The absolute prohibition on torture
The absolute prohibition on torture is beyond question.
Article 2 of the Convention Against Torture clearly instructs that states must not engage in or permit torture:
(1) Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
(2) No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
(3) An order from a superior officer or a public authority may not be invoked as a justification of torture.
The Convention defines torture broadly:
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
But the prohibition is not contained only within the Convention Against Torture. The 1949 Geneva Conventions, signed by most of the world’s states, prohibit torture in international conflicts and, in their common article 3 containing basic humanitarian standards, in non-international armed conflicts. Torture is prohibited under article 5 of the Universal Declaration of Human Rights, article 7 of the International Covenant on Civil and Political Rights, and other key international human rights instruments. Even for states not signatories to these agreements, torture is prohibited. Torture is a jus cogens norm of customary international law, meaning that it applies without any treaty, with no exceptions, and with no derogation permitted (meaning that states cannot change this legal obligation). This has been widely recognised by scholars and legal authorities and is implicit in the terms in which the world community has rejected torture. Torture is universally condemned, and no state publicly supports it.
The historical abolition of torture in Europe
Many European countries abolished torture in the late 1700s or early 1800s. In 1754 a landmark work by Cesare Beccaria, On Crimes and Punishment, criticised elements of the justice system that included the practice of torture, and called for a more enlightened way of dealing with crime. While there was a major moral element to his criticism, Beccaria also took a scientific approach that foreshadowed the terms in which utilitarians like Jeremy Bentham (who acknowledged the great influence of Beccaria on his work) would argue for penal reform. Today, utilitarianism is often criticised as theoretically allowing for gross abuses like torture, and Bentham is infamous for having referred to human rights as “nonsense upon stilts”, but in Beccaria’s analysis it was very clear that torture was not just morally wrong-it was also ludicrous from a scientific penological point of view.
In chapter 16 of his text, Beccaria began with a moral question: by what right could we ever punish someone with torture when there is still doubt about the person’s guilt? But he also criticised the supposed usefulness of torture. Torture could create so much pain that one would do anything to get out of it, including confessing to crimes of which one was innocent. Thus, Beccaria said, “All distinctions between the guilty and the innocent disappear as a consequence of the very means which was meant to discover them.” Indeed, if anything, the innocent were made worse off than the guilty, for criminals would have the chance to be acquitted by withstanding torture, whereas innocent persons would always suffer unjustly. Thus, torture for investigative purposes was both immoral and irrational. Beccaria also criticised torture as excessive and difficult to control. Again, there was a moral element to his criticism, as he asked, “What reader of history does not shudder with horror at the barbaric and useless tortures that so-called wise men have cold-bloodedly invented and put into operation?”
Beccaria’s refusal to accept torture (which was also made by other Enlightenment writers, such as Montesquieu and Voltaire) attracted the interest of his contemporaries. People had certainly criticised it in the past, but Beccaria’s text came at a time when other factors contributed to a movement against torture. First, there was increasing judicial discretion in sentencing and the use of incarceration as punishment in place of the death penalty. Second, there were major changes in the law of evidence away from the extraction of confessions that made it easier to abolish torture. So the abolition of torture was a complex process based not just on moral argument but also on systemic changes.
Of course, it should be noted that even as European powers were abolishing torture at home, their colonial forces were often still using torture. The nature of colonial governance was such as to grant colonial rulers absolute power, and this facilitated abuses of authority that included torture. Colonized peoples were legally powerless against these abuses, and if they opposed them through revolutionary movements, this gave rulers all the more supposed reason to use torture. Police forces in colonies were a new type of institution without clear conventional restraints as existed, for instance, in Britain, based on centuries of experience. The lack of established restraints on police forces may also have been important in facilitating their use of torture.
