SRI LANKA: The inadequacies of the torture prevention policy adopted by the Human Rights Commission of Sri Lanka
(The Human has announced that it will launch a Torture Prevention and Monitoring Unit on 22 May 2004. On February 19 its Chairperson issued a short policy paper on torture. In this statement the Asian Human Rights Commission, together with its partners in Sri Lanka, examines this policy and makes recommendations for the improvement of both the policy and practices of the Commission.)
We welcome the inauguration of the Torture Prevention and Monitoring Unit within the Human Rights Commission (HRC) of Sri Lanka. However, we hasten to add that we hope this will not prove to be a mere gesture intended only to make Sri Lanka's human rights record look good in the reports that the government submits to agencies abroad, including the UN agencies for human rights. There are many such 'units' referred to in various reports, but people living in Sri Lanka are often unaware of them, as they do nothing much to redress the grave violations of human rights taking place in the country.
Perhaps one way to reflect fruitfully on the task of this new unit is to examine why the HRC has failed to develop even a moderately effective programme to deal with the endemic torture that is taking place in Sri Lanka. The oft-repeated answer is that the Commission does not have sufficient financial resources. One hopes that the new unit will not be offering the same excuse after some time. Whatever the validity of this explanation, it is also very clear that the Commission has lacked a clear policy regarding the elimination of torture in keeping with the UN Convention against Torture. Even now, going by an official HRC statement made on 19 April 2004, the Commission has not shown a serious understanding of how torture is deeply embedded in the country's criminal justice system. The HRC's statement was as follows:
"From May 2004, the Human will institute a zero-tolerance policy on torture. The elements of the policy are:
"The setting up of a 24 hour special unit for torture and emergency cases, investigation on torture cases will begin within 24 hours of the incident being reported, whenever there is a death in custody with an adverse medical report, the OIC [Officer in Charge] of the police station will be summoned before the HRC, discussions with Police Commission to secure interdiction of police officers found guilty of torture by the Human Rights Commission or the Supreme Court.
"In addition the HRC will work with the police to implement the Memorandum of understanding between the HRC and the IGP [Inspector General of Police]. The elements of that understanding were:
"Posters with regard to the rights of suspects shall be displayed in all three languages in all police stations, training programmes on human rights at the Police Training Institute will be strengthened. Family members and lawyers will be able to visit anyone held in detention. Officers-in-Charge (OIC) of stations to be held directly accountable for cases of torture at the police station. The HRC, the Inspector General of Police (IGP) and the Police Commission to consider the possibility of indicting police officials who been held guilty of fundamental rights violations before the Supreme Court."
It is worthwhile to examine this brief statement to assess even whether it can be realized, and in so reduce, if not eliminate, the type of torture that exists in Sri Lanka. In doing so we will make reference to some specific cases.
'Zero-tolerance': A soft expression hiding an inadequate policy
In terms of the Convention against Torture (CAT) and corresponding CAT Act (No. 22 of 1994) in Sri Lanka, 'zero-tolerance' is not in itself a policy objective. Under international law torture is regarding as one of the most heinous of crimes. Under the law of Sri Lanka, torture has been defined as a serious crime. When it comes to crimes such as murder, rape, etc., we do not talk of 'zero-tolerance'; we talk of them as crimes, and the perpetrators as criminals. To begin with anything less is to soften the fight against torture. The clear message that the perpetrators of torture should receive is that they are criminals and that they will be dealt with as such. What message does 'zero-tolerance' carry to torturers? Had the Commission said that it would consider it a priority to implement and to improve the CAT Act in Sri Lanka and punish the perpetrators, it would have carried a message to those who engage in this practice despite there being a law against it since 1994.
The soft expression used by the HRC speaks to its past practices on torture. Until not very long ago HRC officers settled torture cases for small sums of money, if anything. In some cases the settlement was Rs 1000 (about US$10). Torture inquiries were reduced to arbitration. The idea that they were dealing with a serious crime under domestic law and a heinous crime under international law did not enter into the minds of these officers. They adopted a scandalously careless approach, to the great relief of the perpetrators. The present zero-tolerance approach does not show a significant break from that thinking.
