Focus on Rights - The importance of engagement without compromise

In recent years, some cases have been distinguished by their specific inhumanity. Among these was the case of a person arrested for stealing a bunch of plantains. He was beaten so severely in the Negombo prison that he died. In a case brought by his widow to court (the second of the decisions where the Court pro-actively gave relief to the dependants of a person whose death had been caused by official abuse), it was judicially warned that "assault on a prisoner by prison officers who are officials of the State must be considered to be an especially grave form of ill-treatment. This indicates that the officers concerned have exploited the vulnerability of the victim."

The death in prison custody of Sunil Perera and the assault on Gamini Munaweera should not reduced to a statistic among many others. Both were brought about by negligent police work (in arresting and detaining two innocent persons over a hoax bomb call placed to a school in Ratnapura) as well as brutal treatment by prison guards,

The allegedly culpable guards have apparently been interdicted but the Government cannot be content that it has done all that it should do. Neither should it be allowed to rest easy on that assumption. The problem is far more severe than the mere interdiction of few officers (who probably may be re-instated when all the furore has died down). It would be useful, at this point, to examine particular features of this pervasive pattern of custodial abuse.

In a case brought by his widow to court (the second of the decisions where the Court pro-actively gave relief to the dependants of a person whose death had been caused by official abuse), it was judicially warned that "assault on a prisoner by prison officers who are officials of the State must be considered to be an especially grave form of ill-treatment. This indicates that the officers concerned have exploited the vulnerability of the victim." (see the Wewelage Rani Fernando case in (SC(FR) No 700/2002, SCM 26/07/2004, judgement of Justice Shiranee Bandaranayake with Justices JAN de Silva and Nihal Jayasinghe agreeing).

Reacting to the treatment meted out to the deceased which "painted a gruesome picture where a hapless prisoner was brutally tortured and left alone, tied to an iron door, to draw his least breath", Court directed the State to pay a sum of Rs 925,000 while each of the three prison officials was directed to pay Rs 25,000, amounting to one million in equal shares. This was a considerable sum awarded as compensation and costs.

One feature of this judgement (as reflected in some other decisions as well) was the imposing of responsibility not only upon the officials actually committing the abuse but also upon their superior officers if the latter was was guilty of culpable inaction. Here, the Officer in Charge of the Negombo Prison, the chief jailor and the Superintendent of Prisons, Negombo Prison, were found liable on the judicial finding that there had been dereliction of their duties.

Importantly, the judgement was also sent to the Commissioner of Prisons for necesarry disciplinary action against the abusive officers. Regardless, there is no record of this direction having been taken seriously. As in the case of numerous other directions issued by the Court to the Inspector General of Police (IGP) in respect of abuse by police officers.

Another such instance was the case of Michael Anthony Fernando, in this case, sentenced by a bench of the Supreme Court itself for contempt of court for speaking loudly in pursuing his fundamental rights application and for filing numerous motions.

Consequent to sentencing, he was taken to prison and after a few days, suffered extensive assault by prison guards. At one point, after being brought back from hospital, he was left to lie near a putrid toilet in the prisons. Thereafter, he was stripped naked and left to lie near the toilet for a further twenty four hours. It was only when he began to urinate blood that he was taken back to hospital and kept under observation. In this case, the victim did not die though the physical and psychological scars would have been sufficient for several lifetimes.

Later, he obtained relief from the Geneva based United Nations Human Rights Committee (UNHRC) against his sentencing for contempt but the State is currently disputing this finding before this body contrary to international obligations that it, itself had incurred previously. That belongs to a different discussion however.

Yet another well known case concerns the torture and killing of forty two year old Gerard Mervyn Perera, this time by police officers. Perera was tortured by the Wattala Police as a result of being mistaken for being one of the accused persons in a triple murder. He obtained record compensation from the Court but one week before the date of the trial under the Torture Act, at which Perera was due to testify, he was murdered. The case against the accused police officers (who had also been involved in torturing him) is pending.

In roundtable discussions held by the Law and Society Trust in collaboration with the Asian Human Rights Commission a few years back, a rare meeting took place between victims, rural and city based activists, and senior officials of the Army and the police. These discussions were also attended by the then Chairpersons of the National Human Rights Commisison, the National Police Commission and several Commissioners. Some perspectives which emerged indicated the severity of the problems manifested in bringing a measure of order back to the prisons and the police. Crucially, the creation of special machinery for the investigation and prosecuting of custodial abuse remained a priority.

Specifically where our prison structures are concerned, though addressing the manifold problems of our highly overcrowded prisons is a complex question, remand prisoners should be kept apart from from convicted prisoners as a first and imperative step. Though Sri Lanka's Constitution does not expressly provide for the rights of detained persons, this is an implicit right that is, in any event, specifically articulated in Article 10 of the International Covenant on Civil and Political Rights (ICCPR) to which we are subject to in international law.

ICCPR Article 10(1) mandates all persons deprived of their liberty to be treated with humanity and with respect for their inherent dignity. It also states that remand prisoners shall be kept separated from those convicted and subjected to separate treatment as appropriate to their status. International jurisprudence has been unequivocal in upholding these principles.

In his recent report, UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston concluded that "the vast majority of custodial deaths in Sri Lanka are caused not by rogue police but by ordinary officers taking part in an established routine." He called on government officials to accept that disrupting this pattern of custodial torture is a necessary step not only in ensuring the human rights of those arrested but also of retaining public trust and confidence.

Indeed, if recent case upon case of custodial abuse is detailed, the space afforded by a newspaper column or for that matter, a research paper would not be sufficient. The time is long past where a few officials could be interdicted for the matter to end there. Instead, the Government should initiate comprehensive reform of its custodial structures, both in regard to prisons as well as the police cells.

It is however almost certain that no serious effort will be taken in that regard. We will be continue to be greeted with mundane official pronouncements of "effective action" that ring familar refrains for these many decades. In a context where the phenomenon of headless bodies are recurring and the atrocities of war are staring us in the face, unchecked custodial abuse is yet another facet of the extensive brutalisation of processes of law and order. This is now an intolerable daily reality for every Sri Lankan.