Torture and ill-treatment: The tip of the iceberg that is Sri Lanka’s dysfunctional justice system

Basil Fernando, Director, Policy & Programme Development, Asian Human Rights Commission & Asian Legal Resource Centre, Hong Kong

Between January and the start of November 2011, the Asian Human Rights Commission (AHRC) issued some 106 urgent appeals on torture and ill-treatment in Sri Lanka, some of which led to custodial deaths. The majority of these appeals, concerning 85 separate cases, constitute the bulk of this edition of article 2.

None of the descriptions in the cases that follow, however brutal and inhuman, will come as a surprise to anyone who has followed the work of the AHRC on Sri Lanka. Over the last decade, the commission has published a sequence of pathbreaking and minutely detailed reports on the incidence of torture and ill-treatment in Sri Lanka, with extensive, original analyses of its causes and diagnoses of what needs to be done to deal with it. These include the first-ever report on the topic, as dealt with by the AHRC, Torture committed by the police in Sri Lanka, in August 2002 (article 2, vol. 1, no. 4) and a follow-up report less than two years later, Endemic torture and the collapse of policing in Sri Lanka (article 2, vol. 3, no. 1). Subsequent reports have included a special submission to the 46th session of the UN Committee Against Torture in 2005, a book entitled Recovering the authority of public institutions in Sri Lanka, which included the details of a large number of cases, and a report issued in mid-2011, which contained over 300 cases from previous years, selected out of a total of around 1500.

Despite the very large number of cases documented and reported upon, it is a damning indictment upon the institutions of Sri Lanka that up to now not a single case has led to a satisfactory conclusion from the point of view of redress under international standards. Consequently, the long lists of case descriptions in these reports together constitute evidence of blatant and systematic denial of justice.

The cases documented have deliberately been limited largely to those concerned with torture and ill-treatment by the police, and have been documented from the south of Sri Lanka, where the majority of inhabitants are Sinhalese. That these cases constitute the body of the research is deliberate. These reported cases of torture and ill-treatment cannot for the most part be attributed to the conflict between the Government of Sri Lanka and the Liberation Tigers of Tamil Eelam in the north and east, where the AHRC in any case did not have the possibility of interviewing Tamil victims of torture and ill-treatment, let alone making interventions on their behalf. Rather, it was the intention of the AHRC to demonstrate that widespread use of torture and ill-treatment in Sri Lanka is a result of the failure of the entire system of justice and not due explicitly, solely or even primarily to any ethnic conflict or any other extraneous factor.

As the cases in this latest edition of article 2 again reveal unequivocally, the widespread use of torture and ill-treatment in Sri Lanka is not a characteristic specifically of a war setting. Rather, it is an indication of a dysfunctional system of justice. This means that the country’s system of investigation into crimes and human rights abuse, the prosecutor’s office maintained under the Attorney General’s Department and the judiciary are institutions that at every level and in every part of the country are dysfunctional.

The word “dysfunctional” means here more or less the same thing as it does when referred to a mental illness in psychology, where a person is considered dysfunctional when the illness has reached such a point that the individual is incapable of functioning in a rational and normal fashion. When a justice system is incapable of achieving the aims for which it stands and behaves irrationally, producing the opposite of what is being required, such a system too is rightly termed dysfunctional.

From a human rights point of view a dysfunctional system may be described in terms of the failure of a state to fulfil the obligations under article 2 of the International Covenant on Civil and Political Rights, and furthermore, to have no interest even in fulfilling these obligations. Article 2 requires that a state party who agrees to implement the human rights obligations enshrined in a particular covenant or convention will take administrate, legislative and judicial measures to ensure the realisation of those rights by the people living within the territory of that state. When the state fails to take such administrate, legislative and judicial measures, the system becomes dysfunctional and the state’s signature to the convention amounts to no more than an empty parchment promise.

To the people of Sri Lanka human rights commitments in international law of the state are indeed no more than empty parchment promises. The state having pushed the judiciary to a subordinate position to the executive through the constitution itself and by its failure to provide adequate funding for the administration of justice has caused the public institutions of justice to be dysfunctional.

It is unfortunate that international organizations, in particular those of the United Nations, seem to feel shy to recognize and state publicly that the Sri Lankan system of justice is a dysfunctional one. There may be many reasons for their shying away from recognising the obvious facts, which have been revealed in practically every report on human rights in Sri Lanka. Perhaps the most prominent of these reasons is the fact that the international community has not yet developed the jurisprudence and capacity to deal with systems of administration of justice which are dysfunctional, as shown by its responses not only to the situation in Sri Lanka but to those of a number of other similarly dysfunctional jurisdictions in Asia.

Human rights theory and practice since the adoption of the Universal Declaration of Human Rights has been confined to two main areas: the articulation of international norms and standards, and the push to have such norms and standards adopted as local legislation in different countries. The assumption behind such activity has been that if the legislation recognises an international norm or standard, the system of justice concerned will have, or somehow develop, perhaps with international assistance and the goodwill of the people in the country concerned, the capacity to ensure the implementation of such laws. Sometimes the assumption has some justification; however, if and when the assumption is wrong then the entire effort of the international community has little to commend itself to people in countries like Sri Lanka who daily continue to suffer from the types of torture and ill-treatment described in the pages of this edition of article 2.