The modern face of torture
Even after they abolished torture in the 1700s and 1800s, European countries returned to its use in the 1900s, often claiming ‘state security’ reasons. Nazi Germany and Stalinist Russia are gross examples of totalitarian states that used torture as part of the state security apparatus. The military dictatorship in Greece after World War II also used torture allegedly for state security purposes. And even democratic countries that claimed to be facing serious security situations fell back into the use of torture. France turned to torture in Algeria in the 1950s, and the United Kingdom used it at various points in Ireland. It should not be surprising, then, to see that there was open public discussion in the United States after September 11 on the potential use of torture in the ‘war against terrorism’. Once some threat, real or perceived, is established, a state that prioritises its security is soon in a situation where torture can become tempting. This is especially the case once state ideology makes it possible to cast some group from within as part of the enemy.
Evans and Morgan have set out the features of the modern form of torture in very generalised terms.[2] They see it as having reemerged in the service of new state ideals, shaped by new technologies of power, and linked with globalised violence. Torture is used for a variety of purposes, both to get a response (such as information) from an individual victim and to send a message of terror to dissenting groups by punishing some people. It is generally, though not exclusively, status-related and directed against marginalised groups. The time of initial police custody is the time of greatest vulnerability. According to Evans and Morgan, modern torture differs from that in the past in that, although states secretly see it as appropriate in dealing with crime and terrorism, they officially deny it. So torture is secret rather than open, and hidden rather than rule-governed. This makes it difficult to struggle against, because it first needs to be exposed. In the end, modern torture functions as a tactic of state control that limits democratic participation.
The UN Special Rapporteur on Torture has referred to particular factors as facilitating and encouraging torture. Some of these have been consistent themes since the Special Rapporteur’s mandate was begun. The Special Rapporteur’s first report in 1986 recommended certain steps to deal with torture: criminal prosecution of perpetrators; exclusion of evidence extracted under torture; restrictions on incommunicado detention; protections of habeas corpus; interrogation restricted to official centres; recording of interrogations where possible; training of security personnel; regular visits to detainees by a commission dealing with conditions of detention, to include medical personnel; judicial inquiries into any reported cases of torture; compensation for torture victims and their families; and restrictions on the trade of material and equipment used for torture.[3]Recently, the Special Rapporteur has drawn special attention to incommunicado detention and impunity. The Special Rapporteur’s 1999 Report states that “incommunicado detention is the most important determining factor as to whether an individual is at risk of torture”.[4]The report goes on to note that among other factors, “impunity continues to be the principal cause of the perpetuation and encouragement of human rights violations and, in particular, torture”.[5]
Torture in Asia
Walter Kaelin, vice-president of the Association for the Prevention of Torture, delivered the concluding remarks at the South Asia Seminar on the Prevention of Torture in Kathmandu, Nepal on 9 September 2000. He listed key factors that have been conducive to torture in South Asian countries:
1. Anti-terrorist, emergency, and similar laws;
2. The practice of not registering an arrest at the time when it is carried out, of not promptly informing relatives about an arrest, of not conducting and registering medical examinations of those arrested, of not allowing arrested persons to access a lawyer or even of using forms of deprivation of liberty that amount to detention but are not recognized as such;
3. Delayed decisions about the granting of compensation to victims of torture and ill-treatment;
4. Weak supervision of higher police and administration of prison agencies, corruption, and legal or de facto impunity of perpetrators; [and]
5. Lack of political will and action to combat and eradicate the practice of torture. [6]
AHRC has highlighted a number of factors conducive to the occurrence of torture in Asia. These include:
1. Undemocratic and non-transparent government;
2. Police or military not under government control (including due to low salaries or corruption);
3. Organised crime operating with impunity;
4. An inability to organise citizens’ groups to oppose torture;
5. Perpetrators of torture not tried or removed from society;
6. Cultural or religious support for torture; and
7. Undemocratic legislation to prevent human rights advocates from speaking out against torture.[7]
In both of the above lists, some factors can be broken down further. For instance, to merely say that there is a ‘lack of political will’ does not tell us anything about how to end the lack of will. Non-prosecution of perpetrators also needs to be considered further, to establish why there is non-prosecution. However, these outlines illustrate the broad extenuating circumstances that contribute to the use of torture in Asia.
