questioned about torture at the police station. Victims who come directly from the police station after being severely beaten are naturally afraid of their tormentors. When questioned before them, victims sometimes state that they fell or came about their injuries in some natural way. Furthermore, other than getting medical reports on the alleged victim, the magistrate should bring cases of alleged torture to the notice of the NPC [National Police Commission] and higher police authorities, and demand investigations be made and reports submitted to the court on such allegations. Often the victims of torture are subjected to fabricated cases filed against them, as shown in this report. Where such allegations are made to a magistrate, preliminary inquiries should be held about such allegations immediately. Instructions from the Supreme Court on such matters could be very useful in providing an effective remedy to the victims of torture, and act as a deterrent to officers engaging in acts of torture. Furthermore, all judicial officers, particularly the counsels from the AG’s Department, should be exposed to international law and jurisprudence on torture. The gravity attached to the offence of torture should be instilled into them, and in matters such as compensation the principles that should be applied should also be part of their instructions.
3. The submissions made [in this report] clearly demonstrate that the major reason for torture lies in the policing system as it exists now. Without major police reform it will not be possible to overcome the present institutional difficulties that, among other things, make torture a routine habit at police stations. Among such police reforms, the criminal investigations division should be separated from law and order and peacekeeping functions. The criminal investigation division must be strengthened by recruitment of competent persons, both by way of education as well as experience. This division must also be equipped with forensic facilities and modern technological know-how. Above all, this division must have adequate resources and professional independence to carry out the criminal investigations without fear. The present system of criminal investigation under the existing Criminal Procedure Code gives undue importance to the OICs [Officers in Charge] of police stations in conducting criminal investigations. Given the nature of the police stations situated in various localities, OICs of police stations have manifold duties other than the conduct of criminal investigations. Thus, suitable changes must be made to reduce the importance of the OIC of a police station in criminal investigations. Police stations should be used more for receiving initial complaints of crimes, and then more serious crimes should be handed over to special units run under the criminal investigation department, outside the police stations.
4. Review the recommendations made to the Government of Sri Lanka to prosecute offenders via several UN bodies, in particular the Committee against Torture (CAT) and the UN Working Group on Enforced or Involuntary Disappearances. A review committee should be set up, consisting of one representative each from the National Human Rights Commission (NHRC), NPC and AG’s Department, to review progress of such prosecutions. The families of victims should be informed of the progress of such prosecutions and lawyers for such families, or organisations representing the victims, should be given access to such information.
5. As an effective measure towards eliminating impunity, recommend the establishment of a public prosecutor’s office in Sri Lanka.
6. Review the Prevention of Organized Crime Bill in terms of the international obligations of Government of Sri Lanka under the ICCPR, and recommend it be repealed altogether. The proposed bill would encourage torture, increase extrajudicial killings, and make the very unacceptable situation of policing as described above even more intolerable.
7. Recommend better training of police officers in forensic science and investigation skills, and the reorganization of police services as an alternative way to deal with crime. This matter has been discussed with the NHRC and NPC. A Strategic plan must be developed with an agreed timeframe within which to achieve this end. The NHRC is reportedly willing to help in fundraising for this purpose. A clear policy statement on this matter from the government would help to expedite the matter.
8. Recommend the speedy implementation of the 17th Amendment to the Constitution of Sri Lanka, by the appointment of commissions and facilities to begin work in accordance with said amendment. The 17th Amendment is perhaps the most important constitutional development of recent years, envisaged to remove political control from the country’s major national institutions. The appointment of the Constitutional Council has paved the way for the operation of the 17th Amendment. The Constitutional Council has also laid down some criteria for appointment of public officers. However, several of the commissions suggested under the 17th Amendment have not been appointed. In fact, there is a constitutional vacuum due to the lack of relevant institutions. Therefore the speedy appointment of these commissions is necessary for proper constitutional governance in Sri Lanka. The Human Rights Committee should recommend the speedy appointment of these commissions, and provision of adequate resources for such commissions to function effectively.