What does dealing with torture as a crime imply?
a. Criminal investigations: A criminal investigation takes place whenever there are complaints of torture. Anything less betrays both the domestic and international law on torture.
b. Criminal trials: It may be argued that the HRC does not have the mandate or resources to deal with torture as a crime. However, this argument is meaningless when it comes to how the HRC should approach the issue. If it does not have resources and power to take on torture as a crime (as required by law) it should be ready to work critically and seriously monitor other state agencies that are required to deal with torture as a crime. According to government reports to UN agencies such as the UN Human Rights Committee and the Committee against Torture, the official function of making criminal investigations into offences under the CAT Act is assigned to a Special Investigation Unit (SIU). The SIU functions under the Prevention of Torture Perpetrators Unit (PTPU) out of the Department of the Attorney General. The government claims that this Unit has filed about forty cases in High Courts, though so far there has not been a single successful prosecution. Whatever the defects are--and many are visible--torture has not yet once been dealt with as a crime in Sri Lanka.
c. Studying existing procedures: The starting point for any serious discussion on the elimination of torture in Sri Lanka should be to study the existing procedures for investigation and prosecution and their limitations, and thereafter to develop an effective strategy to overcome them. Such a study and a counter-strategy could lead to improvements.
d. Improving existing procedures: How could the HRC contribute to the improvement of criminal investigations and the prosecution procedure as existing now?
i. Treat all investigations into allegations of torture as possible cases for prosecution. This would imply that torture complaints would be investigated with a view to gather all the evidence with which to prove an offence of torture in a criminal case, which at an appropriate stage would be shared with the Department of the Attorney General, to pursue prosecutions.
ii. Critically monitor the PTPU investigations and prosecutions and make official representations where reason exists to be dissatisfied.
iii. Engage civil society on torture and the ways by which legal redress can be obtained for acts of torture, through education and other means.
iv. Engage the National Police Commission (NPC) and the Police Department and instruct police officers that torture is a crime for which they will be punished, thereby establishing a different set of principles in dealing with torture.
'A 24-hour special unit for torture and emergency cases': Nothing new
Such a unit has been in existence for several years. In spite of many defects, it has done a useful service by receiving calls, talking to--and sometimes visiting--police stations. This is a good practice coming from the time of the earlier Task Force. However, this work needs considerable improvement if it is to prove capable of dealing with reports coming from various parts of the country and to deal with them effectively.
In the case of Mr. K.P. Tissa Kumara, for instance, a young artisan who was severely beaten by an officer of the Wellipena Police before a TB patient was made to spit into his mouth, a prompt complaint was made to the HRC. The incident took place on February 3, but there has been no real help offered to this person by the HRC. On April 30 doctors suspected that he had caught the disease. All this time he was in the remand prison with serious bodily injuries and unable to take any precautions to prevent the spread of TB in his body.
This is one of many cases where the HRC's unit for dealing with complaints could have made a difference, but to do so it needs guidelines, and proper supervision. Has the HRC made any such guidelines and arrangements for supervision of this new unit? If not, its use will be very limited, and many will continue to suffer like Mr. Tissa Kumara.
'Investigation on torture cases will begin within 24 hours of the incident being reported': What does it mean?
This is a welcome change from the present position, where often even months after a report no investigation really takes place. However, what the 'beginning' of investigation means has not been made clear. To make it clear it is necessary to have an investigation procedure.
The need for an investigation procedure: One of the criticisms of the HRC from its very inception has been the lack of an investigation procedure. Despite its administration changing hands, there has been no attempt at all to lay down such a procedure, which may explain the cheap settlements easily arrived at in the past. If the beginning of an investigation is to be a meaningful exercise the HRC must lay down a procedure for its investigations and make it known to the investigators and the public. That way, the investigators will know what to do and the public will know what to expect.
