Sri Lanka’s Judicial Medical Officers, their concerns and the torture shortcut

Lewis Davis, Intern, Asian Human Rights Commission

 
A Judicial Medical Officer (JMO) is a full-time specialist consultant in forensic pathology. Forensic medicine is the field that links medicine with law and the legal process. The role of the JMO in Sri Lanka is duly recognized and JMOs are highly qualified in forensic pathology with extensive post-graduate training both in Sri Lanka and internationally. The JMO is a servant of the state—employed by, and accountable to, the Ministry of Justice.

The duties of a Judicial Medical Officer are varied and numerous and are consistently conducted in an environment of inadequate resources and too many cases. The days of a JMO are long, with their expertise and focused attention in constant demand. A JMO’s time is split between extensive full-time in-hospital duties, conducting autopsies, post-mortem investigations and exhumations, submitting evidence in court, time-tabled teaching of junior doctors and bachelors students, conducting training programs for junior and high ranking police officers and also undertaking independent research into forensic science, to mention nothing of familial duties. It is in the capacity of their full-time hospital duties that JMOs are usually the first and only experts to come into contact with bodily injuries caused due to torture, cruel or inhuman treatment.

Duties to the living: Process from hospitalization to court

As part of their duties with regard to living persons, a JMO is responsible for examining patients who have undergone suspicious physical trauma and documenting their findings for the purposes of a criminal trial. First, a person is admitted to hospital with suspicious injuries—i.e. those not caused by himself. The JMO will then give him/her a thorough oral and physical examination to determine the history of the injuries, according to the victim, and record their opinion as to their cause, thus establishing whether the injuries are consistent with the patient’s account of events. These findings are then documented in a Medico-Legal Examination Form (MLEF) (see below). This process does not apportion blame to a particular person for inflicting the injuries; the MLEF is not accusatorial. The JMO only suggests a link between the injury pattern and the victim’s account of events. It is then left to the courts to link this evidence with a perpetrator.

Upon completing the MLEF a copy is given to the police. If the injuries are deemed to be sufficiently serious, the police will form an opinion as to whether a criminal investigation should be initiated and the case referred to the Magistrate’s Court.

If the case is referred to the Magistrate’s Court the JMO compiles a Medico-Legal Report (MLR) which is a detailed expansion of the MLEF. The Magistrate’s Court will then summon the JMO to send his report to court. If the case is referred to the High Court, the medical officer must give evidence as a witness for the prosecution.

Inquirer into sudden deaths and duties to the deceased

The Inquirer for Sudden Deaths (ISD), is akin to the British coroner and is appointed by the Minister of Justice. Although they bear quasi-magisterial powers, almost all of them are non-medical, non-legal appointees who are heavily dependent on the police and forensic pathologists for death investigations. 
 
If a person dies under suspicious or unexplained circumstances (i.e. where cause of death is unknown) the death is reported to the police and the medico-legal system is activated. The police then inform the ISD who undertakes a fact-finding inquiry to determine the cause of death.  
 
If the ISD is unable to determine the cause of death he refers the case to the Judicial Medical Officer and asks the JMO to do an autopsy and a post-mortem report (PMR). The JMO will then conduct a second inquiry to determine the circumstances and cause of death.

The nature and prevalence of torture in Sri Lanka

My conversation with Dr Fernando quickly turned to the issue of the casual, everyday, routine torture that pervades police stations across Sri Lanka in the most banal fashion, and which has been well-documented in recent years:

“I have seen cases of gross human rights abuses as early ago as my student days during the conflict—even before I became a doctor—both in the south and the north. From the late 1990s we were seeing torture victims from the north and east. Most of the victims had been detained in prisons and were tortured for information. Most of the methods used were physical, but psychological methods were also used. Many of the injuries examined were typical—injuries on the body surface caused by blunt instruments—normally whatever they [the police or military] can grab in the police station or detention centre. One of the most common methods in Sri Lanka is beating, in most cases it’s with batons and other kinds of weapons… boots… anything that they can grab to use as a blunt weapon.

