Kishali Pinto-Jayawardena, lawyer, columnist & author, Sri Lanka
At each historical juncture, the framers of Sri Lanka’s post-independence constitutional documents have suffered from a deep-rooted reluctance to give practical effect to the rule of law and the idea of justice; the 1972 ‘autochthonous’ constitution subordinated the judiciary and only superficially embodied a bill of rights while declining to grant the Supreme Court explicit jurisdiction over the determination of violations.[1] Thereafter, the 1978 Constitution (which remains in effect) entrenched the concept of the all-powerful executive president, whose actions were virtually above the law, while (absurdly) omitting the right to life and including a chapter on constitutional rights with procedural restrictions that diminished the protection of those very rights.[2]
This same deviously subversive rationale formed the basis of each and every grudging measure ostensibly agreed to in the name of constitutional democracy, whether the enactment of laws to monitor abuse of human rights, curbing of police indiscipline or implementing of a constitutional amendment that was meant to restore public confidence in government. The old adage about giving with one hand and taking with the other took on terrible proportions in the gradual but relentless deterioration of Sri Lanka’s political, constitutional and legal systems.
From this core political objective to subvert the rule of law sprang a rabidly intolerant response to legitimate dissent; the constitutional documents of 1972 and 1978 were used to deny justice to both the majority Sinhalese and the minority Tamils and Muslims. The failure of the justice system and breakdown of ordinary law enforcement has resulted in three decades of deaths, enforced disappearances, and physical and mental torture of thousands, not only during active conflict but also in relatively normal times. Protection of human rights, independence of the judiciary, a democratic electoral system and the separation of powers were instead used to strike at the public’s understanding of the rule of law and have constitutional process suit political exigencies.
However, in trying to analyse this problem, much effort has been expended on constitutional theory and the niceties of one democratic system as against another (a parliamentary as against presidential system; proportional representation as against first-past-the-post, or a unitary as against federal state). Such efforts are premised on the assumption that Sri Lanka’s democratic institutions are in proper working order and that what is required is merely to decide on suitable models of government.
This paper departs from the above premise in unequivocal terms; it identifies the profound failure of democratic process and examines how the justice system has broken down. The point, albeit controversial, is that the ongoing conflict in the north and east is an effect rather than the cause of the cyclic coercive violence in the country. The periodic brutality of the Sri Lankan state against the majority community in fact formed a useful base for a pattern of abuse where ethnicity was the determining factor in perpetuating violence when the conflict in the north and east intensified. Thus, the paper critically questions past thinking that the failure of constitutionalism was in not providing for the needs of ethnic minorities and ensuring the multiethnic character of the polity. While conceding the importance of these concerns, it contends strongly that the struggle should have been on the failure of justice and human rights in general, and the failure of law enforcement in particular. In doing so, the paper acknowledges that
A discourse on justice is separate from a discourse on politics. This does not mean that the two are unrelated—only that they are distinct. And for the discourse in justice to influence the political discourse in a country, thereby breaking its tautological nature, there must first exist something akin to a discourse on justice. However, sadly such a discourse is quite absent in Sri Lanka. [3]
Limiting attention to minority rights and the ‘ethnic conflict’, this paper will contend, has detracted from a more profound exploration of fundamental problems in protecting life and liberty that confront all Sri Lankans today. This is of direct relevance to the peace process, as, for example, it has resulted in the downplaying of the critical question about human rights protection for civilians consequent to the 2002 Oslo ceasefire agreement with the putting in place of credible monitors rather than ‘political facilitators/mediators’, which deprived the entire exercise of vital public ownership and legitimacy. As a result the Nordic-backed Sri Lanka Monitoring Mission has by now lost most public support.
The research does not focus exclusively on theory but instead takes a ‘praxis’ approach, exploring its premise through the diverse findings that have emerged from sustained and pro-active campaigns against endemic torture carried out by the Asian Human Rights Commission (AHRC) and associate organizations during the past several years. Informed and driven by the determination of the victims and grassroots activists, this has been a singularly successful approach to learning that has distinguished itself by turning on the felt needs of the people, as opposed to arid theories.
The ‘schizophrenic’ Sri Lankan state
A common assumption in South Asia is that traditional democratic legacies carry with them all the formulae for building equitable and just societies. This is underpinned by the perception that the state is the key to ensuring the rights of citizens and also that its role is non-confrontational and benevolent, as are its institutions.
In the immediate post-colonial era, such naivety was natural and perhaps necessary for the emergence of new national identities. The state was perceived as having certain essential responsibilities in defining territorial integrity, looking after the welfare of people within its territorial limits and enacting laws and regulations in order to maintain order and good government. Thus the state derived its legitimacy to speak on behalf of all citizens against external influences, friendly or aggressive, and justify the right to use force in order to safeguard its own existence. The notion that the state existed for the common good prevailed almost to the point of automatic acceptance of all its actions. Belief in the normative power of constitutions was an essential part of this formidable authority. Inherited British traditions of parliamentary democracy claimed power to transform through constitutional institutions, and constitutionalism was perceived as the ideal condition of democracy.
However, this faith was misplaced. As communities fragmented, a search began for ways to reconstruct the state and its institutions. But subsequent discourse continued within the old parameters that defined the state as being central to any reform. Focus shifted to a justicable bill of rights, an independent judiciary, a multiparty system and competitive electoral processes. But this shift was accompanied by profound despair arising from the failure of many constitutions to uphold human rights or democratic values, and the appalling disparity between constitutional theory and practice.
In Sri Lanka, a number of instruments from this time, both constitutional and statutory, purport to protect the rights of its citizens. The Supreme Court has exclusive jurisdiction to hear and determine complaints of violation of fundamental rights (except the right to life) by executive or administrative action. Article 13(1) stipulates arrest only according to “procedure established by law” and the giving of reasons for the arrest. Article 13(2) states that every detained person must be subjected to judicial supervision and that further detention must only be upon judicial order. Article 13(3) is to the effect that “any person charged with an offence shall be entitled to be heard in person or by an attorney-at-law, at a fair trial by a competent court” while Article 13(4) prohibits the punishment of death except by order of a competent court. Article 11 states that, “No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Sri Lanka has also enacted domestic legislation to give effect to the UN Convention against Torture. Section 2 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Act, No. 22 of 1994 (hereafter the Convention against Torture Act) makes torture, the attempt to commit torture, or the aiding and abetting in committing or conspiring to commit torture, an offence. A person found guilty after trial by a high court is punishable to imprisonment for a term of seven to ten years and a fine of 10,000 to 50,000 Rupees.