Torture in Sri Lanka
The law and impunity
Sri Lanka has legislation directed against torture and police brutality, including specific anti-torture legislation and other laws such as the law of evidence, designed to try to discourage torture. Nonetheless, there is no question that widespread torture is perpetrated in Sri Lanka. AHRC has documented dozens of cases of torture in ordinary criminal investigations, let alone torture committed during anti-terrorism or military operations. Amnesty International’s 2002 Report on Sri Lanka notes that, “Torture continued to be reported on an almost daily basis.”[8] Sri Lanka’s President has even reportedly admitted that the government continues to violate human rights and victimise people.[9]
The key piece of legislation against torture in Sri Lanka is Act No 22 of 1994, the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Act, under which every act of torture is supposed to be a very serious offence for which the perpetrator should be prosecuted and imprisoned for at least seven years. Formally, Sri Lanka has a powerful law against torture, but to date despite numerous cases with solid evidence there has never been a case brought under Act No 22 of 1994.
A law alone does not mean that a practice will end, particularly if it is facilitated or encouraged in other ways. Sri Lanka’s police tasted blood when involved in the tens of thousands of disappearances that have been documented in Sri Lanka. While there were always laws against murder, other aspects of the law facilitated these disappearances. This was particularly the case when officers over a certain rank were given the authority to dispose of dead bodies without any coroner’s report, which effectively authorised them to perpetrate disappearances. While a formal law against murder existed, other factors in the system were actually facilitating and encouraging disappearances.
Sri Lanka’s law of evidence is also designed to inhibit torture. Historically, England’s criminal justice system was less dependent on confessions than elsewhere in Europe, and this discouraged torture. Under the common law, confessions were not even usable as evidence. Only by way of the 1898 Criminal Evidence Act did English statute give criminal suspects the option of confessing to the police. Sri Lanka generally adheres to a legal position on confessions comparable to the old English position, one designed to help limit police brutality. Under section 25(1) of Sri Lanka’s Evidence Ordinance, “No confession made to a police officer shall be proved against a person accused of any offence.” Under section 26(1), “No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.” In other words, confessions that the police extract by any means should not be useful to them, and they should not have an incentive to torture for the sake of extracting a confession.
A number of conditions in Sri Lanka mitigate the protective elements of the law on evidence. One is that it applies only in ordinary criminal circumstances. Section 17 of Sri Lanka’s Prevention of Terrorism Act, to be discussed further below, overrides these sections of the Evidence Ordinance in the circumstances covered by that legislation. However, at least in ordinary criminal cases, it would seem that the Evidence Ordinance should remove the incentive to torture for the sake of extracting a confession. In reality, though, the police can still gain an advantage from extracting a confession. Some observers note that information extracted through torture-the most common method of criminal investigation-can serve as a shortcut to other witnesses and evidence (and the police may be using torture only against a prospective witness).[10] When the police are dealing with persons who do not know their legal rights, they can also use confession as a powerful tool to obtain a plea bargain. So although the law is supposed to prevent the police from gaining an advantage through torture, they find the means to one nonetheless.
Incommunicado detention
Incommunicado detention, as noted in above, has been recognised as an important factor in facilitating torture. Forms of incommunicado detention exist in Sri Lanka, formally in military operations and less formally but just as readily in the ordinary criminal scenario.
Sri Lanka’s Prevention of Terrorism Act, No 48 of 1979 allows for incommunicado detention of up to seventy-two hours, after which the relevant Minister may order a detention of up to three months “in such place and subject to such conditions as may be determined by the Minister” (section 9). The detention can be extended three months at a time for up to eighteen months with no judicial involvement. Such orders “shall be final and shall not be called in question in any court or tribunal by way of writ or otherwise” (section 10). There are further detention possibilities under the Emergency Regulations.
