Focus on Rights

One small step in combating practices of torture
In the determining of the first conviction under Sri Lanka's Convention against Torture and other Cruel Inhuman or Degrading Treatment or Punishment Act No. 22 of 1994 recently, it is appropriate that the case should involve the most ordinary of alleged crimes.

This strips away the 'safe' assumption harboured by most of us that the practice of torture in Sri Lanka remains confined to a particular segment of the undesirables of our society, terrorists or hard core criminals as they may be categorised. In any event, these assumptions are highly problematic given that torture cannot be condoned in relation to even the most hardened criminal. However, where state officers increasingly commit acts of torture with regard to individuals who are actually innocent, the irony is more profound. In this first conviction under what is commonly referred to as the CAT Act, the facts bear out this stark truth.

The case itself is wholly mundane involving the alleged theft of four gems from the office of a gem dealer who alleged that the victim, a business acquaintance and a broker, was responsible. The victim stoutly denied that he had stolen the gems but was threatened by the gem dealer that, if the gems were not handed over, he would get the police to assault him. Some time later, while travelling to Colombo in the bus, the victim was arrested and taken to the Wellawatte police station where he was mercilessly assaulted with a s-lon pipe by the accused police officer, then attached to the crimes division as an acting officer in charge.

Thereafter, he was kept in the police station for two days. It was only after the members of his family had protested asking why he was not produced before court, that he was taken before a magistrate. He did not make any complaint of assault to the magistrate or the officer in charge of the Wellawatte police station. When asked why, he said that there had been 'no point' in doing so. The medical evidence showed injuries on the victim, which had been caused by a blunt weapon, including the fracture of his hand.

On his own part, the refrain of the accused police officer was boringly familiar; that the victim had been arrested on suspicion of being involved in the theft of gems and had hurt himself attempting to run away at the time of arrest. Somewhat more interestingly, it also turned out that the gem dealer who had lodged the complaint, later found the gems and had informed the police that his allegations against the victim had been unfounded.

In assessing these facts, the Colombo High Court, (in HC 9775/99, order of S. Sriskandarajah J.), determined that the prosecution had established beyond reasonable doubt that the accused had assaulted the victim in order to obtain a confession from him, which he had done in his official capacity as a police officer who is a public officer. The absconding accused was accordingly convicted to the minimum seven years rigorous imprisonment and payment of a fine of Rs 10,000, in default of which, a further two years of RI was ordered.

Mundane as the case may be, it also illustrates the various points at which the system fails to work in Sri Lanka. At the base comes the immediate deficiencies in the law enforcement processes where the most basic investigation skills and training has been replaced by brute force on the part of not only junior but also senior police officials. This is buttressed by the impunity that law enforcement officers can claim for their actions, a continuing legacy of days not so long ago when extraordinary emergency laws gave them virtual powers of life and death. The element of supervision that should normally be operative at the chain of command has also been rendered completely nugatory by this breakdown in the systems of policing.

Then again, at another level comes the mimising of the supervisory role, this time, of the judiciary where magistrates do not bestir themselves sufficiently in respect of persons who are brought before them out of the custody of the police. Magisterial lapses in this regard have been the focus of a number of Supreme Court judgements in the past. Add to this, (though not present in this case), complicity between the medical officers before whom victims of assault are produced and the custodial police officers and one finds the complete picture as to why we have such a grave problem on our hands in Sri Lanka.

In this context of extreme dysfunction, only judgements such as those delivered under the CAT Act, (carrying with them actual deterrent force in terms of sentences of imprisonment), can have any impact on erring police officers. Fundamental rights cases resulting in the ordering of monetary compensation, which is most often paid by the State, have failed singularly to have any effect, as we have seen in the past decades where the police force has closed ranks instead of dealing firmly with its rogue officers.

For these reasons and more, the fact that after some nine years following the enacting of the CAT Act, we have seen at least one conviction of an aberrant police officer for torture is not something to be dismissed lightly.

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