However, the state itself remains the chief violator of these rights, either by commission or omission. The constitution has not become living law and the dream of constructing equality and social justice remains unrealised. The modern Sri Lankan state therefore possesses a schizophrenic personality as far as the protection of human rights is concerned. It unleashes violence and executes an internal war while superficially affirming its commitment to democratic process.
A culture of violence
Sri Lanka has a long record of violent conflict. Social and political violence, including the ongoing war in the north and east and two earlier youth insurrections, has brought the country’s development during the past three decades to a standstill.
When the United National Party (UNP) entered government in 1977 and powers were centralised in an elected executive president a new culture of political violence set in. It was used systematically to wipe out all opposition to the government. Not only did the UNP reorganise its trade unions to act as thugs to incite and carry out violence, but certain politicians were allowed to have their own private armies and mobilize large crowds and mobs to wreak havoc with impunity. Paramilitary organisations set up during this period, supposedly to help the armed forces and police fight the Liberation Tigers of Tamil Eelam (LTTE), also expanded the UNP’s armed strength.
The violent politics of this era culminated in the late 1980s with the reemergence of the Janatha Vimukthi Peramuna (JVP), which had been methodically crushed by the United Front Government in the decade before. The JVP intended to capture state power and establish a socialist state, but was suppressed with the same violence as before. The conflict only subsided in 1991 when its leader was arrested and summarily executed by the army.
The People’s Alliance (PA) government came to power in 1994 promising to usher in a new political ethos. But the resumption of the war against the LTTE and the defensiveness caused by constant efforts to maintain the moral high ground against the “dushanaya” and “beeshanaya” (corrupt and violent) record of its predecessor, the UNP, quickly pushed the PA into a morass of its own making. With much of the earlier apparatus still intact, its politicians renewed practices of political violence, which have continued to this day.
The law itself has been a commonly used instrument of repression. The Public Security Ordinance (No. 25 of 1947) as amended and the Prevention of Terrorism Act (PTA) of 1979 as amended have been enforced for the better part of the last decades and have virtually eclipsed the ordinary penal laws and criminal procedure and evidence statutes. Emergency laws have given wide powers of arrest and detention to the police and armed forces. They have denied minimum safeguards on conditions of detention, made confessions to senior police officers admissible, and relaxed normal procedure concerning inquests, postmortem examinations, disposal of bodies and judicial inquiries where there are deaths in custody. The Criminal Procedure Code, which required a suspect to be produced before a magistrate within 24 hours of arrest; and the Evidence Ordinance, which prohibited the making of confessions to police officers, were completely overridden. The consequences have included thousands of extrajudicial killings, enforced disappearances and the further brutalising of Sri Lankan society.
Subversion of the justice system and defeat of constitutional oversight of government
A specific feature of the pervasive breakdown of the rule of law in Sri Lanka has been the failure of the justice system to bring to book those perpetrators that commit abuses, whether in times of ordinary law and order or in periods of emergency. This failure is evident at all levels, from the highest to the lowest courts, and deserves close scrutiny as a factor in the deterioration of constitutional government, including proper law enforcement, resulting in pervasive violence.
Subordination of the rule of law to ‘rule by politics’
The gradual politicisation of Sri Lanka’s judiciary and subordination of the rule of law to ‘rule by politics’ is an important but neglected human rights issue. The failure of non-governmental organisations based in Colombo to mount a vigorous campaign against the blatant politicisation of the Supreme Court from 1999 onwards has been particularly indicative of their failure to place justice as central to their work and in some measure also points to the political choices that these organisations have made.
Threats to the independence of Sri Lanka’s judiciary are not new. Attempts soon after independence to reduce it were valiantly resisted by judges. When legislation was introduced that would undermine the separation of powers in the constitution by giving the minister of justice authority in the appointment of judicial officers, the Supreme Court declared it invalid. [4] Further attempts at fettering the judiciary were outlawed. [5] The court was, in these early stages, conscious of the need to safeguard the rights of all persons, including minorities. [6]
Predictably, political outrage at the rebuff of parliamentary authority resulted in the constitution being changed in 1972. The new constitution abolished judicial review, established a Constitutional Court with the limited power to scrutinize bills, and this too within 24 hours if the bill was declared urgent and in the national interest, and allowed for a state of emergency to be declared without parliamentary debate. In the place of the earlier independent Judicial Service Commission the politically subverted Judicial Services Advisory Board and an ineffective Judicial Services Disciplinary Board were established. The latter had no right to appoint minor judges but only to recommend their appointment to the cabinet (articles 126 & 127). Fundamental rights included in the constitution were made meaningless by open-ended restrictions and the lack of a specific enforcement procedure. [7]
The change in political leadership in 1977 brought about the current second republican constitution, in 1978, which theoretically protected the role of the Supreme Court as the highest and final superior court. The court was given special jurisdiction in respect of election petitions, appeals, constitutional matters, fundamental rights (now made justicable) and breach of the privileges of parliament. The appointment of judges of the superior courts was by an elected president “by warrant under his hand” (article 107). As in the two previous constitutions, the security and tenure of the judges were guaranteed and judges of the superior courts could be removed only after address of parliament on grounds of proved misbehaviour or incapacity in which the full particulars of such allegations should be set out (article 107[2]). The earlier judicial services boards were replaced by the Judicial Service Commission, vested with the same powers, consisting of the chief justice and two other judges of the Supreme Court named by the president, who could be removed only for cause assigned (article 112).
In practice, however, the spirit of authoritarian disregard for the independence of the judiciary continued. The president used a constitutional clause specifying that all judges of the appellate courts would cease to hold office on commencement of the new constitution to “reconstitute” the higher courts. Seven out of the 19 judges holding office were not reappointed, thus deeply damaging guarantees of tenure.
Meanwhile, police officers found responsible for violations of fundamental rights were not only promoted but awards of compensation and costs of actions judicially imposed upon them were paid by the government. Procedural difficulties in judicial officers taking the oath of allegiance under the Sixth Amendment resulted in the police locking and barring the Supreme Court and the Court of Appeal, and refusing entry to judges who reported for work. Following unpopular decisions, thugs stoned judges’ houses and hurled vulgar abuse at them. There was also an attempt to impeach Chief Justice Neville Samarakoon over alleged criticism of the government during a speech at a school prize-giving day. A select committee appointed to investigate found no “proved misbehaviour” which could justify his removal, but saw his conduct as a serious breach of convention.