This legislation introduced torture into Sri Lankan society on a massive scale, such that it thoroughly permeated the practices of ordinary criminal policing. In theory, the police are not supposed to hold suspects incommunicado. In reality, there is a period during which they do so, and it is during this time of initial custody that torture takes place. In case after case where there is a fundamental rights application before the Sri Lankan Supreme Court alleging a breach of article [11] constitutional rights against torture, there is a simultaneous claim for breach of other rights. The other rights breached almost invariably include article 13(2) concerning the mode of arrest. Victims are routinely arrested in some improper way, with no notice of their rights, and often by police officers in civilian clothing who do not handle the case in an official manner. Relatives may only have seen the person dragged off in a jeep. The detainee will not have access to legal or medical personnel. The police officers will have ample opportunity to make use of torture techniques before any formal mechanisms of legality are involved. All this amounts to incommunicado detention.
No independent monitoring of the police
There is very limited independent oversight of the police in Sri Lanka. Following earlier government reports on police reform that had recommended oversight mechanisms, panels were established to hear complaints, but these were still made up mostly of police personnel. Today Sri Lanka has the National Human Rights Commission, but there are concerns about its approach in torture cases. In particular, it has often proceeded toward settlement rather than helping to pursue full public inquiry and criminal prosecution. This keeps torture cases secret and indirectly leads away from, rather than towards, full accountability. AHRC has objected to this practice. For now, it means that the National Human Rights Commission is playing a less vibrant role than it could in terms of providing some independent oversight of the police.11
Recent government-commissioned reports on the disappearances that were perpetrated in Sri Lanka, a different issue but one raising the same concerns, have also stressed the need for an independent monitor of the police. They have urged the keeping of careful custody records, the creation of a lay visitor panel to help monitor detention, and the establishment of an independent investigations and prosecutions unit to deal with complaints against the police. In frank recognition that much needs to be done to give individuals any power at all to complain against the state, they have also called for the establishment of citizens’ advisory offices and state funding for habeas corpus applications by persons in detention.[12] This last point is particularly important. All the rights that exist formally and in theory will do no good if there is no access to justice for the impoverished and disempowered citizens of Sri Lanka.
The military role and nature of the police
Another factor that can facilitate and encourage torture is an overly militarised police force, especially if it is immune from oversight. This factor too is present in Sri Lanka. Given the civil strife in Sri Lankan society over the last decades, security forces have faced enormous challenges, which have contributed to militarisation. However, looking further back in Sri Lankan history reveals that the militarisation of the Sri Lankan police forces has deeper historical roots.
Throughout the 1900s, Sri Lanka’s police forces were called upon to serve in riot control and paramilitary operations. Government-commissioned studies recognised this as having affected the character of the police. The 1946 Commission Report on the police discusses how the police had fallen into a ‘riot complex’ after the police had been “shaped and trained mainly to meet the emergency of riots”, with an emphasis placed on military parades and drills which “occupied most of the time of members of the Force”.[13] The 1970 Commission Report again mentioned too much effort going into military parades and drills, as well as overly military-style uniforms.[14] The 1995 Committee Report also noted concerns about the police being turned into a military force, including, in response to recent civil strife, through the specific creation of full-fledged paramilitary police units.[15] Thus, official government studies have recognised that Sri Lanka’s police forces have become increasingly militarised from the early 1900s on. Similarly, the Sri Lanka Police Force also sees itself in this frame, as described on its website:
Currently, the Police are engaged in a para-military role, dominating the areas recaptured from the terrorists. This has necessitated the Police to undergo a special training to use highly sophisticated weapons. The Special Task Force (STF), the elite Para-military Unit of the Police set up in 1983 is totally committed to the military operations and they dominate a major portion of the Eastern Province. They also play a significant role in providing VIP security.
