Basil Fernando, Executive Director, Asian Human Rights Commission & Asian Legal Resource Centre, Hong Kong
Maintaining very close links with torture victims is the starting point for any serious work on torture. In Sri Lanka, the Asian Human Rights Commission (AHRC) works with six groups in different parts of the country. These groups receive victims, record complaints, assist in lodging complaints, help with physical and psychological treatment, provide solidarity and community-based witness protection and humanitarian assistance, and assist these persons in numerous other ways.
When a victim visits one of these groups the first thing that happens is that their story is taken down by a person who has been trained to look for the details and check the veracity of the story. Statements are also recorded from witnesses or other persons with information to support the allegations. The statements are put in writing and authenticated. Either immediately or within a short time these statements are put into affidavits, which are written and signed according to the requirements of the law, with the assistance or advice of lawyers. This work both assists victims in the legal process and also to build a body of documentation on torture and related issues for purposes of larger studies.
Thereafter, within the shortest possible time, the initial information about the torture is also communicated to our Urgent Appeals desk in Hong Kong. When the desk is satisfied with the authenticity, accuracy and adequacy of the information, the case is prepared in writing and is used for interventions both locally and internationally. This activity is carried out routinely and around the clock.
Intimate contact with victims has been maintained from one to six years. But in terms of documentation a case never ends. Early documentation consists of factual details; later it turns on the institutions with which the victim has had contact and how these institutions have handled the case. In this way enormous amounts of information have been obtained on what happens at police stations, courts, national institutions and other places where victims have gone to seek redress.
The Special Investigation Unit
One of the positive institutional developments to which we have contributed is the creation of a Special Investigation Unit (SIU) within the Criminal Investigation Department to investigate torture. The creation of this unit followed inquiries by the UN Special Rapporteur on the question of torture, following cases that were mostly submitted by the AHRC since 2002. The special unit has been charged with investigating allegations of torture under the Convention against Torture Act (No. 22 of 1994); officially, over 60 cases of torture have been filed in the high courts against about 100 officers.
When a charge is lodged in a high court it must be done through an indictment, which consists of all the documentation that the prosecutor will rely upon during the trial. Thus, an indictment is a rich source of information about alleged torture. It includes statements collected from victims and witnesses, from alleged perpetrators and from witnesses; medical reports from doctors; notes from police books; sketches by police investigators, and their investigative notes. In special cases there are also DNA reports and other forensic reports. The AHRC and its partners have collected the documentation from indictments for further studies on the practice of torture in Sri Lanka.
The work of the SIU has been done by a very limited number of senior officers and subordinates. Their experiences need to be documented in order to understand how these investigations take place and what difficulties they have faced. We are obtaining information about their work through questionnaires with the help of a specialised research team, including a retired senior police officer.
Outside of the SIU, senior police officers with regional command responsibilities also conduct inquiries into torture allegations. Victims are given assistance to attend these inquiries and from these interventions also we are able to collect information about what is happening. We study not only the individual cases but also the procedures followed during these inquiries. This way we obtain further documentation, including details of police circulars and instructions on discipline and disciplinary process.
The Department of Attorney General
The prosecuting branch in Sri Lanka is the Department of the Attorney General. The department does not exercise any supervisory power over investigations into torture or other criminal investigations by the police, which has been a matter of some criticism. However, the department decides whether or not to prosecute alleged offenders on the basis of files submitted for its attention. If the decision is to prosecute then the department drafts the charge sheets and also prepares the indictment.
The attorney general’s powers have so far not been used to prosecute any officer for torture above the rank of inspector of police. Higher-ranked officers have been accused of engaging in acts of torture but have not had any indictments filed against them. The department has also not yet filed any indictment on the basis of command responsibility. Command liability is usually not treated as a criminal matter. In the case of Gerald Perera, the Supreme Court found that the inspector general of police had violated the complainant’s rights by virtue of the torture he suffered at a police station. His name was at first included in the subsequent criminal indictment filed at the high court by the department. However, later senior counsel representing the department withdrew his name on the basis that his liability was vicarious: falling under civil law only.
AHRC partners in Sri Lanka pursue cases with the Department of Attorney General both through Hong Kong and through direct communications from lawyers. They also lobby the department publicly when it appears that it is not taking action in certain cases, with some success. Again, as a result we are able to gather detailed information on the manner in which the department deals with indictments and prosecutions, which is documented and analysed as part of the overall work to prevent torture.