The accumulated findings on torture and ill-treatment in Sri Lanka by the Asian Human Rights Commission over the last decade, which now come to literally thousands of pages of detailed documentation of the sort found in this publication, together constitute a profound challenge to the international human rights community. The challenge is this: how to make the normative commitments to rights found in conventions like the ICCPR real for the people whose cases are described herein, and not merely for sections of the populations of people living in more developed countries. It is a challenge that the AHRC faces in its work every single day and it is a challenge that surely the United Nations and other agencies concerned with these issues needs to take more seriously, and more fundamentally, if they are to make real headway.

In addition to the cases set out in this edition of article 2 are some extracts from an Alternative Report to the UN Committee Against Torture in Connection with the Third Periodic Report of Sri Lanka, by the Asian Legal Resource Centre, REDRESS, RCT and ACAT. That the Government of Sri Lanka quite clearly and blatantly refused to take with the Committee’s work seriously, despite being a signatory to the Convention Against Torture, speaks volumes of why the sorts of abuses as set out in this edition continue to occur with alarming frequency under its watch, and without any prospects of redress.

The government spent most of its time before the committee on 8 November 2011 giving a very general commitment, stating that the eradication of torture and ill-treatment is a common concern of all, including that of Sri Lanka. However, it failed to address the causes for the widespread use of torture and ill-treatment in the country and also the widespread impunity. The questions of the constitutional justification of impunity arising out of article 35 of the Constitution of Sri Lanka, which places the executive president above the law and outside the jurisdiction of the courts, thus making widespread impunity possible; the virtual stopping of serious investigations into torture by the Special Investigation Unit; the failure to implement the Convention Against Torture Act, No. 22 of 1994, the problems caused by policy changes at the Attorney General’s Department which now takes the side of the alleged perpetrators, rather than the victims of torture, enormous delays in the judicial process which frustrates any judicial action against torture and other serious defects in the system of the administration which acts to benefit of the perpetrators; the failure of the government to bring before the parliament and pass the witness protection law that has been pending for many years; the enormous defects in the exercise of fundamental rights jurisdiction; the pauper-like compensation awarded for serious violations of torture and the complete absence of the rehabilitation of victims, were all ignored in the government’s presentation. No commitment of any sort was given on any concrete action to remedy these fundamental defects of the administration of justice.

The government harped on about what it calls an Action Plan for Human Rights, which is not a law and about which very little known in Sri Lanka. It is more a cabinet paper designed for the purpose of being presented at international forums than for any practical purpose within the country. This Action Plan does not provide any answers to the questions mentioned above.

At the second day of hearings, on November 9, the Sri Lankan delegation was required to reply to the long list of questions posed by the committee members the previous day. However, Mr. Mohan Peiris, who spoke on behalf of the government, preferred to give a long tedious lecture on the law in Sri Lanka instead of answering questions that were about factual situations and actual violations.

Even on the law the impression that Mr. Peiris tried to create about Sri Lanka having a good system of law is altogether false. The 1978 Constitution has caused a complete collapse of the rule of law system in Sri Lanka, as I have most recently described in detail in the publication of Gyges Ring (see inner front sleeve of this edition of article 2 for details), by placing the executive president above the law and outside the jurisdiction of the courts.

Some of the statements of Mr. Peiris were blatantly false. For example, a statement that habeas corpus in Sri Lanka has fallen out of fashion due to the provisions of Fundamental Rights under the 1978 Constitution is sheer nonsense. Hundreds of habeas corpus applications have been filed since 1978, and as a recent study by Kishali Pinto-Jayawardena and Jayantha de Almeida Guneratne has clearly established, most of these applications have failed due to trivial reasons (see inner back sleeve of this edition of article 2 for details). Besides this, the habeas corpus procedure, which should be speedy, takes many years in Sri Lanka, totally defeating the whole purpose of the application. Thus, people’s unwillingness to file habeas corpus applications is due to the popular realisation of the futility of pursuing this remedy. This sense of futility of pursuing redress for violations of rights is a result of a judicial system that is being neglected and which has failed.

In the same manner, the government spokesman refused to answer questions posed on the attacks on journalists and human rights defenders. When asked about the publication in Ministry of Defence website naming several lawyers as traitors his reply was that the publication, in fact, did no harm. He was unwilling to consider the liability of the Ministry of Defence in making such inflammatory claims against these lawyers. When asked as to what action was taken against the persons responsible in the Ministry for making such publications or what measures in place to ensure that this would not recur, it did not occur to Mr. Peiris to address such questions of accountability.

Without any sense of ethics and responsibility Mr. Peiris made some remarks, for example, on the issue of the forced disappearance of Prageeth Eknaligoda. He said that according to reliable information, Mr. Eknaligoda has taken refuge in a foreign country and that the campaign against his disappearance is a hoax. Mr. Peiris failed to provide detailed information on the alleged whereabouts of Mr. Eknaligoda despite claiming that he had “reliable information”.