“These injuries are seen on the skin as abrasions, lacerations or contusions. Occasionally there are various fractures, maybe to the long bones such as the hands or legs as well as bruises on the back and injuries to their eyes due to the repeated beatings on the face. Another way is to apply force through suspension—this imposes both fear and pain. People will be suspended in various positions that are difficult to carry the weight of the body—sometimes from their fingers, sometimes from their thumbs. This can crush the nerves, leading to significant injury.

“One method used is the so-called ‘Palestinian hanging’—this rotates the whole shoulder joint backwards so the nerves going through the arms to the hands are rotated and can lead to the limbs being totally paralyzed. This can lead to permanent damage depending on the duration they are hanged. However, in most cases they do not do it to cause permanent damage—they do not want to cause injuries that will leave permanent scars because this will put them in danger of prosecution. Instead, they carry out this torture for a period that is just long enough to obtain whatever information they want, but not to cause long-term permanent damage. We can see that over the years the torturers have been learning from what they’re doing.” 
 
Do you see cases of psychological torture?

“The incidence of psychological torture is certainly under-reported as JMOs do not examine victims for psychological injuries—JMOs are only specialist in examining physical signs of injury. Cases of suspected psychological abuse have to be referred to a psychologist or psychiatrist. However, many of the psychologists have been trained abroad and have stayed there. Also, many of these torture victims were from the rural north where there are no psychologists. There is a very big need for the examination of psychological torture in Sri Lanka because torture is the major human rights violation in this country.

“It has been suggested recently that the incidences of torture here are going down, which is a controversial topic.  Are we really experiencing a decline in torture cases? Some believe so, but I do not. We are not in a position to say that torture is in decline in Sri Lanka because no one has statistics—the government has never produced official statements about the numbers so we only have the numbers reported to various NGOs, but this number is not an accurate representation.” 
 
Are instances of such torture common?

“In my opinion these incidents are common, but that should be explained; the police here have enormous power. Their argument is that they run and maintain the institutions for the government, so it is necessary for them to have more power to do this so as not to cause the government any problems. The other problem is that the police do not have proper facilities to conduct proper scientific investigations, so they tend to take short cuts by taking information from third parties which is not reliable or tested—this is the shortest way of catching ‘the culprit’ for them. Because of these factors, torture is going to continue to become more and more experienced in this kind of society.

“If the police are taken to be the major perpetrators, it is said that we JMOs should be involved in their training. There are conflicted opinions among JMOs on this issue; some believe that we should not only assist victims but should teach the police how to obtain information properly without torturing and also how to do proper medical check-ups, while others believe this is unethical and that it is not our role to assist the police with their training. There are still others who maintain that we should at least engage with the police as they are the ones that will commit this torture.”

Main issues affecting proper medico-legal documentation of state abuse

Proper medico-legal documentation is vital for successful torture prosecutions, as it is the MLEF/MLR which is presented in court and links the torture injuries to a particular incident that occurred during a particular time period, and which were caused using a particular method. It can be seen however, that the MLEF is a short document used for documenting injuries caused by physical abuse. It is not adequate for documenting injuries arising from physical or psychological torture or sexual offences such as rape. Changes are slowly being made to address this issue, which currently does not easily allow for full and proper documentation of the full spectrum of injuries that could be inflicted.

Police influence in rural areas

There are only 42 Judicial Medical Officers in Sri Lanka, which has a population of over 20 million people, meaning that there is a significant shortage of forensic experts to handle the demand. The consequences for the victim when there is no JMO in their area are serious and points to the problem of under-skilled junior doctors, and police in rural areas exerting authority to exploit connections with newly qualified doctors to cover up abuses by tampering with the medical documents or due to false or inaccurate recording of injuries¹:

“Hospitals in the north and east did not have a single JMO for the last 10 years [due to the decades long conflict between the LTTE and the Sri Lankan government]. Hospitals in the ‘peripheries’ [referring to the very rural areas outside major cities] do not have full-time JMOs so junior doctors will carry out these responsibilities, but they are not specialists trained in forensic science. Often the doctor is new to the area and so will rely on the police and magistrates to help him find accommodation. Also, people tend to associate with people that work in the same field as themselves; as a result sometimes these doctors will have an obligation to the police, who they have unofficial friendly links with, and occasionally that prevails over their obligation to the patient. This is especially the case in rural areas.

