By Dulan Dasanayaka, Attorney at Law
“The term ‘torture’ means 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, when such pain or suffering is inflicted by or at the instigation 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.” — Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984, art. 1, para.1)
In 1977, the United Nations General Assembly took the first step towards the drafting and adoption of a legally-binding instrument on torture. Recognizing that additional international efforts were required to protect individuals from torture, the General Assembly requested the Commission on Human Rights draft a Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention or Convention Against Torture)
The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was adopted on 10th December 1984 by consensus at the UN General Assembly.
Sri Lanka accepted this Convention since 3rd of January 1994 by a practicable letter sent to the Secretary General of the United Nations in 19th December 1993. Thus, this convention has been enforced on Sri Lanka since 2nd February 1994. The Act of the Convention against Torture and Other Cruel Inhuman or Degrading Treatments or Punishments was passed in the Parliament in 1994 as it was needed to impose provisions for implementing the commitment of Sri Lanka under this said International Convention.
The Preamble of the said Act as follows;
“An Act to give effect to the Convention Against Torture And Other Cruel Inhuman or Degrading Treatment or Punishment….
The enactment of the said Act is Sri Lanka’s first achievement in ratifying the Convention Against Torture as this Act criminalizes torture and other cruel, inhuman or degrading treatment. Torture is considered to be a non-bailiable offence and State of War, threat of War, Public Emergencies or an order from a superior would not be consider as a defense of Torture.
However, although the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Act No. 22 of 1994 criminalizes torture, this Act has not been applied properly and fairly by the authorities.
The TNA Parliamentarian Presidents Counsel M.A Sumanthiran in his speech in Parliament at the debate of the Amendment of the said Act on July 06th 2021 expressed his views on lack of usage of the said Act.
“The Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Act was passed in 1994 and we have various researches that have been made with regard to the efficacy of this Act. 26 years of this Act has seen just 9 convictions, 6 of which are under appeal. Very recent research publication by Law and Society Trust says that there were only 47 prosecutions – only 47 prosecutions! Less than 0.1 % of the complaints that are made. And one knows that even the complaints are only about 10, 20% of the actual happenings”
According to the research titled “Sri Lanka: 25 years Act against Torture” was done by the Right to Life Human Rights Centre, Attorney General Department has been filed only 115 cases under this Act until 2019.
“ The Department of Attorney General informed via the letter R1/2019-08 dating 28.03.3019, that the indicted cases of number 115, ………………….. only 34 cases were given decision out of the aforementioned indicted cases”. However, A report handed over to the Committee Against Torture of the United Nations by the Human Rights Commission of Sri Lanka stated that 3404 of complaints only regarding Torture were received from 2010 to 31st of August 2016.
The gap between the actual happenings of Torture and Prosecutions can be identified clearly by the said statistics.
The Asia Director of the Human Rights Watch Mr. Bryan Adams has been made the following observations on the use of Torture contradictory to decent Laws established to eliminate Torture;
“One of the saddest things about these cases is that, although Sri Lanka has decent laws to protect against such abuse, these laws seem to be treated as mere suggestions and not as required police procedures,” Adams said. “Arbitrary arrest and other police mistreatment end up contributing to the use of torture. The police are meant to protect and uphold rights, not be the torchbearers of dismantling rights.”
The US State Departments Country Reports for 2022 is also raised above issue.
The constitution and law prohibit such practices, but authorities reportedly employed them. The law makes torture a punishable offense and mandates a sentence of not less than seven years’ and not more than 10 years’ imprisonment. The government maintained a Committee on the Prevention of Torture to visit sites of allegations, examine evidence, and take preventive measures on allegations of torture.
Human rights and civil society organizations alleged that torture and excessive use of force by police, particularly to extract confessions, remained endemic. The HRCSL, for example, noted that many reports of torture referred to police allegedly “roughing up” suspects to extract a confession or otherwise elicit evidence. As in previous years, arrestees reported torture and mistreatment, forced confessions, and denial of basic rights, such as access to lawyers or family members. On November 15, the National Police Commission reported that it received approximately 1,200 complaints against police during the year. From January to September 30, the HRCSL documented 291 complaints of torture, compared with 302 for all of 2021.
Free from Torture and Other cruel inhuman or degrading Treatments is a Fundamental Rights of Sri Lankan that has been guaranteed by the Constitution as well. In the Judgment, W.M.K. De Silva v. Chairman of Ceylon Fertilizers Corporation, where the Court has expanded the concept of ‘torture’ to include mental and emotional suffering.
Plenty of Supreme Court Judgments enshrined the Right to free from Torture and Other cruel inhuman or degrading Treatments in Sri Lanka.
But in Sri Lanka the Issue is not with Laws it’s with the practice. Sri Lanka has an almost fully completed Laws against Torture but still Torture prevails.
In these prevailing conditions, we are now going to commemorate the International Day for Support Torture Victims in this year as well on 26th June.
On 12 December 1997, by resolution 52/149, the UN General Assembly proclaimed 26 June the United Nations International Day in Support of Victims of Torture, with a view to the total eradication of torture and the effective functioning of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The UN International Day in Support of Victims of Torture on 26 June marks the moment in 1987 when the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, one of the key instruments in fighting torture, came into effect. Today, there are 173 State parties to the Convention.
To eliminate the prevailing illegal and uncivilized system of Torture in Sri Lanka, we should work together to eliminate the Social constructs that condone torture. Social constructs that condone torture will hinder the creation of a torture-free Sri Lanka, even if laws are passed.
To conclude this Article I quote the statement made by the Un Secretary General Antonio Gueterres.
“Torturers must never be allowed to get away with their crimes, and systems that enable torture should be dismantled or transformed.”
The Sri Lankan system that enables torture also should be dismantled or transformed.