Displacing 'safe assumptions' about the society that we live in

By Kishali Pinto Jayawardena

The 'safe' assumption harboured by most Sri Lankans that the practice of torture remains confined to a particular segment of the societal undesirables; terrorists or hard core criminals as the case may be is now comprehensively debunked to all intents and purposes. Instead, torture is most evidenced against the poor and the marginalized; often the most gruesome torture is practiced against a teenager accused of stealing a bunch of bananas or some such petty theft. The actual criminals and the underworld characters are allowed to escape with the nexus between senior/junior police officials/politicians and the underworld being too strong to allow their apprehension.

As reflected upon by Phillip Alston, United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions in a Mission visit to Sri Lanka, (28 November - 6 December 2005), torture is not resorted to by a few 'rogue' policemen but is widespread due to many factors; the lack of good investigative training, public pressure to apprehend suspects and the general feeling that torture is not a condemned practice but is implicitly allowed and even expressly ordered by senior police officials despite laws and regulations prescribing otherwise.

Case studies carried out by the Hong Kong based Asian Human Rights Commission (AHRC) during the past few decades, point to two discernible patterns of torture, firstly where torture is resorted to for interrogation purposes and secondly where it is practiced as a pure abuse of power. Into the first category of cases falls the denial of all of the commonly accepted rights available under the normal criminal procedure laws such as the right to be given reasons for the arrest and the right to be speedily brought before a magistrate.

In this regard, the trauma of persons mistakenly arrested by the police and tortured in the belief that they are criminals, is common as is the arbitrary arresting and torturing of individuals possessed of a criminal record purely as a convenient cover for crimes lacking a suspect. Numerous judgments of the Supreme Court have held that even a hardened criminal cannot be tortured with impunity. In the Wewelage Rani Fernando Case, (SC(FR) No 700/2002, SCM 26/07/2004) where a prisoner was tortured to death by prison officials after his arrest and detention for stealing two bunches of bananas, the Court observed (per Justice Shiranee A. Bandaranayake) that this allegation of theft should not have detracted from the duty to afford to the deceased, the protection of his constitutional rights of personal liberty. However, these judgments have not had any effect on the law enforcement machinery.

In the Madiliyawatte Jayalathge Thilakarathna Jayalath case which concerned the first conviction under Sri Lanka's 1994 Anti-Torture Act, the absence of due process at all stages of the investigative process is well illustrated. The case involved 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 crime 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.

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 (HC 9775/99, order of High Court judge S. Sriskandarajah as he then was) 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 and therefore, a public officer. The absconding accused was convicted to the minimum seven years rigorous imprisonment (RI) and payment of a fine of Rs 10,000, in default of which, a further two years of RI was ordered.

The case illustrated the various points at which the system fails to work in Sri Lanka. At the most fundamental level, immediate deficiencies in the law enforcement process are apparent where basic investigation skills and training is 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 extraordinary emergency laws which, at one point, gave them virtual powers of life and death. The element of supervision that should normally be operative at the chain of command is also rendered completely nugatory by this breakdown in the systems of policing.

The second category of cases includes infliction of torture as a sheer abuse of power, with many concrete examples to illustrate this point. In many cases, torture has been practiced as a result of a legitimate query by a citizen. For example, Saman Jayasuriya, was driving a van with two others when his vehicle was stopped by two policemen in civilian clothes who asked for his license and insurance. In response, he asked for their identity and was instead, pulled out and assaulted. He managed to escape, but a contingent of policemen from the Kadugannawa police station visited his residence and mercilessly assaulted him in the presence of his wife. He was then arrested and taken to the police station with his son. These cases illustrate the most heinous depths to which law enforcement has degenerated; namely the illegal punishment of individuals for trying to uphold the law by brutalized law enforcement officials who have long since, lost any respect and adherence to their office.

The failure of the law enforcement process has been a persistent and central feature of the failure of the justice system in Sri Lanka. Corruption within the police ranks, police brutality, lack of investigative skills, inefficient and time consuming procedures in dealing with complaints of torture and the virtual militarization of the police service accustomed to using emergency powers for long decades has made it difficult for honourable officers to serve properly in their posts. The impact of constitutionally established monitoring agencies such as the National Police Commission (NPC) has been nugatory with the very constitutionality of the current appointments to the NPC being impugned on the basis that the required prior approval of the Constitutional Council was not obtained. This is the sad state of affairs in Sri Lanka today.