Sanjeewa Weerawickrama [1]
Torture is an act, a form of punishment, a horrible experience, causing severe physical pain and mental suffering. It uses force to make a person confess to a crime he did not do. [2]. A person has the fundamental right not to be tortured. Freedom from torture is covered in the next two examples of the Law. Number 1 is Article #11 of the CONSTITUTION. It states that no person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment [3]. Number 2 is Torture Act No. 22, 1994[4]. It has the same rationale as Article # 11 above. It is very clear that torture by any means is illegal in Sri Lanka. If a person was tortured there are basically three ways a victim can expect justice from the Government.
1.The Supreme Court investigates the violations of the fundamental rights of the victim and compensation is provided for the damaged caused.
2. Punitive penalization of the culprit. (This has been broadly discussed in Section 2, No. 22, 1994 (4) of the Act against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. A person guilty of an offence under this Act shall upon conviction after a trial by the High Court, be punishable with imprisonment for a term not less than seven years and not exceeding ten years and a fine not less than ten thousand Rupees and not exceeding fifty thousand Rupees. Section 2 (5) of the Act made this a cognizable, non-bail offence).
3. Through a civil case filed in a District Court.
The term torture is broad because it encompasses many types of torture. Notwithstanding, the two main types that are prominent are physical and psychological torture.
The methods of physical torture are endless. And one of the main expectations of a torturer is to make the person suffer physically without leaving telltale evidence or scars on the body. A few examples are beating, burning, slapping, hanging, drowning, chemicals applied to sensitive areas of the body, abnormal painful postures, pulling out hair or nails, rape, starving, knee-capping, bone-breaking, forced-feeding.
Psychological torture can be inflicted in many ways like sleep deprivation, sensory deprivation, proxy torture, nudity, head-shaving, hooding, mock execution, threats, blackmailing and confinement. It creates a state of learned helplessness, psychological regression and depersonalization.
Torture is not a new phenomenon. It has been in practice world-wide throughout history. Today, there is convincing, factual evidence to prove that torture is being inflicted on suspects by Police Officers in Sri Lanka. The trend has been decreasing but still has not reached the ground zero number.
Some important court cases related to torture are given below [6]. (In earlier times, physical trauma or torture was the only identified means of torture)
In the cases of Amal Sudath Silva Vs Kodithuwakku (1987) 2 SLR 119 and Rathnapala Vs Hector Dharmasiri, HQI Rathnapura (1993) 1 SLR 224, it was proved that severe physical torture had occurred in Police custody. It was decided that even though the suspects were both ruthless criminals, the Police had no power or right to torture them.
In the case of Sudarsha Kumarasena Vs SI Shriyantha, OIC, Dikwella SCA 257/93 it was reported that a Police custodian was verbally tortured. In this remarkable case verbal torture was identified.
In the case of Mohomad Nilam Vs Udugampola SCA 68/2002, suspects had been kept in police custody under inhumane conditions. The Court adopted the famous Greek Judicial precedent. It put forth the values that: suspects in custody should not be kept in overcrowded, poorly ventilated cells, with lack of sleeping and toilet facilities. If such conditions prevail, it is considered as degrading treatment.
With the above description, it is obvious that Sri Lankan Law sufficiently covers the acts of torture, considering the different Constitutional acts and articles. Punishments were also clearly defined. However, does this indicate that the general public has a clear knowledge of torture? Does it mean that the procedural things are efficient and in line? Evidence is out there, that there are still a number of victims who did not receive justice for the torture they underwent. Logical analysis and action is needed to eliminate torture and its root causes.
A Court case is governed by true and strong evidence it is provided with. Such evidence is basically two-fold. The first one being the narrative testimony. This deals with when he was tortured, by whom, with identifying facts. It should be in detail and in correct sequence. The second is the equally important medical evidence. It considers injuries, immediate and latent damage caused, including psychological torture. Judicial Medical Officers’ evidence is extremely important to analyze the dating of injuries or scars, to interpret the force applied, to estimate the damage in relation to the category of hurt. Not only the physical aspects but the psychological trauma should be elicited by the Medical Officer. It may be PTSD (Post Traumatic Stress Disorder), nightmares, personality disorders or depression. The Medical Officer’s evidence is crucial for the trial Judge to ascertain the nature and the severity of the torture.
