Kishali Pinto-Jayawardena, Convenor, Rule of Law Centre, Colombo
Footnote: Kishali Pinto-Jayawardena is a public interest lawyer and writer based in Sri Lanka. She is a columnist for the Sunday Times, Colombo, Head of the Legal Unit of the Law and Society Trust, Convenor of the Rule of Law Centre, and a member of the Editorial Board ofarticle 2. This article was originally prepared for the first edition of a new publication by the Asian Human Rights Commission, Protection & Participation: South Asia Legal Reforms and Human Rights.
When Yosef Lamdan, the Israeli Permanent Representative to the United Nations, complained that his country had received the most flak from the UN Committee against Torture (the Committee) at sessions in Geneva during the spring of 1998, he advanced a novel reason for his petulance. He complained that his country was being critiqued because it was being too honest. The Israeli government had, in fact, maintained before the Committee that interrogation practices such as violent shaking, handcuffing in uncomfortable positions, hooding for long periods and sleep deprivation amounted to “moderate physical pressure” that could be applied to terrorist suspects in order to obtain information that might foil future attacks.
Not surprisingly, the ten members of the Committee, appointed to monitor the implementation of the UN Convention against Torture by state parties, disagreed. The members noted that “the state of insecurity that Israel is presently coping with, cannot justify practices amounting to torture”. The response from Lamdan was colourful and aggressive, stating—among other things—that while his government continued to battle with the “agonizing dilemma” of terrorism, its report was brought before the Committee like “a lamb going to the slaughter”. Israel was being held to a higher standard than other countries, he alleged, “because its government operations were more open than those of other states”.
At that stage, as if to illustrate his point in a none too subtle manner, the very next report considered was that of Sri Lanka, coming before the Committee for the first time since it ratified the Convention in November 1994.
In contrast to Israel, the Sri Lankan report was a model of decorum, causing many to comment that such faultless mechanisms to protect human rights must be the envy of less fortunate countries. At first glance, the twenty-eight-page report was indeed impressive, starting from the cataloguing of several formal legal provisions that guarantee the right to freedom from torture. Not only did the Constitution explicitly forbid torture with the Supreme Court “jealously protecting this right” but also specific legislation referred to as the Convention against Torture Act of 1994 made torture a criminal offence punishable by stringent penalties. Again, procedures relating to investigation and the taking of a suspect into custody and detention outlawed torture, and human rights education and information formed a significant part of the training of police officers, members of the armed forces, and prison officers.
A plethora of committees, commissions and bodies supervised the actions of law enforcement officials while the recommendations of a 1995 committee to “inquire into and report on the reorganization of the police” were being considered. Complaints against police officers, including complaints of alleged torture, could be made to a special sub-unit set up under a senior Deputy Inspector General. Action was being taken to refer complaints against police officers to an independent panel and to set up a “cell” directly under the Inspector General of Police to monitor these complaints. In a burst of exuberance, it was even announced that a separate directorate had been established at army headquarters to deal exclusively with international humanitarian law. Meanwhile, three commissions on disappearances had completed their work and issued reports. The government was now considering how to implement their conclusions, including possible prosecutions.
The report, in other words, could not have been more different from that of Israel. Sri Lanka wished to reiterate its commitment to the stringent standards of international human rights law. The government, it appeared, neither did any wrong, nor wished to do any wrong. Perish the thought of “moderate physical pressure”. On the contrary, it gracefully apologised for any excesses that may have occurred, relegating them to the status of “isolated acts of torture carried out by some individuals, and not the outcome of a deliberate policy”. The strategy, it seemed, was one of subterfuge with a few clever nuggets of truth thrown in. Did it work at that time?
The government representatives left Geneva as, at very least, relieved defenders of their briefs. However, each country had to pay its price. While in the case of Israel, it had to justify its undeniably arrogant admission that it applied “physical pressure” to those in its custody, Sri Lanka was called upon to answer in a different way, perhaps less severe but nonetheless very stern.
In May 2005 the Committee will consider the combined second and third periodic reports submitted as a single document by Sri Lanka recently. The state party report, this time around, does not hold anything new. It consists of the same weary plethora of matters pending and investigations continuing. There are more graceful apologies for any ‘aberrations’ that may have occurred. In the meantime, the pain of those innocents without remedies for what they have suffered also continues unabated. What, indeed, has changed between May 1998 and May 2005? What about the efficacy of these much-touted mechanisms for dealing torture? Have they succeeded in bringing perpetrators to justice?
These are not difficult questions to answer. In the years in between, torture and attendant abuses of the poor and unfortunate—as opposed to ‘terrorists’ and ‘subversives’—have increased dramatically. Supreme Court judgements in fundamental rights cases against torture perpetrators have now become commonplace, and the most brutal torture generally evokes no reaction other then cynicism.
