ISSN: 1391 - 0531
Sunday April 13, 2008
Vol. 42 - No 46
Columns - Focus on Rights  

The cat Act and its mockery thereof

By Kishali Pinto Jayawardena

It may be considered as slightly inappopriate in ostensibly festive times to dwell on something so off-putting as torture. Yet, this is the reality in Sri Lanka. In macabre juxtaposition to the hotels advertising their customary Avurudu sprees and the shops being crammed with shoppers, there are no celebrations for the families of those caught in last Sunday's blast at Weliveriya. This is equally so for the family members of those continuing to be displaced, disappeared or in detention as a direct result of the conflict. Effectively, there is no reason as to why celebrations should take place to welcome the advent of a new year. Instead, this should be a time for sombre reflection on not only what the future holds for each and every one of us in a personal sense but also a time for considered thought on the lamentably problematic systems of governance and government that is prevalent today.

A great deal of this has to do with the manner in which the law is being ignored or bypassed which has been a theme that this column has consistently returned to in the past. The deliberate downgrading of the 17th Amendment to the Constitution is an excellent case in point. But there are many more examples in this respect. In last week's column, the impact of a recent judgment by the Negombo High Court in a trial under the Convention Against Torture and other Inhuman and Degrading Punishment Act No 22 of 1994 (hereafter the CAT Act) was discussed. This particular instance concerned the acquittal of the torturers of Gerald Perera, a worker at the Colombo dockyard who was tortured to the point of renal failure by officers attached to the Wattala police station with, as judicially held (Sanjeewa v Suraweera, 2003 [1] SriLR, 317), the 'consent and acquiscence' of the officer in charge. That the criminal legal system in this country is weighted towards favouring the accused at the expense of justice being brought to the victim is perhaps one reason as to why the criminal law is not responding to the pressing demands of our times. However, there is no doubt that this is not the only reason as to why the law has failed; instead, the judicial and prosecutorial processes must be carefully examined to determine exactly where the fault lines lie.

The CAT Act's enactment was to ensure that Sri Lanka's obligations in terms of the United Nations Convention Against Torture and other Inhuman and Degrading Punishment were met. By itself, it is a fairly commendable piece of legislation. It designates and defines torture as a specific crime and vests jurisdiction in the High Court of Sri Lanka. Torture is defined in Section 12 to include severe pain, whether physical or mental, caused for particular purposes, including obtaining any information or confession. Laudably, the Act in Section 3 stipulates that the existence of a state of war, threat of war, internal political instability or public emergency and a defence of superior orders cannot be advanced as a reason for torture to be committed. The gap in this respect between the theory and the reailty is, of course, almost laughable.

Due to lack of public access to court records in the absence of a Right to Information law in Sri Lanka, it is extraordinarily difficult to obtain copies of decisions, particularly the acquittals, by the relevant High Courts in prosecutions under this Act. Analysis of three judgments relating to acquittals (Republic of Sri Lanka vs Suresh Gunasena and Others, HC Case No 326/2003, Negombo High Court, HC Minutes 02.04.2008, judgment of High Court judge J Tennekoon;Republic of Sri Lanka vs NandaWarnakulasuriya and Others, Case No 119/2003, HC Minutes 25/06/2007, judgment of High Court judge Tudor Gunaratne; Republic of Sri Lanka vs Havahandi Garwin Premalal Silva, Case No. 444/2005 (HC), High Court of Kalutara, HC Minutes, 19.10.2006) indicate that a major reason for the acquittals is the lack of direct evidence testifying to the acts of torture being committed by the particular police officers who are indicted. However, it is inherent in the very act of torture that it will not be committed on a public thoroughfare and with onlookers nearbye. Rather, torture is commited in secret and in hidden places. In the circumstances, a judicial insistence on direct eye witness evidence of torture practices is clearly problematic and defeats the very intent and objective of the CAT Act.

Reprimands delivered by the judges in respect of percieved drawbacks in the prosecutorial process are also common, as was the case in the Gerald Perera acquittal where the High Court faults the Attorney General for first indicting the officer -in-charge of the Wattala Police Station and then inexplicably withdrawing his name from the indictment. Indeed, a reluctance to indict officers-in-charge of police stations again goes against the professed legislative intention in enacting the CAT Act. The definition of torture in Section 12 of the Act, referred to above states in addition that torture may be an act done 'with the consent or acquiesence' of a public officer or other person acting in an official capacity (Vide Section 12). Meanwhile Section 2 of the Act states that 'any person who tortures any other person shall be guilty of an offence under this Act.' Read in conjunction, there is no doubt that the definition catches up an officer-in-charge of a police station in its ambit. Thus there is a very clear and comprehensive logic in maintaining that Parliament when it enacted the CAT Act, had the express intent of bringing an officer of a police station who 'consents and acquiesces in torture perpetrated by his subordinate officers, within its ambit.

Indeed, the definition of torture contained in the Act, insofar as it relates to mens rea (criminal intention) is phrased in broader terms than the UN Torture Convention itself as the parallel definition in Article 1 of the Convention is limited to acts "intentionally inflicted." The CAT Act however does not contain any such limitation but refers only to 'acts' in Section 12. While it may be true that the neccesity to prove mens rea underpins the general ethos of the criminal law, a persuasive argument should at least be made out by prosecutors in trials under the CAT Act as to why officers in charge of police stations should be indicted where they have 'consented or acquisced' in torture. The fact that there is a problem here is, in fact, indicated by the judicial reprimands as to failure to indict.

In the sum however, that there have only been three convictions handed down so far under the CAT Act since its enactment fourteen years ago, is not at all surprising. A significant overhaul needs to take place of the legal and prosecutorial process if the CAT Act is to mean anything. In the alternative, like the 17th Amendment to the Constitution, it will be ranked as a legal obscenity in professing the good in theory but mocked utterly in actual practice.

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