Focus on Rights

Where torture is endemic
The ongoing furore over the torture of prisoners by United States military and intelligence personnel in Iraqi and Afghanistan prisons is a good reminder for misguided 'country-phobic" individuals in Sri Lanka who think that merely by denying that a problem exists, one can wish it away.

Time and time again, this column has highlighted increasingly outrageous cases of police torture being indulged in as a matter of common practice. These well documented instances include cases where the Supreme Court itself has found evidence of torture as well as cover up by medical personnel examining the victim and the negligence of the magistrate before whom he or she is initially produced.

This is not to say that each and every case of torture reported is genuine. However, it is undisputed that there is now a prevalent and persistent problem relating to the treatment of individuals in official care and custody, (whether police or prisons). Hence the continuing use of the term 'endemic', used first in last week's column in relation to the phenomenon of torture in this country. What is worrying is the persistence of this problem despite the fact that extraordinary emergency laws are no longer in force in Sri Lanka. What we have, in effect, is a situation where emergency law operates in the shadows in the continuation of the impunity afforded to law enforcement officers and custodial officers who engage in abuse of the powers of their office.

Despite this, no government monitoring organisation or unit appears to bestir itself to engage their personnel in immediate visits to places from which complaints of torture are received and ascertain for themselves, the credibility of those complaints. Nor is there any direction given by any of these bodies regarding immediate remedial action, which would include medical treatment and production before court. Instead, the onus is on the victim himself or herself to engage in this process. Very often, this becomes next to impossible for either the victim or his or her loved ones driven from pillar to post in search of justice.

All the while, the accused officer continues serving in his same capacity and even sometimes, in the same police station where he is alleged to have committed serious crimes while there are interminable 'investigations', most often engaged in by members of the same force to which he or she belongs. This, in sum, is what is basically wrong with our processes up to now.

The whole is extremely well illustrated by the instance where a minor, B. G. Chamila Bandara Jayaratne was tortured from 20th to 28th July 2003 at Ankumbura Police Station, ostensibly on grounds that he had committed a petty crime. This young boy was not produced before a JMO for examination despite being admitted to the Kandy hospital for treatment. It was only, after being re-admitted to the Peradeniya Hospi-tal, that Chamila was given a proper medical examination, as a result of which, doctors declared the impairment of the use of his left arm.

The second stage in this saga came when his case was reported to the district area co-ordinator of the National Human Rights Commission who, going by only the police version, concluded that there had been no mistreatment. Desperate, his family had gone to local activists who appealed to the Hong Kong based Asian Human Rights Commission (AHRC) which focuses on police torture issues in Asia, including India, Sri Lanka, Nepal and Indonesia.

It was only as a result of this pressure that investigations were re-opened into Chamila Bandara's case by the newly re-constituted National Human Rights Commission, appoi-nted under the provisions of the 17th Amendment, and the matter was handed over to a one-man inquiry committee. Meanwhile, the members of his family were threatened by the police officers named as those responsible and Chamila himself had to go into hiding.

While this was ongoing, his case was taken before the United Nations Human Rights Committee (UNH-RC) at its seventy ninth session when it considered Sri Lanka's combined fourth and fifth Periodic Reports under the International Coven-ant on Civil and Political Rights (ICCPR). Chamila himself gave testimony before the UNHRC members. At that point, it is notable that the representative of the State before the UNHRC specifically denied that torture had occurred when the case was brought to his attention by the UNHRC, more or less alleging that the allegations had been fabricated.

Chamila Banda-ra's plight is now however vindicated by the report of the one-man inquiry committee, released recently, which has concluded that the young boy had, in fact, been tortured, as a result of which, his rights under Article 11, Article 12(1) and Article 13(1) and (2) had been violated.

The OIC of the Ankumbura police and other police officers serving under his command have been found responsible. The final recommendation of the inquiry committee is that a copy of the inquiry report be sent to the IGP who should send severe warning to the individual police officers that any further instances of abuse on their part would result in a termination of their services. Whether this will constitute sufficient deterrence, is open to question. However, it is hoped that this case, at least, will serve as warning to otherwise well-intentioned officers and individuals in charge of monitoring human rights in this country, to be somewhat more cautious before defending that which is indefensible.

In this sense, there is something for us to learn in the debates ongoing in the international media with regard to allegations of custodial abuse at Abu Ghraib and Guantanamo Bay. First, deep levels of outrage have been evidenced among Americans who are not at all convinced that, despite claims made to this effect by the current US administration, only a handful of aberrant soldiers are to blame.

Instead, as even Republican congressmen have conceded, the impunity with which the photographs and videos of abused prisoners have been taken, manifests a serious dysfunction at a much higher level. Whether the ongoing investigations or the projected court martials later this month, will disclose this fact in its full severity, remains to be seen.

Secondly, the issue is now firmly out in the open, taken up as it is with a vengeance by the media. Undoubtedly, des-pite the spin that is being put on the great virtues of a democracy that ventilates such issues in the public forum, the vigour of the current debates is to the credit of the American system.

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