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Whatever possessed an undoubtedly bewitched Government to deputize a senior intelligence official, alleged to have held command responsibility when detainees were severely and systematically tortured, to represent the State before the United Nations Committee against Torture (UNCAT)? One would be hard pressed to find a greater irony than this, per se.

Unwise strategic decision
The UNCAT was sitting this week to examine Sri Lanka’s periodic report submitted under its normal reporting obligations under the Convention Against Torture (CAT). In previous years, its report card on the country had been anything but positive.
But this was perhaps one of the few times that the Government had the chutzpah to put forward a representative of the intelligence apparatus against whom serious allegations had been leveled during the previous regime, as part of a UNCAT delegation. His presence resulted in a storm of controversy carried by prominent international news media. The Government retreated in disorder even as harsh questioning took place.

Assessed on the bare minimum of strategic considerations, this was the proverbial red flag to a very testy bull, as it were. The exercise demonstrated disturbing frivolity at its very core. It may have been better if the Sri Lanka delegation had not gone to the UNCAT at all.

Soothing murmurs on the counter-terror draft
As someone commented casually to me some days ago, Governments never realize that actually trying to govern with a modicum of commonsense is by far the best way to deflect public criticism. Instead, the very opposite applies. We have obfuscation, lies, more lies and hollow statistics.

The Rajapaksa Presidency unblushingly employed this strategy as its official stance. Belying its sunshine rhetoric, the Government is falling into this very same trap. This is unsurprising given that so many tarnished officials in the public service, the security sector and even the state law office continue with nary a pause. Indeed they tarnish the reputations of their colleagues working as best they may in very difficult circumstances.

But in Geneva this week, the Government assured soothingly that Sri Lanka’s proposed counter-terror law ‘would conform to international norms and standards.’ As critically questioning experts looked on, it was asserted (adding insult to palpable injury), that the support of United Nations agencies had been obtained in the drafting process. As my conversationalist expostulated, ‘Well, if this is what the United Nations is doing in Sri Lanka, no wonder there are such tremendous concerns about the world body itself at several levels.’

Need legislation tailored to our concerns
The UNCAT was informed that the Parliamentary Sectoral Oversight Committee on National Security will vet the counter-terror draft before it is forwarded for approval to the Cabinet. So we are told that the obnoxious draft will be ‘cleaned up’ through a parliamentary process which lacks transparency and in which there is little public confidence? This does not bode well. This document must be torn up forthwith and the process started anew.

What Sri Lanka needs is national security legislation tailored to its own needs and concerns in conformity with constitutional and international standards. For instance, adopting national laws of other nations which have very different threat assessments and terror concerns is unwise here. Were the United Nations agencies ‘consulted’ for this purpose, completely blind to these concerns?

The Ministry of Foreign Affairs has admitted to problems with the draft and promised that these would be rectified. But as pleasing as this may sound to our ears, we should ask ourselves the question as to how this profoundly frightening draft characterized by complete overreach was finalized in the first place.

Inability to answer core questions
Then again, the Attorney General’s tired reiteration of a zero tolerance policy on torture fell on unsympathetic ears of the UNCAT. The overriding truth was that nothing very substantial had been done to address endemic torture in the North or in the South, broadly speaking. In fact, as one member of UNCAT reminded the government delegation in somewhat colourful language, ‘impunity for torture is hanging like a sword over the entire country and indeed, over your review”’

The question was very simple. How is Sri Lanka tackling the grave question of prosecuting and sentencing public officials for these crimes? There was no coherent answer except airy reassurances which meant very little. Official statistics on reported cases differed ‘very significantly’ with the data of other organizations including the main oversight body, the Human Rights Commission. At a different level, the Department of the Attorney General (AG) has not been able to show a different prosecutorial policy under Sri Lanka’s Convention against Torture (CAT) Act, one of the few good laws within the last decades.

Indeed, the CAT brings within its ambit, an officer of a police station, who “‘consents and acquiesces”’ in torture perpetrated by subordinates. Torture is defined as an act done “‘with the consent or acquiescence”’ of a public officer or other person acting in an official capacity (Section 12). Section 2 criminalises “‘any person who tortures any other person.’
A combination of ill-preparedness and angst.

As the objectors to the presence of Sri Lanka’s Director of Sri Lanka’s Centre for National Intelligence on the state delegation to UNCAT may have liked to know, the Sri Lankan law therefore holds culpable both the torturer and his/her commanding officer who acquiesces in abuses. This is a stand unequivocally taken by the Supreme Court in several precedents involving constitutional violations as well.

But even at a much less ambitious level, successful prosecutions under the CAT Act are abysmal. These are the pressure points at which the Government must show its difference to the past. Otherwise what we are left with is a choice between the bad and the infinitely worse. Is this the legacy of the ‘yahapalanaya’ unity alliance, trailing ignominiously in its wake the tattered rainbow colours of the ‘revolution’ that it once promised?

In sum, the ill-preparedness of state representatives and the angst caused by a controversial key intelligence official as an official ‘face’ of the delegation resulted in the 2016 UNCAT review being nothing short of disastrous for Sri Lanka. The questioning ranged from not allowing detainees speedy right of access to counsel to torture in prisons. This is a forerunner of the searching scrutiny that will come in the future.

One can only hope that the country will be better prepared then.