Despite many clear judicial decisions regarding the culpability of individual police officers, these very same officers continue in their posts and claim a formidable shield of impunity. The frustration of the Court itself at this state of affairs has become legendary. In one particularly heinous case from 1995 where a 14-year-old girl had been tortured by police officers resulting in the impairment of her sight in one eye, the Supreme Court expressed its dismay in the following manner:
In many cases in the past, this Court has observed that there was a need for the Inspector General of Police to take action to prevent infringements of fundamental rights by police officers, and where such infringements nevertheless occur, this Court has sometimes directed that disciplinary proceedings be taken. The response has not inspired confidence in the efficacy of such observations and directions…
Apart from disciplinary inquiries within the police structure, other methods of control, including prosecutions based on information disclosed in a fundamental rights application before the Supreme Court, have also not been exercised. And what of the much-vaunted procedures under the Convention against Torture Act, whereby the High Court can be moved by the Attorney General to look into cases of alleged torture? We have strange contrasts between then and now. In May 1998 not a single case had been brought before the High Court in this manner. The Sri Lanka country report grandly and somewhat speciously attributed this to the fact that the victims prefer to go before the Supreme Court, rather than press a criminal trial in the High Court, where proof is stricter and procedures more complicated.
In a caustic commentary on the report at that time, Sri Lanka’s Civil Rights Movement (CRM) remarked that this is a rather strange explanation, stating that if this argument is correct, one wonders what the need is for the Convention against Torture Act at all. CRM went on to articulate its concerns thus:
Even despite the Supreme Court’s requests for further action in a number of cases, the absence of even a single case being filed for a period of three years, let alone a conviction, raises questions of the government’s seriousness with regard to the effective implementation of its obligations under the Convention Against Torture… It is not our contention that every finding of torture by the Supreme Court means that there is sufficient evidence for a prosecution… Our concern is that the absence of a single prosecution (let alone a conviction) under the Act, and indeed the sparseness at all times of prosecutions, even under the normal law, suggests that the necessary will to engage in follow up investigations and institution of legal proceedings is lacking.
In 2004, these concerns remain stronger than ever. Up to the time of the presentation of Sri Lanka’s fourth and fifth periodic reports under the International Covenant on Civil and Political Rights (ICCPR) before the UN Human Rights Committee in November 2003, no convictions had taken place since the Convention against Torture Act passed into law in 1994. Both in 1998 and now, the state sought to explain itself on the basis that allegations of torture by state officers are only isolated instances. This explanation is belied by the number of cases that are being documented, which constitute a fraction of the total, being only those of persons brave enough to challenge their tormentors, at considerable personal risk.
Meanwhile, it is fair to conclude that none of the rights-monitoring bodies set up by the state, including the National Police Commission recently appointed under the 17th Amendment to the Constitution, have done much to displace the continuing immunity of state officers who commit crimes of torture.
Sri Lanka’s problem is that its custodial officers persist with the same mindset they developed due to massive powers granted by old emergency regulations and prevention of terrorism laws, even though these laws have now lapsed with the cessation of active conflict in the North and East. These extraordinary national security laws encouraged aberrant behaviour on the part of law enforcement officers because they set no minimum safeguards relating to conditions of detention, admitted confessions to senior police officers (though conviction on a mere confession was rare), and did away with normal procedure for inquests, postmortem examinations, disposal of bodies and judicial inquiry after deaths in custody.
In 1998, the Committee asked the government to ensure a review of the emergency regulations and prevention of terrorism laws. It also recommended that the National Human Rights Commission be strengthened to ensure its impartiality and effectiveness, and urged that the government allow individual communications on alleged torture cases to be submitted to it directly. While the first question is now largely academic, given that these regulations are no longer in force, it is still necessary to examine thoroughly the parent statutes so that a future government cannot promulgate these very same regulations at its own whim and fancy.
The Committee’s second and third concerns are still extremely relevant. Overall, there needs to be a serious and concerted effort by all state and non-governmental monitoring bodies to address the impunity of state officers who commit grievous human rights violations, and bring them to justice. To do this, it will be necessary to displace the worrying culture of denial prevalent among Sri Lankans, particularly as to the gravity of the abuses concerned. We need to see this issue occupying news spaces in much the same manner that America is now being forced to confront abuse by military personnel in its prisons and other facilities in Iraq and Afghanistan. To bring a measure of sanity back into our legal system, it will be necessary first to reawaken our collective conscience.
The key question posed to the Sri Lankan government in the May 1998 UN sessions was as to what measures are being taken to eradicate torture, as opposed to measures tocompensate victims? At that time, it was clear that despite the numerous conferences held and research papers written on the prevalence of torture, and despite the conceptually perfect judgements and directions by our courts, law enforcement officers continued to commit acts of torture with impunity.
We have much the same situation now. The only difference perhaps is that the line of questioning by the international human rights community is getting increasingly sharp. Witness the peremptory direction issued by the Human Rights Committee in November 2003, that Sri Lanka report back within one year on particular issues, including the question of accountability regarding torture perpetrators.
This is one indication that graceful apologies by state representatives are getting increasingly short shrift. In turn, those vested with the unenviable task of defending Sri Lanka’s record on human rights in a manner compatible with its international obligations are having a noticeably more difficult task. Linking up the international monitoring systems with the victims in far-flung villages in Sri Lanka, appears accordingly not (if sadly), to be the most effective manner in which recourse to justice may be obtained in the face of immediate domestic indifference to their plight.