In the wake of this sustained political barrage, it is not surprising that the judiciary decreased its efforts to protect the rights of the people. In 1982, when the UNP government flouted honoured electoral traditions and substituted the general election that was then due with a referendum, the Supreme Court upheld its decision. When questions over the 13th Amendment came before it, the court again refused to engage in a debate on the substantive merits and demerits of devolution while approving the changes on technical grounds that they did not violate the unitary nature of the state. [8]
In the 1990s the judiciary sought to regain some of its lost authority over politicians and state agents, particularly officers with custodial authority, such as police and prisons officers. This was in part due to widespread public acknowledgement that the abuses of the past could not be tolerated further and in part due to the efforts of some liberal judges. The judiciary did as much as it could within the confines of a constitutional document that does not include the right to life, permit public interest litigation, allow challenges of legislative acts, or permit judicial review even of unconstitutional laws enacted before 1978. [9] Importantly, the vicarious liability of officers in authority who do not intervene when their subordinates violate rights was specifically affirmed. [10]
Insofar as abuses of power under emergency laws were concerned, the Supreme Court responded far more sensitively than in the past; it relaxed procedural rules that prescribed strict compliance with the manner in which a petition must be filed in court and thus allowed hundreds of persons detained under emergency to file fundamental rights petitions. [11] The power of authorities to arrest and detain using emergency regulations and provisions of the PTA was also restrained, and the court went on to disregard an ouster clause in the Public Security Ordinance (under which emergency regulations are issued) to strike down the validity of a regulation itself. [12]
This judicial ‘activism’ caused a hostile reaction from the political regime; the Supreme Court and judges perceived to be ‘liberal’ came under scathing criticism from government ministers and the then-president, Chandrika Kumaratunge, herself. In 1999, with the appointment of Chief Justice S N Silva, who had close personal connections to President Kumaratunge, the court ceased to restrain government actions and indeed arbitrarily upheld the powers of government against citizens. [13] Benches were constituted without any consideration for seniority but with a view to ‘packing’ them with favourites of the chief justice who would be amenable to whatever decision was desired by the political establishment. [14] The flood of fundamental rights applications progressively decreased; isolated ‘rights friendly’ judgments awarded only small amounts of compensation, and lawyers and petitioners were judicially coerced into reaching settlements. [15] The court declared itself not bound by views of monitoring bodies established under international human rights treaties that had been ratified by the executive, thus formally approving the government’s years of ignoring the views of the UN Human Rights Committee. [16]
Predictably, the capacity of the lower courts to function independently from government was also affected. Transfers, disciplinary control and dismissal of lower court judges, which are handled by the Judicial Services Commission, were effected at its whim and fancy, most often at a single nod from the chief justice. [17] The negative impact that this has had on the credibility and internal discipline of the judicial service is incalculable. [18]
Public confidence in the ability of judges to act as a last measure against government authoritarianism has also inevitably decreased. Yet all of this took place without any significant protest from Colombo-based non-governmental groups, excepting at a few seminars held by one or two organizations.
Failure of civilian oversight mechanisms
Any effort to remedy rule by politics in Sri Lanka has been short-lived or thoroughly ineffective. The fate of two important commissions–the Bribery and Corruption Commission and the Human Rights Commission–evidenced this in no uncertain terms.
The Bribery and Corruption Commission was set up through Act No. 19 of 1994, which was passed unanimously; however, only insignificant and lower-ranking public officials have been caught in its net, while stupendous fraud and corrupt acts by heads of institutions and politicians have been bypassed. It has for long periods all but ceased to function due to infighting among its officials and efforts by successive governments to use it for their own political ends.
The Human Rights Commission (HRC) was established under Act No. 21 of 1996, a flawed law that allows it to engage only in conciliation and mediation, with the end result that its directions are substantively ignored not only by the police hierarchy but also by other government departments and officials.[19] Its members are not stipulated to be full time, thus resulting in their giving only part-time commitment to the work. Section 31 of the act confers powers on a minister to make regulations, including those over the conducting of investigations, which violates the Paris Principles on national human rights institutions, that “[a]n effective national institution will have drafted its own rules of procedure and these rules should not be subject to external modification”. The commission also is not empowered to approach courts directly as a petitioner in instances of grave human rights violations or even refer such cases to the appropriate court, as relevant rules that would allow it to do so under section 14(3)(b) have not yet been prescribed by the Supreme Court. So although some commission officers have been engaged in useful work in at least documenting human rights violations, particularly in conflict areas, and in bringing their persuasive efforts to bear on illegal arrests and detentions, the efficacy of the body as a whole has never been great due to the inherent limitations in its mandate.
The HRC’s legitimacy has been further undermined in recent times by the manner in which its sitting members were appointed: by presidential fiat that ignored a constitutional amendment specifying that they be approved by a 10-member Constitutional Council (CC). This 17th Amendment also established two new monitoring bodies, namely the Elections Commission and the National Police Commission (NPC), which should be filled by the CC. The Elections Commission was never even constituted due to the refusal of President Kumaratunge to appoint the CC’s nominee as its chairperson. The CC was in existence only from March 2002 to March 2005, when the terms of office of its six members expired. The vacancies were not filled, resulting in the CC itself ceasing to function. [20] The incumbent president, Mahinda Rajapakse, then made his own appointments to the commissions, including the HRC and NPC, predominately consisting of his supporters and personal friends. Meanwhile, a parliamentary select committee that has been appointed to examine as how the 17th Amendment may be ‘rectified’ in its substance has been sitting for many months with no visible result.
The constitutional ‘experimentation’ with the 17th Amendment illustrates the huge resistance from the political establishment to any attempts to depoliticise institutions. Early on, relatively feeble attempts by the NPC to discipline police and restore some measure of independent functioning to the service met with palpable antagonism from politicians. Frontline ministers remarked that the ‘independence of the NPC’ was not needed and went so far as to maintain that the Inspector General of Police (IGP) should be involved in the decision-making of the NPC. The IGP was openly hostile to the NPC, considering it an unwarranted fetter on his powers.
The response from the non-governmental community regarding the political subversion of the constitutional process was again muted. Though there were some protests at the start, including the refusal of some former members of the HRC to be reappointed by an unconstitutional process, these protests did not gather momentum and were, moreover, confined to the time that the unconstitutional appointments took place.
The work of the AHRC and its partners
The AHRC and its partners have approached the failure of the rule of law in Sri Lanka with a frontal critique of the justice system, and by working on individual cases to give victims not only legal help but also physical protection and counseling for their rehabilitation. A significant factor was that these cases were from parts of the country not affected by the war. This was a deliberate choice, in order to examine the pervasive nature of the problems while de-linking them from the conflict.