“Furthermore, the victims are often examined by inexperienced doctors who are actually performing some other medical duties; the police have more authority at that stage and sometimes can bring out some false information about the victim. Additionally, injuries are not properly documented—sometimes these doctors cannot identify hidden injuries. What’s more, these victims are not brought soon after the event, meaning that some of the injuries have healed. These doctors are not competent in assessing injuries for timing.” 
 
Resources

JMOs face a lack of adequate resources to assist them in properly documenting medical injuries caused by torture. JMOs are not provided with equipment to assist their work such as cameras to photograph injuries, a laptop, photocopier, UV lights to identify bruises on dark skin, examination beds and the like. This makes a JMOs job more difficult and as a result they must buy these things with their own money as the government is reluctant to provide state-funding for this equipment as torture victims are not high on their list of priorities and further, such cases of torture may even implicate state agents.

“If a person comes to us after one week we are successful at examining and documenting these injuries because a one week gap is not very long and most of the injuries are caused by a blunt weapon causing lacerations or contusions. However, bruises by definition occur under the skin and on superficial examination it appears that there is no injury, but on closer inspection with a magnifying glass or UV light we can examine underneath the skin. But, we do not have these UV lights.

“A bigger problem occurs when these injuries occur after six months; then it is very difficult for us to time injuries caused by blunt weapons. We can only say that it was probably caused during this time period but we cannot be specific—scars disappear and change colour, and injuries heal. But up to six months we are quite okay with being specific with the timing and probable cause of these injuries.

“After examining people for a long time we still need more resources and we need more scientific resources so that we can verify our data and findings and so that we can give more scientific light to our own work, as we are bound to provide all this information to courts. This would bring redress to victims in a more effective manner.” 
 
The efficacy of police-medical training programs

In working at the intersection between the medical and legal aspects of forensic pathology, and in working to improve the collection of forensic evidence for criminal investigation, many JMOs are engaged in training programs with police cadets as well as with experienced police officers. How successful are these training programs given the continued prevalence of abusive practices in Sri Lanka’s police stations?

“They are not effective. There is a common belief within the police that with the limited resources they have and with the speed in which the investigation is required to be completed, they have no choice. The police here are heavily politicized and so the government puts a lot of political pressure. So the police use torture as a short cut to obtain information.”

The torture shortcut

Torture is prohibited under article 11 of the Sri Lankan constitution, and confessions obtained through torture are not admissible in court. However, the Prevention of Terrorism Act (PTA) and Emergency Regulations, which came into force in 1979 and have recently been extended in 2010, state that a confession—whether verbal or written, whether taken while in custody or not, or whether in the course of an investigation or not—is not irrelevant when made to a police officer above the rank of Assistant Superintendent [article 16 of the PTA]. The burden of proving that such a confession is irrelevant is on the person claiming it to be irrelevant—the victim.  Furthermore, the PTA grants the police powers to arrest and detain any person suspected of a crime under the Act for up to 18 months without trial, subject to monthly review. Dr Fernando explains the irony of police using the torture shortcut and why the conviction rate in Sri Lanka is only 3-4 percent:

“Confessions here are not admissible in court but the information obtained can be used to gather further evidence that can be used in court or to find people. So the police can maintain the case but they cannot win the case which is why the conviction rate is so low. In the long-run this is really a serious loss.

“In fact, JMOs have been involved for many years in giving lectures to police on how to perform forensic examinations, how to conduct crime scene examinations and how to conduct scientific examinations and evidence collection. This is a part of their police and forensic training but in fact the police have completely forgotten the scientific background. There are also various in-service training programs for the police, but the system has not been successful—we are still experiencing the same thing. The police are under pressure to bring in results in the shortest possible time with limited resources and they are under the belief that this torture will not go back into society because these things have happened for many years without the notice of the public.”

Fundamental rights cases trends and successes

 
Under the Sri Lanka constitution, any citizen whose fundamental rights—under articles 10–17—are violated by an arm or agent of the state has the right to petition the Supreme Court within 30 days, in a civil case, for legal redress.
 
