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Torture in Sri Lanka: Not a closed chapter
View(s):By Prof. Ravindra Fernando
(Excerpts from a lecture delivered on the invitation of the British Scholars Association recently)
“All tremble at punishment All are frightened of death Make an example of yourself Do not kill or cause to kill” – Lord Buddh
All religious leaders have condemned torture and killing. Torture and other human right abuses have been known throughout the history of man.
One of the first accounts of torture describes how Rameses II, who reigned in Egypt (1304-1237BC), tortured captured enemy soldiers to obtain information about their military positions before a planned battle. In ancient Greece accounts are given of the torture of slaves. The use of torture on citizens was forbidden.
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.
It is well known that for many centuries, judges in France could order torture of prisoners to obtain information and during the American civil war, deserters were branded
After the fall of Rome in the 13th Century, torture was used mainly as a weapon of private citizens and eventually the State. Frequently, amputation of hands, feet, and genitalia was used as a punishment for sexual offenders, more often than not inflicted without State supervision. Torture was then adopted by rulers that realized that their citizens respected such a display of force.
During this time period torture was used for religious persecution. Christian leaders forced conversion of others with the application of torture. Burning at the stake, drowning, and suffocation were the common torture methods. Many Protestant Christians were tortured and killed in the reign of Queen Mary I in England and Queen Elizabeth I had dozens of Catholics put to death during their reign.
World over, ancient methods of torture practised by the state were accepted by the society; today it is not. Ancient 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, state sponsored paramilitary groups and terrorists or armed political groups.
Torture is a strange phenomenon.
It 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.
From the 16th century some coastal areas of the country were ruled by the Portuguese, Dutch and British. On 2nd March 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 1849/50, it was reported that a lieutenant of 73rd Regiment hung the Kandyan prisoners without any trial, and particularly relished having them hung 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 hung up 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 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 instigating 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 the independent Sri Lanka up to 1971. The armed struggles of People’s Liberation front or JVP in 1971 and in late eighties, and the civil war situation in the North and the East of the country, led by the LTTE from late seventies gave rise to widespread torture, disappearances and deaths in custody by the State, the JVP and the LTTE.
Premawathie Manamperi, a 22-year-old woman was killed by the officers of the government forces on 17th April 1971 in Kataragama. She was the Festival Queen previous year.
After her arrest, she was questioned that length about her links to the JVP by a lieutenant. She admitted the fact that she attended five classes conducted by JVP.
Soon afterwards, she was made to strip naked and walk along the main road in Kataragama with her hands held high, reciting the words ‘I have followed all five lectures’. After she walked for about 200 yards in this manner the lieutenant who was walking behind, kicked her on the hip and opened a short burst of fire on her. After she fell, she had crawled some distance and had tried walking but had fallen again. The officers returned to the camp. As the lieutenant was informed that she was alive, he ordered another officer to go and shoot her which he did. Even though she was shot for the second time she was still alive. The person, who was asked to dig a pit and bury her body, has informed the perpetrators on two occasions that she was alive. Later an unknown gunman had shot her in the head and she died immediately. She was buried in a pit in a vacant plot of land.
Due to lack of evidence as to the person who shot the girl’s head and because there was compelling evidence to suggest that the girl was alive after the two accused officers shot her, they were charged for attempted murder. In their defence, the accused officers stated that they were merely carrying out their superior Colonel’s orders. The lieutenant said that the Colonel ordered him to ‘bump off’ the prisoners. On the contrary, Colonel denied making such an order and there was no evidence to prove that he in fact issued such an order. The issue was whether they could use that defence afforded to them under the penal law.
Both accused were unanimously convicted by the verdict of the jury and sentenced to 16 years rigorous imprisonment each.
At the appeal, the Supreme Court upheld the conviction of the accused. The judges analyzed the issue of orders of the superior officer relation to the murder of an unarmed person in police custody. They held that even if an order is given by the higher authorities the subordinates are supposed to act upon such order only if it was a lawful order. It was further held that the Public Security Ordinance and the Regulations made there under give no authority to shoot a prisoner held in custody.
Section 100 of the Army Act also requires a person subject to military law to obey only the lawful commands given by his superior officers. It is not applicable to a command which is obviously unlawful. This landmark judgment set a significant paradigm to the armed forces and draws a clear distinction between ‘lawful superior orders which get legal protection’ from those that are unlawful and beyond the boundaries of protection provided by the legislation.
The documented methods of torture include,
- Non-therapeutic administration of drugs
- 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 managed 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 recognizes the right of everyone “to the enjoyment of the highest attainable standard of physical and mental health.”
The judge directed the State to pay to Gerard the sum already 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 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 murder case where a police officer is an accused is still pending.
At times of war and civil unrest torture of professionals has been documented.
Torture and death of Wijedasa Liyanarachchi, an Attorney-at-Law, who supposedly had affiliations with the JVP, is an example.
He was arrested near the court complex at Hulftsdorp by three Police officers on 25th August 1988 around 4.00 pm.
He was taken to the official residence of a SP at Tangalle in a privately owned Hiace van. Due to various agitations and pressure, mainly by the Bar Association of Sri Lanka he was brought to the Anti-Subversive and Security Co-ordinating Unit, Sapugaskanda on 1st of September at 6.00 p.m.
As his condition appeared serious the Inspector there admitted him to the Colombo General Hospital at 11.25 pm.