The Police Force today has deployed almost 30,000 Police personnel to face the challenges posed by the terrorists in the Northern and Eastern Provinces. This is in addition to their normal commitments of law enforcement in the rest of the island.[16]
Military-type attitudes among police officers represent a breach of an important separation between different kinds of security forces that should function in different ways. Thus, the militarisation of the Sri Lankan police is a likely factor contributing to its use of torture.
Lack of investigative skills
A characteristic of the Sri Lankan police related to its military nature is its lack of investigative skills. This is not surprising. The police have been recruited and trained as soldiers. To be an investigator of crimes involves different skills than to be a soldier. Sri Lanka’s Commission of Inquiry Into Involuntary Removal or Disappearances of Persons has noted this: “The long years of recruitment and training of [police] recruits as assistance to the military in border areas has resulted in a police force sadly deficient in the requisite skills in investigation.”[17]
The official statistics of the Sri Lanka Police Force show that it solved only 2174 of 4281 serious crimes reported in the first six months of 2001, or around 51 percent.[18] This figure includes as ‘solved’ those cases where the police were able to beat a confession out of someone who might well have been innocent. It also hides large regional variations, with some police divisions reporting official rates of crimes solved as less than 20 percent.
Police officers who lack the skills to investigate crime in other ways will feel driven to try to coerce confessions out of suspects. Confessions may become the only means of proof, as was the case in medieval Europe, but not because the law does not allow other means, but rather because the police are not skilled to deal with other kinds of evidence. By not facing the requirements of a police force directly, a society can revert to feudalism in its criminal justice system.
Gang behaviour
AHRC has used the term ‘gang behavior’ in describing the conduct of Sri Lankan police forces. This has stemmed from a particular pattern in the conduct of the police, which when working in a group facilitates and encourages torture. Torturers can then try to rationalise their behaviour by saying that they were not alone in conducting the abuse. There is something about police officers conducting interrogations in larger groups that can help break the restraints on torture. Where Sri Lankan police officers conduct interrogations in groups of eight or more, torture is prevalent.
The Sri Lankan police function like a gang in another way as well. This is in the protection they are able to give to their members and the impunity they thus attempt to assure to perpetrators of abuses. For instance, Senior Deputy Inspector General H M G B Kotakadeniya recently accused his own police force’s officers of being involved in underworld activities such as the running of brothels and drug trafficking. The response from the Inspector General of Police was not to say that such activities must be investigated and rooted out but to deny that they exist and to begin to make threats against the Deputy Inspector General who had revealed them.[19] This is the kind of self-protective instinct that seems to be regularly at work in the Sri Lankan police forces.
Why do complaints that police officers have engaged in torture go nowhere? In some cases, the senior gang members may have actually ordered the torture. But even if superior officers have ordered torture, they do not interfere with it. In many cases AHRC has documented, torture victims were screaming from the pain. Anyone in the police station would have heard and known that someone was suffering. Even if superior officers were not in the interrogation room, they knew that torture was being perpetrated. When complaints do not move forward, when officers are not disciplined, when police structures are not working to see officers criminally charged, superior officers are protecting their junior ‘gang members’ rather than the people and the law of Sri Lanka.
Various mechanisms of impunity, of course, work to protect officers who have been accused of torture. The police may engage in outright thuggery, either by themselves or through their associates. They may, more subtly, alter their records in attempts to cover up what has gone on. More subtly yet, they may attempt to alter the evidence in the hope it will withstand the limited scrutiny they might expect. One way to do this is to try to hold on to detainees for a few days so that their wounds have time to heal. They may also seek to generate their own medical evidence, which can be put on the record as the ‘official’ version.
All this is part of how the ‘gang’ works. It tolerates no dissent. It orders torture in some cases and tolerates it in others. When people come around to ask questions, the gang finds ways to threaten them or to try to deceive them, and thereby secures its impunity through a variety of means.