Though it is said that the investigation will begin in 24 hours, nothing has been said about when it will end. There are so many cases where complaints have been made to the HRC and the complainants even up to now do not know what has happened to their cases. The case of Chamila Bandara, the 17-year-old boy severely beaten by the Ankumbura Police, is one instance. The complaint was made in July 2003. However, up to the present day the inquiries are continuing. In some cases where victims have allegedly been kept in remand custody on fabricated charges after torture, the inquiries have gone on for up to a year while these people remain in prison.
Will it be different now that inquiries are to begin in 24 hours? There is no reason to think so, unless a clear investigation procedure is laid down and the complainants are made aware of how proceedings are going. The harsh distancing of the complainants from the investigating systems, and making everything appear as if they have no right to know anything about the investigation will only ensure that things will remain as they are.
Dealing with rogue investigators and corrupt Area Coordinators: Further questions can be raised regarding investigations conducted from Area Offices. Who will conduct these inquiries? Will it be the same people as before, i.e., the Area Coordinators? How about the Area Coordinators who are known to be collaborators with the perpetrators of torture, such as the Area Coordinator of Kandy, whose betrayal of victims of human rights violations and whose partiality to the perpetrators is well known? Many parties have placed complaints regarding this Coordinator with the HRC for a long time now without any results. If such 'investigators' continue, what will be the effect of beginning inquiries within 24 hours? Would it mean that as soon as complaints are made perpetrators will be alerted so that they can do all they need to subvert the inquiries and to harass the complainants?
The need for witness protection: Everyone knows that the most difficult obstacle in eliminating torture is that the complainants fear the consequences after making complaints against security personnel. The fear is well founded, as the poor in particular have been subjected to harsh punishments after making complaints. Most frequently they have been implicated in crimes which they did not commit. For example, after Lalith Rajapakse made a complaint about brutal injuries caused to him by the Kandana Police, he was charged with two counts of robbery. Having attended court for almost two years he was acquitted from the charges, as there was no evidence at all against him--not even an adverse witness statement. Angelina Roshana, a girl brutally tortured by the Narahenpita Police, was also falsely charged with stealing a gold watch worth about Rs 500,000, but later acquitted because there was no evidence at all against her. Chamila Bandara, mentioned above, has been falsely charged with several counts of theft, without the slightest evidence. Tissa Kumara, also mentioned above, is still in remand falsely accused of possessing a bomb. A long list of similar cases can be cited.
There are other measures used to intimidate persons who make complaints. Chamila Bandara's family was exposed to so much harassment that they had to leave their home. They did so in late July 2003 and to the present day have been unable to return. They lodged a complaint with the HRC, but no attempt was made to provide protection for their return. Michael Anthony (Tony) Fernando, who has complained of being tortured when he was in remand custody, later escaped a kidnapping attempt and has been in hiding for several months now.
Any serious attempt to deal with torture must be accompanied by a programme of witness protection. The United Nations Human Rights Committee made recommendations to the government of Sri Lanka to this effect on 2 November 2003.
'Whenever there is a death in custody with an adverse medical report, the OIC of the police station will be summoned before the HRC': A highly flawed proposal
Why the qualification? The qualification for HRC intervention in custodial deaths only 'with an adverse medical report' is surprising. A major cover-up in custodial deaths takes place well before medical reports are made. For example, when a person is said to have hanged himself inside a police cell, the scene is easily pre-arranged and doctors called merely to certify the police version of what happened. The victims' families need help before that stage, but lawyers are not usually allowed in while investigations are taking place inside police stations.
In the case of Garlin Kankanamge Sanjeewa, whose body was found hanging in a police cell at the Kadawatha Police Station, his mother alleged that she was called to the station under the pretext that her son was in police custody. Only several hours after arriving at the station was she brought to the place where her son was hanging, and merely to identify his dead body. The doctor was already present. She had no assistance to protest the manner in which the investigation was conducted. Later she buried her son's body in a relative's compound with a view to getting a second post mortem. It is really at the earliest stage of death in custody taking place that the HRC must make its intervention, otherwise in many cases it will be too late.
