Justice S. Anandacoomaraswamy
Chairman
Human Rights Commission of Sri Lanka
No. 36 Kynsey Road
Colombo 08
Sri Lanka
Tel: +94 11 2694925
Fax: +94 11 2694924
Email: sechrc@sltnet.lk
Dear Mr. Justice Anandacoomaraswamy,
SRI LANKA: An Open letter to the Chairman of the HRCSL on the quantum
I refer to your letter to us dated 26.4.2007.
As a matter of courtesy we are replying to your letter since you have misunderstood or misinterpreted our correspondence. Let me quote the relevant portion of our letter to you regarding the HRCSL’s responsibility for determining the quantum of compensation in this case.
This very recommendation by the HRCSL itself (which has not been paid) is a clear indication of the lack of respect for, or understanding of the international norms and standards by the commission. It is quite simply an insult to the torture victim to declare a quantum of altogether Rs. 12,500 for causing torture by two policemen. International standards on these matters have been set out on the basis of the gravity of torture as a violation of human rights. It is one of the greatest injuries that can be caused to the dignity of a human person. The HRCSL should be urged to review the quantum of compensation granted in this case as well as in all earlier cases.
It was incorrect for you to imply that our reference was regarding the HRCSL’s powers of implementation. We are fully aware that yours is a toothless commission from the point of view of implementation. Further we are also aware that from the point of view of appointment, your present commission was appointed contrary to the provisions of the 17th Amendment to the Constitution. However, the matter we raised was regarding your obligations to conform to the international norms and standards in awarding compensation to torture victims.
In this particular case the HRCSL found the respondent police officers to have breeched the victims rights under Section 11 (Torture) and 13(1) (Illegal arrest) of the Constitution. The victim has alleged that he was stripped, hung and beaten with wicket poles and was forced to make a confession. Our criticism of the quantum you have awarded is based on the Article 2 of the International Covenant on Civil and Political Rights which obligates the state party to provide an ADEQUATE REMEDY for violations of rights. The question of compensation goes to the very heart of the question of adequate remedy.
The United Nations Committee against Torture as well as the Human Rights Committee has repeatedly gone into the issue of compensation as a part of adequate remedy against torture.
The HRCSL, you may be aware, is founded on the basis of what are known as ‘the Paris Principles.” These principles are based on a resolution of the General Assembly of the United Nations, 48/134 adopted in December 1993. One of the functions of institutions like the HRCSL is “to promote and ensure harmonization of national legislation, regulations and practices with the international human rights instruments to which the state is a party and their effective implementation.”
When the HRCSL investigates cases of torture and makes its decision these decisions should be in harmony with the international norms and standards of human rights. It is one of the most elementary principles regarding torture that it is considered among the worst categories of crimes. It is one of the human rights about which there is an absolute prohibition. Both the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture attribute the highest importance to the elimination of torture. It is up to you to consider whether the HRCSL decisions, including the one in this case, harmonize with international human rights instruments. In fact instead of harmonizing with such decisions you are in complete contradiction with the international norms and standards. If it is HRCSL’s position that such harmonization is not possible then your commission defeats the very purpose for which it was created.
Paltry sums awarded in cases of torture are an encouragement to torture perpetrators. Institutions like the HRCSL exist not to encourage torture perpetrators but to discourage them. If they are discouraged from the practice of torture this will cause the police establishment to look for improvements in it methods of criminal investigation and such improvements is one of the primary needs of the country. Failure of criminal investigations is one of the primary causes, not only for the increase in crime but also the increase of gross abuses of human rights such as abductions, disappearances, extrajudicial killings, torture and the like. In granting insignificant quantum as awards against such heinous acts of torture the HRCSL contributes to the continuation of a situation of increased crime and abuse of human rights. Paltry sums awarded in torture cases also discourage the victims and their families from pursuing such complaints.
We have good reason to believe that there are attempts to discourage rather than encourage the making of complaints to your commission. We have received many complaints from those who have resorted to your commission of their frustration. Such discouragement pursued through disproportionate awards for grave human rights violations contradict the HRCSL’s mandate to protect and promote human rights.
The complaint in this case was made in September 2004 and the decision was made on March 27, 2007. It has taken almost two and a half years to decide this simple case. The duty to investigate promptly into complaints of human rights abuse is one of the primary ways to ensure an adequate remedy. We refer you to the Concluding observations of the Committee on Sri Lanka on the duty to investigate promptly:
Prompt and impartial investigations
12. The Committee expresses its deep concern about continued
well-documented allegations of widespread torture and ill-treatment as well as disappearances mainly by the State’s police forces. It is also concerned that such violations committed by law enforcement officials are not investigated promptly and impartially by the State party’s competent authorities (article 12).
The State party should:
a) ensure prompt, impartial and exhaustive investigations
into all allegations of violations of torture and ill-treatment and disappearances committed by law enforcement officials. Such violations should, in particular, not be undertaken by or under the authority of the police, but by an independent body. In connection with prima facie cases of torture the accused should be subject to suspension or reassignment during the process of investigation, especially if there is a risk that he or she might impede the investigation;
b) try and, as appropriate, convict the perpetrators
and impose appropriate sentences on them, thus eliminating any ideas of impunity that might be entertained by perpetrators of torture.
CAT/C/ LKA /CO/1/CRP.2 – 23 November 2005
Although the duty of prosecution does not lie with your commission the duty to investigate complaints of torture from the point of view of compensation is your obligation.
On the issue of implementation may we refer you to the Presidential Directive dated July 5, 2006 instructing ‘Service Commanders and the IGP to assist HRC of Sri Lanka to exercise its functions and duties without any hindrance.’ Your letter implies that this directive of the president is not being complied with. If that be the case the HRCSL has a moral obligation to raise the matter with the president and also to inform the public of the issue. The Paris Principles makes it an obligation for national institutions like the HRCSL to negotiate with the government for the improvement of implementation on human rights matters. While the commission cannot be expected to implement decisions without legal provisions, the commission does have the obligation to exercise its functions in order to get the government to implement the decisions relating to human rights.
As for prosecution of offenders, this particular case will be taken up with the Attorney General and the Inspector General of Police. We urge you to use your moral authority and powers of persuasion to see that your own commissions decisions, including the decision in the present case be implemented. What is more important perhaps is for you to review the case and other similar cases from the point of view of the quantum of the awards and to increase the sums so as to be in harmony with the international norms and standards.
Thank you
Yours sincerely,
For and on behalf of
Programme Officer
Urgent Appeals Programme
Asian Human Rights Commission, Hong Kong