Two positive consequences of the work have been that victims of torture have gone from being ‘powerless’ to ‘powerful’ by articulating their grievances together, and that the normally unresponsive media has become part of the campaign, via daily reporting of torture on television, radio and in newspapers and other media. Public actions against torturers have followed. Heavy pressure has been placed upon defective state institutions. The judiciary is under attack for its failure to deal effectively with the problem.
Endemic police abuse
The vast majority of custodial deaths in Sri Lanka are caused not by rogue police but by ordinary officers taking part in an established routine.
—UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston [21]
The ‘safe’ assumption of most Sri Lankans that the victims of torture are confined to particular segments of the society–undesirables, terrorists or hardcore criminals–has been comprehensively debunked. Police brutality has been practiced against all types of persons: the cleaner of a van assaulted after being blindfolded; [22] an attorney-at-law pulled out of his car and assaulted; [23] another attorney, a bystander at a protest, shot at close range; [24] an alleged army deserter tortured to death.[25] However, as the case studies by the AHRC indicate, torture is most often used against the poor. Often the most gruesome torture is practiced on teenagers accused of petty theft, such as stealing a bunch of bananas.[26] Actual criminals and underworld characters are allowed to escape, with the nexus between them, police and politicians being too strong to allow for their apprehension. The studies also reveal that torture is not the work of a few ‘rogue’ policemen but is widespread. This is due to many factors: a lack of good investigative training; public pressure to apprehend suspects, and the general feeling that torture is implicitly allowed and even may be expressly ordered by senior police officials, despite laws and regulations prescribing otherwise.
One case taken up by the AHRC involved Koralaliyanage Palitha Tissa Kumara from Halawala, Mathugama, a respected local painter and carver, who had been awarded a gold medal by the Hotels Corporation as well as certificates from the Housing Development Authority and the National Apprentice Board. This 31-year-old father of two sons had been returning home from the southern city of Galle where had had undertaken carving work in early February when he was suddenly arrested by the Wellipenna Police simply because he had given food to a person who had allegedly committed some serious crimes. After his arrest, Tissa Kumara was severely assaulted by a sub-inspector who then brought a tuberculosis patient held at the same police station to spit into his mouth, telling him that he too would die of the disease. After that, he was remanded on fabricated charges of possessing a grenade and robbery. After Tissa Kumara developed a severe cough and found blood in his saliva he was put in a solitary cell; food was passed to him through a narrow opening in the door, as the prison authorities were nervous of contamination. His wife made frenzied appeals to the various monitoring bodies in Colombo, including the NPC and HRC, but her husband did not get proper medical treatment until the AHRC and its partners intervened later.
Militarisation of law-enforcement agencies
The failure of the law enforcement process has been a persistent and central feature of Sri Lanka’s failed justice system. It is clear that police are corrupt, brutal, lacking in investigative skills, inefficient in dealing with complaints of torture and militarised due to the decades-long customary use of emergency powers. [27]
There are two discernible patterns of torture by the Sri Lankan police: firstly, where it is used for interrogation purposes and secondly, where it is simple abuse of power.
In the first, what police officers do is to produce substitutes for crimes that they have not resolved. Palitha Tissa Kumara was one such victim. Another was Lalith Rajapakse, who was severely beaten on 19 and 20 April 2002 by officers from the Kandana Police Station, resulting in him being in a coma for three weeks. In some instances, the police may be aware of the identities of the real culprits, who have been allowed to escape because of undue influence. In these cases, it is even more essential for the police to find substitutes. Producing substitutes creates the impression—in the department as well as among the public—that the police are efficient and crimes are being solved. This paves the way to financial rewards and promotions.
Numerous judgments of the Supreme Court have held that even a hardened criminal cannot be tortured with impunity. In the Wewelage Rani Fernando Case (where it was contended that the deceased had stolen two bunches of bananas), the court observed that an allegation of theft should not have detracted from the duty to afford to the deceased the protection of his constitutional right of personal liberty. Thus,
[T]he petitioner may be a hard-core criminal whose tribe deserve no sympathy but if constitutional guarantees are to have any meaning or value in our democratic set-up, it is essential that he be not denied the protection guaranteed by our Constitution. [28]
However, these judgments have not had any effect on the law enforcement machinery.
The absence of due process at all stages of investigation was well illustrated in the Madiliyawatte Jayalathge Thilakarathna Jayalath Case, which concerned the first conviction under the Convention against Torture Act. The case involved the alleged theft of four gems from the office of a dealer who alleged that the victim, a business acquaintance and broker, was responsible. The victim stoutly denied that he had stolen the gems but was threatened by the gem dealer that if the gems were not handed over then he would get the police to assault him. Some time later, while travelling to Colombo by bus, the victim was arrested and taken to the Wellawatte police station where he was mercilessly assaulted with a pipe by the accused police officer, then attached to the crime division as an acting officer in charge. Thereafter, the victim was kept in the police station for two days. Only after members of his family protested that he was not produced in court was he taken before a magistrate. But he did not make any complaint of assault to the magistrate or the officer in charge of the Wellawatte police station. When later asked why, he said that there had been no point in doing so. The medical evidence showed that he had suffered injuries caused by a blunt weapon, including a fractured hand.
The accused police officer contended that the victim had been arrested on suspicion of involvement in the theft of gems and had hurt himself while attempting to run away at time of arrest. However, the gem dealer who had lodged the complaint later found the gems and informed the police that his allegations against the victim had been unfounded. In assessing these facts, the Colombo High Court determined that the prosecution had established beyond reasonable doubt that the accused had assaulted the victim in order to obtain a confession, and had done this in his official capacity as a police officer. The accused, who by this time had absconded, was convicted to the minimum seven years’ rigorous imprisonment and ordered to pay a fine of 10,000 Rupees, in default of which a further two years’ rigorous imprisonment was ordered. [29]
The case illustrates how the investigative system fails to work in Sri Lanka. In law enforcement, the lack of basic investigation skills and training is replaced with brute force on the part of not only junior but also senior police officials. This is buttressed by the impunity that law enforcement officers enjoy for their actions, a continuing legacy of extraordinary emergency laws that at one point gave them powers of life and death over persons in custody. The supervision that should normally be operative in the chain of command is also rendered nugatory by this breakdown in other elements of policing.
In the second category of cases torture is inflicted as a sheer abuse of power. There are many examples. Saman Priyankara was illegally detained on 5 January 2004 and tortured by officers attached to the Matale police station. Boiling water was poured from his right hip downwards, causing severe burns. The perpetrator, a sub-inspector of police (acting on the instigation of Priyankara’s neighbour), told Priyankara that he would make sure that he would not be able to have a normal sex life anymore. Afterwards he was given some ointment to apply to his wounds but warned not to report the incident to anyone and not to seek treatment at hospital.
