Asian Legal Resource Centre & World Organisation Against Torture
Footnote: This is the edited text of the first part 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.
The Asian Legal Resource Centre (ALRC) is a regional, independent non-governmental organization (NGO) with General Consultative Status with the Economic and Social Council of the United Nations. It’s mission is to promote and protect human rights through strengthening the rule of law and administration of justice at national and local levels and effective implementation of international human rights treaties at the national and local levels.
The World Organisation Against Torture (OMCT) is the largest international coalition of non-governmental organisations fighting against torture, summary executions, forced disappearances and all other forms of cruel, inhuman or degrading treatment.
This document focuses on some of the more basic issues relating to the implementation of International Covenant on Civil and Political Rights (ICCPR) in the Democratic Socialist Republic of Sri Lanka (Sri Lanka).
Sri Lanka acceded to the ICCPR in 1980. It presented periodic reports to the Human Rights Committee (HRC) in 1983, 1990, 1994 and the latest on the 18 September 2002. Although Sri Lanka has been a party to the ICCPR for over 22 years, Sri Lanka has failed to effectively implement some of the principle provisions of the ICCPR. In fact, the shortcomings mentioned in this report are of such fundamental nature that they have affected the rule of law and the basic democratic framework of Sri Lanka.
Often analysis of human rights in Sri Lanka is premised on the assumption that violations of rights are mostly due to the civil strife in the North and the East and that consequently, the resolution of this problem is the most important way to improve this situation. Close observation of the sequence of events that led to the breakdown of law and order in Sri Lanka demonstrates that such an assumption is not only simplistic but also fatally flawed. It can even be argued that without a serious attempt to improve the institutional framework of the rule of law and democracy in the country as a whole, no lasting solution can be found to the conflict in the North and the East of the country. In fact, the cease-fire agreement that has existed in recent months shows that in order to make further progress, it is essential to deal with the country’s longstanding problems relating to the rule of law. Also, for people in other parts of the country-where the vast majority of the population lives-delays in dealing with the denial of basic rights due to institutional failures have caused tremendous insecurity. The following comments reveal the basic institutional failures that need to be addressed if Sri Lanka is to comply with its obligations under the ICCPR.
I. Article 2 of the ICCPR: Effective implementation
Under article 2 of the ICCPR, state parties are under an obligation to make legislative, judicial and administrative measures to see to the implementation of the ICCPR. This obligation is a very practical one. It means that institutions must be created and provided with resources for implementation of the rights enshrined in the ICCPR.
1. Policing system
One of the basic institutions necessary for carrying out the obligations under the ICCPR by the state party is a proper policing system. Where the policing system is fundamentally flawed, none of the rights in the ICCPR can be realised. In Sri Lanka the policing system is seriously flawed. The reasons for this have been acknowledged by government-appointed commissions themselves, such as the Justice Soertsz Commission of 1946, Basnayaka Commission of 1970, Jayalath Committee of 1995, and Commissions of Inquiry into Involuntary Removal and Disappearance of (Certain) Persons (Commissions on Disappearances), appointed in 1994, final reports made in 2001. Many other official documents have also acknowledged the serious defects of the policing system. The creation of the National Police Commission (NPC) under the 17th Amendment to the Constitution of the Democratic Socialist Republic of Sri Lanka (the Constitution) was in order to depoliticise the police force. The newly appointed NPC has on several occasions pointed to problems in the police force. The defects of the system identified by these commissions are as follows:
a. Militarization of the police system, by its use for riot control purposes, and later for control of civil conflict. For over 30 years, since the early 1970’s, Sri Lanka has gone through a period of violence which has transformed the Sri Lankan police force from a crime detection and law enforcement agency to an insurgency suppression mechanism. As shown in the reports published by the Commissions on Disappearances, police stations have functioned as detention centres, torture chambers, and places where many thousands of persons disappeared. The police stations throughout the country have been used for these purposes. A profound transformation of the system took place as a result. The extreme forms of torture used against suspected insurgents became habit within police stations, and extreme forms of torture are now being used on persons suspected of petty theft, or even those arrested because of mistaken identity. Some examples may illustrate the existing situation. The Supreme Court has found that officers of Wattala Police Station tortured a person named Waragodamudalige Gerald Mervyn Perera (Supreme Court Fundamental Rights Application SCFR 328/2002), arrested because of mistaken identity, to such an extent that within a few hours he suffered renal failure and had to be on a life support system for two weeks. Furthermore, there was serious damage to his arms due to hanging from the ceiling of the police station. In the case of a 17-year-old boy named B G Chamila Bandara Jayaratne (AHRC UA-35-2003, and Supreme Court Fundamental Rights Application No. SCFR 484/2003), he was tortured between 20 and 28 July 2003 by officers attached to the Ankumbura Police station, by hanging him by his thumbs. Doctors later declared that he had lost the use of his left arm completely and it cannot be cured. The method of torture used was described in an affidavit signed by the young victim thus:
Then my hands were swung behind my back and my thumbs tied together with a cord, and then they put a fibre cord between my thumbs and hung me from a beam on the ceiling. One officer pulled the fibre cord so that I was lifted from the ground. When I was lifted, my hands were twisted at the elbow and they became numb. Then the OIC [Officer in Charge] kept hitting me on my legs and soles with the wicket stumps used for cricket.
Similar forms of torture were also used in the case of Galappathy Guruge Gresha de Silva (32) (article 2, vol. 1, no. 4, August 2002, p. 24), who also lost use of both his arms due to such torture. Reports are received from all over the country of similar types of torture, which clearly show that the habits formed in the past in dealing with insurgents are now being commonly and routinely used at police stations. Thus, a central issue in relation to article 2 of the ICCPR is how to stop such methods and create a police force committed to the rule of law. When the police force itself is seen to be blatantly breaking the law, it is not possible for the State Party to implement its obligations under the ICCPR.