Public consciousness of torture and overcoming impunity
Support outside the police for their use of torture is important for its perpetuation. According to some observers, one of the factors making it toughest to overcome torture is that even the more informed and educated segments of society tacitly approve of torture as a method of criminal investigation.[20] This may be especially the case among the so-called ‘educated’ segments of society, as torture is generally used against persons from lower classes and castes. The ordinary people understand the pain of torture, for it is perpetrated on their communities. The elites are unlikely to have the same understanding.
In recognition of this problem, a growing struggle is now underway in the Sri Lankan courts that is raising public consciousness on torture and also beginning to overcome impunity for those who have perpetrated these abuses. Over the past months, there have been a number of successful claims for compensation under fundamental rights applications before the Supreme Court. The judges are clearly having their collective consciousness raised and are trying to send a message to the state that this conduct must end, making orders for increasing amounts of compensation and becoming more direct about ordering criminal investigations of perpetrators. This positive development is now gaining public attention. Among the cases that have been settled by the Supreme Court in 2002 are the following:
24 January – Justices Mark Fernando, Ameer Ismail, and C V Wigneswaran recognised rape in custody as torture for which the state is responsible, and awarded Rs 150,000 compensation and costs payable by the state to a woman who was raped in custody at the Maradana Checkpoint. The state also indicated it would file criminal proceedings against two police constables and a soldier (‘Rape victim gets Rs. 150,000: Suspects to be charged’, Daily Mirror 25 January 2002).
28 February – Justices P Edussuriya, C V Wigneswaran and Asoka de Silva awarded compensation of Rs 25,000 to M D W Norman after he was arrested and assaulted by Kirulapona OIC Inspector Edirisinghe and six other officers before being released four hours later. The arrest was based on complaints from the OIC’s relative (Daily Mirror, 1 March 2002).
1 May – The Supreme Court bench, headed by Chief Justice Sarath N Silva, criticised the torture of suspects in police custody. This was in the context of a fundamental rights petition against the Ampara Special Investigating Unit by a Tamil youth in Batticaloa (‘SC takes tough stand on torture’, Daily Mirror, 2 May 2002).
2 May – The Supreme Court ordered Rs 25,000 compensation to a Trincomalee resident, V Vijayakumar, who was blindfolded and tortured by the police of the Counter Subversive Unit in November 2000 (‘State to pay for torture’, Daily Mirror, 3 May 2002).
12 May – Justices Mark Fernando, Ameer Ismail and C V Wigneswaran awarded Rs 25,000 compensation to K H Samankumar, a father of three children who was tortured during a six-month period of detention by the Terrorism Investigation Department. The Supreme Court also directed the Attorney General to consider withdrawing the indictment that had been brought based on the confession extracted (‘Supreme Court awards Rs 25,000 to victim’, Daily Mirror, 13 May 2002).
24 June – Justice Dr Shirani A Bandaranayake (Chief Justice Sarath N Silva and Justice Ameer Ismail concurring) awarded Rs 25,000 compensation and Rs 5,000 as costs payable by the state to lance corporal W A D Nilusha Hemali, who had been tortured by other army officers after she refused to make a statement against another army officer against whom they had a grudge (‘Compensation to a woman soldier’, Daily Mirror, 25 June 2002).
31 July – Justices Mark Fernando, D P S Gunasekera and Hector S Yapa made compensation orders against top police, holding that the former Director of the Criminal Investigations Department, DIG Punya De Silva, and SSP Bandula Wickremesinghe had violated the fundamental rights of R A Saranapala through illegal arrest, detention, and assault. Each was ordered to pay Rs 50,000 personally, and the state another Rs 50,000. The Court also ordered a disciplinary hearing against the officers (‘Top policemen ordered to pay compensation’, Daily Mirror, 1 August 2002).
2 August – Justice Fernando (Justices Gunasekara and Wigneswaran concurring) made an order of Rs 70,000 compensation by the police and Rs 30,000 by the Officer In Charge (OIC) who violated the fundamental rights of Angeline Roshana by illegally arresting and beating her on the complaint of her employer alleging theft of a gold watch (SC [FR] No 1/2001, 2 August 2002).