9. Everyone welcomed the appointment of the NPC at the end of 2002. In fact, it created some optimism about the possibilities for dealing with the extreme crisis in the policing system. However, resources have come to the NPC very slowly, and it does not yet have a strategic plan for its effective development and functioning. If the initial enthusiasm generated by the appointment of the NPC is to be kept alive, such a plan is very much needed. A welcome move was the appointment by the NPC of seven area coordinators to investigate complaints relating to the police. If they are to function properly they need to be given proper guidelines for investigations, training and resources. The most urgent need in relation to the NPC is the establishment of the public complaint procedure under article 155G(2) of the Constitution. The Human Rights Committee should specifically make recommendations relating to the speedy establishment of the public complaint procedure of the NPC.
10. Recommend that the Government of Sri Lanka examine the widespread fear of being killed spread in all parts of the country, and find ways to bring to an end the attendant paralyzing fear affecting the exercise of all rights, in particular those rights guaranteed under articles 19 and 25 of the ICCPR.
11. Closely consider widespread criticism of the judiciary in Sri Lanka and make suitable recommendations for its speedy reform. Pay special attention to the case of Michael Anthony Emmanuel Fernando. The recent premature resignation of the senior-most judge in the Supreme Court, Justice Mark Fernando, is widely seen by the public as a protest against the very serious breakdown of the judiciary. Lawyers and others are now demanding rapid action for change.
12. Recommend that the NHRC play a greater role in safeguarding and promoting the rule of law in the Sri Lanka.
13. Recommend that the section on human rights in the Constitution of Sri Lanka be amended to include the right to life as a basic right. The present Constitution does not include the right to life. For this purpose it is not necessary to wait until a completely new Constitution is adopted. This amendment can be carried out by agreement of all political parties, as no political party in parliament at the moment disagrees with this proposal. Any delay in recognising right to life has serious implications for the defence of this right.
14. Recommend that enforced or involuntary disappearances be declared a criminal offence in Sri Lanka, defined in terms of the Rome Statute of the International Criminal Court. The perpetrators of enforced or involuntary disappearances took advantage of the absence of such a law, since they could be tried only for the crime of kidnapping.
15. As an interim measure to allow immediate judicial intervention into possible cases of enforced or involuntary disappearances, recommend that the law relating to habeas corpus action be amended to permit applications to the nearest magistrate’s court-or any other court-during any time of the day, as is done in several other countries.
16. Assess the extent to which the Committee’s recommendations relating to enforced or involuntary disappearances, and the recommendations of the Working Group on Enforced or Involuntary Disappearances, have been implemented by Sri Lanka. Given the lack of significant progress to date, the Committee may also propose specific ways for the Government of Sri Lanka to address the issue of disappearances, and take steps to guarantee cooperation and compliance. In this regard, it is important to assess the progress of successful prosecution of perpetrators of enforced or involuntary disappearances by the AG’s Department, both in terms of expediency and effectiveness. It is imperative to establish benchmarks on successful prosecutions and, if necessary, provide international assistance by way of UN agencies or otherwise.
17. Given the nature of the mandate of the Working Group on Enforced or Involuntary Disappearances and its limitations, the Committee needs to take a more proactive role in providing effective and efficient redress to the victims of enforced or involuntary disappearances in Sri Lanka. Sri Lanka today has one of the highest numbers of enforced or involuntary disappearances in the world. Therefore, the Committee is urged to take up this matter with the Government of Sri Lanka as a priority.
18. One of the root causes of torture is bribery and corruption. The development of an effective functioning bribery and anti-corruption commission is urgently needed. The present system of bribery control is outdated and obsolete. A powerful commission, like the Independent Commission Against Corruption (ICAC) in Hong Kong SAR, should be thought of as an alternative to the present system. The practice of having police officers investigate offences under the Bribery Commission should be discontinued forthwith as a preliminary step towards making the existing mechanism more effective. The Commission itself must produce a strategic plan for its own development in order to fulfil the task of eliminating bribery and corruption. Accordingly, the Committee should make recommendations for the development of an effective bribery and corruption control system in the country.
19. Recommend that the State prosecute with vigour the many cases of rape by the armed forces that have gone unreported and unpunished.
20. Recommend that the State announce its intention to seriously evaluate the mooted policy change according to which death sentences imposed by a court would be carried out and would not be commuted to life imprisonment even if the judge who heard the case, the AG and the Minister of Justice unanimously recommended commuting the sentence.