Yet another result of the long period of civil conflict relates to the keeping of information books and other records at police stations. The extent of tampering with official books came under criticism by the Supreme Court in the case of Kemasiri Kumara Caldera:
I may add that the manner in which the GCIBs [Grave Crimes Information Books], RIBs [Register/Investigation Books] etc. have been altered with impunity and utter disregard of the law makes one wonder whether the supervising ASPs [Assistant Superintendents of Police] and SPs [Superintendents of Police] are derelict in the discharge of their duties or in the alternative condone such acts. In a case in which I pronounced judgment a few days ago too, I found that the GCIB had been altered, and therefore it appears that, that was not an isolated instance. Thus, the police force appears to be full of such errant officers. The question is what is the 5th Respondent Inspector General of Police doing about it? In my view, it is 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?
[Justice Edussuriya with two other Supreme Court judges agreeing in the case of Kemasiri Kumara Caldera (SCFR Application No. 343/99)]
Furthermore, it was widely publicised by the media in July 2003 that at the Negombo Police Station two information books were kept, one containing original statements, and another containing manipulated records created by some police officers. The latter was often produced for official purposes, and thus the actual contents were falsified.
b. The politicization of the police was the acknowledged reason for bringing about the 17th Amendment to the Constitution. The politicization of the police disrupts the commanding structure within the police force. The very meaning of politicization of the police is that the politicians have begun to play a commanding role within the police force through their interference. This means that the normal principles of an organization driven by a unified command system have been seriously disrupted. The NPC has on many occasions declared that it would stop this process and that the police force would be brought within an internal command system (‘No more political interference with police transfers, NPC Chief’, by Jayampathy Jayasinghe, Daily News, 31 March 2003). This objective needs to be achieved if the obligations under the ICCPR are to be respected and observed by the State Parties.
c. Loss of competence in criminal investigations results in fabrication of cases against innocent persons, as substitutes for the real culprits. A study done by ALRC (article 2, vol. 1, no. 4, August 2002) on custodial deaths and torture in police stations during recent years clearly established a pattern of implicating innocent persons in serious crimes as a substitute for the actual criminals, whom the police have failed to detect. Often when many uninvestigated crimes are piled up at a police station, innocent persons are arrested and forced to confess to crimes that they know nothing about. Often unresolved crimes lead to strong public protest. On the other hand, when charges are filed against someone it appears as if a crime has been resolved, and this may even lead to promotions.
- In the well-known case of a murder of a 76-year-old Catholic priest named Fr Aba Costa on 10 May 2001, Kurukulasuriya Pradeep Niranjan (30) and another male named Gamini were arrested by the police within three days and allegedly severely assaulted. Thereafter, they were charged with the murder and kept in remand for a long time. After almost two years the Attorney General withdrew the charges against the accused on 21 February 2003, as the actual criminals had reportedly been found. It has also been revealed that some senior police officers in the area were involved in the crime. (Television programme “Thumbprints”, broadcast by Rupavahini, a national television station in Sri Lanka.)
- Waragodamudalige Gerald Mervyn Perera (39) (Supreme Court Fundamental Rights Application SCFR 328/2002) was arrested and tortured on 3 June 2002 by officers attached to the Wattala Police Station and implicated in a triple murder case that the Supreme Court held was a case of mistaken identity.
- Mulakandage Lasantha Jagath Kumara (23) (Supreme Court Fundamental Rights Application SCFR 471/2000) was tortured between 12 and 17 June 2000 by officers attached to the Payagala Police Station. Due to injuries suffered at the police station the victim later died on 20 June 2000. On 8 August 2003 the Supreme Court held that the police had tortured the victim. The arrest and detention at the police station was for the purpose of making the victim responsible for several unresolved crimes.
- Lalith Rajapakse (17) (AHRC UA-19-2002) was severely beaten on 19 and 20 April 2002 by officers attached to the Kandana Police Station to the extent of causing him to lose consciousness for about three weeks. He was implicated in two petty theft cases without even any complaint against him by anyone, and without any evidence.
- Galappathy Guruge Gresha de Silva (32) (AHRC UA-20-2002) was arrested and tortured on 22 March 2002 by officers attached to the Habaraduwa Police Station with a view to implicate him in a murder case.
- Bandula Rajapakse, R. P. Sampath Rasika Kumara, Ranaweera and Chaminda Dissanayake (article 2, vol. 1, no. 4, August 2002, p. 24) were arrested and tortured on 19 and 20 February 2002 by officers attached to the Ja-ela Police Station. They were made scapegoats in an inquiry into the loss of 46 reels of cloth from a company store without police having any evidence against them.
- Ehalagoda Gedara Thennakoon Banda (36) (AHRC UA-25-2002) was arrested and tortured on 12 June 2002 by officers attached to the Wilgamuwa Police Station and later released without any case. This was an attempt to implicate him in some illicit liquor charges, without any evidence.
- Eric Antunia Kramer (AHRC UA-36-2002) was arrested and tortured on 28 and 29 May 2002 by officers attached to the Mutwal Police Station, again in an attempt to implicate him for a robbery at the company where he worked without any evidence against him. He was not charged with any offence later.
- Ten-year-old T K Hiran Rasika and 12-year-old E A Kusum Madusanka (AHRC UA-30-2002) were arrested and tortured on the 8 July 2002 by officers attached to the Hiniduma Police Station. This was a case of trying to implicate these children regarding a petty theft in a school canteen, without having any evidence to support such a claim.
- V G G Chaminda Premalal (AHRC UA-31-2002), a 16-year-old student, was arrested and tortured on 9 and 10 July 2002 by officers attached to the Aralaganvila Police Station, again being an attempt to implicate him on a petty theft case without any evidence.