The courts
Judicial activities against torture take place at magistrate’s courts; high courts, under Act No. 22 of 1994; and the Supreme Court, where fundamental rights issues are taken up and matters of compensation are usually decided. Some actions for compensation also take place in civil courts. Besides these, sometimes writ applications are made to the Court of Appeal. Around a hundred cases are pending before the courts on cases in which the AHRC and its partners have direct interest.
Cases invariably take several years. Delay in trials is one of the major obstacles to remedies for victims of all human rights abuses in Sri Lanka, including torture. By attending cases we again obtain information upon which we can develop commentary on this problem. One of the causes of delays is repeated postponement of cases in the high courts and magistrate’s courts.
Parties to cases typically have to appear at least six times during a year. If related cases are before both a high court and magistrate’s court, it means at least 12 appearances. Two cases run concurrently when the Department of Attorney General files a case against the police under Act No. 22 of 1994 while the police meanwhile file a criminal case in the lower court against the victim. In the high court the torture victim appears on behalf of the prosecution to give evidence against the police. In the lower court the police are meanwhile leading a case against the victim. The victim is compelled to fight the case in the lower court while supporting the prosecution of the police in the higher court. At the same time, a fundamental rights case may also be heard before the Supreme Court over a period of up to six years.
By attending court proceedings we obtain two types of information. On the one hand, there is knowledge gained about the nature of the proceedings in each of these courts in cases of torture, including trial procedures, use of evidence and forensic science, and matters of adjudication. On the other hand, these proceedings also give insight into delays, needs for witness protection, the work of legal professionals and problems that members of the legal profession taking cases of torture face in court. Besides the observations from being in court, we obtain certified copies of court proceedings, including the files from the beginning to end of trials, applications and replies, and other documents in fundamental rights cases as well as the judgments delivered by the courts.
National institutions
The two national institutions of greatest relevance are the Human Rights Commission (HRC) and National Police Commission (NPC). Torture victims make complaints to both of these, and partners of the AHRC as well as its Urgent Appeals desk in Hong Kong send letters on behalf of the victims to both of these institutions almost daily.
The HRC conducts inquiries into torture cases about which we have obtained detailed information from direct involvement. The AHRC has released several commentaries and statements on these inquiries, pointing to their inherent flaws in law and practice, the latter including in terms of administration and staff competency.
The AHRC and partners worked closely with the NPC during the time that it functioned in accordance with its constitutional mandate, from 2003 to the end of 2005. The AHRC also submitted a detailed proposal for the creation of a public complaints procedure under the NPC as required by the constitution, which was partially adopted in January 2007. However, since the beginning of 2006 the commissioners of the NPC have been appointed in contravention of the constitution, which has severely undermined the commission’s legitimacy.
International agencies
We communicate with United Nations mechanisms, including the UN Special Rapporteur on torture about cases in Sri Lanka almost daily. Detailed letters sent to the rapporteur give case information upon which to enable him to request a response from the government. Since 2002 the rapporteur has sought explanations from the government over more than 30 cases submitted by the AHRC each year. In fact, the number of cases submitted by AHRC on torture in Sri Lanka is much larger than anyone else. And in many instances the government has acknowledged that the allegations are accurate and that actions are being taken to investigate and possibly prosecute the offenders.
We have also made related shadow reports to the UN Committee against Torture and the Human Rights Committee. In the recommendations of these committees one can find that they have pursued and used the information provided through the shadow reports and reached similar conclusions. Besides these reports, we have sent representatives of partners and victims to meet these committees during their consultations and have had occasion to meet in private and lobby members on the basis of the information we have submitted.
The AHRC and its partners in Sri Lanka are also involved in an international project to promote the Optional Protocol to the Convention against Torture in four countries of Asia.
Some findings
Through long years of work on torture in Sri Lanka we have found the following:
I. Police torture
a. Police torture is endemic and routine. Torture is often not done to extract information but for other reasons, such as to find substitutes for unresolved crimes, show results to superiors, or for statistical purposes. It also occurs with frequency due to habits that encourage the use of force on anyone arrested, due to feelings of the arresting officer that he is not being paid proper respect, or for reasons of extracting money and favours. In almost all cases the victims are poor, with very few influential social connections.
b. Officers in charge of police stations condone torture and often engage in it themselves. Almost always they try to cover up incidents of torture when complaints emerge. The departmental orders for police have extensive rules to prevent torture but these are largely ignored. They also provide for visits by superior officers; however, these visits do not take place as and when required. Few senior officers have strong views against torture.
c. Command responsibility in the police is weak. Comments from the courts and police and direct observation have it that the head of police and other high-ranking officers have done little to prevent torture. The Supreme Court has observed that superior officers’ conduct infers that they ignore or condone torture.
