(Note: The following oral presentation was made by Sanjeewa Liyanage of ALRC on April 4, 2001, at the 38th meeting of the 57th session of the UNCHR.)
Presented by: Mr. Sanjeewa Liyanage
I speak on behalf of the Asian Legal Resource Centre (ALRC).
The 1994 Convention against Torture Act (CATA) made torture a specific crime and a punishable offence in Sri Lanka. The High Court has jurisdiction over violations, and a criminal conviction carries a seven-year minimum sentence. However, the prosecution of this offence suffers from the same defects of the prosecution system as does all other serious violations, such as extrajudicial killings. The prosecutor, who is a member of the attorney general’s department, will act only if criminal investigations are conducted by the police and a dossier containing evidence is submitted to the department. Naturally, in the case of offences alleged to have been committed by law enforcement officers, such as torture, there is rarely a criminal investigation, which is the prerequisite for prosecution under the torture act (CATA).
This may be illustrated by the recent case of Angeline Roshana, a woman who was kidnapped and tortured by police officers in Narahenpita at the instigation of a rich employer who alleged that a wristwatch had been stolen by her, although there was no evidence. After her relatives and human rights organisations intervened, she was produced in court and sent for a medical examination, which revealed injuries. Despite appeals to the government by human rights groups, no attempt was made to prosecute the case under the Act (CATA). Roshana’s case, like others, demonstrates that there is no legal mechanism to prosecute cases of torture as it remains endemic in Sri Lanka. The reform of the prosecution system remains a precondition for finding an effective remedy as required by Article 2 of the ICCPR.
In Nepal, the Constitution and criminal law also prohibit torture. However, the police at times use torture to punish suspects or to extract confessions. Like in Sri Lanka, the government has failed to conduct independent investigations of police brutality and has refused to take significant disciplinary action against the officers involved. The police often are unwilling to investigate and discipline fellow officers, and people are afraid to bring cases against the police for fear of reprisals.
In Thailand, the heavy shackling of prisoners still exists despite many protests. The use of foot and hand chains causes considerable suffering to detainees and are quite unnecessary from the point of view of modern systems of security. Moreover, this practice is a violation of Article 7 of the ICCPR.
In India, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act enacted in 1989 was designed to prevent abuses and punish those responsible, establish special courts for the trial of such offenses and provide relief and rehabilitation. The offenses made punishable under the act include forcing members of a scheduled caste or scheduled tribe to drink or eat any inedible substance; dumping excreta, waste matter, carcasses in their premises or neighborhood; forcibly removing their clothes and parading them naked or with painted faces or bodies; compelling a member of a scheduled caste or scheduled tribe into forms of forced or bonded labor; and using a position of dominance to exploit a scheduled caste or scheduled tribal woman sexually.
Though the laws exist they are hardly implemented, a situation which should be changed. The lack of implementation must be reviewed. ALRC further urges the Indian Government to ratify the Convention against Torture (CAT).
ALRC recommends that the Commission on Human Rights examine prosecution systems in Asia to bring to justice the violators of this right. It is the actual mechanisms of investigations that need to be reviewed and not just the legal provisions creating offences. Asia’s national human rights commissions should include this aspect in their reports and thus monitor the implementation of legal provisions.
Although causing disappearances are a crime against humanity, they still continue to take place in many Asian countries. Once a disappearance occurs, it is even more difficult to undertake an investigation or a prosecution. The criminal who commits these crimes receives far greater protection than ordinary citizens.
As the Working Group (on Enforced and Involuntary Disappearances) reports [E/CN.4/2000/64/Add.1], Sri Lanka’s record is even more dismal than many other countries. However, none of the recommendations made by the working group, including making disappearances a criminal offence in Sri Lanka and declaring it a fundamental right under the Constitution, have been implemented. This reluctance to deal with the whole issue, notwithstanding a few hundred cases that have been filed, points to two important factors: the extreme weakness of Sri Lanka’s justice system and the nature of the operation which has caused massive disappearances. As for the latter, the operation was directed from the top, and the entire law enforcement apparatus was mobilised for this. Thus, the foundation of the system was transformed. The dilemma that the country now faces is either to continue with this system or face the consequences of a reform at the risk of exposing many people. To continue with this antiquated legal system is to keep the door open for the future collapse of the law enforcement system. Such a dismal possibility, however, already exists.
ALRC urges this commission to consider the failure of the Sri Lankan government to honour Article 2 of the ICCPR as it has neglected to provide a remedy for tens of thousands of people who have suffered gross human rights violations. ALRC also urges this commission to review the recommendations made by the working group [E/CN.4/2000/64/Add.1], none of which the Sri Lankan government has implemented.
Thus, there is no other way for families of victims to find redress as provided for by the international conventions on human rights except through an international tribunal. The failures of the country’s justice system to investigate and prosecute these crimes amply justify a tribunal.
In Indonesia in 1965-1966, Soeharto and his allies orchestrated the disappearance or murder of over one million Indonesians in the name of “communist cleansing.” Thirty-five years later there has still been no thorough inquiry for this crime against humanity. However, in November 2000, the first mass grave was exhumed in Wonosobo, Central Java, that uncovered the bones of at least 21 victims. The international community cannot maintain its silence any longer and must support an independent tribunal to investigate and prosecute these crimes.
Thank you, Mr. Chairman.