Why summon the OIC? It is very difficult to understand what objective would be served by summoning an Officer-in-Charge (OIC) of a police station after a death in police custody. The HRC has not explained what it would do after summoning the OIC. Earlier it had made an announcement that whenever torture takes place at a police station the OIC would be held responsible. However, it never explained exactly what action would be taken against such an OIC. Since that announcement literally hundreds of torture complaints have been made but not one OIC has ever been summoned to the HRC. The public has a right to know how an OIC will be held to account, and what consequences are envisaged. Making empty threats only makes a bad situation even more ridiculous.
OICs are criminally liable: Under domestic and international law, an OIC can be held liable as a person aiding and abetting an offence. As the chief investigator of all crimes taking place within a police station, he is estopped from denying knowledge about what took place during a criminal investigation under his jurisdiction. He can also be held for conspiring in the offence of torture taking place within his station. Therefore the HRC must examine the criminal liability of an OIC for any act of torture taking place within his station and recommend what should happen to such officers under the CAT Act.
The liability of an OIC also arises from the principle of command responsibility, under which an OIC can be held responsible for a violation of fundamental rights. The HRC has a right to conduct inquiries on violations of fundamental rights and there is no reason to exempt an OIC from liability for fundamental rights violations taking place within his police station.
ASPs are also responsible: There is no reason for command responsibility to stop with the OIC. In fact every Assistant Superintendent of Police (ASP) has direct responsibility for supervising the police stations in his area. In terms of disciplinary control, his liability matters even more than that of the OIC. In the past there had been some instances when ASPs were summoned by the HRC. When the ASP Kodithuwacku was summoned he challenged the authority of the inquiring officer. How the matter was resolved remains a mystery to the public. In dealing with torture it is essential that the command responsibility of the ASP be addressed. In fact the Supreme Court has held, in the case of Gerald Perera, among others, that the responsibility continues on up to the Inspector General of Police. The HRC should at least begin by upholding the legal developments that have taken place in the country so far. To set standards far less than these will undermine the human rights struggle to eliminate torture. In fact, the HRC is duty bound to uphold the norms and standards of the United Nations regarding torture.
Doctors are also liable: One of the major impediments to torture victims seeking redress are the inaccurate and even sometimes false medical reports filed by some District Medical Officers and Judicial Medical Officers. Often local relationships and other obligations cause medical officers to issue misleading medical reports. The HRC should discuss with the Medical Council about ways to prevent this practice. Where the HRC has evidence of false reports being issued, the doctors should be summoned to the HRC and also officially reported to the Medical Council.
'Discussions with Police Commission to secure interdiction of police officers found guilty of torture by the Human Rights Commission or the Supreme Court': The Establishment Code versus the Constitution
The position so far held by the Police Department is that as judgements of the Supreme Court on fundamental rights applications do not amount to criminal convictions these should not affect the promotions of the officers concerned. The argument is based on the Establishment Code, which stipulates disciplinary consequences for state officers who are convicted in criminal offences. The implication is that the fundamental rights enshrined in the Constitution do not matter. The HRC must challenge and defeat this position. Mere discussions with the National Police Commission (NPC) are not likely to yield any significant result until the Police Department and NPC admit their duty to uphold the Constitution and police liability when provisions of the Constitution are violated.
We will now turn to examine some areas of concern not yet addressed by the HRC.
Trauma and Post-Traumatic Stress Disorder
Torture has a terrible effect on the mind and emotions. As a result, literally tens of thousands of people across the country are suffering from trauma and Post-Traumatic Stress Disorder. One does not have to go very far to discover persons suffering acutely. All that one needs to do is to interview a few torture victims and the stark reality of extremely deep psychological problems will soon surface. But what services are available to deal with such problems? In fact, they are extremely limited and very inadequate. Some good doctors have tried to be of some help, however, their work has meant little overall in an ocean of deep distress and trouble.