II. Investigations
a. Investigations invariably only follow from heavy outside pressure, particularly from the UN Special Rapporteur on torture and other international channels. Complaints that are not accompanied by such pressure are usually ignored.
b. When investigations are referred to the SIU the evidence suggests that investigations are conducted competently and impartially. When assigned and left to do its work, the SIU does have the capacity to conduct thorough investigations, even against police officers. However, its inquiries also are beset by delays, as they begin only months after a complaint is first made. Thereafter it may take over a year before submitting a final report to the attorney general. The number of cases it is handling also is very small relative to the number of complaints made.
c. Investigations by higher-ranking police officers in the regions where incidents are alleged to have taken place do not show the same type of competence and impartiality as the SIU inquiries. In many instances these have been accompanied by attempts to discourage victims from pursuing complaints.
d. HRC inquiries for the most part lack competence and adequate powers. The commission itself admits that its inquiries “do not amount to proper criminal investigations into torture”. Its inquiries also entail delays, during which time various methods are used to discourage victims from pursuing complaints. In many instances inquiring officers from the commission do not show an understanding of international norms and standards relating to torture, to the detriment of their work.
e. The NPC is mandated to inquire into allegations of torture from a disciplinary point of view. Its inquiries should be conducted through its local representatives; however, in practice it refers them to senior police and asks them to submit reports. In January 2007 the NPC published a gazette extraordinary regarding the public complaints procedure against police officers. How this will operate is yet to be seen.
III. Prosecutions
a. There are considerable delays in prosecuting cases of torture, sometimes of over two years, from the receipt of investigation files by the Department of Attorney General to the time that indictments are filed. The department attributes delays to a shortage of staff. However, it is apparent that the department does not make torture cases a priority, and nor does it see any reason to do so. Rather, prosecutions follow only from external pressure rather than by way of normal practice and legal obligation. According to official figures, the success rate in prosecutions is a mere four per cent. This may be even less in torture cases due to this behaviour by the department, as well as the official position held by the accused and social prejudices in his favour.
b. The department also does not make applications in court for speedy hearing of torture cases. Sometimes the explanation given unofficially is that such applications often fail and that the better course is to be prudent and not to press the court. In one case, even after the UN Human Rights Committee requested the state party to ensure that the trial be speeded up in a specific case, counsel from the department did not make any application to court to do so.
c. Delays in filing prosecutions seriously affect victims and witnesses. This is one reason that victims are discouraged from pursuing cases. The department in fact encourages victims and witnesses to withdraw. It creates the impression that it has done its duty to prosecute and indirectly blames the victims and witnesses for failing to achieve a successful result.
d. From experience and interviews departmental officials we have concluded that the department is not strongly interested to prosecute torturers as a matter of policy to prevent recurrence of the practice. On the contrary, as a matter of policy it does not want to prosecute any officers above the rank of inspector of police, even if there is evidence of direct involvement in torture, let alone on the basis of command responsibility.
e. In several instances the filing of charges on torture has shown a lack of understanding of the international law on torture by the department, even though the domestic law came as a result of Sri Lanka ratifying the international convention. There is a disparity in the way the department distinguishes vicarious liability of higher officers as a matter of civil law and Sri Lanka’s obligations under the UN Convention against Torture and the International Covenant on Civil and Political Rights (ICCPR).
f. Notwithstanding, in several cases counsellors representing the department have shown exceptional competence and integrity when prosecuting torture cases, despite the many difficulties institutional and judicial obstacles put before them.
IV. High court trials
a. There have so far been two successful prosecutions of torturers in separate high courts. Both took two to three years to complete. In one case the accused officer reportedly fled abroad before the verdict was given. Other cases have been unsuccessful. In many the victims have come forward to state that they do not wish to proceed with the case, due to serious threats coupled with inducements. Some victims have tried to resist but have been pressured by their families and peers after they also have been approached and coerced by the accused or their colleagues. In one well-known torture case the accused was killed about a week before he was to give his testimony in court. Investigations revealed that the alleged perpetrators of the torture were behind the killing.
b. In the high courts there is now a habit of postponing trials after taking evidence for a short time, which results in cases dragging on unnecessarily. Each day many cases are included in the trial roll and only a very short time can be devoted to each case. The earlier practice was for trials on serious offenses to be taken from start to finish. Often trials would end within three or four days. This practice has now been abandoned, which has brought considerable difficulties to victims.
c. Some judgments show that judges are confused about the law against torture. Some have held that police officers injuring persons in their custody have not committed torture, as the purpose was not to obtain confessions. One judge held that though the accused police officer used excessive and unnecessary force and caused extensive injuries this did not amount to torture. Judges may also be reluctant to convict due to the mandatory seven years’ imprisonment as punishment for torture.
d. Overall, the high courts discourage pursuit of complaints against torture rather than encourage attempts to ensure liability of the offenders.