In many cases citizens with legitimate queries end up being tortured. For example, Saman Jayasuriya was driving a van with two others when two policemen in civilian clothes stopped him to ask for his license and insurance papers. When he asked them to prove their identities he was pulled out and assaulted. He managed to escape, but a contingent of policemen from the Kadugannawa police station visited his residence and mercilessly beat him up in the presence of his wife. He was then arrested and taken to the police station with his son.
Maintaining a culture of impunity
Even when fundamental rights litigation was at its zenith, the gap between judgments and their implementation was immense. Judgment upon judgment delivered by the Supreme Court found torture to have been committed by officers in custodial authority, but none were implemented. Police officers identified in courts of law as personally responsible for acts of torture have not had so much as internal departmental action taken against them. Directions of the Supreme Court to the police hierarchy to initiate disciplinary action against erring police officers have been blatantly ignored. [30] Official resistance to these pronouncements has always been high and the police department has arranged for lawyers to appear for the accused police and to pay compensation that should be due from the implicated officers themselves.
The failure to interdict or remove identified torturers from their positions had a catastrophic effect in the case of Gerald Perera, a law-abiding employee of the Ceylon dockyard who was arrested due to mistaken identity. He was tortured so severely that he suffered renal failure. The Supreme Court upheld his fundamental rights petition. However, its recommendations on disciplinary action against the responsible police officers were not followed; they continued at their posts. A year later, as he was due to testify against the police in a high court case under the Convention against Torture Act he was shot and killed at point blank range. The alleged torture perpetrators were also identified as being behind the killing. The murder trial is ongoing.
A specific feature of the culture of impunity is the blatant falsifying of official documents, including information books. In one case where a court found that the Grave Crimes Information Book and the Register/Investigation Book had been altered with utter disregard for the law the view was taken that it was unsafe for the court to accept a certified copy of any statement or notes recorded by the police without comparing it with the original. [31]
The NPC, comprising seven commissioners with security of tenure established under article 155A of the 17th Amendment, was the first serious legislative attempt to restore discipline to the police force. Its powers were twofold. Firstly, it was vested with powers of appointment, promotion, transfer, disciplinary control and dismissal of all officers other than the IGP (article 155G[1][a]). Secondly, and vitally, the 17th Amendment stipulated that it was mandatory for the NPC to “establish procedures to entertain and investigate public complaints and complaints from any aggrieved person made against a police officer or the police service” (article 155G[2]).
However, the NPC did not to any great extent fulfill its constitutional obligations during its first term, though it does deserve credit for its decision to interdict police officers under the Convention against Torture Act and its prevention of police officers from being arbitrarily transferred during the pre-election period. Nonetheless, it failed to go beyond a few preliminary discussions with members of civil society on how to implement the public complaints procedure in the manner for which it had been made constitutionally liable: the legitimacy of the procedure that was finally put in place has been negated by the fact that the persons establishing it were appointed unconstitutionally.
Ineffective prosecutions
The politicisation of the judiciary was accompanied by a corresponding decrease in public confidence in the chief law officer of the land, the attorney general. He does not have a marked record of strong prosecutions of grievous human rights abuses; indeed, in all the decades of enforced disappearances and extrajudicial killings there have been only two successful prosecutions, namely for the rape and killing of a Tamil schoolgirl and thereafter the murder of her mother, brother and friend by Sinhalese soldiers in the north in 1996 (the Krishanthi Kumaraswamy Case) and the enforced disappearance of twenty-five Sinhalese schoolchildren (though the numbers abducted and never found were much larger) again by Sinhalese soldiers in 1990 (the Embilipitiya Case). The failure to prosecute successfully, outside of these two cases, illustrates the failure of the prosecution in respect to extraordinary crimes, irrespective of ethnicity.
The rate of successful prosecution in torture cases has also been extremely unsatisfactory. [32] There were no convictions under the Convention against Torture Act from the time it was enacted in 1994 up to 2004. Thereafter, there were two convictions, but most complainants are put off by long delays in filing indictments, faulty indictments and delays in the substantive trial proceedings.
According to the attorney general’s department, only five cases indicted under the Convention against Torture Act have resulted in acquittals and the vast majority is pending. Some indictments have been at the relevant high courts for almost two years but have yet to be served on the accused purportedly due to the severe backlog of cases. The department, which is responsible for the issuance of indictments, is also accused of causing delays.
However, in many cases it has been found that despite evidence of grievous torture prosecutions have not followed. For example, in the Nandini Herath Case, an indictment was not filed under the Convention against Torture Act but the police were merely charged with causing simple hurt. [33] In Jagath Kumara’s Case (arrested, detained and tortured by Payagala police station officers in June 2000 and died at the Welikada prison thereafter), though information and files were handed over to the Attorney General, no prosecution ensured. [34] In Yogalingam Vijitha’s Case the Supreme Court ordered compensation and costs to be paid to a Tamil woman who had been arrested, detained and sexually tortured. [35] The court stated,
As observed the facts of this case have revealed disturbing features regarding third degree methods adopted by certain police officers on suspects held in police custody. Such methods can only be described as barbaric, savage and inhuman. They are most revolting and offend one’s sense of human decency and dignity particularly at the present time when every endeavor is being made to promote and protect human rights. [36]
The culpable officers were not prosecuted despite the court’s order that this be done. [37]
Exposing deficiencies in litigation at the Supreme Court
With the gradual politicisation of the Supreme Court, some judges have behaved increasingly arbitrarily in response to fundamental rights petitions. For example, the court itself has taken the view that strictures passed on police officers found to be implicated in acts of torture should not have any effect on their promotion.
In one case, the chief justice sentenced a lay litigant to one year’s rigorous imprisonment on the basis that he had talked too loudly in court and filed numerous motions in support of his application. Despite the manifest injustice of this sentencing, no perceptible outrage was shown by non-governmental organizations, including those specifically working with the legal system. It was left to a few domestic lawyers to take up the cause of the arbitrarily sentenced litigant, Tony Fernando, with the sole support of the AHRC. The UN Human Rights Committee later found Fernando’s rights against arbitrary detention to have been violated. [38]
Another distinct feature in recent times has been judicial inconsistency in granting compensation to victims of torture in fundamental rights cases. Earlier, such sums had been considerable, indicating that the court wished them to serve as a deterrent. In Silva vs. Iddamalgoda, an alleged army deserter arrested by the police died while in remand custody. The court gave relief to his widow on the basis that she and her young child were entitled to the compensation that the deceased would have received. The state was directed to pay 700,000 Rupees (USD 6400) and the two errant police officers 50,000 Rupees each.
