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October 31, 2004

The Fight to eliminate torture in Sri Lanka

Basil Fernando

The idea of the police station in Sri Lanka is a very strange one. Perhaps it may be so in all South Asian Countries. The idea is that a police station is a place where all rules of morality applicable to other places are suspended. This idea is based on another idea that brutal behaviour is unavoidable in dealing with crime. This idea is disavowed in the constitutions and in ratification of UN treatises. But in practice, "saying is like this but doing is that" is applied. Some how the incongruity of a law enforcement officer being allowed to act as a brute is ignored. One excuse is that we cannot afford the niceties affordable to developed countries. The Argument seems to be that life around us is brutish and short, so why bother only about niceties of policing. Perhaps, there is another assumption behind that. The poor are treated badly everywhere, so why should they be treated nicely only in police stations. Of course except in very rare occasions it is the poor that receive brutal treatment from the police. Is it not part of condition of being poor to be treated in this way?

Now, in Sri Lanka there is growing rejection of this way of thinking in civil society group. That change, which is rapidly spreading came from a small movement, which gained significant influence in Sri Lanka with in as short time as three to four years. This small movement is known as the "AHRC Network in Sri Lanka", which consists of several human rights groups from the ordinary folk in the country.

In Sri Lanka there had been many human rights groups with big names but they could not achieve what these smaller groups have achieved. Why? Torture was a problem of the poor. The affluent activists had little direct contact with the poor. Lack of contact generates lack of feeling. What you do not feel strongly against, you do not fight strongly against. The poor who are badly treated feel badly about such treatment. The rest of the society feels that it is part of the condition of being poor to be treated badly. Thus, the initiators of the movement against Torture in Sri Lanka decided quite early to build their movement with the assistance of people who are close to the poor and look for people who feel deeply injured by the treatment their fellow beings. So, you see the big NGO names do not appear in the list of member organisations of this network. But the movement is a dynamic one. Its achievements are as follows;

1. Torture which was a topic on which there was almost absolute silence became the topic of constant discussion. Hundreds of cases have been published. The media, who observed self-censorship on this topic, has changed quite a bit, though there is lot more room for improvement. All most all cases now receive public attention.

2. CAT Act ( Act No.22 of 1994), which was only in the books was revived and now the entire country knows about this law. There was heavy public education in which victims demonstrations played an important part

3. As result of serious criticism of inaction of government institutions there were few changes: Special Unit of Investigations were assigned to Attorney General's department to investigate crimes under the UN Cat Act, which in Sri Lanka Carries a minimum sentence of seven years. Two cases have been prosecuted successfully where two officers including an officer in charge of a police station has been punished with that sentence. About 50 more cases are pending. The newly appointed Inspector General of Police has also expressed the elimination of torture as policy.

4. Also due to serious civil society criticism there has been some, though limited improvements. The Human Rights Commission of Sri Lanka adopted the elimination of torture as their number one priority, and HRC calls it the Zero Tolerance of Torture policy. The National Police Commission has also adopted a similar policy regarding torture. The speed of interdictions and inquiries has become a little faster. The NPC is also discussing speedy implementation of a Public Complaints procedure against the police and some practical steps have already been taken.

5. Within the civil society there is new mood and improvement of morale. More people come to complain and many do not give up complaints due to pressure, intimidation or promised favours.

6. There is improved debate on improving witness protection and thus removing the core obstacle standing in the way of prosecutions

7. Cases from Supreme Court show increase of compensation and stronger condemnations of practice of torture

8. There is also scepticism of giving more power to police under various pretexts such as crime prevention as there is realisation that such powers will lead to increase of torture and extra-judicial killings.

9. Instead, there is greater realisation of the weaknesses of the Policing system. For example, it came to light that there aren't a sufficient number of qualified police investigators; that for the last ten years about 40,000 finger prints have not been examined as the Forensic Department does not have a computer to do that job with, the collapse of disciplinary process within the police has been admitted and there is some discussion on how to address it.

The overall situation is national in place. Where silence existed not long ago, there is lively debate now. This network has contributed to this situation and revived the spirit of many others.

Of course this in no way means that the work is over. Rather it means the work has begun and a good beginning has been made.

During last four decades there has been abuse of police by using them to commit large scale murder, torture and acts of intimidation for political reasons. This happened in the South and the North. Mass murder was common in the South . The official figure of 30,000 persons (unofficially recognised as about variously as 45,000 to 60,000 disappeared and no action was taken to prosecute anyone. Both in the South and the North there are mass graves which are not examined. Many crimes against humanity have been committed and complaints have been ignored.

Asian Legal Resource Centre (ALRC) has named Sri Lanka as country where there is an exceptional collapse of Rule of Law. In a submission made to UN Sub-commission to Human Rights Commission this year ALRC made proposal for study on the exceptional collapse of rule of law in Sri Lanka. This proposal was not accepted on the basis that Sub-Commission has been instructed by the human rights commission to undertake country specific studies. But the AHRC will use this document in trying to create public debate on the issue.

All this means a legacy of violence imbibed to law enforcement agencies. There lack of political will to face up to this past. So, there is long way to go, to make Sri Lanka a safe place to live. But the beginning of that change will not begin with the state. It begins with people who will fight on behalf of people. Such movement now exists. The AHRC is happy to have contributed a little to make this possible.

This is the shorter version of the paper which was presented in the discussion meeting: Criminal responsibility for torture: South Asian perspective'.

Basil Fernando is Executive Director of Hong Kong based Asian Human Rights Commission.