“According to the 1978 constitution of Sri Lanka, chapter 3, article 11, there is a prohibition on torture identical to that in the UN Convention against Torture. Since around 1980 there have been many cases filed under this article in the Supreme Court. So I looked at all the torture cases and compiled all the successful cases into one publication which was published in two volumes in 2004. It documented the fundamental rights cases from 1980–2004. There were around 65 ‘success stories’². However, there are many out-of-court settlements by people not willing to go to court because this is not an easy or inexpensive procedure; just to ‘ask for leave’ from the court a person will have to pay between 55,000–70,000 rupees [USD 418–673]. Tortured persons are often not in a position to find that money, unless they can get help from an NGO or legal aid.

“We always have to remember that the real number of victims is always under-reported as many people having undergone torture don’t come forward. Also, it’s a long process and the proceedings are severely delayed maybe for many years. So one would have to have remarkable patience to go through these procedures and people don’t want to subject themselves to that. So there’s always under-reporting at every level when it comes to both the legal proceedings and the medical examinations.

“…My criteria for a ‘successful case’ was whether the courts accepted the complainant’s affidavit and duly awarded compensation from the perpetrator, medical assistance, welfare assistance, compensation or compensation for damage to property…Most of the success stories are from that period where a person has come to a JMO on his own initiative or was sent by a court within weeks or months of the incident.

“During my investigations I have also found that article 13 often goes hand-in-hand with article 11 because in most of the cases people that have been tortured have also been illegally detained. However, there are changing trends. In the 1980s and 1990s we had some very good success stories, up to 2004-5. They were successes because the victims were given large amounts of compensation and their versions of events were found to be consistent with the JMO findings and were accepted by the courts.

“In the last couple of years we have seen a change in the trend however. It may be due to the change of the judges (this is one reason given by the lawyers), or it may be that these judges have been ‘approached’ by people at the higher level. It has to be understood that an issue like torture has many political involvements, it is not just an issue related to a single police officer in a remote police station or a certain officer in a certain station, it is more than that. Torture harms Sri Lanka’s image. The government knows that torture has been the practice for the last two and a half decades, and now people are using the constitution and filing cases, and judges are compensating victims with large amounts, when compared with general compensation levels awarded by the Supreme Court. So maybe the Attorney General’s department has analyzed this and discussed with magistrates and judges not to give a large amount of compensation because that will promote more fundamental rights cases.”

Psychological assessments for police torturers and suggestions as to why people torture

“From a medical perspective there are many issues which can make someone a torturer—personal issues such as alcohol dependency or a traumatic childhood, including assault; these bad experiences tend to get repeated, especially when someone is in a position of authority.

“Another thing is disturbed family relationships, especially if they are separated or divorced, or the children are not living at home, especially because now more women are going overseas to find employment and they are leaving the father to maintain the home, contrary to traditional custom. As a result, the father does not know how to do this and so he will take advantages with the money for alcohol or gambling. These kinds of relationships can affect someone.

“It should also be said that there is no way for us to examine the perpetrators. Most of the perpetrators are named in fundamental rights applications, but usually the courts do not ask us to examine them. This is something lacking in our system. We should be able to examine the perpetrator and ask why he committed torture or assault. Was he capable of committing this? And under what circumstances did this happen? Unless he comes to us for separate psychological assistance or therapy, we will not know.

“Also from my experience of working with the police I know that there are also procedural pressures on them, especially after the 1970s, the police became very politicized. Even now the Inspector General of Police is appointed by the President and many parliamentarians and ministers are involved in the day-to-day activities of the police station. The police often get calls and demands from the minister representing that area, and they will have to obey. With short time periods to complete investigations, officers revert to the shortcut of torture to get a confession or information. If you can satisfy the political leaders you can go for promotion. Credit is important, but political reference is also important, so if you have connections with political party members you can easily climb the career ladder. This problem has become almost like a cancer, and it cannot be removed due to the length of time it has been occurring for.
 
