The International Day in Support of Victims of Torture is a sad reminder of Sri Lanka’s complete failure to eliminate torture. This is even sadder because it was the past practices of horrendous torture which created the cyanide carrying militants and prevented the possibility of a negotiated settlement for the country’s minority problems. In the South this same practice pushed the young dissidents into turning to violent action, which ultimately claimed over 10,000 lives in 1971 and over 30,000 disappearances between 1987 and 1991.
It is now acknowledged that there is endemic torture practiced at all police stations as the routine method of criminal investigation. This acknowledgment is made by UN agencies in international reports. The Sri Lankan government has also admitted the problem as do high ranking police officers, including the IGP himself. The former commissioners of the Human Rights Commission of Sri Lanka lead by Dr. Radhika Coomaraswamy acknowledged the problem and declared a zero tolerance policy on torture, which unfortunately was not implemented due to a lack of cooperation from the police as well as other state agencies. The former commissioners of the National Police Commission also acknowledged the problem and interdicted 102 police officers in 2005 after they were indicted in courts for offenses under the CAT Act (Act No. 22 of 1994). Furthermore, the Supreme Court of Sri Lanka has mentioned the increasing number of credible complaints of torture on many occasions.
Despite of all such acknowledgment nothing has been done to eliminate the practice of torture. The government talk about improving human rights does not go beyond mere words. The Sri Lanka human rights policy is a hypocritical one. Sri Lanka does not hesitate to state to the Human Rights Committee of the UN that the Committee’s findings against courts cannot be implemented by Sri Lanka despite of being a party to the Optional Protocol. Sri Lanka also gives blatantly false undertakings to UN agencies as it did to the Human Rights Committee in November 2004 when the country’s record was reviewed and to the CAT Committee in November 2005 when the Committee examined the country’s implementation of the Convention against Torture. On this occasion the Sri Lankan delegation gave open undertakings that the members for the Constitutional Council would be appointed as required by the Constitution and that the members for the National Police Commission and Human Rights Commission would be properly appointed in terms of the 17th Amendment to the Constitution. These and other undertakings have never been implemented. In fact the country does not have a proper machinery through which the reports to the UN are made in a responsible manner, or for the Cabinet and the President to receive the recommendations of UN agencies and to ensure that the steps are taken to implement them. What exists is only a public relations exercise for damage control in the event of serious criticism from international agencies that might affect foreign aid. The situation has become even worse now with the Commissioner of the Human Rights Commission being appointed in contravention of the Constitution and having no credible record of involvement in human rights. The HRCSL at the moment is a farce. One of the persons nominated to be a commissioner, a lawyer, Mr. S.G. Punchihewa refused to join and stated that he only learned about the appointment by seeing media reports. The commissioners for the National Police Commission have also been selected contrary to the Constitution and therefore will lack legitimacy and credibility. This is happening at a time when the country is slipping back into a zone of high violence.
A ministry has been creatively named the Ministry for Disaster Management and Human Rights. Such ministries cannot become a substitute for a proper system which can exist only through a credible system of justice exercised through the basic legal mechanisms of the country. All that this ministry can do, if it really wants to do something about human rights is to take a strong position with the cabinet and the President to address the basic problems that are causing the collapse of the rule of law in the country.
When the country’s commitments to human rights is nothing but a farce the only hope lies with civil society and those committed persons and organisations who will fight hard to put the improvement of human rights to the forefront. In such a programme the elimination of torture is the key component. To begin any serious work on the elimination of torture the following steps are urgently needed:
1. Speedy trial of torture cases. This means a trial on a torture case must at least end within a year from the date of the alleged incident of torture.
2. Immediate filing of indictments by the Attorney General’s Department and the immediate interdiction of the officers accused of such crimes according to the law of the country.
3. Removal of the heavy obstruction created in the fundamental rights jurisdiction of the Supreme Court. For this to create a friendly psychological climate towards the applicants, remove obstacles and intimidation to lawyers and speed up the process of fundamental rights applications before the Supreme Court; improvements on the awards of compensation in keeping with international norms and standards; stop the practice of postponing torture cases until High Court cases on the same matter have been finalised.
4. Enact a witness protection law and create a witness protection fund and thereby create facilities to save the witnesses before court from harassment and even murder by alleged perpetrators.
5. Undertake comprehensive police reform beginning from the officers at the highest level (IGP and DIG levels), in order to ensure that the system will be lead by qualified officers with sufficient facilities and absolute imposition of proper disciplinary control.
6. Implement the recommendations made by the UN Human Rights Committee, CAT Committee and other agencies.
7. Above all remove Article 35 of the Constitution which gives absolute immunity to the president for acts and omissions, official or personal.
Without this precondition the country cannot return to Constitutionalism and without basic Constitutionalism there cannot be any form of protection for the citizens.