The Sri Lankan government is obliged under international laws to which it is a party to provide facilities for persons suffering from the psychological effects of torture. However, it has not at any stage created a facility for the treatment of torture victims, nor allocated any funds for this purpose. It has no plan at all to address this issue.
The HRC likewise has to date done no work in this area, and nor does its recent policy statement make any reference to the psychological consequences of torture. This is a very serious lapse of policy that needs to be corrected as soon as possible. Its first obligation is take up the matter with the government and persuade it to comply with international law. This could be done by way of recommendations and lobbying. The HRC can also help the government to draw up specific plans. By engaging the public on this issue the HRC can also educate people to exercise influence over the government to establish such facilities.
While persuading the government to honour its obligations the HRC can also try to influence the community to assist torture victims. Strong appeals by the HRC would likely find responses from psychiatrists, doctors, counsellors and other concerned persons. Victims coming forward to make complaints about torture could then be directed to such persons, and organisations dealing with trauma and psychological problems. In fact, the HRC should have a unit to deal with this issue alone, or in the interim at least a volunteer group under its supervision. As for finances, it is quite likely that there would be both local and international donors to help if such a unit were established.
Institutional liability for torture
The HRC has approached torture purely from the point of view of individual liability. However, torture is primarily an institutional problem. The endemic torture as found in Sri Lanka is a result of a tacitly accepted policy that torture is necessary and unavoidable. Successive commissions appointed to inquire into the police--Justice Soertsez's Commission of 1947, Justice Basnayake's Commission of 1970, Subasinghe's Salaries Commission of 1978, and Jayasinghe's Commission of 1995--all pointed to institutional problems. Later commissions inquiring into forced disappearances also laid bare the grim reality that torture is entrenched in policing in Sri Lanka.
In fact, there is no controversy on this point. The 17th Amendment to the Constitution was itself based on the need to address the problems of some public institutions, including the police, which have collapsed due to developments in recent times. Some researchers who have held high positions in the Police Department itself have revealed the inherent limitations of the system as it exists today. In a letter dated 6 May 2004 to the Attorney General, written on behalf of the Asian Human Rights Commission, Basil Fernando pointed to this:
"It would be quite naïve on our part to think that the police in Sri Lanka would want suggestions from any of us if they really want to stop torture taking place at police stations or elsewhere during criminal investigations. They would already know HOW to do this, if they really WANTED to do this. The real problem is that there is a firm belief that torture is necessary and unavoidable. The ratification of the CAT Convention against Torture and even making it into a law through the CAT Act (Act No.22/1994) was done without the proper engagement of the police in the exercise. The result was that the police were not confronted with the need to abandon a well-entrenched practice in their institution. Thus the police themselves did not have a part in making one of the most fundamental reforms that was required by the CAT and CAT Act. Even after the making of such a law and the undertaking of such serious international obligations the police were not constructively engaged in looking into the new law and exposed to the obligations and implications it entailed. The result was that almost always in private conversations, the police officers, including those of high rank, spoke and continue to speak of the practical impossibility of doing away with torture. Until this problem is internally resolved by way of genuine and open engagement within the police force itself no amount of external compulsion will be able to bring about the required mindset and the institutional conviction to honour the obligations under the CAT and to implement the CAT Act. In this regard your position as the country's highest legal officer would be useful in engaging the police, particularly the higher-ranking officers, into a serious internal dialogue of the thinking, history and philosophy behind the CAT. I do not mean human rights education for these officers, I believe they are broadly aware of the arguments in favour of the CAT Act. In fact what I mean is a more practical institutional dialogue within which they could openly discuss the views that they hold. If in such a dialogue they agree to eliminate torture, I feel sure they will tell us HOW."
Without a clear change in policy arrived at by way of a decision within the Police Department itself there is no possibility of eliminating torture. So long as the police tolerate, encourage and think of torture as necessary and unavoidable the HRC's 'zero-tolerance' will be of little consequence.