V. Supreme Court fundamental rights cases
a. While complaints of torture are increasing, fundamental rights cases filed at the Supreme Court are in steep decline. This decline is attributed mostly to lawyers (and even some human rights activists) advising victims that the likelihood of success in such applications is less now than before. Cases are frequently rejected without issuing notice, and usually no reasons are given.
b. The compensation granted to successful applicants in fundamental rights cases for torture has steadily diminished. Some attempts were made earlier to set high standards for compensation; for example, the equivalent of around USD 8000 in serious cases, Nowadays, the amount may be from the equivalent of USD 100 to 250. There has not been any explanation for this decline. Although the purpose of filing a fundamental rights case is not to obtain compensation alone, low amounts discourage victims from trying.
c. The Supreme Court a few years ago made some attempts to incorporate international norms on human rights into domestic law through its judgments. However, in recent years it has taken the view that even though Sri Lanka ratified the ICCPR, the covenant is not binding in the courts and even that the signing of the Optional Protocol may have been beyond the authority of the government. There is a vast and widening gap between the law as expressed in the Supreme Court judgments and the international norms and standards. The views of the UN Human Rights Committee on violations of rights by judgments in Sri Lankan courts, including the Supreme Court, have not been respected.
Some conclusions
a. There are deep flaws in all parts of investigation, prosecution and the judicial process in Sri Lanka that inhibit work to eliminate torture. Many defects serve to encourage and enable torturers. At the moment no reforms are envisaged. Emergency and antiterrorism laws introduced due to civil conflict have exacerbated problems and hampered discussion about the need for reform.
b. Currently, the burden of prevention rests heavily on civil society. Our support for victims is the only means available to keep interest alive and obtain some redress through prolonged actions in courts, under severe harassment. The only form of witness protection is that offered through the community. Still, many individuals and groups have willingly faced all the difficulties involved in providing support for torture victims and maintained public discussion on the prevention of torture.
c. The public is interested to participate in discussion on torture and related problems. However, both state and private media are actively discouraged from giving serious attention to this problem. Human rights groups and others working with victims have had to work out how to communicate efficiently and keep debate alive. Our experience shows that this is possible despite many limitations.
A note on studies on torture
Our first report on torture was published as an issue of article 2 in August 2002 (vol. 1, no. 4). This report consisted of 22 cases and analysis of the causes of torture in Sri Lanka. It was followed in February 2004 by another volume, in which 33 cases were accompanied by commentary on prevention of torture (vol. 3, no. 1). Thereafter we published An x-ray of the Sri Lankan policing system and torture of the poor, in which there are about 65 cases and also many related articles (AHRC, 2005). Two shadow reports to the UN Human Rights Committee and Committee against Torture in 2003 and 2005 contained a large amount of details on torture in Sri Lanka together with analyses and recommendations for its prevention. Besides these, several articles have been published in journals and books have been published in Sinhala, and relevant chapters have been included in the AHRC’s regional roundup reports for 2005 and 2006. AHRC staff and partners have also written literally hundreds of articles for national newspapers.
In the course of our work we have tried to find relevant material from international publications to guide us. We have been able to find some. However, we have also found a vacuum in the literature on torture. There is especially a dearth of material on institutional causes for torture. It is difficult to find studies on endemic routine torture in police stations as a consequence of the criminal justice system itself. On the contrary, many studies tend to assume that there exist minimum-functioning institutions to investigate, prosecute and try torture perpetrators. As a result, they are of limited relevance to most Asian countries, including Sri Lanka.
We have also noted that the recommendations and observations of United Nations committees dealing with torture, while welcome, have not been detailed enough to address the deep institutional problems enabling torture. The government has anyhow ignored their recommendations and decisions. If their recommendations are to be made effective and worthy of effort to see implemented, these UN bodies must obtain a much better understanding of the nature of violations and how they grow from institutional roots.
