SRI LANKA: Police torture as an indicator of the constitutional degradation of the Rule of Law 

Sofie Rordam

Sri Lankan citizens are protected against torture and arbitrary arrest in sections 11, 12 and 13 of the Constitution of Sri Lanka. In addition Sri Lanka has ratified the United Nations Convention against Torture and Cruel and Inhuman Treatment in 1994.

While the legislation is there, the effectuation is not. The gap between the rights set out on paper and the daily practice at the police stations is tremendous. The systematically use of torture and extrajudicial killings in the politicized police system deprive from a constitution which leave room for these misconducts to occur and offers impunity to the prosecutors. ( A mentally retarded man was attacked by policemen and drowned in Bambalapitiy, Colombo on October, 30, 2009. Photo: JDSLanka )

While many structural and social factors contribute to the extent and intensity of such procedures and their expansion and development, the core of the problems is to find in the constitutional framework laid out in the 1978 Constitution of Sri Lanka. Further, the recent implementation of the 18’th Amendment to the Constitution delivered the fatal blow to the foundations of any democratic, public institutions and their monitoring or investigative functions accordingly undermining the independence of the judicial system.

The institutional failure’s effect on the use of torture at the police stations

The institutions themselves continue to exist merely as a symbol of the agencies for the enforcement of law they were supposed to represent. The job titles within the institution are upheld, but the meanings that were ones associated with these positions are lost. Consequently, the people in power will arrange the system for their own convenience. The political design of the institutions prevents efficient and independent investigations as the only monitoring sections left are within the police system itself. One would be naïve to expect these to conduct any impartial investigations on colleagues as well as people in powerful positions, who could easily see to their removal from their post.

This comes to show in the strong ranking order within the police system reflecting a deeply rooted patriarchal as well as hierarchical structure of the Sri Lankan society as well as the lack of resources and personnel at the police stations. The hierarchy is one of the contributing factors to the officers’ power abuse exercised on the public.

A retired Woman Police Constable (WPC), who does not want to be named, but who served the Police Department of Sri Lanka for 28 years in different areas like Kegalle, Kandy, Matale, Serunuara and Kanthale, blames the polices’ use of arbitrary power and their violent attitude on the pecking order within the police, which particularly affects the lower ranking officers.

As she explains, “Although we are suppose to work only an 8 hours shift it is usually extended for up to 12 hours most of the time due to the heavy work load and the lack of officers in service. No additional allowance is allocated to the officers. Under these kinds of situations, it is usual for the officers to get deep frustrations and mental traumas. We are not allowed to communicate with higher-ranking officers regarding our situation or to make claims for relief. The senior officers in service treat the lower ranking officers with no sense of humanity or kindness. Most of the times they treat us like slaves.”

When violence and punishment are the lessons given among the officers; naturally the officers will expose these methods in the work as well. The exercitation of power travel down the ranks and the frustration and anger the lower ranking officers encounter subsequently get projected at the citizens, to whom they are still an authority. Citizens coming to the police stations are many times already victims and therefore vulnerable and easy targets.

Lack of education of police officers 

Mrs. Rmar is a retired police sergeant, who served for more than 29 years. She also wishes to remain anonymous and will go under her cover name of ‘Rmar’. According to her view, one of the problems on the ground within the police system is the lack of proper education and continuous training of the officers. She believes that the fundamental errors in the methods and procedures of interrogation and investigation are some main factors leading to the use of torture.

Mrs. Rmar emphasizes that instead of trying to get all possible facts from the suspected, the officers should work to investigate the surrounding facts and reasons for the arrest and collect the necessary evidence. There is a strong need for a systematic technique in the investigation procedure and for a discipline to follow that procedure.

She explains that, “The officers need to have much patience and a scientific approach. They should collect information without breaking the chains of evidence. For that they have to develop their research skills and be able to analyse facts. If they do not pay attention at the very beginning of a crime scene investigation evidence can easily be destroyed.”

Mrs. Rmar notes that training in use of DNA evidence or rudimentary techniques as the taking footprints or fingerprints are included in the basic training of police officers, but with time many of the techniques are forgotten. Without a continuously training of the officers, they will go for the easier method of torturing the suspect in order to conclude the investigation.

However, she also acknowledged that before a proficient education will have a highly significant effect, the structure of the system has to change. Even if the officer school provides highly professional education, when the lower ranks become senior themselves after years with harassment from higher ranking officers, the methods have become so deeply rooted and regarded as a mean to uphold their position. Consequentially, when there are no bodies to monitor the procedures, the system keeps reproducing itself.