The following cases were also attempts to fish for evidence of undetected crimes by torturing persons against whom there were no grounds for suspicion:
- Subasinghe Aarachchige Nihal Subasinghe (40) (AHRC UA-01-2003), tortured by officers attached to the Keselwatte Police Station, Panadura;
- Korala Gamage Sujith Dharmasiri (23) (AHRC UA-02-2003), tortured between 1 and 8 January 2003 by officers attached to the Kaluthara South Police Station;
- Anuruddha Kusum Kumara (15) (AHRC UA-01-2003), tortured on 29 December 2002 by officers attached to the Wellawa Police Station, Kurunegala District;
- Bambarenda Gamage Suraj Prasanna (17) (AHRC UA-05-2003), tortured on 8 January 2003 by officers attached to the Matugama Police Station;
- K T Kumarasinghe alias Sunil (33) (AHRC UA-05a-2003), tortured from 1 to 4 April 2003 by the officers attached to the Galagedara Police Station;
- Hetti Kankanamge Chandana Jagath Kumar (23) and Ajith Shantha Kumana Peli (32) (AHRC UA-13-2003), tortured on 13 May 2003 by officers attached to Biyagama Police Station;
- B G Chamila Bandara Jayaratne (17) (AHRC UA-35-2003), tortured from 20 to 28 July 2003 by police at Ankumbura Police Station;
- Bandula Padmakumara (14) and Saman Kumara (17) (AHRC UA-41-2003), tortured between 20 and 28 July 2003 by officers attached to the Ankumbura Police Station;
- Saliya Padma Udaya Kumara (26) (AHRC UA-42-2003), tortured between 26 and 28 August 2003 by officers attached to the Wattegama Police Station;
- Garlin Kankanamge Sanjeewa (25) (AHRC UA-41-2003), tortured by officers attached to the Kadawata Police Station (though the police have claimed this was a suicide inside the police station, the mother of the victim has openly challenged the post mortem inquiry and has buried her son’s body in the home garden with a view to getting an impartial inquiry and to prevent the body being stolen by the police);
- Padukkage Nishantha Thushara Perera (23) (AHRC UA-45-2003), tortured between 7 and 10 September 2003 by officers attached to the Divulapitiya Police Station;
- Mohamed Ameer Mohamed Riswan (23), Suppaiya Ravichandran (23) and Abdul Karim Mohamed Roshan Latief (30), tortured between 30 August and 6 September 2003 by officers attached to the Wattala Police Station and Peliyagoda Police Regional Headquarters; and,
- Dawundage Pushpakumara (14), tortured on 1 September 2003 by officers of the Saliyawewa Police Post, attached to the Putlam Police Station.
d. Torture of children, with regards to which see the above section for details of cases.
e. Extrajudicial killings and custodial deaths, as follows:
- T A Premachandra (46) (AHRC UA-07-2003), shot and killed on 1 February 2003 by officers attached to the Kalutara South Police Station;
- Yoga Clement Benjamin (47) (AHRC UA-12-2003), shot and killed on 27 February 2003 by officers attached to the Kalutara South Police Station;
- Sunil Hemachandra (28) (AHRC UA-34-2003) tortured to death on the 26 June 2003 by officers attached to the Moragahahena Police Station;
- Saliya Padma Udaya Kumara (26) (AHRC UA-42-2003), tortured to death between 26 and 28 August 2003 by officers attached to the Wattegama Police Station;
- Garlin Kankanamge Sanjeewa (25) (AHRC UA-41-2003), tortured to death by officers attached to the Kadawata Police Station; and,
- Okanda Hevage Jinadasa (50) (AHRC UA-48-2003), who was assaulted and died of injuries inflicted by officers attached to the Okkampitiya Police Post in Moneragala District, on 5 September 2003.
f. The loss of the disciplinary process of the police has led the Supreme Court of Sri Lanka to make the following observations:
The number of credible complaints of torture and cruel, inhuman and degrading treatment whilst in Police custody shows no decline. The duty imposed by Article 4(d) [of the Constitution] to respect, secure and advance fundamental rights, including freedom from torture, extends to all organs of government, and the Head of the Police can claim no exemption. At least, he may make arrangements for surprise visits by specially appointed Police officers, and/or officers and representatives of the [National] Human Rights Commission, and/or local community leaders who would be authorized to interview and to report on the treatment and conditions of detention of persons in custody. A prolonged failure to give effective directions designed to prevent violations of Article 11, and to ensure the proper investigation of those which nevertheless take place followed by disciplinary or criminal proceedings, may well justify the inference of acquiescence and condemnation (if not also of approval and authorization).
[Justice Mark Fernando, with other two judges agreeing, in Gerald Mervin Perera’s case, SCFR 328/2002]
In a statement issued by the NHRC (National Human Rights Commission) of Sri Lanka on 4 September 2003, an agreement arrived at by the NHRC with the IGP (Inspector General of Police) mentioned the following item:
The NHRC agreed to draft guidelines together with the NPC and the IGP (Inspector General of Police) for the interdiction of officers who are found to have violated fundamental rights by the Supreme Court [translated from Sinhala].
Meanwhile the NPC is also engaged in drafting a public complaint procedure under Article 155G(2) of the Constitution to entertain, investigate and redress complaints against police. However, while these measures are pending, at the moment no procedure is operative to take disciplinary action against the police. In the absence of a proper and impartial disciplinary process, investigations against the police are left in the hands of other police officers. Usually, a higher-ranking police officer such as Assistant Superintendent of Police (ASP), Superintendent of Police (SP) or Deputy Inspector General of Police (DIG) is assigned to investigate such complaints. It is quite well known that these officers try to work out some compromise rather than properly investigate a complaint. Often complainants are even threatened to withdraw complaints. Knowing that internal procedures for complaints against the police are ineffective, officers feel quite safe to commit violations. A circular issued by the IGP in September 2003 states that higher officers such as Officers in Charge (OICs) of police, ASPs and others will be held liable for custodial deaths and torture taking place at police stations. However, there is no procedure at the moment to hold such officers liable.