The committee questioned the willingness of the government to ratify the Optional Protocol to the Convention against Torture, the Convention against Forced Disappearances and the Rome Statute of the International Criminal Court. Despite repeating the questions for the second time, there was no answer forthcoming from Mr. Peiris on these matters.

On answering a question relating to the throwing of a grenade at the house of a lawyer, Mr. Peiris replied that as the lawyer, Mr. Weliamuna himself could not tell the government who threw the grenade it was not possible to identify the culprit of this act. If this principle is followed in all cases of crimes the burden will be squarely laid on the victim to discover the perpetrator, thus exonerating the state from conducting investigations into the crime and discovering the culprits through competent investigations. Considering that Mr. Mohan Peiris once held the post of Attorney General this answer demonstrates that he may not have had the basic knowledge of criminal law and procedure to qualify for such a position, or perhaps, that the system of which he was a part does not have the basic attributes of a system of criminal law at all.

If we look into the reasons as to why Sri Lanka has become incapable of implementing the CAT, we can easily find the explanation as to the manner in which the Sri Lankan delegation participated in, or, some would say, did not participate in a dialogue with the committee.

The reasons for the incapacity to implement the CAT are fundamental, because they are constitutional. Sri Lanka’s Constitution guarantees impunity to the head of the state as well as to any agency of the state of which he is the head. Article 35 of the Constitution places the executive president above the law and outside the jurisdiction of the courts. As total control of all actions of the executive is with the president, almost all acts done by state officers are virtually outside the jurisdiction of the courts. All matters of public policy come from the president.

The direct result of this situation has been the profound displacement of all public institutions of Sri Lanka, the police, the election commission and the civil service. By 2001 there was a general realisation that all the basic public institutions had ceased to function as intended due to over-politicization via the control of the executive president.

Responding to public protest at this highly dissatisfactory state of affairs, the parliament with near unanimity passed an amendment to the Constitution, which is known as the 17th Amendment, and which brought about some limitations on the power of the president to make appointments, transfers, promotions and dismissals of public servants working in the abovementioned institutions. This was an attempt to bring about at least some limited control over the president’s constitutional superpowers.

The present government got rid of these limited controls over the president by passing the 18th Amendment, which virtually negated the 17th Amendment. The direct result was that all public institutions are now under the direct control of the president.

Here lies the basic incapacity of the Sri Lankan state to respect international norms and standards relating to human rights. The political ‘order’ created by the 1978 Constitution and the practices that have become entrenched in the following 33 years have created a situation in which the commands of the president have become law. For example, extrajudicial killings of those persons who are considered as unwanted or bad criminals have now become a frequent practice as a way of dealing with law and order as understood by the regime.

The control by the president of all public institutions directly resulted in the disempowerment of those who hold higher positions in these institutions. For example, in the police the Inspector General of Police and his deputies today have very little control over their subordinates. This has led to the virtual collapse of disciplinary procedures that earlier had worked reasonably well.

Today when torture is practiced at police stations there is hardly any possibility for higher-ranking officers of the police to impose disciplinary sanctions and punish recalcitrant officers. The institution thus faces serious internal difficulties and is incapable of functioning in order to achieve goals of the sort that would be consistent with the CAT and with the expectations of the UN committee.

It is not surprising that persons who have had their upbringing and education in developed democracies fail to grasp what the Sri Lankan legal system is today. This is perhaps the challenge the committee will be faced with in preparing to make recommendations on Sri Lanka. The recommendations of the last session were totally ignored by the government. The usual generic recommendations for investigating, prosecuting and providing judicial remedies are of course always valid but in terms of Sri Lanka are unlikely to produce any positive result.

Under the 1978 Constitution the word ‘impunity’ does not carry much meaning as a human rights problem, since it is implicitly written into the contents of the charter. Impunity for all executive actions is guaranteed by the constitution itself. Thus, the security forces are protected from any legal consequences as long as the executive can exercise such impunity.

The courts in Sri Lanka do not have the legal capability to alter this situation. Unfortunately, in the past the judiciary has interpreted article 35 of the Constitution to mean that presidential impunity is absolute. Over the last 33 years the jurisdiction of the courts in public law and criminal justice issues has been greatly curtailed. In response, public expectations of the courts have also diminished greatly, as manifest from the contents of this latest publication documenting the problem.

We hope that this latest edition of article 2 together with other reports and documentation on the same will contribute to further thinking in the international community on the limitations of its jurisprudence and its own practices in ensuring respect for human rights through actual attempts to implement these rights through a functioning public institutions of justice, and on what can instead be done to give meaning and life to the norms found in United Nations conventions in places like Sri Lanka where up to the present day they remain little more than figments of the imagination, buried under the iceberg of torture and ill-treatment, of which the contents of this edition and those of other publications published by the AHRC and ALRC over the last decade are but the tip.