Asian Centre for Human Rights

Dedicated to promotion and protection of human rights in Asia

ACHR REVIEW
[The weekly commentary and analysis of the Asian Centre for Human Rights (ACHR) on human rights and governance issues]

Embargoed for 16 November 2005
Review: 99/05

Torture and Lawless Law Enforcement in Sri Lanka

On 10 November 2005, the UN Committee Against Torture examined the second periodic report (CAT/C/48/Add.2 of 6 August 2004) of the government of Sri Lanka. The Sri Lanka government claims to have taken all necessary measures to stamp out torture but as one expert of the Committee observed, there is no decline on incidents of torture in the country.

As the shadow report of Asian Centre for Human Rights, “Torture and Lawless Law Enforcement in Sri Lanka” shows torture forms an integral part of lawless law enforcement in Sri Lanka. Impunity further institutionalises torture. Attempts to establish accountability are sabotaged. Nothing could prove it better than the failure of the Sri Lankan government to identify the culprits for the attempt to burn down the

Photo: Courtesy AHRC, Hong Kong

headquarters of the Human Rights Commission (HRC) of Sri Lanka on the intervening night of 11 and 12 October 2005.  The needle of suspicion primarily pointed towards the police as over a hundred police officers - mainly from the Western Province - including senior officers, have been under investigation by the HRC.

This was not the first instance to destroy evidence with the acquiescence of the State. During the hearing on 14 June 2005 of the Kumarapuram massacre of 11 February 1996 in which 24 Tamils were shot dead by the Sri Lankan Army, State Counsel Mr. S. Halimdeen told the Trincomalee High Court Judge that all material evidence, including weapons allegedly used in the killing of Tamil civilians in the Kumarapuram massacre, were destroyed when the office of the Government Analyst in Colombo was gutted by fire in 2004.

Certainly, State of Sri Lanka showed unprecedented flattery by enacting a law having the same name as the Convention Against Torture i.e. the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Act (CATA), No. 22 of 1994 of Sri Lanka. Yet, the definition of torture under the CATA does not conform to Article 1 of the Convention Against Torture. Among others, it excludes inhumane and degrading treatment as a form of torture, but torture is allowed under different laws.

Sri Lanka also extended invitation to the members of the UN Committee Against Torture to visit the country in 2002. But it has failed to withdraw reservations to Article 21 and 22 of the CAT or take adequate legislative, administrative and judicial measures to stamp out torture.

The Supreme Court continues to remain out of reach of those who are victims of human rights violations in view of the restrictions imposed by Article 126 of the Constitution. Under this article, petitions against violations of fundamental rights can only be filed with the Supreme Court, which is based in Colombo, thereby restricting the access to justice to the poor, as many simply cannot afford to hire a Supreme Court lawyer. There is also one-month time bar, which depends on the interpretation of an individual judge or bench, to file petitions. And a human rights complaint may be made to the Supreme Court only by the victim or by an attorney-at-law on his/her behalf. This excludes the possibility to pursue justice for violations of fundamental rights on behalf of the dead and the missing.

When the judiciary takes action, the police do not take appropriate measures. The Inspector General of Police recently opined that 106 police officers, who have been charged for serious criminal offenses and interdicted before Sri Lanka's high courts should be allowed to continue at their posts until they are proven guilty.

The Human Rights Commission remains spectacular on paper. But it has been hamstrung by the lack of transparency about the complaints, inadequate powers and resources. On 27 September 2004, Mr. Ruwan Chandrasekera, an officer of the Human Rights Commission office at Jaffna, was assaulted by police from the main Jaffna Police Station while investigating a complaint from a detainee's family about incommunicado detention. When the staff of the HRC can face such assault, how would the common citizens be treated?

The National Police Commission (NPC) established in 2002 has also failed to address human rights violations by the police. It is none other than the Chairman of National Police Commission, Mr. Ranjith Abeysuriya who complained that Sri Lanka’s police chief had not been cooperating with the authorities to investigate complaints against police officers. Mr. Abeysuriya also lamented that the NPC does not have powers as that of the Human Rights Commission to investigate complaints against police officers. The NPC serves as a glorified post box whose effectiveness depends on the goodwill of the police administration, and not its effectiveness.

The use of torture including rape and other sexual violence, to extract admissions and confessions is common in Sri Lanka. The methods of torture commonly used by the police in Sri Lanka include beatings, often with wire or hose, electric shock, the suspension of individuals by the wrists or feet in contorted positions, burning, slamming testicles in desk drawers, and near-drowning. The victims are also forced to remain in unnatural positions for extended periods. The police also place bags laced with insecticide, chili powder, or gasoline placed over their heads. In 2004, 13 deaths occurred in police custody.

Torture is also linked with disappearances. In its fourth periodic report to the UN Human Rights Committee, Sri Lanka stated that over 27,000 persons have disappeared at the hands of the Sri Lankan security forces. The government has failed to take effective steps against the perpetrators. In its second periodic report to the Committee Against Torture, Sri Lankan government states that only 12 security personnel have been convicted out of the 2095 cases that were recommended for action to the Attorney General.

Many of the Tamil asylum seekers who were refouled to Sri Lanka from European countries have been subjected to torture during their detention. Yet, Sri Lankan representative blatantly denied that they are arrested on their arrival.

There are few mechanisms for a prompt and impartial investigation into allegations of torture. When a few cases are taken up, there is willful delay by the police.

The mechanisms for redress depend on the whims of individual judges. Courts have granted awards ranging from approximately $142 (14,200 rupees) to $1,825 (182,500 rupees). In some cases, the government did not pay fines incurred by security force personnel found guilty of torture.

Mr Chitta Ranjan de Silva, Solicitor-General of Sri Lanka told the Committee Against Torture that there had been no cases of disappearances linked to torture since 2002.  Yet, Mr de Silva failed to respond to past cases of disappearances linked to torture. The danger is the Sri Lankan government resorts to extreme measures under slightest pretext. While the assassination of former Foreign Minister Foreign Minister Lakshman Kadirgamar is condemnable, the declaration of State of emergency following the assassination was unwarranted. The state of emergency continues to be in place.

Sri Lanka consistently allowed use of torture, rape, disappearances and extrajudicial executions in the name of confronting the brutalities of the LTTE. If the cease-fire with the LTTE breaks, such gross human rights violations are likely to return. It is another matter that such gross human rights violations and impunity also contributed to the emergence of Tamil rebellion.

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