2. Judicial administration: The lack of a public prosecutor’s department
Another institution that needs reorganisation if there is to be any change in the practices ensuring impunity, is the Attorney General’s (AG’s) Department. The most important step would be to separate the public prosecution function from the AG’s Department and create a public prosecutor’s office. Numerous bodies have recommended this in the past, including the Justice Soertsz Commission (1946), Basnayake Commission (1970) and Jayalath Committee (1995). In 1973 the position was created with the introduction of Administration of Justice Act, but abolished after 1977. If the inherent inefficiency in the present set up is to be negated, a separate department for the public prosecutor needs to be created wherein prosecuting functions could be more thoroughly specialized and pursued. If the existing obstacle for proper prosecution were changed it would remove one of the major impediments to the rule of law in Sri Lanka. Without the development of an independent public prosecutor’s department it is quite unlikely that a suitable prosecution for dealing with serious crimes can be instituted. This is particularly so in relation to crimes where the alleged perpetrators are police and other state officers. The AG’s Department presently has a close connection with investigating police officers in crimes that are being prosecuted, as the Department depends entirely on the police for investigations. Thus, close cooperation between investigators and the prosecutors is inevitable. Some of these very same police officers or their colleagues are often accused of torture, custodial deaths and the like. Naturally, in such circumstances, conflicts of interest-or public perception of conflicts of interest-arise.
Some units have been created under the AG’s Department for the prosecution of state officers, for example, the Disappearances Investigation Unit (DIU), established in November 1997, and the Prosecution of Torture Perpetrators Unit (PTPU), established more recently. (These units function under the direction of the AG’s Department. While they may be free to investigate when direction is given to do so, they do not have the power to initiate investigations independently, on receipt of reliable complaints. Further prosecution into matters entirely depends on the discretion of the AG’s Department). However, these units suffer from the same general defect as the Attorney General’s Department. For example, though the Presidential Commissions recommended prosecution of a large number of persons, only a handful of cases were filed and some of them were even lost due to the defects of prosecution. Due to much delay in prosecution, such as a 12-year delay before vital witnesses make their statements in court, the prosecution has been abandoned. (ALRC Written Statement to the United Nations Commission on Human Rights, “Enforced or involuntary disappearances in Sri Lanka”, E/CN.4/2003/NGO/88). Even in torture cases where complaints are made immediately after the incident, often the investigations begin quite some time later, thereby creating doubts about the credibility of evidence and identification. The general impression is that such investigations and prosecutions are delayed or otherwise hampered by the unwillingness of the state to prosecute state agents. That investigations by such units are often conducted only due to pressure, particularly from the international community, is also a common criticism.
3. Legal provisions for curbing bribery and corruption
Studies by Transparency International (Sri Lanka) have exposed many defects relating to the Commission to Investigate Allegations of Bribery and Corruption (the Bribery Commission). The following observations are relevant in this regard:
a. The investigating officers of the Bribery Commission have to be drawn from the Police Department itself. This raises doubts about the credibility of the Bribery Commission, particularly its capacity to investigate bribery and corruption within the police force, and among politicians who patronize the police. The Bribery Commission does not have the capacity to recruit personnel on its own. The study of successful models, such as the Independent Commission Against Corruption (ICAC) of Hong Kong Special Administration Region of the People’s Republic of China, clearly shows that one of the most important elements for a successful monitoring institution is that it is completely independent of the police. Particularly in its early years establishing effective control over corruption, the ICAC concentrated on creating accountability within the police force. Given the historical circumstances of policing in Sri Lanka, as described above, it is counterproductive to have police officers work as investigators in the Bribery Commission. The 2001 annual report of the Bribery Commission, which was issued very recently, showed that for that year there had not been any successful prosecutions for corruption or bribery.
b. The Bribery Commission also lacks financial independence. The Bribery Commission has to depend upon the Treasury for its funds and thus the executive subjects it to indirect control. There are no mechanisms to guarantee its independence by way of receiving necessary funds without executive control. A properly functioning corruption control agency needs adequate funding for investigations, prosecutions and education. In dealing with fraud and corruption, it needs modern technology and forensic facilities. In fact, given the limited funding available to the Bribery Commission, it can be said that it is not equipped to deal with bribery and corruption in the country except by way of some symbolic investigations and prosecutions. The Bribery Commission has not convinced the country that it can carry out its mandate.
c. Due to some obsolete legal provisions, the Bribery Commission has not been able to function when a vacancy for a commissioner is not filled. As a result, the Bribery Commission was not functioning for a considerable time pending appointment of a new commissioner.
d. The proper functioning of a corruption control agency requires different talents for different functions such as investigations, prosecutions, public education, public relations and management. The limited structure that exists under the present law does not fulfil these requirements.
e. The public perception is that there is no real political will to establish a genuinely powerful corruption-control agency in the country. The existing structure allows only for a symbolic institution without the real capacity and resources to control corruption to any significant degree.
The implementation of article 2 of the ICCPR is seriously hampered by the defects in the three institutions described above. One result has been the State Party’s failure to implement many of the recommendations made by United Nations bodies in the past.
II. Article 6 of the ICCPR: Right to life, and disappearances
Article 6 of the ICCPR guarantees the inherent right to life of every human being: the law shall protect this right, and no one shall be arbitrarily deprived of his or her life. In contravention of this right there have been large-scale enforced or involuntary disappearances in Sri Lanka. According to recent NHRC publications, enforced and involuntary disappearances since 1995 have amounted to around 20,000 persons. This number includes some government soldiers too. However, the largest number was among Tamil youth.
