The governments response to human rights violations in Sri Lanka, such as torture, extrajudicial killings and attacks on media personnel is that they are definitely concerned about it, but are unable to prevent it due to the lack of technical assistance, meaning money and experts, from the western countries. The government does not want criticism from western countries or human rights monitors but admits that it needs money and advisors from the west to prevent these abuses. This position is expressed in many different ways and in many different places. This statement examines the validity or otherwise of this position and the implications of taking such a position.
Over a long period of time there have been accusations from the people of the country, from the media and also many organisations about serious human rights abuses. There have been similar allegations from the governments of many countries and also international organisations. The state of Sri Lanka (GOSL) no longer denies such abuses. It goes even further by expressing its concern about such abuses. However, the expression of such concern does not go to the extent of accepting responsibility for such abuses. The gap between expressions of concern and the acceptance of responsibility for such abuses seems to lie, judging by the impression that the GOSL is trying to create, that it is not really within its power to prevent such abuses as it does not get the . The GOSL statements therefore urge the western governments to grant such technical assistance urgently and in abundance if the abuse of human rights is to be prevented.
The implications of the GOSL position is that the responsibility for human rights abuse in Sri Lanka lies squarely with the western countries due to their lack of will to provide it with technical assistance. While one country is praised for providing such technical assistance to the fullest in order to improve capacity, others are blamed for not providing such assistance. The GOSL position implies that it is not really in a position to be capable of the prevention of torture, extrajudicial killings and attacks on journalists, to mention a few of the prominent abuses. At the same the GOSL vehemently protests the criticism that it lacks political will to prevent abuse of human rights. The problem, according to these statements is not the lack of political will but the lack of capacity due to the absence of ern countries. With particular regard to impunity, this means that the government does have the political will to prevent impunity but is unable to do so due to the lack of money and experts from the international community, really meaning the western countries.
The question then is as to what are the areas in which the GOSL thinks that it needs technical assistance?
a. Is it in the area of the judiciary?
b. Is it in the area of the system of the prosecutions which in Sri Lanka functions under the Attorney General’s Department?
c. Is it in the area of policing, particularly in the branches of the police that deal with investigations into crime which includes gross abuses of human rights?
d. Or is it in the area of constitutional law where some of the basic public institutions are prevented from functioning in the manner required by the constitution due to the non-operation of the 17th Amendment to the Constitution? Or is technical assistance needed to remove the position of superiority and predominance that the executive president in the country holds in relation to the constitution of Sri Lanka, and particularly with regard to the blanket immunity the president enjoys in terms of the constitution?
If the GOSL spells out its needs regarding technical assistance with regard to any of the items mentioned above it would be possible to comprehend what this call for technical assistance is all about, what type of technical assistance would be needed, and anyway, whether any such technical assistance would contribute to the eradication of the human rights abuses that take place in the country.
In considering this question let us take the example relating to torture. There are two types of torture that are revealed from the complaints frequently received. These are the torture that routinely takes place at police stations and the torture that is alleged to take place in the interrogation of suspects relating to the operation of emergency and anti terrorism laws. As there is extensive documentation collected over several years and well publicised on routine police torture perhaps it may be useful to refer to such cases to begin with in seeking clarity as to how technical assistance may or may not be able to prevent such torture.
The High Courts of Sri Lanka have heard several cases of torture under the CAT Act, Act No. 22 of 1994 and have made judgements in some of them. There are three cases in which the High Courts have found the accused police officers to be guilty of torture and have sentenced these officers to the mandatory sentence of seven years of rigorous imprisonment and a fine of Rs 10,000/=. These cases are:
Selvin Selah and another vs. State of Sri Lanka – H.C. 966/2002 of Court No. 1 of the Colombo High Court, decided on 20.7.2007. The decision was written by the High Court Judge of Colombo, Upali Aberatne. Kirthi Bandara Edrisinghe – IP vs the State of Sri Lanka – HC 1392/2003 of Court No. 3 of the Colombo High Court. The decision in this case was delivered on 20.8.2004 by the High Court Judge, Eric Bassanayake. And Madiliyawatte Jayalathge Thilankaratne Jayalath vs State of Sri Lanka – HC9775/99 of Colombo High Court No. 2. Decided by S. Sri Skandarajah on 19.1.2004
In these three cases the common feature was that the police officers tortured the victims due to the pressure of an affluent person who had sought the help of the police. The police proceeded, without sufficient evidence to warrant reasonable suspicion and after arrest, tortured these persons. In two instances the affluent complainants watched the torture. Acts of torture for similar reasons have been documented in publicised reports for many years now. Such police torture takes place either to please an affluent complainant, to find a substitute for an uninvestigated crime or due simply to the irritation of one of more police officers, which is the most common explanation for such torture.
There is also a series of cases decided by the Supreme Court in recent times on fundamental rights applications where acts of assault amounting to torture or cruel and other inhuman treatment has taken place at police or military check points. This has been due to either the failure of police officers to obtain some favour, for example in one case, when the driver of a car refused to hand over a bottle of perfume to an officer who demanded it, or due to the failure to pay a sum demanded by an officer. In hundreds of cases decided over several years by the Supreme Court the torture had taken place due to extremely trivial reasons which suggests the absence of even the slightest form of diligence in the performance of duties, such for example as checking the name of a person, manifested by several cases where people have been tortured due to mistaken identity.
The question then is as to why technical assistance by way of foreign experts or foreign money is needed to stop such torture. All that is needed to stop this torture is to give a clear command of disapproval of such arrests and torture and to impose it through the police hierarchy that has command responsibility to prevent such actions. Though this may sound simple in theory in practice it is not so. It requires political will to act since such behaviour has been allowed in the past for many years. Anyone who tries to impose discipline will be seen to be acting outside the convenient practices prevailing in the institution. Any police officer who dares to act to end these things must face opposition from those who are accustomed to such a convenient way of living. While an exceptionally daring officer may try this others will do so only if there is a clear political will expressed openly by the government which supports such officers who are diligent, honest and committed. However, if the general perception is that such an officer may not only be opposed by rank and file but also be undermined by the political establishment, it is not possible to prevent the type of torture that is taking place in the police stations of Sri Lanka.
What this clearly illustrates is that it is not the lack of finances or experts from the west that is making it difficult to eliminate torture but a clear lack of political will to stop torture. Even if foreign experts were to come or a foreign government to provide money, this situation will not change. The foreign experts can give any amount of training but the institutional habits protected by interest groups cannot be changed by such training.
Therefore the argument that torture in Sri Lanka takes place due to the absence of technical assistance from foreign countries is an argument that contradicts experience. It is clearly a matter of the absence of political will on the part of the state to stop the torture practiced at police stations.
(This article will be continued in relation to other abuses of Human Rights taking place in Sri Lanka).