Corruption and lack of resources

Many public institutions are undermanned and under equipped due to the lack of resources. Even if the officers get training in advanced equipment for investigations at the officer school, many stations do not provide the gear.

The lack of personnel results in a heavy workload and constant overtime for officers and is a causative factor to the senior officer’s exploitation of the lower ranks. Many times the officers are not able to perform the functions required of them, which contributes to the practice of neglecting mandatory procedures and measures such as maintaining the records of complaints or filing mandatory papers during an arrest and the conduct of impatient interrogations often leading to the use of torture.

It has long been a requirement that police stations contain a separate union for women and children with female officers attached, but with lack of resources the maintenance of the units is not prioritized at many stations. This obviously makes the women more vulnerable to harassment and physical and mental abuse by the officers.

Corruption has become a highly integrated part of the political and judicial system in Sri Lanka and thus in the operations of the politicised public institutions. As mentioned, overtime is an almost daily occurrence at the police stations and as there is nothing as overtime pay, taking bribes is considered a supplement to the salary and a justification of the bad working conditions.

Bribery has also become a tool for politicians or other influential people to see to the arrest, often involving torture, of a political opponent, a critical journalist or a personal adversary or to prevent investigation of cases in their personal interest. Simultaneously, police officers have interest in good relations to the politicians, who can see to their promotions or provide convenient supplements to their salaries.

The well-develop methods and tools of torture at the police stations

In practise, the distinction between physical and psychological torture is often blurred and combinations are at most times inflicted both causing the same horrendous mental scars. What it is prevalent at the stations is that the exercise of physical torture does not only involve beatings, but advanced methods of torture, which requires tools and detailed knowledge of techniques.

Many times the police do not wish to cause permanent damage to the detainee, as it can be used as a proof of torture and increase the chances for prosecution of the officers. Tools and methods, which only cause injuries to the surface of the body, have therefore been carefully enhanced. If the person is remanded for a longer period of time it is common for the police to use severe physical torture in the beginning of the period, while shifting to mental torture in the end, giving the injuries time to heal before the person will see a magistrate or a Judicial Medical Officer (JMO).

These kind of well-developed techniques do not just occur in the “heat of the moment” or are accidental. They are being deliberately performed with tools being present at the stations as well as the methods are being passed down from senior officers to new officers as a part of their teachings.

The medical and judicial system implicit in perpetrators impunity

The police often deny the detainee medical treatment as a punishment and an extension of the torture. However in cases where the detainee is brought to hospital, in many cases, the doctors merely do more than give treatment to the victim. The detainee has the right to see a JMO and the doctors are also obliged to report any suspicious injuries. But neither are the hospitals independent institutions nor are the doctors and JMO’s immune to threats and bribes. Furthermore, there is a lack of JMO’s and especially in rural areas where hospitals cannot provide a fulltime JMO, there might not be one present or available when the detainee is admitted to the hospital.

If the hospitalization is due to ill treatment by the police, the officers in charge will most likely try to prevent the detainee from seeing a JMO or at least they will guard the consultation. Even if the JMO compiles a Medico-Legal Examination Form (MLEF) there is no assurance that the document will get further than the hospital. The police often force doctors and JMO’s to file a false MLEF or the officer will dictate the form himself. There are even examples of detainee’s trying to convey torture and as a result being denied medical treatment by the doctors.

Many times all the stages from the arrest to the court room work as a chain of entwined events where nearly everyone involved becomes complicit in the failure of performing an official requisite procedure for an arrest, which encourage to the use of torture. These failures shall not be looked upon as secluded, exceptional episodes just as the occurrence of torture should not be regarded as isolated incidents, but instead be regarded as regular routines in a system where official documents on requisite measures and legislations on torture are nothing more than scribbles on paper.

Nilantha, a victim of the system’s failure to intervene

These organized procedures are clearly illustrated in the case of Wanni Athapaththu Mudiyanselage Nilantha Saman Kumara (31) from Galgamuwa.

On October 26, 2009, Nilantha and a big group of villagers were helping the police and the village chief searching the jungle near the city for stolen goods from a shop, which had been robbed the previous day. At night Nilantha was stopped by police officers and taken to the police station, where he was detained without an official arrest and with no charges read to him.

For two days he suffered brutal methods of torture conducted by Inspector (IP) Ataputtu, Police Constable Wijeratne and two other police constables. All dressed in civilian clothes at the time trying to withdraw a confession of the robbery of the shop along with a water pump. Under the direction of IP Atapattu, Nilantha was allegedly tortured in a manner known as the Palestinian Hanging. He was tied up and hung from a ceiling beam suspended from his hands in the air. He was told that he would hang there until he confessed. About two hours later, he was taken down, but the hanging was repeated later the same day and he was afterwards beaten and kicked for approximately three hours. Nilantha believes that the officers were drunk at the time.