As for the South, Presidential Commissions have disclosed how disappearances often began with arrests by state officers, went on to torture, and eventually the killing and dumping of bodies. The sheer number of people killed like this in Sri Lanka exceeds the number of deaths being dealt with by some of the international tribunals now in operation in other parts of the world. That Sri Lanka today has a staggering number of enforced or involuntary disappearances is now a matter of public record. The report on the visit to Sri Lanka by a member of the Working Group on Enforced or Involuntary Disappearances (the Working Group) (E/CN.4/2000/64/Add.1) states that
Three regional Presidential Commissions of Inquiry into Involuntary Removal of Persons set up in 1994 submitted their reports to the President of the Republic on the 3 September 1997. The Commissions investigated a total of 27,526 complaints and found evidence of disappearances in 16,742 cases. A further 10,135 complaints submitted to the Commissions by relatives and witnesses remained to be investigated by the present (fourth) Presidential Commission of Inquiry.
The Government of Sri Lanka has failed to implement most of the recommendations made by the Working Group in its December 1999 report (E/CN.4/2000/64/Add.1).
The Final Report of the Commission of Inquiry into Involuntary Removal and Disappearance of Certain Persons (All Island) (Sessional Paper No. I – 2001) dated March 2001 stated that it had been given 10,136 complaints to investigate that with regards to which “no investigations [had] commenced” by earlier Commissions. The Final Report also stated that at least a further 16,305 cases had been brought to the Commission’s attention that it was not empowered to investigate (Ch. VII, p. 45), making the number of disappearances in Sri Lanka one of the largest in any country in modern times.
Yet while this gross violation of human rights has been assessed, to date no measures have been proposed to adequately deal with it, neither by international nor domestic agencies. The lack of genuine initiatives by the authorities to prosecute the perpetrators of enforced and involuntary disappearances has demoralised the families and loved ones of the victims. Such reluctance to act according to law and punish the perpetrators has also reinforced the general loss of faith in the rule of law and law enforcement agencies in Sri Lanka, especially the AG’s Department, which acts as the chief prosecuting authority. Meanwhile, as the Government of Sri Lanka has ignored most recommendations coming from the Working Group and also all of the domestic Commissions of Inquiry-which even named some of the persons to be investigated further and prosecuted-disappearances have continued; the NHRC is investigating new cases.
The number of cases the AG’s Department claims to have filed against the perpetrators of this crime against humanity has fallen short of the cases of persons named to have sufficient evidence against them for prosecution by the Commissions of Inquiry. In fact, the Working Group itself has stated that its recommendations have not been implemented. The performance of the AG’s Department in this matter is a serious disappointment to the family members of the disappeared and local and international human rights organisations. The fact that it has been about 10 years since these horrendous crimes occurred and yet there has been no significant success in prosecution speaks for the inability and unwillingness of the AG’s Department to deal effectively and efficiently with the issue. The only reason for not taking action seems to be political: specifically, unwillingness to deal with senior police, military and political figures responsible for causing these disappearances. Thus, though there is a special unit for prosecution of offenders relating to disappearances, it has no liberty to take the action requested by the Commissions of Inquiry.
There are no excuses for committing crimes against humanity. Sooner or later these crimes need to be dealt with, delivering justice according to internationally established norms and standards. It should also be noted that the present crisis in law enforcement agencies such as the police is a direct result of the era when mass disappearances were carried out. It is common knowledge that many law enforcement officers and politicians who carried out these crimes remain at large. This situation makes ordinary folk lose faith in the justice system.
III. Article 7 of the ICCPR: Freedom from torture
1. General situation
In August 2002, ALRC published the ‘Special report on torture committed by the police in Sri Lanka’ (article 2, vol. 1, no. 4), concentrating on cases of torture arising out of criminal investigations. The Special Rapporteur on torture, Mr Theo van Boven has also dealt at length with complaints of torture in Sri Lanka in the supplement to his latest report (E/CN.4/2003/68/Add.1, Paras. 1486-1695).
The Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Act (No. 22 of 1994) was enacted in Sri Lanka under international pressure. However, despite numerous complaints by victims of torture, no effective action has been taken. It is true that the PTPU was established under the AG’s Department and that a few cases (the exact number is not known as the AG’s Department has not published a list) have been filed by the PTPU. However, to date, there has not been a single trial or conviction. The usual process has been that once a case is filed, it is reported to international bodies, including the United Nations. Thereafter, the matter remains pending. In principle, these cases should be prosecuted only by the High Court. However, sometimes cases are filed in the Magistrates Courts and kept pending. Proper implementation of Act No.22 of 1994 is in the hands of the AG and his Department. Therefore, failures in prosecution must be attributed to this department. It is believed that there have been no cases successfully prosecuted under this Act, despite the government stating that there have been 10 convictions in paragraph 174 of its State Report. The government should be asked to list those convictions. Furthermore, the government should be asked of what offences the accused were convicted, give details of cases and sentences, and explain why this information is not known to the human rights organisations that have been following such cases closely.
Children who have suffered violence have to make complaints in the same way as adults, at police stations. Counseling, assistance with recovery, and reintegration are largely absent, and children who make complaints face serious difficulties at police stations and schools. Nevertheless, today more and more parents and children do make complaints.
2. Types of torture
The types of torture taking place in Sri Lanka include the following:
- Sitting on the spine or beating the spine, thereby dislocating disks in the spine, resulting in full or partial paralysis;
- Hitting on the head, or sometimes keeping books on the head and hitting with a pole, causing fractures and brain injuries
- Tying the hands behind the back, tying the thumbs together, pulling a cord through the thumbs and hanging the person from the ceiling, causing temporary or permanent loss of use of the arms;
- Tying the hands and legs and putting a pole though the legs in a way that a person can be rolled round, while beating on the head and soles of the feet;
- Beating while hanging, causing renal failure and other serious injuries;
- Hitting on the genitals;
- Inserting genitals into drawers and slamming them closed;
- Pumping high-pressure water through fire hose pipes onto the genitals;
- Inserting PVC pipes and other objects like glass bottles into the vagina;
- Beating on the ear, causing full or partial hearing loss;
- Dragging on the ground;
- Forcing a person to crawl in public places;
- Hitting the soles of the feet with a post;
- Forcing the fingers into glass bottles, making it very difficult to remove them;
- Threatening to kill;
- Threatening to rape; and,
- Threatening to implant drugs and file cases in courts for possession of drugs, which carry high penalties.
