1. The Asian Human Rights Commission (AHRC) is aware that many cases of torture and other cruel, inhuman or degrading treatment or punishment come before the National Human Rights Commission (NHRC) of Sri Lanka, almost on a daily basis.
2. The AHRC is also aware of the extremely useful work done by the officers of the NHRC in visiting the police stations or detention centres at initial stages of arrests, their timely intervention in initial stages in alleged torture cases, their assistance to victims to gain medical treatment and medical certificates. All these aspects of the NHRC interventions have added a new element to the legal practices prevailing in the country and are likely to give rise to new practices, ensuring the protection of human rights. AHRC has spoken to many persons, who are involved in cases as lawyers, human rights defenders and victims themselves, who have many ideas as how to improve this aspect of initial intervention of the NHRC.
3. The purpose of this report however is to draw the attention of the NHRC to a very worrying aspect of its work, which in fact seems to undermine the enforcement of the existing law against torture set out in Act 22 of 1994, and the obligations the Sri Lankan government has undertaken as a party to several international instruments. The practices of the NHRC that we refer to are settlements arrived at by the NHRC and inquiries regarding cases of torture and other cruel, inhuman or degrading treatment or punishment.
4. Under Act 22 of 1994, Sri Lanka has made an attempt to incorporate the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment into the law of Sri Lanka. There is some criticism that the Act is deficient in some respects, and is not fully incorporating the international law on torture and other cruel, inhuman or degrading treatment or punishment.
5. Act 22 of 1994 has recognized torture as a crime in Sri Lanka. Thus by the promulgation of this Act, the legal position of torture and other cruel, inhuman or degrading treatment or punishment has changed drastically. In the past torture had been treated only as a breach of discipline by the police or the state officers and was dealt with by way of disciplinary actions, such as dismissal, demotions, transfers, reprimand and the like. Under the 1978 Constitution, torture had to be treated as a violation of a fundamental right, warranting a declaration against a violation by the Supreme Court and the payment of compensation.
6. With the adoption of Act 22, torture was treated as a very serious crime, warranting a minimum of seven years imprisonment and a fine of not less than 50,000 rupees. The Act also recognizes extra-territorial jurisdiction and does not recognise any circumstance as an excuse for committing the crime of torture. This crime can be tried only in a High Court.
7. The powers of the NHRC are derived from Act 22 of 1994. Under this Act NHRC has some powers to settle cases, where parties agree to do so. However, these provisions must be used together with the relevant criminal law and also the international law relating to violations of various rights.
8. The Criminal Procedure Code sets only compoundable offences. Thus, the law recognises a difference between less serious crimes that cannot be compounded or settled between parties and those that can be. For example murder is not compoundable. In the same way, there is no doubt that crimes of torture and other cruel, inhuman or degrading treatment or punishment are not compoundable.
9. Thus any settlement arrived at by NHRC inquiries relating to complaints of torture cannot have a binding effect. It cannot deprive a person from pursuing his complaint with the aim of ensuring prosecution under the Act. Thus there cannot be any free and fair settlements preventing such prosecutions.
10. The NHRC is under obligation to explain these legal provisions to the parties. Particularly, it owes an obligation to the alleged perpetrators, since they may enter into settlements and even payments of money with the view to prevent prosecution in the future. They may thus make commitments that may be used against them in future. On the other hand, victims who are unaware of the legal provisions regarding torture may agree to settlements thinking that there is no other redress in law.
11. It is the moral aspects of such settlements that are most appalling. Development of the international law against torture has been a very difficult one. Since Cesare Beccaria wrote An Essay on Crimes and Punishments in 1764, it has been long and arduous struggle to develop the human rights law against torture. Today international law recognizes torture as one of the most heinous of crimes, falling within the category of jus cogens. Allowing such a crime to be dealt with on the basis of bargains for small sums of money is morally repugnant.
12. The more useful functions that the NHRC may undertake regarding torture cases include to
a) Intervene at the earliest possible stage of incidents of torture and take all steps to record the evidence and prevent torture;
b) Take actions to guarantee the security of victims;
c) Instruct the victims of their rights and the prevailing legal provisions regarding torture; particularly to explain Act 22 of 1994;
d) Make initial investigations to gather and protect evidence;
e) Inform the Attorney General (AG) of all the complaints NHRC receives regarding torture and cooperate with the Special Unit existing under the AG’s department. NHRC can monitor the progress of the cases undertaken by the AG’s department;
f) Follow up on cases filed by the AG in courts and review progress;
g) Make recommendations on the prosecution of torture cases to the Government on a regular basis;
h) Report to UN agencies on the progress of implementation of Act 22 of 1994;
i) Assist with physical, psychological and other treatment of victims of torture: rehabilitation needs to become a prime consideration;
j) Educate the society by useful media (particularly state media) on the Sri Lankan and international law on torture;
k) Help to establish funds and facilities for torture victims and their families;
l) Take initiative to establish proper legal aid to victims of torture.
13. A further issue that needs to be addressed is regarding the cases, that have already been settled during NHRC inquiries. These settlements should not be treated as obstacles for prosecution under Act 22 of 1994. All these cases should be referred to the AG’s department for prosecution. Any payment that may have been made can be taken into consideration at a later stage, in a civil case for damages. Such payments do not in any way affect the prosecutions under Act 22 of 1994. All evidence available to NHRC must be given to the investigators functioning under the AG’s department. NHRC investigators can provide all the support needed for such prosecutions.
14. As for the future, the NHRC can seek amendment to its statute, to gain greater power for prosecution on human rights related issues, particularly under the Act 22 of 1994. With better resources it can develop its own legal teams for investigations and prosecution of crimes falling under the Act.
15. In conclusion, the Asian Human Rights Commission strongly recommends the immediate cessation of the prevailing practice of pursuing settlements in torture cases. We also urge the NHRC to adopt the recommendations made in paragraphs 12 to 14.
The Asian Human Rights Commission released the above statement on 2 June 2002.