In one case where death was due to assault by prison officials rather than by the police, the state was directed to pay 925,000 Rupees (USD 8500) while each of the three prison officials were directed to pay 25,000 Rupees. [39] In awarding this considerable sum as compensation and costs, the court took into account the fact that the deceased was a father of three minors. The treatment meted out to him while he was at the Negombo prison, which “painted a gruesome picture where a hapless prisoner was brutally tortured and left alone, tied to an iron door, to draw his least breath”, contributed to the high award.
While each of these cases ended in the death of the victim, in Gerald Perera’s Case the court granted 800,000 Rupees (USD 7300) as compensation and costs for severe torture, payable both by the police officers found to be responsible for the violations and the state. [40] Additionally, it granted the petitioner’s claim to reimbursement of his medical expenses by the state, including treatment obtained at a private hospital due to the gross torture that he suffered, despite the contention of the respondents that the charges were exorbitant and treatment could have been obtained at a state hospital. When he was later killed before testifying in the high court against the police officers responsible for torturing him, a major portion of the medical reimbursement had not yet been paid to him.
As contrasted to these awards, in recent cases compensation awarded has been very little. In the case of B A Surange Wijewardene, the amount awarded was a paltry 15,000 Rupees split between the three respondents, while in D A Nimal Silva Gunaratne vs. Kodituwakku the petitioner was given only a nominal sum of 50,000 Rupees and 20,000 Rupees as costs despite the loss of one eye due to torture as well as the finding of the court that his right to freedom had been violated by arbitrary arrest and detention. [41] In Erandaka and Anor vs. Halwela, OIC, Police Station, Hakmana the petitioners were assaulted while in prison, as evidenced by medical records, but the state alone was ordered to pay each only 25,000 Rupees, as the petitioners could not identify the particular prison officers responsible. [42]
Inadequate magisterial supervision
In Madiliyawatte Jayalathge Thilakarathna Jayalath (cited above), the high court remarked upon the paucity of magisterial supervision of the torture victim when produced before the judicial officer and specifically, the failure to question as to whether or not he had been tortured. This is a common problem in Sri Lanka.
A recent judgment illustrates this failure of magisterial supervision over detention. In Weerawansa vs. Attorney General remand orders under ordinary law by the magistrate at the Harbour Court were held to be in violation of the petitioner’s rights in that several such orders had been made even though the magistrate or acting magistrate did not visit or communicate with him. [43] This was ruled to offend a basic constitutional safeguard in article 13(2), that judge and suspect must be brought face to face before liberty is curtailed, a safeguard that could not be circumvented by producing reports from the police. The court upheld an earlier view that remand orders, where they concern a patent want of jurisdiction, cannot be immune from fundamental rights challenge by virtue of the fact that they are ‘judicial acts’. [44]
Corruption of medical officers and collusion of HRC officers with police torturers
The AHRC has documented thoroughly how Chamila Bandara, a minor, was tortured from 20 to 28 July 2003 at Ankumbura police station ostensibly on grounds that he had committed a petty crime. The police hung him by his thumbs and the officer in charge hit him on his legs and the soles of his feet with stumps used for cricket.
This young boy was not produced before a judicial medical officer for examination despite being admitted to the Kandy hospital for treatment. It was only after being readmitted to the Peradeniya hospital that Chamila was given a proper medical examination, as a result of which doctors declared that his left arm had been seriously injured.
When the case was reported to the district area coordinator of the HRC he went only by the police version and concluded that there had been no mistreatment. The family appealed to the AHRC and its local partners. As a result, the HRC reopened investigations into the case and the matter was handed over to a one-man inquiry committee, which concluded that the young boy had in fact been tortured, as a result of which his fundamental rights under articles 11, 12(1) and 13(1)(2) had been violated. Meanwhile, the AHRC took the case before the UN Human Rights Committee at its 79th session, when it considered Sri Lanka’s combined fourth and fifth periodic reports under the International Covenant on Civil and Political Rights. Chamila himself gave testimony before the committee, where the state denied that torture had occurred and implied that his allegations were fabricated.
The officer in charge of the Ankumbura police and his subordinates were found to be responsible for the offence. The final recommendation of the inquiry committee was that a copy of the inquiry report be sent to the IGP, who should warn the individual police officers that any further instances of abuse would result in termination. As with similar directions by the Supreme Court, it had no practical value in bringing about disciplinary action against the culpable police officers.
This case also entails a further problematic development in fundamental rights litigation. Some Supreme Court judges now prefer to postpone fundamental rights hearings where parallel high court hearings are taking place, ostensibly on the basis that the finding of the court might influence the outcome of the other case. In Chamila Bandara’s case this is precisely what happened; the matter is now pending indefinitely. [45] The court persists with this attitude despite the protestations of lawyers appearing for the victims that the inevitable delays in trial will render the Supreme Court remedy redundant and that, in any event, the two judicial proceedings are different and should be proceeded with differently.
Conclusion
The recent intensification of conflict and increasing breakdown of law and order in all parts of Sri Lanka have led to renewed incidents of disappearance and extrajudicial killing, fostering a climate that is highly conducive to further human rights abuses. This has been enabled by the return of rule by emergency regulations, conferring extraordinary powers of arrest and detention on security forces, with an inimical effect on work to control and prevent torture.
The crisis in Sri Lanka persists due to the non-existence of the rule of law. The shift from concentrating on this question to nebulous (though highly profitable) ventures in peace and conflict resolution on the part of the country’s non-governmental community has been unfortunate; it has wasted time and effort in activities that were doomed from the start. More importantly, it has allowed both insidious and direct attacks on constitutional institutions and indeed the very constitution itself to take place with scarcely a murmur of protest; as a result, the work of government has broken down even further. In this situation, talk of constitutional solutions to solve the ‘ethnic problem’ is mere rhetoric and a part of political maneuvering. If the political establishment blatantly abuses constitutional provisions in governing the south, can there be any hope for a solution to the intractable war in the north and east?
The AHRC has outlined a number of measures that should be taken to address the failure in law enforcement in Sri Lanka. These include revision of the prosecutorial and investigative processes, and initiation of an effective witness protection system. A special police unit empowered to entertain complaints and immediately commence investigations is a necessity, not only in ‘special cases’ of torture (where international pressure is brought to bear on state authorities) but rather, in all cases. Reforms should also include the establishing of an office of an independent prosecutor with legislative safeguards to ensure separation from other parts of government and with its own investigative staff. (In fact, such an office existed from 1973 to 1978, although it was not free from political interference.) There should be special procedures for investigating and prosecuting complaints where women are the victims, and streamlined procedures to examine urgent complaints by victims of torture, instead of the committees of government officials that exist at present. The AHRC has also urged the application of the doctrine of command responsibility, the use of developed forensic investigations, and mad detailed specific suggestions relating to arrest and production in court[46], speedy investigations and the filing of indictments under the Convention against Torture Act and initiation of community protection mechanisms.