The educational role of the HRC towards eliminating torture
A strong educational component is missing from the HRC's policy on torture, as it has been since the beginning of its work. This is interesting, as some other national human rights commissions, even where they have failed in other areas of their mandate, have tried to fulfil their educational function.
Strong educational work via electronic media and other means would do much to eliminate torture. Widespread education on the CAT Act would benefit civilians as well as security officers. Education on legal remedies and how to obtain them would be useful to everyone. Public education would create the pressure needed for policy changes. The HRC can have free access to public media channels. Even private media channels are likely to respond to a call to support this mission. Creative persons in the human rights field, legal field and in the media can collaborate and achieve results within a short time.
Recommendations
To develop a serious strategy towards the elimination of torture we urge the HRC to
a. Make a clear policy statement on the elimination of torture based on Sri Lanka's obligations under the International Covenant on Civil and Political Rights (ICCPR) and CAT, as well as the CAT Act of Sri Lanka. Such a paper will help the public to understand and cooperate with the HRC on this matter.
b. Concentrate on implementing the CAT Act while at the same time trying to improve it in line with the CAT. Develop strategies and methodologies to cooperate critically and monitor criminal investigations and prosecutions currently taking place under the ad hoc arrangements of the Prosecution of Torture Perpetrators Unit. Critical cooperation means studying how investigations and prosecutions are done now and taking suitable action to ensure improvements. The HRC can also monitor investigations and prosecutions to ensure EFFECTIVE REMEDIES in terms of article 2 of the ICCPR.
c. Develop and adopt a complaint receipt and investigation procedure without delay, to serve as the basis on which all investigations are conducted and reported. This implies abandoning earlier procedures for dealing with torture cases, such as the reaching of settlements. The procedure should be made available to the public so that people will be aware of what actions will be taken when they make complaints.
d. Set a time within which to complete inquiries, and require that complainants be kept informed about the progress of their complaints.
e. Inform the Department of the Attorney General where prima facie evidence of torture is uncovered, and ensure that proper criminal investigations and prosecutions follow.
f. Establish and enforce a disciplinary procedure over inquiring officers who deliberately sabotage the process and side with the perpetrators. Take other measures to prevent negligence by investigating officers. Take prompt action to investigate and make appropriate decisions, particularly where corruption is alleged.
g. Enforce command responsibility for torture, from OICs of police stations to ASPs and all others up to the IGP.
h. Give special priority to trauma and Post-Traumatic Stress Disorder among torture victims. Take appropriate action for the government to recognise and respect its responsibilities in this regard. Establish a unit within the HRC, even with volunteers, to provide services to such victims. Refer all torture victims who make complaints of torture to the HRC to qualified professionals for medical and psychological examination and treatment.
i. Treat torture as an institutional problem arising from the nature of the police force as it exists now. Make suitable studies and generate public discussion and debate on the ways to overcome the institutional limitations legitimating torture. Engage the NPC, Police Department, and other responsible agencies--such as the Department of the Attorney General--in a policy discourse for institutional reform. Provide the necessary technical assistance to the NPC and Police Department to evaluate and adopt practices that eliminate torture. In this regard, engage the government as well as the civil society for quick implementation of the Public Complaints Procedure envisaged by Article 155G(2) of the amended Constitution, which requires that the NPC establish such a procedure.
j. Undertake nationwide education on the CAT and CAT Act of Sri Lanka, and the ways to implement legal obligations arising from these.
A word of gratitude
What the HRC will do to eliminate torture depends very much on the pressure exerted by civil society organisations. Up to now these groups have exerted most of the effort in dealing with torture, working closely with the victims, providing them emotional and even financial support, helping them through the legal process, and also trying to use the media to gather support. In the future too the main burden will remain with civil society. Whether the Human will change its inadequate policies and practices will depend very much on the pressure of these groups. We take this opportunity to express our appreciation to all those persons and organisations engaged in this struggle, and urge them to sustain their efforts in the fight to eliminate torture.
