Columns - FOCUS On Rights

The abject failure of the cat act

By Kishali Pinto Jayawardene

It is now very clear that the Convention Against Torture and other Inhuman and Degrading Punishment Act No 22 of 1994 (the CAT Act) has signally failed in its intent to bring about an improved deterrent regime in regard to practices of torture in Sri Lanka.

As repeatedly pointed out in this column previously, Sri Lanka's High Courts have handed down only three convictions during the fourteen years of the CAT Act's existence. In contrast to this, three acquittals have been entered into while a number of trials are pending. The reason as to why we focus on this vexed issue yet again is that on 9th October 2008, the Negombo High Court delivered the fourth acquittal in terms of the Act in the case of Lalith Rajapaksa. As in the case of the acquittal of Gerald Perera, (again by the Negombo High Court), the acquittal in the case of Lalith Rajapaksa was judicially justified on the basis that the evidence was not sufficient to prove the guilt of the accused beyond all reasonable doubt.

The Rajapaksa Case

Rajapaksa's complaint was that he had been arbitrarily arrested by several police officers, beaten and dragged into a jeep. During his detention, he was subjected to torture for the purposes of obtaining a confession which caused serious injuries. A medical report issued by the National Hospital stated that the "most likely diagnosis alleged to assault due to traumatic encephalitis." He filed a fundamental rights application in the Supreme Court which is still pending. Meanwhile, the Attorney General indicted a sub-inspector of police implicated in the torture, in terms of the CAT Act. The relevant acquittal handed down by the High Court early this month was in respect of this case.

While it is not the intention in this column to elaborate on the legal grounds of appeal which is a matter within the ambit of the legal process, some egregious discrepancies appear to be evident on a bare reading of the trial documents and the decision itself. For instance, rigorous scrutiny of the decision indicates that though the High Court had come to a conclusion that the medical record did not bear out the allegation by the accused that he had been mercilessly assaulted on the soles of his feet, this is refuted by the fact that injury numbers 8 and 9 on the medical report attests to injuries that were, in fact, explained by the Assistant Medical Judicial Officer in court as having been caused by assault with a blunt instrument.

Judicial assessment of the evidence

Further, the judicial assessment of the evidence seems problematic when evaluated against the evidence in particular, relating to the clear testimony that the victim was fit and healthy before being arrested by the police officers, that he sustained grievous injuries while inside and indeed, the evidence of the accused himself that the victim was taken in a virtually unconscious state to the hospital from the police station, that he had used minimum force in hitting the victim with a pole purportedly in order to prevent the victim from assaulting another policeman and inaccuracies that demonstrated the lack of credibility in the evidence of the accused.

No direct eye witness to torture

Generally, it must be said that examination of judgments relating to acquittals handed down by the High Court under the CAT Act indicate certain problematic features in the legal process. 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 by the Supreme Court, the 'consent and acquiscence' of the officer in charge) is a case in point. A major reason for this acquittal was the lack of direct evidence testifying to the acts of torture being committed by the particular police officers who are indicted, even though the Court accepted the fact that Gerald Perera was a hale and healthy man when brought into the police station but had suffered multiple injuries when taken out of the station. (see Republic of Sri Lanka vs Suresh Gunasena and Others, HC Case No 326/2003, Negombo High Court, HC Minutes 02.04.2008).

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.

Judicial understanding of the CAT Act

Problems with a lack of clear judicial understanding of the objective and purpose of the CAT Act also emerge from analysis of the relevant judicial decisions; Thus, in one acquittal, the High Court judge concludes as follows; "Even though it appears that when considering the number of injuries, the accused has used some force beyond that which was necesarry, that does not prove the charge against the accused in the case."(see Republic of Sri Lanka vs Havahandi Garwin Premalal Silva Case No. 444/2005 (HC), High Court of Kalutara, High Court Minutes, 19.10.2006. This decision is being appealed against to the Court of Appeal).

Another useless law

The CAT Act was brought to the country's statute books in 1994 with ambitious hopes of proving to be an effective legal deterrent to torture practices being perpetrated by custodial officers. However, copuled with the long delays in pending trials, lack of prosecutorial will to bring about convictions and manifest judicial reluctance to convict, it is evident that the legislation itself has lost almost all if not most of its force. Unfortunately, it has now been relegated to yet another useless law in Sri Lanka.

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