When the cases of torture victims’ are taken up for trial in the Courts, there are three major parties that provide testimonies: the victims, the Medical Officers who examined the victims and the Police Officers who investigated the cases. Procedures in the Court House are governed under sections of the Evidence Ordinance of Sri Lanka [7]. When it comes to assisting the victims in getting justice, there are two inherent deficiencies in this type of evidence produced before the Courts.
First, let us consider the victims’ narrations or testimonies. We must realize that the victim is at times afraid of the Police or any other Authority and is reluctant and hesitant in going against them. It is the responsibility of the State to make the public aware of their rights and include their rights in school text books. Regular awareness programmes by the Government should be promulgated to make victims aware of their rights and violations of their rights. Most of the time, the general public is not aware of the kinds of justice they could achieve through the Courts. They feel that it is not worth-while going through the Courts because of significant delays in the hearings. Importantly, the victim himself is not far-sighted enough to provide strong evidence with important facts, causing the case to be diluted. A mindset of timidity prevents them from taking their case to Court. Victims do not know the extent of the justice they can receive from the Courts. PUBLIC POSTERS illustrating such benefits would be an alternative and positive way of educating the general public.
The poverty of the victim is a cause for not following up on regular clinic visits or treatments or some other existing difficulties in an ongoing court case. The victim tends to think that their regular work is more important, as they need money for their day-to-day living expenses. Sometimes the victim is fully informed to come for a physical review by the Medical Officer, but they tend to defer further assessment, making diagnoses difficult or incomplete at best. Sometimes patients were asked to consult other medical or psychological specialty physicians but then they discontinue all treatments.
Second, when it comes to the evidence of the Medical Officer there are many drawbacks. Sri Lanka has 25 districts, a square area of 65,610 km² and a population of 20.97 million. The specialist or consultant Judicial Medical Officers are only attached to the General Teaching Hospitals, Provincial General Hospitals, District General Hospitals and Base Hospitals. The number of Consultant Judicial Medical Officers is around 70. It causes a huge disadvantage for the rural population as the medical opinion that will be given by an ordinary expert would not be as detailed as a specialist doctor. The Medical Reports may be inadequate for the Trial Judge to make important decisions. Moreover, the technology in our country is not well-developed to come to certain conclusions even by consultant Judicial Medical Officers. Interpretation and dating of scars, CT scans, MRI scans are not available for precise diagnoses to be made. The help of sub-specialty consultants like Eye surgeons, Neurologists, Psychiatrists are also essential in obtaining a comprehensive report to establish the damage.
One of the other things that delay court cases is administrative delays. As an example, though a medical report is produced, it might not be included in the case files when the case is taken for trial. So, administrative delays should be addressed to minimize their effects.
In conclusion, it is time for the public to think about torture victims: their right not to be tortured, and if they were tortured, to think retrospectively–would they have gotten justice from the Sri Lankan Judicial System? As a country, it is mandatory that we develop a system that is fair to the victim who is compensated for his mental and physical sufferings and on the other side of the spectrum sees that culpable persons are incarcerated and suitably punished.
Foot notes:
[1] Rasika Sanjeewa Weerawickrama, LLB (Col), LLM (HK)), (Attorney-at-Law). Legal Practitioner in the Supreme Court of Sri Lanka
[2] https://www.merriam-webster.com/dictionary/torture
[3] The Constitution of the Democratic Socialist Republic of Sri Lanka has been the Constitution of the island nation of Sri Lanka since its original promulgation by the National State Assembly on 7 September 1978. As of May 2015 it has been formally amended 19 times. https://www.parliament.lk/files/pdf/constitution.pdf
[4] In 1994 Sri Lanka acceded to the United Nations Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment. Subsequently, the Sri Lanka Parliament passed the Torture Act (the Act against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment No 22 of 1994).
[5] ‘Sri Lanka: The Law’s Response to Women Victims of Violence’, Shyamala Gomez and Mario Gomez, published in Violence, Law & Women’s Rights in South Asia, Edited by Savitri Goonesekere, Sage Publications, 2004, web link: https://books.google.com.hk/books?
[6] Fernando KERL et al. Torture Occurrence in Police Custody: Critical Legal study on Sri Lankan Context.
[7] Evidence Ordinance of Sri Lanka, web link: https://www.lawnet.gov.lk/evidence-ordinance/