Judging by documentation of torture cases filed, and from the Supreme Court judgements on non-criminal torture cases, these forms of torture usually take place at police stations.
3. Threats to those who make complaints
Persons who make complaints against torture come under severe threat from the perpetrators. This happens in almost all cases. In the case of Lalith Rajapakse, after his initial complaint, there was a plot to poison him. He had to make complaints to the NHRC and other authorities. The Asian Human Rights Commission (AHRC) intervened by writing letters and appeals to save the grandfather’s and victim’s lives. The victim had to live in hiding for about 5 months. Even now he has to be kept protected. In the case of Gerald Perera, he and his fellow workman received death threats. In the case of Dawundage Pushpakumara, attempts were made by the officers of Saliyawewa Police Post to prevent the child from getting medical treatment. Only through the intervention of the National Child Protection Authority was the child taken to Colombo to get treatment. After that the police officers and a prominent politician threatened to burn down the house of the family if the complaints to NHRC, NPC and other authorities were not withdrawn. In the case of Chamila Bandara, his family was constantly threatened by the OIC of the Ankumbura Police. The victim is now hiding. In fact, such situations arise in almost all cases after complaints have been made. One of the reasons for this is that despite the complaints, police officers, particularly OICs, remain at their posts. OICs have enormous power in their localities. Some remain in their police stations even after the Supreme Court has found them guilty of having tortured a person. For example, the officer in charge of Wattala Police Station was found to have violated the fundamental rights of Gerald Perera, but he is still OIC of the same station. All other OICs named in the above cases are also still there. The Committee is urged to take this matter up with the Government of Sri Lanka and ensure protection for those who make complaints against the police.
There have been a few (non-criminal) cases in the Supreme Court that show some effort to give compensation equivalent to the seriousness of the crime of torture. In such cases, the quantum of compensation has improved. However, in the majority of cases, compensation granted does not reflect the gravity attached to the violation of rights guaranteed under article 7 of the ICCPR. Most awards are of between US0 and US0. In some cases, despite the fact that the victim has died after the assault, the quantum awarded has been around US0 (for example the case of Josephine Mary Kanmany, on behalf of Anthonypille Jesudasen, SCFR 807/1999). Act No 22 of 1994 states that the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment is part of the law in Sri Lanka. However, the Supreme Court has not yet reflected this in its judgments on violations of article 11 of the Constitution, which is the same as article 7 of the ICCPR.
Furthermore, the trauma associated with torture has not yet been given much attention by the state. Facilities for treatment of trauma and adequate rehabilitation are practically non-existent.
5. Assessing the main causes of police torture
As mentioned above, the major cause for the use of torture by the police today is the breakdown of the policing system from the early 1970s up to about 2002. As a result, the following things have happened:
a. The police command structure has broken down. The higher authorities in the police are perceived as inefficient or corrupt.
b. OICs, the real authorities within police stations, are incompetent, inefficient and are often accused of being corrupt.
c. There is a lack of training in proper methods of criminal investigation and a lack of forensic facilities. In such circumstances, torture is perceived not only as a legitimate means with which to investigate, but also as necessary.
d. Facing an increase in crime and more public pressure to deal with crimes, and having no real capacity to do so, often police engage in torture to create substitutes for actual criminals and answer public criticism. As a result, many innocent people get severely tortured and killed.
e. A recent survey by Transparency International pointed out that the public perceives the police to be the most corrupt institution within the country. It is well known that police will torture someone at the request of an opponent.
f. Disciplinary procedure has been almost completely lost. The only punishment resorted to is transfer when there is public criticism. Dismissal for misconduct hardly ever takes place.
g. There is no proper and impartial public complaint mechanism. Complaints against the police are usually referred to higher police officers for investigations. It is quite well known that these officers try to work out some compromise, rather than properly investigate a complaint. Often complainants are threatened. As a result the police officers know that no serious threat will come to them due to complaints. Psychologically, the officers develop an attitude of having complete impunity. The NHRC, which could have dealt with the complaints against torture in the past, had up to recently failed to adopt a serious approach to deal with torture. It has not had a system for preliminary investigations. Its agents’ concern has been to settle cases, and they have exerted pressure on victims to accept settlements for such small sums as US. In August 2003 the NHRC chairperson stated that she has instructed her staff to stop making settlements and to seriously investigate torture cases. Another move underway is the implementation of constitutional provisions requiring the NPC to establish a public complaint procedure to entertain, investigate and redress complaints against the police. AHRC has submitted a draft for such a procedure to the NPC, which is under consideration.
6. Delays in decision-making in fundamental rights applications, and prosecutions under Act No. 22 of 1994
Though article 126 of the Constitution was to provide an expeditious remedy for violations of fundamental rights, the actual time taken for final determination is still too long. Though an application has to be filed within a month of the violation, the final determination usually takes two or more years. Victims of brutal torture at the hands of police officers and other state agents are thus required to wait too long before the final determination of their cases. Meanwhile, the alleged perpetrators continue to hold office. Torture victims in almost all cases come under heavy pressure to give up or settle cases. They also live in great fear of reprisals for having filed such cases against the police. Thus, any delay in hearing the complaints helps to perpetuate such violations.
The filing of criminal cases under Act No. 22 of 1994 takes even longer. Of the 59 cases submitted by Police Special Investigation Teams to the AG’s Department in 2002, only 10 cases have been filed in courts; the rest of the files are with the AG’s Department (Lakbima, 11 September 2003). This is despite claims by the AG’s Department that it is prosecuting offenders under the Act. Despite the many claims filed during earlier years and as stated above, to date there are no known successful prosecutions under the Act.