On admission to hospital he was restless, pale and had difficulty in breathing.
He had feeble pulse. His blood pressure was so low it was not recordable. He had difficulty in breathing. The doctors noticed the contusions over the front of the chest and diagnosed the fractures of the ribs. He was given blood and intravenous fluids. As the breath sounds were diminished on the left side of the chest an intercostal tube was inserted to the left thoracic cavity. About 1600 ml of blood stained fluid was drained out. Oxygen was also given.
At 12.30 a.m. on 3rd September he suffered a cardio- respiratory arrest. Resuscitation attempts failed and he was pronounced dead at 12.55 a.m.
An inquest was ordered and I attended the autopsy at the request of the Bar Association of Sri Lanka (BASL) as an observer.
The body showed nearly one hundred external injuries caused mainly by blunt weapons. Internally, he had many serious injuries including bleeding into neck trace with fracture of the left hyoid bone and thyroid cartilage, nineteen fractures of ribs, laceration of the left ventricle, contusion of both lungs, pulmonary oedema and congestion, blood stained frothy fluid in the bronchi and extensive contusions of the subcutaneous tissues and of the superficial and subcutaneous muscles of the left and right thighs and left and right knees and calf muscles of the right leg and an extensive retroperitoneal haemorrhage.
In the confidential report to the BASL, I expressed the following opinion.
- The cause of death was shock and haemorrhage following multiple musculo-skeletal injuries caused by blunt weapons.
- The injuries found on the body were several days old suggesting that they were caused before he was transferred to Sapugaskanda. There were no fresh injuries on the body. The injuries had resulted in bleeding into the subcutaneous tissues and muscles causing hypovolaemic shock, which was irreversible. It was extremely unlikely that he would have survived even if he was admitted to the General Hospital, Colombo, soon after his arrival to Sapugaskanda Police station.
- The injuries could have been caused by blunt weapons such as police batons, clubs or S-lon pipes filled with sand. Jumping or standing on his body could also have caused some of these injuries. The neck injuries could have been caused by attempted manual strangulation. The presence of large number of injuries around the elbows suggests that he was either hanged from upper limbs or the upper limbs were tied together around elbows. The injuries were consistent with those seen in cases of police assaults.
- As a result of these injuries the deceased must have been in severe bodily pain. His breathing could have been severely affected due to the injuries in the chest wall and the fractured ribs.
The inquest into his death commenced on 15th September 1988 by Mr. H. W. Senanayake, the High Court Judge, Colombo.
The evidence of the Southern Range Deputy Inspector General of Police and two other Police Officers was not recorded as they declined to testify without legal advice as the BASL refrained from representing Police officers until the perpetrators were brought before justice.
At the conclusion of the inquest on 21st October 1988, the Judge said that for the first time in 22 years as a judge he was threatened by telephone and letters saying that he will be killed.
At the High Court Trial-at-Bar before 3 judges, a superintendant of police, a sub-inspector and a police constable were charged for conspiring to commit the murder and committing the murder of Wijedasa Liyanarachchi at Colombo, Tangalle and Matara. However, the former DIG was left out of the indictment.
The Court observed that there is “highly incriminating circumstantial evidence” against the DIG, who was also a witness in this case. Despite this fact, he continued to hold office as Head of the Special Operations in Colombo and was not subjected to any inquiry and this not only disregarded the Judges’ remarks but also exemplified how impunity was considered the norm at the time.
During the trial the evidence given by the Police officers were considered contradictory and biased. The Judges noted that “It is a sad and disconcerting state of affairs that police witnesses had resorted to the subversion of the truth merely because police officers stood in the dock as accused persons.”The initial indictments of torture and murder were amended due to lack of evidence and the accused officers were charged with wrongful confinement of Wijedasa Liyanarachchi. Though there was compelling evidence to suggest that he was tortured whilst in custody it was not proved beyond reasonable doubt that the injuries he sustained were caused by the accused officers.
However, they pleaded guilty to the criminal offence of wrongful confinement.
In Sri Lanka some sections of the public agitate that the death penalty be implemented.
All human rights defenders are against the death penalty for many reasons. It violates the right to life and it is a cruel, inhuman and degrading punishment.
It is well known that the judicial system favours the rich and powerful. Innocent men like Mahadevan Sathasivam and Dr. Daymon Kularatne who were accused of murder would have been hanged if not for the eminent counsel such as Dr. Colvin R. De Silva and Mr. G. G. Ponnambalam they could afford. In the case of Sathasivam, he could obtain the expert medical evidence of Professor Sydney Smith, the reputed forensic pathologist of the University of Edinburgh of Scotland.
Other reasons against the death penalty include that false evidence can be planted, police officers can be corrupt, inefficient and they can make mistakes. Furthermore, it is well documented that forensic scientists, forensic pathologists, the jury, and even judges can make mistakes.
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 former Foreign Minister Hon. Lakshman Kadirgamar said “While it is universally recognized 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 death in custody.
According to Dr. Clyde Snow, a Forensic Anthropologist, “As for motive, the state has no peers, for it will kill its victim for a careless word, a fleeting thought, or even a poem.”
I conclude this presentation with laments of torture survivors.
“I didn’t mind the pain so much, it was the cries next door I couldn’t bear” and “It is not what good people did, but what good people didn’t do, that hurts.”
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