21 August – The Supreme Court granted leave to proceed in the case of Gamaarachchige Kasun Madushanka and Shiran Sashika, two boys tortured by the Hiniduma police. The children’s mothers are seeking Rs 1,000,000 in compensation. The hearing will be on 22 October 2002 ‘SC grants leave in torture case’, Daily Mirror, 22 August 2002).
23 August – Justice D P S Gunasekera (Justices Mark Fernando and Ameer Ismail concurring) ordered Rs 250,000 compensation and costs to Y Vijitha in a sexual torture case. Of this, Rs 150,000 is to be paid by Reserve Inspector Wijesekera of Negombo police, Sub Inspector Saman Karunaratne of the Terrorist Investigation Department and Inspector Solanga Arachige Muditha of Negombo police in equal shares. The other Rs 100,000 is to be paid by the state. The Court also ordered the Attorney General to consider taking steps under Act No 22 of 1994 against police personnel and others responsible (‘Sexual torture victim gets Rs 250,000 compensation’, Sunday Times, 25 August 2002).
These last two cases above were particularly horrific examples of torture. The two children tortured by the Hiniduma police were hung and beaten, had their hair pulled with pliers, and had pins driven under their fingernails to try to get them to confess to stealing money from a canteen. The sexual torture of Y Vijitha was a gruesome example of the kind of crime being perpetrated, as outlined in the petition to the Supreme Court:
Whilst she was inside the garage the police accused her of being a LTTE suicide bomber and assaulted her with a club on her knees, chest, abdomen and back which caused unbearable pain. After assaulting her she had been put into a cell at the Negombo Police Station and had been detained there till 28.6.2000 on a Detention Order R2, issued by Daya Jayasundera, D.I.G, Western Province, (Northern Range) under Regulation 19(2) of the Emergency Regulations for 90 days. Whilst in detention between 21.6.2000 and 26.6.2000 she had been subjected to torture. The petitioner alleges that her ear studs had been removed and [her ears] slapped with force. Her face had been covered with a shopping bag containing chili powder mixed with petrol, which led her to suffocate. On one occasion she had been asked to remove all her clothes except her underwear and the brassier and her face had been covered with a shopping bag containing chili powder and petrol after which she felt a burning sensation all over her body. She had been asked to lie flat on a table and while four policemen were holding her, pressed to the table, four other policemen policemen had pricked paper pins under the nails of the fingers and toes. She had been assaulted with a club and wires and when she fell down she was trample with boots. On another occasion she had been hung and whilst she was hanging been assaulted with a club all over her body.
On or about 25.6.2000 the policemen who were torturing her had asked her to place her signature on some statements prepared by them and when she refused to sign, one policeman had shown a plantain flower soaked in chili and had said it would be introduced to her vagina unless she signed the papers. When she refused to sign she had been asked to remove her blouse and cover her eyes with it and had been asked to lie on the table. Whilst she was lying down on the table four policemen had held her hands and held legs apart and the plantain flower had been inserted by force into her vagina and pulled out for about 15 minutes. She had experienced tremendous pain and a burning sensation. She had become unconscious and after a few minutes she had been asked to lie on the table till 9:30 p.m. After some time, some sheets of paper typed in Sinhala had been brought by them and she had been asked to place her signature on them. Being unable to bear the torture she had signed them. The contents of the documents she signed had neither been read nor explained to her. After sometime she had been she had been put into the cell with strict instructions that she should not wash her genital region. When she was crying in pain inside the cell one policeman on duty had shown mercy on her and by about mid night had been permitted to use the toilet. The acts of torture meted out to her as set out above has affected her physically and psychologically and her matrimonial prospects had been shattered as a result of the mental and physical trauma that she had undergone at the hands of the police. She states that she is suffering from depression, loss of sleep, loss of appetite, loss of concentration, fear and nervousness.[21]
The struggle in Sri Lanka’s courts thus goes on against the most inhumane acts imaginable. As more cases are reported, public consciousness is raised, and the judges become more willing to send a message to the perpetrators of these terrible acts and the state mechanisms that allow them to do so.