The studies of the AHRC and its partners in Sri Lanka show the overriding importance of returning discussion on reform back to the basics of restoring the legitimacy of the justice system and in particular, the law enforcement process. This should be the focus of our work.
Endnotes:
1 The constitution at independence in 1947 established the judicature as a body separate from the executive and legislature, and safeguarded minority rights in section 29(2). But affronted by what it saw as an unwarranted bridling of its authority, the leftist United Front government in 1970 decided on an autochthonous or disastrous ‘home grown’ formula, specifying that the legislature was the sole and supreme repository of power. All other institutions, including the judiciary, had to give way. Regardless of whichever government came into power, political expediency was thereafter to determine the course of constitutional and political events in Sri Lanka.
2 These developments were in sharp contrast to those in neighbouring India where a receptive constitutional environment ensured commitment to democratic norms, public interest litigation, and the fashioning of the right to life to include not only physical existence but also all ingredients that go into making quality of life.
3 Basil Fernando, ‘The Tale of Two Massacres: The Relevance of Embilipitiya and Bindunuwewa to Conflict Resolution in Sri Lanka’, Law and Society Trust Review, vol. 15, no. 212, June 2005.
4 Senadheera vs. Bribery Commissioner, 63 NLR 313.
5 Queen vs. Liyanage, (1966) 68 NLR 265; Bribery Commissioner vs. Ranasinghe, (1964) 66 NLR 73.
6 In Bribery Commissioner vs. Ranasinghe, which was later affirmed by the Privy Council, (Kodeeswaran vs. Attorney General, [1969] 72 NLR 337), it was pointed out that section 29(2) of the 1947 Constitution represented the solemn balance of rights between the citizens of Ceylon and the fundamental conditions on which inter se they accepted the constitution, and which are therefore unalterable.
7 Only one case alleging a violation of fundamental rights was filed during this time, in the District Court: Ariyapala Guneratne vs. People’s Bank, (1986) SLR 338.
8 SC Application Nos 7-47/87 (Spl) and SD 1&2/87 (Presidential Reference).
9 Article 126(2) gives the right to move court only to a person alleging the infringement of any right “relating to such person”, or an attorney at law on his behalf. Unlike in India, bona fide public interest groups cannot come before court on behalf of a victim. Article 16(1) denies judicial review of pre-1978 laws. Article 121 states that bills must be challenged within one week of their being placed on the Order Paper of Parliament. Even though there is a constitutional requirement to publish the bills in the gazette at least seven days before it is placed on the Order Paper of Parliament, (article 78[1]), the gazettes are not easily obtainable and offensive bills go unchallenged. In any event, this scrutiny is also brushed aside when the Cabinet certifies a bill as urgent and in the national interest: then the bill is referred directly by the president to the Supreme Court for its constitutionality and citizens have no formal right of challenge (article 122). As for the right to life, it was only in 2003 that the Supreme Court inferred a positive right to life from the constitutional right not to be punished with death or imprisonment except by court order (article 13[4]), in Perera vs. Iddamalgoda (2003) 2 SLR 63, per judgment of Justice Mark Fernando and the Wewalage Rani Fernando Case, SC (FR) No. 700/2002, SCM 26.7.2004, per judgment of Justice Shiranee A. Bandaranayake. These also give authority to the proposition that a dependant has the right to come before court on a rights petition when a family member dies as a result of police torture. It took the court more than 25 years to affirm these core rights as implied from the constitutional provisions.
10 Per Justice Mark Fernando in Perera vs. Iddamalgoda; Sanjeewa vs. Suraweera, (2003) 1 SLR 317; the Wewelage Rani Fernando Case; Banda v. Gajanayake (in the context of emergency regulations) (2002) 1 SLR 365, A M Vijitha Alagiawannawe vs. L P G Lalith Prema, Reserve Police Constable and Others SC (FR) No. 33/2003, SCM 30.11.2004; Deshapriya vs. Weerakoon, SC 42/2002, SCM 8.8.2003. The principle asserted was that participation, authorisation, complicity and/or knowledge is not compulsory for responsibility to be found on the part of a superior officer. This could arise purely on dereliction of duties. This principle was judicially stretched to encompass even an instance where an officer-in-charge of a police station fails to record promptly the statement of a petitioner regarding assault, and to embark on an investigation in respect of the same.
11 In re. Perera, SC 1/90, SCM 18.9.1990.
12 Joseph Perera vs. Attorney General, (1992) 1 SLR 199, 230; Shanthi Chandrasekeram vs. D B Wijetunge and Others, (1992) 2 SLR 293; Channa Peiris vs. Attorney General, (1994) 1 SLR 1 at 51; Sunil Rodrigo vs. De Silva, (1997) 3 SLR 265, where the court upheld the right of a detainee under emergency regulations to be speedily produced before a magistrate and to have legal representation.
13 See report by the UN Special Rapporteur on the Independence of Judges and Lawyers in April 2003 to the UN Commission on Human Rights, (E/CN.4/2003/65/Add.1, 25 February 2003), and press releases of the Special Rapporteur of 27 February and 28 May 2003. See also the report of the International Bar Association, Sri Lanka: Failing to protect the Rule of Law and the Independence of the Judiciary (2001).
14 One notable casualty of this practice was the then senior-most judge, Justice Mark Fernando, who had been bypassed for promotion in 1999 by President Chandrika Kumaratunge in favour of the Attorney General, S N de Silva. Thereafter Justice Fernando was not assigned to sit on any bench hearing important constitutional matters, despite court tradition preferring seniority. In one case involving three fundamental rights petitions against his own appointment, the chief justice constituted a divisional bench consisting of the most junior rather than the most senior judges available, showing his contempt for both convention and precedent. Justice Fernando retired two years prematurely on the basis that he could no longer fulfill the expectations on which he had assumed judicial office.
15 See the State of Human Rights in Eleven Asian Nations, 2006, Asian Human Rights Commission, Hong Kong, 2007, p. 288. See also among others the case of B A S Surange Wiijewarded, SC (FR) 533/2002, SCM 27.5.2005, where compensation given was only 15,000 Rupees divided between three respondents, and the case of Palitha Tissa Kumara, SC (FR) 211/2004, where despite a finding of extensive torture, the compensation awarded was only 25,000 Rupees.
