(June 26 is observed every year as the United Nations International Day in Support of Victims of Torture.)
Torture is a way of life at all police stations in Sri Lanka, whether the alleged crimes investigated are those relating to petty criminal offences, serious crimes or offenses under the emergency and anti terrorism laws. Assault first and then ask the questions is the pattern revealed in all cases that have been scrutinised by the Supreme Court through fundamental rights applications and to various High Courts by way of prosecutions under the CAT Act, Act No. 22 of 1994.
The investigations into torture are being politically prevented as the exposure of the widespread practice of torture is seen as politically disadvantageous in terms of international exposure of Sri Lanka’s human rights record. Further these investigations are also seen as having a demoralising effect on agencies of the state. Quite simply, the policy of the encouragement of torture on the one hand as an unavoidable methodology in dealing with crime and the investigations into torture are incompatible objectives.
Torture is a product both of a primitive mentality and a backward institutional setup. From the point of view of mentality the traditions of Sri Lanka have been shaped within a caste infected social setting. At least from the 10th century the central form of social organisation of Sri Lanka was caste based. In all caste infected societies torture is a common feature practiced on those who are considered lower caste. The principle of justice in a caste based society is disproportionate punishment. Small transgressions of the socially powerless are punished with a heavy hand while even grave transgressions by the powerful are not punished at all. This traditional notion of disproportionate punishment has continued despite of almost 200 years of a British introduced colonial system of justice. Despite of modern trappings this system did not radically alter the traditionally caste based concepts of justice within which disproportionate punishment was the cardinal principle. The threat that runs through torture, extrajudicial killings and disappearances, for which Sri Lanka has been notoriously infamous, is this principle of the domination over the weak through the exercise of disproportionate punishment.
The eradication of notions of justice and practices based on them is primarily a matter of political will. The political will of a nation is expressed through the state. The state power is exercised through the various regimes that come into power at various times. None of the regimes that have ruled independent Sri Lanka for the last 60 years have ever had a policy of undoing the primitive nature of its policing and investigations branches. In fact all regimes have nurtured the primitive traditions of these systems and have taken advantage of them for their particular ends. Particularly the crises caused by the improvements of the poor and the marginalised have been suppressed through the use of the primitive machinery of the police who have been allowed to become even more barbarous in dealing with dissent.
Thus, instead of a what has developed since the suppression of the insurgency in the south in 1971 is the deliberate nurturing of the practice of torture through law enforcement agencies, particularly for political reasons. Thus, the state has failed to respect the right against torture and instead have encouraged the abuse of this right. This has happened despite of signing the international human rights treaties such as the International Covenant on Civil and Political Rights and the Convention against Torture, cruel, inhuman and other treatment and punishment. Even the fact of making a law to incorporate the CAT into Sri Lankan law with a prescribed punishment of seven years of rigorous imprisonment and a fine of Rs 10,000/= is not a manifestation of but it had been done mainly due to international pressure. Internally the absence of an effective mechanism for the investigation of torture is the means by which the implementation of the CAT Act is being prevented.
The lack of affects the entire administration of justice including the prosecutorial branch as well as the judiciary. The lack of the importance of torture eradication in ensuring rule of law and in modern state craft is amply demonstrated by the failure of the prosecutions on the part of the Attorney General’s Department which in Sri Lanka acts as the prosecution branch of the state. Despite of routine torture practiced everywhere in the country and virtually thousands of complaints the Attorney General’s Department has succeeded only in three prosecutions. The department may blame such failure on the investigation branch or even the victims themselves. The absence of a witness protection law and programme and the delays in adjudication may also be other grounds on which the prosecutors may blame their failures. However, the overall policy line of not disturbing the mentality of the law enforcement agencies and the military by strictly enforcing the law prohibiting torture is the more important reason for the failure of the prosecution branch in this area. Like all other branches of government the prosecution branch of Sri Lanka is also politicised. The politicisation in the present context means the discouragement of proper law enforcement in order that many other objectives such as the hunting of opponents and corruption may be achieved through lawlessness.
The Supreme Court of Sri Lanka has exercised its jurisdiction on fundamental rights to make declarations on the prevailing practice of torture. Some of the judgements are strong and comments very severe on the agencies of the state which practice torture and those who hold command responsibility in these institutions. The enormous material that has come before the Supreme Court in terms of these applications would have left no doubt about the widespread practice of torture in the country. In comparison to the knowledge that the Supreme Court has acquired on this issue the determination expressed by the Supreme Court to exert its power to eradicate torture can in no way be considered adequate. Perhaps the primitive conceptions of justice which relies on disproportionate punishment in delaing with the weaker sections of society such as the workers, farmers and others may also be affecting the mentalities in the Supreme Court itself. Unwillingness to upset the ‘moral’ of the law enforcement agencies by stronger condemnations of torture may be a result of compliance with the overall state policy on this matter.
In recent times dealing with anti terrorism as the common enemy has also reinforced the mentality against the insistence on human rights including the eradication of torture. In the propaganda war against terrorism what is often forgotten is that the state that denies justice can become the enemy of all the citizens of a nation. The common enemy propaganda line even goes to the extent of considering those who call for the eradication of torture, extrajudicial killings and forced disappearances as traitors. The literature of this propaganda clearly shows that the language used in present times in condemning those who demand respect for human rights and the freedom of expression in order to discuss all rights issues is very similar to the practices of states during extreme repression such for example as the sort of language used under authoritarian regimes.
This year’s international torture prevention day brings only reflections of a very bleak situation regarding the issue of torture in Sri Lanka. there is not only lack of political will to prevent torture but in fact there is a positive pressure to discourage the promotion of the right against torture in Sri Lanka.
