Focus on Rights

Holding the state accountable beyond its shores
Decisions of the UN Human Rights Committee in regard to Sri Lanka
This week, this column concludes its three part series on examining recent Communication of Views by the United Nations Human Rights Committee in respect of individual communications submitted against the Sri Lankan State under the International Covenant on Civil and Political Rights.

The concluding analysis examines the views of the Committee in the Singarasa case (CCPR/C/81/D/1033/2001) delivered on 21st July 2004 at its eighty-first session in Geneva. Primarily, the communication is important for the unequivocal direction that it gives the State to amend sections of the Prevention of Terrorism Act, No 48 of 1979 (as amended), that are incompatible with the guarantees of fair trial under the Covenant. Particularly, Section 16(2) of the PTA is brought under inquiry for its imposing of the burden regarding the proving of the voluntary nature of a confession made to an ASP of an accused detained under the special provisions law.

Singarasa had been detained on 16 July, 1993 pursuant to an order by the Minister of Defence under section 9(1) of the PTA which provides for detention without charge up to a period of eighteen months (renewable by order every three months), if the Minister of Defence "has reason to believe or suspect that any person is connected with or concerned in any unlawful activity". The detention order was not served on him and he was not informed of the reasons for his detention.

Thereafter, he was kept in detention up to August 1993, where he was first brought before a Magistrate, and then remanded back into police custody. No bail was given in terms of Section 15(2) of the PTA. Neither did the Magistrate review the detention order, in terms of Section 10, which states that a detention order under section 9 of the PTA is final and shall not be called in question before any court.

On 11 December 1993, he was produced before an ASP (who had previously interrogated him in the capacity of a police constable) and asked to sign a statement, which had been translated and typed in Sinhala by another police officer who also acted as an interpreter during this time. When Singarasa had refused to sign as he could not understand it, he alleged that the ASP then forcibly put his thumbprint on the typed statement. He did not have legal representation.

Singarasa's claim was that he was forced to sign a confession and subsequently had to prove that it was extracted under duress and was not voluntary in terms of Section 16(2) which imposed the burden on him. He pleaded that this was impossible for him to do given that he was compelled to sign the confession only in the presence of the police officers concerned by whom he had been tortured.

The judicial medical report produced at his trial in the high court confirmed that he displayed scars on his back and a serious injury, in the form of a corneal scar on his left eye, which resulted in permanent impairment of vision. The report also stated that "injuries to the lower part of the left back of the chest and eye were caused by a blunt weapon while that to the mid back of the chest was probably due to application of sharp force".

At a voir dire hearing in the High Court, the Court concluded that the confession was admissible, pursuant to section 16(1) of the PTA, which renders admissible any statement made before a police officer not below the rank of an ASP, provided that it is voluntary. The confession was admitted despite the Court noting that there were "injury scars presently visible on the [author's] body" and acknowledging that these were sequels of injuries "inflicted before or after this incident."

Further factors taken against him was that he had failed to complain to anyone at any time about the beatings, including the Magistrate. Singarasa was convicted and sentenced to fifty years imprisonment in 1995 under section 23(a) of the State of Emergency (Miscellaneous Provisions and Powers) Regulations No. 1 of 1989 with the Public Security (Amendment) Act No. 28 of 1988, of having conspired by unlawful means to overthrow the lawfully constituted Government of Sri Lanka, and (read together with the provisions of the PTA) of having attacked four army camps with a view to achieving the said objective.

The conviction was based solely on the alleged confession. His appeal to the Court of Appeal was dismissed though his sentence was reduced. Thereafter, in January 2000, the Supreme Court also refused special leave to appeal. It was from this refusal that Singarasa appealed to the Geneva based Committee.

The primary question was as to whether his rights under Article 14, paragraph 3 (g) of the Covenant had been violated by his being forced to sign a confession and subsequently to prove its voluntary nature. The Committee answered this question in the positive. In so doing, it pointed out that its jurisprudence had laid down the principle that no one shall "be compelled to testify against himself or confess guilt" which must be understood in terms of the absence of any direct or indirect physical or psychological coercion from the investigating authorities on the accused with a view to obtaining a confession of guilt.

It was considered implicit in this principle that the prosecution prove that the confession was made without duress. Interestingly, it was pointed out that even if, as argued by the Sri Lankan State, the threshold of proof regarding the forced nature of a confession is "placed very low" and "a mere possibility of involuntariness" would suffice to sway the court in favour of the accused, it remains that the burden was on the author, this would not suffice. Its reasoning was unequivocal.

"The willingness of the courts at all stages to dismiss the complaints of torture and ill-treatment on the basis of the inconclusiveness of the medical certificate (especially one obtained over a year after the interrogation and ensuing confession) suggests that this threshold was not complied with. Further, insofar as the courts were prepared to infer that the author's allegations lacked credibility by virtue of his failing to complain of ill-treatment before its magistrate, the Committee finds that inference to be manifestly unsustainable in the light of his expected return to police detention."

It was in this context that the Committee found that the State had violated Article 14, paragraphs 2, and 3(g), read together with Article 2, paragraph 3, and 7 of the Covenant. The State was put under an obligation to provide Singarasa with an effective and appropriate remedy, including release or retrial and compensation.

Importantly, Sri Lanka was also directed to avoid similar violations in the future and to ensure that the impugned sections of the PTA are made compatible with the provisions of the Covenant. It is this latter direction that is of special account for this country and will have to be hearkened to by the State if it does not wish to earn the reputation of a 'pariah state' in international law.

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