Sunday Times 2
Medico-legal aspects of torture in Sri Lanka
“All tremble at punishment
All are frightened of death
Make an example of yourself
Do not kill or cause to kill”
- Lord Buddha
All religious leaders have condemned torture and killing. Torture and other human rights abuses have been known throughout the history of man. One of the first accounts of torture describes how Rameses II, who reigned in Egypt (1304-1237 BC), tortured captured enemy soldiers to obtain information about their military positions before a planned battle. In ancient Greece, slaves were tortured, but the use of torture on citizens was forbidden.
Indian college students take part in a demonstration on the occasion of the United Nations International Day in Support of Victims of Torture in Bangalore on June 26. The students demanded the Indian government to ratify the convention against torture and other cruel, inhuman, degrading treatment or punishment and to pass domestic legislation categorically prohibiting torture. AFP
The same double standard was found in the Roman Empire, which introduced the torture of citizens in about 50 BC. The cruelty of Caligula (37-47 AD) included torturing prisoners to death as an entertainment while feasting. In the 18th century, torture was almost eliminated in Europe, and in 1789 the first human rights declaration forbidding torture was approved.
In the past, torture practised by the state was accepted by society; today it is not. In the past, torture was carried out in public; but today torture is performed secretly. Torture then was carried out after some kind of ‘legal’ proceedings, however inappropriate and unfair it was; but today it is arbitrary and done by security forces, police, state-sponsored paramilitary groups and terrorists or armed political groups.
Torture is a strange phenomenon. Torture is universally illegal, but widely practised. More than half of the world’s nations systematically use torture, and regrettably medical personnel have a long history of involvement with torture.
The historical documents of Ceylon record events from the beginning of the Sinhalese monarchy in the 6th century BC. They mention 32 methods of torture practised by the kings. They included cutting of organs and limbs, beating with bamboos, impaling on a stake, trampling by elephants, hanging, beheading, drowning, putting into a cauldron of boiling oil, mutilation of the body and whipping.
On March 2, 1815, the entire country came under British colonial rule, and the single most important event following the arrival of the British Governor was the signing of the ‘Kandyan Convention’ with the native leaders. Considering the acts of torture practised by the Sinhala monarch, the convention stated that ‘Every species of bodily torture and all mutilation of limb, member or organ are prohibited and abolished’.
However, the British rulers also practised torture. For example, before the House of Commons Committee on Ceylon in 1849/50, it was reported that a lieutenant of 73rd Regiment hanged the Kandyan prisoners without any trial, and particularly relished having them hanging up outside his quarters, while he had his breakfast! Governor Brownrigg’s aide-de-camp one night killed nineteen and took ten prisoners. Seven of the latter were executed without any trial and the bodies were hanged near a wayfarers’ rest.
After the horrifying and inhuman acts and experiences of the Second World War, the United Nations adopted the Universal Declaration of Human Rights (UDHR) in 1948. It says that, “All people are born equal in dignity and rights. These rights are guaranteed to everyone.”
According to the Article 5 of the Declaration “No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment”. The 1978 Constitution of Sri Lanka also states that “No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”.
As torture continued in many countries, even after the UDHR, the United Nations prepared a Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment in 1984.The Sri Lankan Parliament passed the ‘Convention against Torture and other Cruel, Inhuman or Degrading Treatment or punishment Act’ in 1994 to give effect to the Convention.
For the purpose of this Convention, torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind.
Such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
According to the Article 2 of the Convention
- No torture is allowed
- No excuse whatsoever is acceptable
- An order is no excuse
The article 14 of the Convention states that each state party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible .
Torture, disappearances and deaths in custody were rare in independent Ceylon up to 1971. The Janatha Vimukthi Peramuna (JVP) insurrection in 1971 and in the late 1980s, and the LTTE-led separatist war in the North and the East of the country from the late 1970s gave rise to widespread torture, disappearances and deaths in custody, with the State, the JVP and the LTTE being accused of perpetrating torture.
The documented methods of torture include:
- n Non-therapeutic administration of drugs
- n Exposure, especially genital regions, to animals
- Deprivation of water
- Lifting by hair
- Forcible removal or burning of hair
- Pulling off finger nails or toe nails
- Forced to eat chilli powder or drink hot-liquid (oil)
- Pulling out the tongue and applying pressure to jaws to cause the tongue to be bitten
- Tying the hands or legs to a vehicle and then driving over gravel, grass or tarred road.
- Applying pressure or twisting or squeezing eyes, breasts or genitals
- Stabbing with needles, bayonets etc.
- Exposing eyes to irritant substances such as chilli powder or petroleum fumes.
- Inserting pins or nails under the nails to cause severe pain.
A tragic torture case in Sri Lanka is that of Gerard Mervyn Perera, who was arrested as a suspect of a triple murder by the Wattala Police. He was severely tortured by beating and burning. He was also hanged in the ‘parrot perch’ position. The following day the Officer in Charge said that the real murderers were arrested and he was released.
He was taken to Gampaha Ayurveda Hospital as his both arms were paralysed. The doctor advised him to go to a Western Hospital and he was admitted to a private hospital in Colombo. There he developed kidney failure and respiratory failure. He was treated in the Intensive Care Unit and he survived.
A fundamental rights case was filed by his wife and the Supreme Court awarded him Rs. 700,000 and asked the state to pay his entire private hospital bills. The counsel representing the police officers contended that this private hospital’s charges were exorbitant and that Gerard could have sought treatment at a State hospital.
Justice Mark Fernando in his judgement said, ” However good the standard of treatment in state hospitals may be, there is no doubt that many Sri Lankans do opt for treatment in private hospitals, sometimes in the belief that treatment and care is better, and sometimes because of fears in regard to delays, over-crowding, strikes, shortages of equipment and drugs, etc.” The judge further stated that citizens have the right to choose between State and private medical care, and in the circumstances Gerard’s wife’s choice of the latter was not unreasonable and was probably motivated by nothing other than the desire to save his life. Article 12 of the International Covenant on Economic Social and Cultural rights recognises the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”
The judge directed the State to pay Gerard the sum he had paid to the private hospital, as well as any further sum remaining.
Gerard’s story did not end there. The Attorney-General filed a case against the police officers under the Torture Act. Two weeks before Gerard was to give evidence, he was shot dead while travelling in a bus. Mainly due to lack of his evidence, the High Court judge found the accused not guilty. Quite correctly, the Attorney General appealed against this verdict and the Appeal Court decided that there should be a retrial.
The preamble of the Declaration of Tokyo states that, “It is the privilege of the doctor to practise medicine in the service of humanity, to preserve and restore bodily and mental health without distinction as to persons, to comfort and to ease the suffering of his or her patients. The utmost respect for human life is to be maintained even under threat, no use made of any medical knowledge contrary to the laws of humanity.”
Therefore, physicians should never condone torture under any circumstance. In 1996, the then Foreign Minister, Lakshman Kadirgamar, said, “While it is universally recognised that the armed forces of a state have a duty to protect and assert the sovereignty of the state, to fight the battles of the state, they also have a duty to protect the human rights of non- combatant civilians. The government owes a duty to the parents and kith and kin to help them to ascertain the fate of their loved ones and offer some compensatory relief to lighten their misery.”
However, human rights of innocent civilians were and continue to be repeatedly violated by torture and deaths in custody.