Focus on Rights

Dealing with the outstanding problem of custodial torture
Insofar as Sri Lanka is concerned, the Report of the (former) United Nations Special Rapporteur, Theo van Boven, presented at the sixty-first session of the Commission on Human Rights on March 30, 2005, contains no extraordinary revelations.

Instead, the Special Rapporteur's findings exemplify a common truth; that the freedoms of life and liberty of the Sri Lankan people are still very much at risk from the very guardians entrusted with its care and custody.

His report illustrates the manner in which cases of torture and other cruel, inhuman or degrading treatment or punishment has been brought to his notice around the world during the year 2003. The Report contains summaries, on a country-by-country basis, of reliable and credible allegations of torture and other cruel, inhuman or degrading treatment or punishment that were brought to the attention of the Special Rapporteur, and were transmitted to the Governments concerned. It also contains replies from Governments.

When the Special Rapporteur receives reliable and credible information that gives grounds to fear that a person may be at risk of torture or other forms of ill-treatment, he may transmit an urgent appeal to the Government concerned. The communications sent by the Special Rapporteur have a humanitarian and preventive purpose, and do not require the exhaustion of domestic remedies. Governments are requested to clarify the substance of the allegations, take steps to protect the person's rights, and are urged to investigate the allegations and prosecute and impose appropriate sanctions on any persons guilty of torture and other cruel, inhuman or degrading treatment or punishment.

The Report relevant to 2004 details more than fifty cases of individuals subjected to torture or to cruel, inhuman and degrading treatment by custodial officers in this country. A typical case is that of Raman Pillai Kesam Nayar Ashokan, a 42-year-old resident of Kandy, working as a cashier in a wine store. He was arrested by police officers from Katugastota Police Station on 6 September 2003, after he was attacked by a group of unidentified individuals who stole money from the store. He was accused by the police and the owner of the store of having stolen the money himself. He was assaulted by police officers while being interrogated on this matter.

He was later taken to Katugastota hospital, where a District Medical Officer said that a chemical like chloroform had been administrated to him and that he should be taken to another better-equipped hospital. However, he was taken back to Katugastota Police Station and put in a cell. His clothes were removed and he was blindfolded and ordered to lie down. It is reported that he was severely beaten with a pole, hit on the soles of his feet and subsequently forced to jump up and down, as well as threatened with death. Later, he was again forced to lie down and three persons sat on his back while he was beaten again on the soles of his feet. He was later forced to sign a statement that he could not read and without being told what it contained. A magistrate ordered him remanded. He had difficulties in breathing and suffered from severe pain in his back and on the soles of his feet. He was released on bail on 16 September 2003 and received some medical treatment on 17 and 18 September. However, as his condition became critical, he was hospitalized at Peradeniya General Hospital on 22 September 2003. A complaint was filed with the police. While he was in the hospital, his family received threats from unknown persons, which are believed to have originated with the police.

The Report also refers to Gerald Mervin Perera, the torture victim who was awarded record compensation by the Supreme Court but was killed later days before he was due to give evidence in a High Court trial instituted under the Torture Act of 1994 against the perpetrators of his torture who were all police officers. This case has now come to symbolize a problem of custodial torture that many still refuse to believe, is so grave in Sri Lanka despite the numerous judgements of the Supreme Court to that effect let alone the documented instances of abuse.

In a number of cases that contain the replies of the Government, the percentage of cases in which investigations have been dropped due to the disappearance of victims or witnesses is remarkable highlighting anew the need for a victim/witness protection law.

Very interestingly meanwhile, the Report reveals an exchange of communications between the Government and the UN Special Rapporteurs that has a particular impact on the protection of rights of all those subject to Sri Lanka's jurisdiction. By letter dated 22 July 2004, the Government had inquired whether the Special Rapporteur on torture, the Special Rapporteur on violence against women, the Special Rapporteur on extrajudicial, summary or arbitrary executions, and the Special Rapporteur on the right to freedom of opinion and expression could accept as final replies to cases of alleged human rights violations, on instances where the investigations are completed and the Attorney General of Sri Lanka has sent an indictment to the relevant Court to initiate criminal proceedings. It had noted that once judicial proceedings begin, the State has no control over them, which may sometimes take a long time to issue the final verdict.

However, the reply by the Special Rapporteurs (by letter dated 23 September 2004), gives only a minimum leeway to the Government inasmuch as it is pointed out that even in instances where investigations are completed and where criminal proceedings have been initiated, they needed additional information (i.e. details of conclusions of inquiries, judicial or other proceedings, reports of penal or disciplinary sanctions imposed on the perpetrators, as well as an indication of whether compensation and assistance were provided to the victims or their families) to thoroughly assess the specific situation and to be able to draw conclusions. This response amounts to placing a heavier duty on the State and the Attorney General's Department than the mere filing of an indictment.

While this reply by the Special Rapporteurs may be looked upon with disfavour by the State, occupied as it is in attempting to contain a problem that has far greater ramifications on the societal fabric of this country than an isolated case or two of a renegade being assaulted more than is warranted by the police, its onus is understandable given the severity of the situation in Sri Lanka.

Blatant disregard for human rights governed the manner in which the Bush administration shrugged off persistent complaints from global human rights advocacy bodies that its treatment of detainees in the 'war against terror', in Guantanamo Bay violated fundamental tenets of respect for life. These complaints were supported by the harrowing accounts of victims of these techniques who had been detained, subjected to conditions amounting to torture and degrading treatment and then released after having being found innocent by their captors.

The anger generated worldwide in regard to these reports is a good example for this country of how unmindful state conduct can yield its own negativity in due course.

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