Country Report – Prevention of Torture and Disappearances in Sri Lanka

Sri Lanka is an ancient civilization where barbarous forms of punishment prevailed alongside acts of justice and fair play by feudal monarchs. After Sri Lanka became a British colony, the Kandyan Convention of 1815 was the first attempt to eradicate torture. Abolition of torture is now policy in Sri Lanka: the constitution guarantees all people freedom, equality, justice, fundamental human rights and independence of the judiciary. Article 11 of the 1978 Constitution states that no person shall be subject to torture or to cruel, inhuman or degrading treatment or punishment. This is an absolute fundamental right: it applies equally to criminals and non-criminals alike. Sri Lanka has also ratified the UN Convention against Torture.

However torture is practiced. Both ongoing civil conflict – which has lasted over 18 years – and the Sinhala youth insurrection have been used by successive governments to introduce draconian laws, namely the Prevention of Terrorism Act (PTA) and “Emergency Regulations” framed under the Public Security Act. Under the PTA, a prescribed police officer may arrest any person connected with, or reasonably suspected of being connected with, any unlawful “terrorist” activity. Such a person may be kept in Police Custody for a period up to 72 hours prior to being produced before a Magistrate. The Magistrate has no discretion but to remand the person until conclusion of the trial. Under normal law the police can keep a suspect for only 24 hours prior to bringing the person before a magistrate.

Draconian measures such as these resulted in the mass disappearances of the period 1989-92. Even though the official number of disappearances is 30,000, unofficially it is believed to be over 60,000. When the present government came to power in 1994, it promised justice for the bereaved families, nevertheless those promises are still unmet: the official number of prosecutions is said to be merely some four hundred cases, and that figure is believed to be exaggerated. And while this government appointed three Presidential Commissions to examine disappearances, the extensive recommendations of these Commissions have so far been ignored.

Role of the Human Rights Commission of Sri Lanka in protection against torture

The Human Rights Commission Act was introduced in 1996. Its provisions are adequate for the Commission to investigate violations of fundamental rights, including acts of torture. Any victim can invoke the Commission’s jurisdiction in respect of violations or imminent violations. Unlike other statutes dealing with torture, the Human Rights Commission can, on its own, initiate inquiries into alleged violations of  fundamental rights, including freedom from torture. However the Act does not provide an efficient procedure to grant relief to the victim.

How to prevent torture and disappearances

1. Many acts of torture could be prevented if the opportunity to torture were kept to a minimum by informing the Human Rights Commission of all arrests within 24 hours.
2. All personnel who arrest and interrogate must bear clear identification tags with their name and rank.
3. An arrest memo should be kept for each detainee with the time and the date of arrest signed by a witness and the detainee him/herself, and the place of detention. A relative or friend should be informed of the arrest.
4. A diary should be maintained at each and every detention centre.
5. All detainees should be produced for a medical examination at the time of the arrest and ever 48 hours while in custody.
6. Copies of all documents must be sent to the magistrate concerned.
7. All detainees should be allowed to have an attorney present at all interrogations.
8. All provincial councils, the central government and police stations should be informed of these measures. Provincial councils must file an affidavit of compliance.
9. All persons found to be tortured must be paid compensation, in addition to disciplinary action being taken against the perpetrators. Agencies refusing to comply with regulations should be held in contempt of court.
10. There should be a system for civil society, lawyers, judges and representatives of professional groups to visit places of detention.
11. A culture of respect for human rights, especially fundamental rights, should be built into society through education and other methods, from a young age.
12. There should be a hotline to complain about violations of human rights.
13. Organisations need to network with one another.
14. Free legal aid and advice must be made available to detainees.
15. Various kinds of awareness programmes, including training for the police and army personnel, need to be developed.
16. The recommendations of the Human Rights Commission need to be implemented.

The Government of Sri Lanka must:

1. Incorporate the RIGHT TO LIFE into the Constitution.
2. Review Emergency Regulations.
3. Establish a separate organ for the welfare and assistance of bereaved families of the disappeared.
4. Make an official apology for disappearances.
5. Further empower the Human Rights Commission.
6. Use the Torture Act (only 7 cases to date).
7. Increase the time limit of one month in Fundamental Rights Applications at case level.
8. Initiate proper criminal investigations in all cases: conduct prosecutions where there is evidence; and properly, adequately and without delay compensate all families.
9. Have an official continuing human rights programme.