The next day Nilantha was told that if he gave back the stolen goods, he would not have to go to court the following day, as he had been told earlier, instead he could go home. Nilantha kept denying. He was then subjected to the Dharma Chakra method, where his hands were laid over his knees, a metal pipe was put through the crooks of his knees and elbows and the pipe was suspended and balanced on two tables with his head hanging close to the floor. Meanwhile a bottle of petrol was being poured into his anus.

Nilantha was admitted to Galgamuwa hospital on October 28 and provided some treatment, but he was never presented before a JMO. A MLEF was filled out, allegedly on instructions from an officer. Nilantha was afterwards taken to Magistrate’s Court in Galgamuwa, but he was kept outside the Magistrates office and denied his right of speaking to one.

As his condition was critical he was again admitted to hospital on October 29. This time Nilantha told the doctor about the torture he had suffered, but the doctor accused him of lying even though his body was covered with evidence. She refused to examine him.

During his detention Nilantha was denied proper food at all times and only provided with a few bread lumps. He was released on bail on November 6 and instantly warded in hospital for six days, but even today he suffers great complications. Furthermore, Nilantha has reported that one of the officers involved later showed up as his house and is apparently monitoring him.

Nilantha submitted a written complaint to the Human Rights Commission of Sri Lanka, the Inspector General of Police, National Police Commission and the Attorney General, but until now no legal action has been taken and the perpetrators go unpunished.

The case is a dismal demonstration of how torture is conducted at the police stations with the involvement and knowledge of many officers along with magistrates and doctors complicit in the misconduct as they fail to intervene. The involved people might have been threatened by the police or felt that they had “no choice” than to comply if they wanted to keep their jobs or their families to stay safe. They could also have been bribed or done it out of personal interest. Whatever the reasons, the fact is that these are the bodies supposed to monitor the police, but who have all become deeply implicated.

Officers in the security and judicial systems might be regarded as guardians of the law, but when they become confident in their impunity and there is no law to protect, they become guardians of their own interests.

The role of the international community and the basic perception of torture

Despite immense, international legislation on torture and recognition of torture as being one of the most horrendous of crimes within the international community engaged in human rights, there is still a widespread perception of torture being more or less as an extension of severe violence and a common neglection of seeing it as an isolated phenomenon.

The line between torture and violence is of course not clear-cut and they are both elements of each other, but seeing torture as an aggravated assault disturbs the efforts taken in prevention as well as rehabilitation work. It many times suggests a strategy not corresponding to the roots of the problems of torture. It does not recognize the extension of torture and its severe impact on the individual as well as the collective suffering that is being projected on the community and hereby the way the civil society functions as a unity.

This view is especially prevalent in the global debate about the use of torture in the so-called prevention of terrorism, which is alarmingly reflected in a gradually change of the public opinion towards an understanding of torture as being “necessary” under special circumstances. It is crucial to state, that this debate distorts the perception and recognition of the fundamental issues of torture.

This perception is further expressed by the many countries, who might be state parties to both the ICCPR and CAT, but who have rejected to inscribe torture as a specific offence in their national law. Many of these countries argue that the inclusion would only function as a symbolic act, as torture is already criminalized coming under the section on violence of their Criminal Code. But for the identification of torture as a specific crime that should be treated in its own right, the symbolism is crucial.

It is especially important if these countries, with the UN as their mouthpiece, do not want to come across as hypocrites, as they consider themselves to be pioneering figures in the fight to eradicate torture and push for a constitutional change in Sri Lanka as well as all over the world.

Recognizing torture as an crucial consequence in the breakdown of the Rule of Law 

Many governments on an international plan have a tendency to focus on the more palpable problems regarding the issues of torture in Sri Lanka addressing the education of officers, the resources, the working conditions etc. These subjects are less complex and easier to approach without disturbing a potential, political debate in their respective countries.

It is necessary to note that the mentioned issues are all significant, contributing factors that are principal to address as this article already covers. However, if the platforms for these projects are not present, the initiatives will have little effect. The stable and protective changes will only appear by recognizing and confronting the core of the issues of torture, which in Sri Lanka lies in the collapse of the essential structures for a public society.

Torture is not just someone being beaten up once in a while or occasional accidents. It is an organized way of thinking and an integrated part of the social organization and thus a critical indicator of the collapse of the institutional system. It is by acknowledging this reality that the fundamental work for prevention of torture can be thoroughly understood and approached as a part of the broader context of the exceptional breakdown of the rule of law in Sri Lanka.