“But we should also work with the police. We work all the time with the victims, but the police are the one’s committing these acts so we should work on training them as well. But I’m not sure how successful these training processes are; in practice, there has not been much impact.”

Conclusions and recommendations

Torture is used as part of routine police operations in Sri Lanka, and has been seen by doctors for the last two decades. The Judicial Medical Officers having to deal with these patients are over-burdened and under resourced, while being motivated to do justice to the victim. As a means of doing this they are using ingenuity and determination to overcome these problems in order to maintain integrity in their profession.

There is a continuing lack of resources and state funding which makes it difficult for JMOs to easily identify the hidden injuries caused due to torture and limits their capacity to handle more cases. To compensate for the lack of resources, JMOs have started to include a ‘references’ section in the MLR where they refer to similar cases conducted by forensic doctors abroad who have better resources and equipment. They are also buying necessary equipment themselves with their own money. However, it is the government’s responsibility and obligation to allocate the necessary funding for JMOs to discharge their duties. It would also be useful to organize international exchanges, where doctors working on human rights issues could meet and discuss their difficulties and best practices, as well as creating a medical database for more effective documentation of torture injuries.

When junior doctors are sent to rural areas on graduation, they are adversely influenced by police officers from this area. As a result they are not submitting accurate documentation and sometimes do not even examine victims. Also, there is a skills and education void here with many junior doctors not trained in how to recognize signs of torture and the severe consequences of neglecting this for the victim. It is therefore necessary for them to undergo further training to recognize the signs of torture, conduct a proper examination and correctly write a medico-legal report. They should also be educated as to the detrimental effects of incorrect report writing. Taking photographs of the victim’s injuries is not a requirement at present but it should be because of excessive court delays of several years. Photographs would aid the recall process.

The JMO relationship with the police is professional and ‘good’ despite JMOs creating reports that implicate police in custodial torture and deaths. There is no undue influence on them from the police, as there is with junior doctors in the peripheries, due to their high social status and strong trade unions. As a result, and due to the seriousness of torture, JMOs have requested all junior doctors to send all suspected torture cases to them to overcome intimidation from police and their lack of experience. Most of the successful fundamental rights cases relating to torture are from that period where a person has been examined by a JMO within weeks or months of the incident, so early examination should be ensured. At present many people do not see a JMO until several weeks after the injuries were inflicted, due to being kept in detention.

There is a lamentable shortage of JMOs and psychologists in Sri Lanka which prevents proper psychological examination of victims to assess for signs of mental trauma. Furthermore, there is no psychological testing for police officers who are accused of being involved in torture; this is something that JMOs would like so as to contribute to the total sum of knowledge about torture issues. In this respect the referrals system to other specialists could be improved. Moreover, all persons should undergo psychological assessments before being recruited into the police force, and existing problems with alcohol, drugs or domestic violence should be taken into account or should disqualify them.

There is also a lack of victim knowledge and education on what to do when they have been abused. This is coupled with a mentality that is subservient to those in authority and prohibits them from even questioning violence against them. Police exploit this and use past convictions to ‘bargain’ with victims to prevent reporting of incidents. A general lack of publicity about JMOs, their work and their findings contributes to the malaise. Public education and awareness campaigns should therefore be initiated.

While JMOs conduct teaching and training programs for the police, the impact of these is questionable. Political will is very important in ensuring that police officers abide by legal procedures of investigation and do not take the torture shortcut.

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This article is based on two one-hour long recorded interviews with Dr Fernando, a JMO and non-practicing lawyer working in the south of Sri Lanka on 18 and 25 November 2009. All names have been changed to protect the identities of those professionals still working in Sri Lanka and all emphasis is added.

1 Such as the case of Lasantha Kumarage who died due to extensive injuries from police torture in June 2000. Here Dr Piyasoma (the JMO who first examined him)’s conduct was said to have been “disgraceful and dishonorable…and would shock the conscience of medical men”.

2 These are not all the successful cases. According to the Sri Lankan court system, not all cases are documented in the legal reports; the unreported cases were omitted from Dr Fernando’s compilation. However, if one includes the reported and unreported cases, it is estimated there would be over 200 cases for this time period.