The situation has come far from when AHRC began campaigning on torture in Sri Lanka. There is now some recognition of the laws the country has available to prevent torture. Torture may continue despite the existence of a law against it, but this does not mean that the law is useless. On the contrary, groups in other states might consider campaigning for similar laws against torture. Once the law is there, the efforts of groups campaigning to prevent torture can move to a new level. No longer must they demand that the government follow an international standard; they can instead demand simply that it follow the national law. To whatever extent the courts are functioning properly, such a law can also provide a vehicle to bring torture issues before the courts and bring a new source of pressure on the government to end torture. Such legislation will not end torture on its own, but it can be a major tool for advocates and a way forward.
End Notes
1 Editor’s note: The following text consists of edited extracts from a monograph by Dwight Newman, postgraduate student, Oxford University, entitled ‘Patterns of torture: Circumstances facilitating torture in Sri Lanka and Malaysia’, soon to be released by the Asian Human Rights Commission.
2 Malcolm D Evans & Rod Morgan, Preventing torture, Oxford University Press, Oxford, 1998, pp. 52-60. [back to content]
3 Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Report by the Special Rapporteur, Commission on Human Rights, 42nd Sess., Agenda Item 10 (a), U.N. Doc. E/CN.4/1986/15, 1986. [back to content]
4 Special Rapporteur of the Commission on Human Rights, Report on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1 October 1999, U.N. Doc. A/54/426, 1999, para. 42. [back to content]
5 Report on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1999, para. 48. [back to content]
6 Full text of remarks at http://www.apt.ch/asia/nepal.htm. [back to content]
7 AHRC Human Rights Correspondence School, Lesson Series 07: Torture and other cruel, inhuman or degrading treatment or punishment, Lesson 2, http://www.hrschool.org/mainfile.php/modules/160. [back to content]
8 See the Amnesty International website, http://web.amnesty.org/web/ar2002.nsf/asa/sri+lanka!Open. [back to content]
9 ‘Govt violating human rights, President tells all’, Daily Mirror, 29 June 2002. [back to content]
10 ‘Statement of the seminar’, in Decline of fair trial in Asia: Papers from an Asian seminar on fair trial, AHRC, Hong Kong SAR, 2000, p. 17. Anthony Fernando, ‘Fair trial issues in Sri Lanka’, in Decline of fair trial in Asia, p. 228. [back to content]
11 See AHRC Statement of 2 June 2002, published in article 2, vol. 1, no. 3. [back to content]
12 Final Report of the Commission of Inquiry Into Involuntary Removal or Disappearances of Persons, Sessional Paper No. V-1997, chs. 8 and 14, http://www.disappearances.org/mainfile.php/final_report_srilanka. [back to content]
13 Report of the Police Report, Sessional Paper VIII, February 1947. [back to content]
14 Final Report of the Police Commission, Department of the Government Printer, Ceylon, July 1970, pp. 17, 111. [back to content]
15 Sri Lanka Police Service: Suggestions for Improving Its Efficiency and Effectiveness, Report of the Committee Appointed in 24-02-1995, ch. 1, pts. 3.iv & 3.xii. [back to content]
16 See http://www.police.lk/history.html. [back to content]
17 Final Report of the Commission of Inquiry Into Involuntary Removal or Disappearances of Persons, Sessional Paper No. V-1997, ch. 8, http://www.disappearances.org/mainfile.php/final_report_srilanka. [back to content]
18 See http://www.police.lk/divisions/crimestat2001.html. [back to content]
19 Daily Mirror, 5 July 2002. [back to content]
20 Anthony Fernando, ‘Fair trial issues in Sri Lanka’, in The decline of fair trial in Asia, pp. 228-29. [back to content]
21 See http://asiafolkschoolonline.ahrchk.net/js/mainfile.php/0117/98. [back to content]