7. Negative role of the AG’s Department in compensating torture
As a matter of principle the AG’s Department does not appear for respondents in fundamental rights applications under article 126. Though this is positive, representatives of the AG’s Department at the end may urge the court to reduce the amount of compensation granted. This does not conform to principles of international law on compensation. Even in cases where the AG’s Department admits violations of rights, as for example in the case of torture, illegal arrest and imprisonment of Kurukulasuriya Pradeep Niranjan, remanded for 21 months after being falsely charged, the AG takes no steps to compensate the victim.
8. Complaints of negligence at post mortem and other inquiries by state medical officers
In many cases of torture it has been revealed that there are serious doubts about the professionalism of some of the District Medical Officers (DMOs) and Judicial Medical Officers (JMOs).
In the case of M K Lasantha Jagath Kumara, who was produced before a DMO the day before his death, the DMO did not examine him properly or prescribe immediate medical attention.
In the case of Sunil Hemachandra, who died due to injuries suffered from torture in police custody, several eyewitnesses saw him being severely beaten by the police. However, the medical report left out the possibility of injuries due to assault and speculated on the possibility of a fall due to fits caused by an illness. He was 32 years of age and had no history of epilepsy or any serious illness. His family specifically denies that he ever had any fits at all, and strongly believes that the medical examination was not carried out professionally.
In the case of Garlin Kankanamge Sanjeewa, whom the police allege committed suicide inside the police station, his family has seriously doubted the verdict of the medical officer and even kept the dead body buried in the family garden with the hope of getting an impartial medical inquiry. The family alleges that even the sketch of the body as it was found was fabricated. Furthermore, observers have challenged the possibility of an adult male being able to hang himself with the belt that the police allege he used. Further evidence points to there being two other persons inside the same police cell at the time of alleged hanging, but they having seen nothing at all has also increased suspicion.
In the case of B G Chamila Bandara Jayaratne, the Kandy Hospital did not even produce him before a JMO for examination, despite having recorded the allegation of torture by the police. He was discharged without any treatment and it was only possible for him to get treatment after he had been readmitted to Peradeniya Teaching Hospital, where after examination doctors declared that he had permanently lost the use of his left arm.
Many such complaints about failures by DMOs and JMOs are being received by human rights organisations. However, there are still a number of state medical officers who carry out their duties with great care and professionalism.
IV. Administration of justice
1. Ratification of international treaties
Sri Lanka acceded to the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT) on 2 February 1994. Sri Lanka has neither signed nor ratified the Rome Statute.
2. Legal definition of torture
Several provisions in Act No. 22 of 1994 do not fully comply with the CAT. The following observations by Amnesty International are relevant:
The Torture Act passed by Sri Lanka’s parliament in November 1994 and certified on 20 December 1994 makes torture punishable by imprisonment for a term not less than seven years and not exceeding ten years and a fine. Regrettably, however, several provisions in the UN Convention against Torture were not fully implemented in the Torture Act which uses a more restrictive definition of “torture” than that contained in the UN Convention against Torture.
As stated above, the UN Convention against Torture defines “torture” as “any act by which severe pain or suffering … is intentionally inflicted on a person for such purposes as…” (emphasis added). In subsection (1) of Article 2 of the Torture Act, however, the causing of “suffering” is not explicitly made part of the definition of “torture”, and the purposes for which torture is inflicted are listed in an exclusive (rather than inclusive) way by use of the wording “for any of the following purpose[s]”. Thus, torture for other purposes, such as sadism alone, are not defined as a crime under this Act.
In addition, subsection (3) of Article 2 of the Torture Act stipulates that “the subjection of any person on the order of a competent court to any form of punishment recognized by written law shall be deemed not to constitute an offence” under the Act. This means that courts can impose cruel, inhuman or degrading punishments under the Penal Code and the Children and Young Persons Ordinance 1939. The latter provides that courts can impose whipping on male children as an additional punishment for certain offences (see also below).
Article 3 of the UN Convention against Torture, which provides that “[n]o State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture”, has not been given effect in Sri Lanka. This means that under current legislation, people who could be subjected to torture or cruel, inhuman or degrading treatment or punishment in another country cannot invoke this provision to contest their return to that country. The failure to include this prohibition in the Act is a matter of deep concern because Article 3 of the UN Convention against Torture, in contrast to the UN Convention relating to the Status of Refugees, applies to all persons and not only to asylum seekers. “The Committee against Torture in May 1998 recommended a review of the Torture Act in respect of each of the above three concerns. “Prior to the coming into force of the Torture Act, perpetrators of torture could be prosecuted under Sections 310 to 329 of the Penal Code which define the offence of causing hurt and an aggravated form of causing hurt, referred to as “grievous hurt” in order to try and extract information or a confession which may lead to the detection of an offence or to compel the restoration of property or satisfaction of a claim. Such an offence of grievous hurt is punishable by imprisonment for up to ten years and a fine (no minimum punishment is stipulated).
[SRI LANKA: Torture in Custody, by Amnesty International, AI INDEX: ASA 37/010/1999, 1 June 1999]
In many of the cases cited in this report, the type of injuries suffered by the victims would have qualified as cases to be prosecuted under provisions for “grievous hurt” or even “attempted murder”, where the prescribed punishment is greater than under Act No 22 of 1994.
In fact despite criticisms by the Committee against Torture and international human rights organisations, no attempt has been made to bring Sri Lanka’s anti-torture legislation into conformity with the CAT. In fact, there is no such draft law before the Law Commission in Sri Lanka.
3. National institutions (the National Human Rights Commission)
Though the NHRC has been in existence for over 10 years, it has not been able to win the confidence of the people in its capacity to promote and protect human rights. AHRC and ALRC have in the past made a series of recommendations in this regard.
