Abuses that remain whether the war continues or ceases

By Kishali Pinto Jayawardena

The prevailing situation of conflict in the country with its heightened emphasis on enforced disappearances and extra judicial executions has, in a sense, pushed the deceptively termed 'ordinary' practices of torture by custodial officers to the background. This should not however, be the case; rather, there should be a collective focus on these issues as the same culture of impunity permits these kinds of violations. Ergo, the focus should consistently remain on the legal and extralegal factors that allow or even actively encourage these abuses rather than per se, solely on the conflict.

A persistent feature of the immediate years post the 2002 ceasefire agreement was that even despite the absence of war, practices of torture continued unabated. This shows the extent to which resort to abuse of power has become imbedded in our custodial system and further, corrupted other professionals who are supposed to impose safeguards against such abuses, including medical professionals and judicial officers.

The collusion of medical officers in the infliction of torture by police officers was reflected upon in last week's column. Those implicated range from senior medical officers to the junior level; this is a fact that disgraces the medical profession and should be examined by its professional body in a far more rigorous manner than only rapping an errant medical professional over his/her knuckles once in a while.

What is important to note is that the police are not the only blameworthy individuals in this scenario. Apart from medical professionals, judicial officers have themselves not been blameless. In the Thilakarathna Jayalath case which was the first conviction under the Anti-Torture Act, (HC 9775/99, order of High Court Judge S. Sriskandarajah as he then was), the High Court observed the paucity of magisterial supervision of the victim of torture when he had been produced before the judicial officer. The failure to question the suspect as to whether he had been tortured was of specific concern.

Then again, the absence of magisterial supervision in the detention process was well brought out in Weerawansa v Attorney General, 2000) 1 SLR 387, where remand orders by the Magistrate, Harbour Court made under the ordinary law were held to be in violation of the arrestee's rights. Several such orders of remand had been made even though the Magistrate or the acting Magistrate did not visit or communicate with the arrestee. This was ruled by the Supreme Court (per judgment of MDH Fernando J) to offend a basic constitutional safeguard in Article 13(2), that judge and suspect must be brought face to face before liberty is curtailed, which safeguard was not an obligation that could be circumvented by producing reports from the police. An earlier view (Farook v Raymond (1996) 1SLR, 217) that remand orders, where they concern a patent want of jurisdiction, cannot be safeguarded under the cover of being 'judicial acts' with consequent immunity from fundamental rights challenge, was agreed with.

It must be stressed that even at a point when fundamental rights litigation was at its zenith, (which is not evidenced now, except in a few high profile 'political' cases) the gap between judgments and their implementation was immense. Judgment upon judgment was delivered by the Supreme Court finding torture to have been committed by officers in custodial authority but none were implemented in order that these officers would be disciplined or prosecuted.

At the least, these officers were not even removed from their positions or interdicted. The consequences were catastrophic as seen when Gerald Perera, a law abiding employee of the Ceylon dockyard was arrested by the police who had mistakenly thought him to be a known criminal by the name of 'Gerald" and tortured so severely that he suffered renal failure. This rights petition that he filed was upheld by Court. However, no disciplinary action was taken as recommended against the responsible police officers who continued serving in their posts. A year later, as he was due to testify in the case instituted in the High Court in terms of the Torture Act against the police officers who had tortured him, he was shot and killed at point blank range by some of those very same police officers. The murder trial is ongoing.

A specific feature of the culture of impunity is the blatant disregard with which implicated police officers falsify official documents, including the Information Book. In one case where the court found that Grave Crimes Information Book and the Register/ Investigation Book had been altered with impunity and utter disregard for the law, the view was taken that it was unsafe for a Court to accept a certified copy of any statement or notes recorded by the police without comparing it with the original. It was pointed out thus; "It is a lamentable fact that the police who are supposed to protect the ordinary citizens of this country have become violators of the law. We may ask with Juvenal, 'quis custodiet ipsos custodies?' Who is to guard the guards themselves? (Kemasiri Kumara Caldera 's case, S.C. (F.R.) 343/99, SCM 6/11/2001).

Even where police officers (junior as well as senior) have been identified as personally responsible for acts of torture in courts of law, no internal departmental action has been taken against them. Directions of the Supreme Court to the police hierarchy to initiate disciplinary action against erring police officers are blatantly ignored. Dayaratne's Case, (SC (FR) 337/2003 SCM 17.5.2004) where a senior attorney was severely assaulted for attempting to remonstrate with the police over the arrest of a neighbour's son is one recent example. Here again, the Court, in the judgment of Wigneswaran J, severely censured the police for acting in such a callous manner.

However official resistance to these pronouncements by the Court has always been high; from some time back, the police department had, in fact, set up funds to provide for lawyers to appear for the accused police officers as well as to pay the sums of compensation due personally from the implicated officers. The first legislative attempt to remedy this situation, namely the National Police Commission (NPC) has now proved to be illusionary, almost wholly due to its current lack of legitimacy after the unconstitutional appointment of its members by the President.

The fundamental crisis in Sri Lanka remains the non-implementation of the rule of law, whether this concerns the apolitical working of the judiciary, the non-implementation of the 17th Amendment to the Constitution or abuses committed by police officers. Whether the conflict itself continues or ceases in fact, has now made little difference to this pressing question. It is towards redressing this rule of law crisis that all our efforts should be directed.