16 See the highly critiqued judgment of the chief justice heading a divisional bench in the Singarasa Case, SCM 15.09.2006, ruling that Sri Lanka’s accession to the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) was unconstitutional. This has posed a direct obstacle to ongoing campaigns for the Sri Lankan government to ratify the Optional Protocol to the UN Convention against Torture. Meanwhile, the UN Human Rights Committee has so far delivered six communications against the Sri Lankan state in terms of the Optional Protocol to the ICCPR (see article 2, vol. 4, no. 4, August 2005 for case details and full text of these communications). However, there has been no implementation of these views to date. In some cases, such as Fernando vs. Sri Lanka (Case No 189/2003, Adoption of Views on 31, March, 2005), which involved a violation of article 9(1) of the ICCPR as a result of arbitrary sentencing by the Supreme Court, the government has replied to the Committee that it cannot implement the views since it would be construed as interference with the judiciary.
17 International Bar Association, 2001.
18 See interview with former Supreme Court Justice C V Wigneswaran, one of the most respected judges of the court, ‘Top judge hits out at judicial process’, Daily Mirror, 20 October 2004.
19 The requirement, for example, that the HRC be informed of any arrest and detention under the Prevention of Terrorism Act, No. 49 of 1979 (section 28[1] of the HRC Act) is not adhered to. The requirement that any person with the authority of the commission be allowed into any place of detention (section 28[2]) is also defeated. The police in practice allow officials of the HRC to inspect (with prior notice) only the cells of police stations themselves, not the entire precincts of a station, including the toilets and kitchen.
20 Though five nominees were agreed upon by the prime minister and the opposition leader and communicated to the president for appointment in late 2005, the appointments were not made, ostensibly due to a deliberate delay by smaller political parties to agree by majority vote on the one remaining member of the CC. The many representations made to the president by civil society groups that the one vacancy should not prevent the appointment of the other five members and that the functioning of the body was essential to the good administration of the country were to no avail.
21 Mission to Sri Lanka, 28 November–6 December 2005, Law and Society Trust Review, vol. 16, no. 221, March 2006.
22 Shanmugarajah vs. Dilruk, SI, Vavuniya, SC (FR) No. 47/2002, SCM 10.2.2003.
23 Adhikary and Adhikary vs. Amerasinghe and Others, SC (FR) No. 251/2002, SCM 14.2.2003.
24 Senasinghe vs. Karunatilleke and Others, SC (FR) No. 431/2000, SCM 17.3.2003.
25 Silva vs. Iddamalgoda, (2003) 2 SLR 63.
26 Both in the Chamila Bandara case (AHRC UA-35-2003) and the Wewelage Rani Fernando Case (SC [FR] No. 700/2002, SCM 26.7.2004) the police made the arrest alleging theft of some bunches of bananas. The first petitioner, a minor, was brutally tortured by the police; prison officials tortured the second, resulting in his death.
27 Complaints of torture recorded at police stations are first referred to the Assistant Superintendent of Police or Superintendent of Police of the relevant area. If entertained, the legal division of the police refers them to the IGP who refers them thereafter to the Special Investigations Unit (SIU). The SIU (which is in charge of investigating all complaints against police officers, including fraud, and is currently seriously understaffed) is under the direct command of the IGP. The IGP may also instruct the Criminal Investigations Department or another special unit of the police to conduct further investigations, but this is exceptional. For years, domestic and international activist groups have been calling for an independent investigative and prosecutorial office to inquire into complaints that involve law enforcement officers, which cannot be effectively inquired into by their fellow police officers, particularly as postings at the SIU are transferable.
28 The case law is specific on this: see Amal Sudath Silva vs. Kodituwakku, (1987) 2 SLR 119; Senthilnayagam vs. Seneviratne, (1981) 2 SLR 187; Dissanayake vs. Superintendent, Mahara Prisons, (1990) 2 SLR 247; Premalal de Silva vs. Inspector Rodrigo, (1991) 2 SLR 307; Pellawattage (AAL) for Piyasena vs. OIC, Wadduwa, SC No. 433/93, SCM 31.8.1994. In Silva vs. Iddamalgoda, ([2003] 2 SLR 63), the court dismissed the argument that the alleged bad record of the petitioner should be held against him, pointing not only to the presumption of innocence but also that by the respondent depriving the petitioner of his life he lost the opportunity to redeem that alleged bad record.
29 HC 9775/99, order of S Sriskandarajah J.
30 See for instance, Sanjeewa vs. Suraweera, (2003) 1 SLR 317; Silva vs. Iddamalgoda; Dayaratne’s Case, SC (FR) 337/2003, SCM 17.5.2004.
31 Kemasiri Kumara Caldera’s Case, SC (FR) No. 343/99, SCM 6.11.2001.
32 In its reports to the UN Human Rights Committee (CCPR/CO/79/LKA, November 2003) and Committee against Torture (CAT/C/LKA/CO/1/CRP.2, November 2005), the state referred to a special unit, the Prosecution of Torture Perpetrators Unit, in the Attorney General’s department with responsibility for this work. But closer scrutiny has revealed that there is no separate unit dealing with torture cases and this body is only an administrative convenience with neither specially assigned staff nor separate premises. Torture cases are distributed among around five state counsels, who also handle other criminal cases. The Attorney General does not seem to monitor investigations conducted by the unit. Neither is the progress of an investigation reported to him.
33 ‘Torture committed by the police in Sri Lanka,’ article 2, vol. 1, no. 4, August 2002, pp. 14–15.
34 ‘Torture committed by the police’, p. 18.
35 SC (FR) No. 186/2001, SCM 23.8.2002.
36 Citing Athukorala J. in Sudath Silva vs. Kodituwakku, (1987) 2 SLR 119, with approval.
37 ‘Torture committed by the police’, p. 52, citing letter written by the AHRC to the then minister of interior dated 9 September 2002.
38 Fernando vs. Sri Lanka.
39 Wewelage Rani Fernando Case.
40 Sanjeewa vs. Suraweera.
41 State of Human Rights in Eleven Asian Nations, p. 288.
42 (2004) 1 SLR 268. Also in Adhikary and Adhikary vs. Amarasinghe and Others the court ordered 20,000 Rupees as compensation for police assault and 5000 Rupees as costs to be paid by the state.
43 (2000) 1 SLR 387.
44 Farook vs. Raymond, (1996) 1 SLR 217.
45 SC (FR) 484/2003.
46 An x-ray of the Sri Lankan policing system and torture of the poor, Basil Fernando & Shyamali Puvimanasinghe (eds), AHRC, Hong Kong, 2005, p. 12.