The NHRC opened many branches in different parts of the country. This was a welcome move and it created a lot of expectations. However, experience with these offices has so far not been encouraging, and in some instances very negative. For example, NGOs have complained about the regional coordinator of the Kandy office, for close collaboration with the police. People against Torture and Janasansaya have made this complaint. They have also complained that the officer has given a press interview trying to discourage people from making complaints to NGOs on human rights violations. Despite the complaints, this officer continues to be the coordinator of the Kandy office. Proper reorganisation of the regional offices and appointment of competent persons committed to human rights can improve the human rights situation in different parts of the country. Further, complaints against officers must be properly investigated.
V. Article 14 of the ICCPR: Right to a fair trial
Fair trial guarantees have frequently been severely curtailed since 1971. The consistent use of emergency regulations and anti-terrorism laws has significantly limited the importance of the courts and diminished the value of lawyers as defenders. As a result, the scope of fair trial guarantees has been diminished. Added to this, law enforcement agencies acquired so much power that the legal profession often had to adjust to a situation of fear, or a situation in which the possibility of exercising their rights as lawyers was denied. A resigned mentality has now developed in response. Confessions have been allowed in the courts irrespective of how they have been obtained. Much-valued due process rights seem no longer to be important.
The very system of protection that is the basis of the ICCPR is endangered by such developments. This threat must be faced seriously. The proposed Prevention of Organized Crimes Bill is an example of how even the law can be changed to legitimatize growing restrictions of basic guarantees to fair trial. Some conservatives have even suggested replacing criminal trials with arbitration. With increasing pressure to prosecute violators of human rights there is much more pressure from some quarters, such as powerful politicians and higher up policemen, to reduce the possibilities of fair trial in favour of such arbitration. Thus it is the very heart of the ICCPR’s principles that is now being threatened.
1. Case of Michael Anthony Emmanuel Fernando
The former UN Special Rapporteur on the independence of judges and lawyers has characterised this case as an “act of injustice done by the Supreme Court of Sri Lanka”. On 6 April 2003, a layman and a human rights defender, Michael Anthony Emmanuel Fernando (Tony) was sentenced to one-year’s imprisonment by the Chief Justice of the Supreme Court of Sri Lanka and two other judges for alleged contempt of court, without holding any inquiry into the matter. Tony is alleged to have disturbed the court. Tony, in fact, insisted on being heard before his case was dismissed. Besides, Tony had made a written application that the Chief Justice should not hear his case. Later a revision application was filed against this judgment, requesting that the case be referred to a five-judge bench. The basis of the revision application was that the court judgment was wrong in law, per incuriam. However, the same three judges heard the application for the leave to proceed, and did not refer it to a five-judge sitting as requested. The judgment on the revision application was set for 2 June 2003 and has not been delivered as yet.
The former Special Rapporteur on the independence of judges and lawyers, Dato’ Param Cumaraswamy, made the following press statement on 28 May 2003 about this case:
I am pleased to learn that the petition for review of the decision of the Supreme Court in the Michael Fernando case would be heard by the same Court on June 2-3 2003. However, the delay in filing the petition for review and the subsequent delay on the part of the Supreme Court fixing a date for hearing are matters of concern. Where the liberty of the subject is involved, particularly in this case where Mr. Fernando was subjected to grave injustice brought about by a flawed judicial process, one would expect the Supreme Court to move swiftly to remedy the same injustice. Four months during which period Mr. Fernando was incarcerated must necessarily be viewed as an inordinate delay. Nevertheless, I urge the Supreme Court not to delay this matter any further, hear the petition, set aside the patently flawed decision delivered on February 6, 2003 whereby Mr. Fernando was convicted and sentenced to one year imprisonment for contempt for court.
2. Case of Kurukulasuriya Pradeep Niranjan
Kurukulasuriya Pradeep Niranjan was arrested on 13 May 2001 and kept in remand prison until 21 February 2003 under the charge of murdering a 76-year-old Catholic priest, Fr Alfred Bernard Costa, on 10 May 2001. This was a gruesome murder where the priest was stabbed 27 times and was strangled to death. The death was highly publicised throughout the country. On 21 February 2003, the AG released Kurukulasuriya Pradeep Niranjan without any charges. Kurukulasuriya Pradeep Niranjan has also complained that he was severely beaten to get him to confess to the murder. He has also alleged that as a result of the allegation he was badly treated in remand prison. His family, including four children, has suffered greatly due to the accusation. Living in a Catholic area, to be charged with the murder of a senior priest led to the whole family being ostracised. On releasing him without charges, no compensation has been paid for torture, illegal arrest, detention for a prolonged time, and for the humiliation suffered by him and his family. It is respectfully submitted that the Human Rights Committee should look into failures similar to this case where the state has not accepted responsibility.
3. Cases of Garlin Kankanamge Sanjeewa and Sunil Hemachandra
In both these cases the families have publicly expressed doubts about the objectivity of inquests done by medical officers. In the case of Garlin Kankanamge Sanjeewa, who was pronounced to have hanged himself with his trouser belt inside the Kadawatte Police Station, his mother dug a grave at her own home premises for the purpose of pursuing a new examination by a different doctors. Print and public media also gave a lot of coverage to expose the impossibility of the death having occurred in the manner described by the police. In the case of Sunil Hemachandra, three eyewitnesses gave evidence that they saw the victim being severely beaten by some officers of the Moragahahena Police. The family also gave evidence that the young man did not have any history of a grave illness, particularly excluding epilepsy and fits. However, the medical report did not mention anything about injuries to the head caused due to assault, but did mention the possibility of a fall due to fits. This case also received a lot of media attention, and cartoons were published in some papers ridiculing the findings of the medical officers. In both cases, families have called for public inquiries into the propriety with which the inquests were conducted, but there has been no response by the authorities.