By Philip Dissanayake
A young man named Dinesh Madhusankha Liyanage, a resident of the Yagirala Ittepana, works at the Agrarian Service Centre in Ittepana. On November 30, 2022, while he was on his way to work, a group of police officers of Ittepana police station took him to a deserted area in a three-wheeler, stripped him of his clothes, rubbed demon chillies all over his body including eyes, and questioned him about a theft. All this was done in connection with a theft at a tea leaf collection centre. However Dinesh, who was allegedly arrested on suspicion, was later released by the police.
It has been 75 years since the United Nations introduced the Universal Declaration of Human Rights to the world. In the year 1965, the Government of Sri Lanka also signed this Universal Declaration and added some parts of it to the Constitution of 1978, mentioning those rights as the fundamental rights of the people that cannot be alienated.
The article in the Universal Declaration of Human Rights, ‘No party shall subject any person to torture or cruel, degrading treatment or punishment,’ has been included in our Constitution as a guarantee that Sri Lanka will act against torture the same way as other countries.
Meanwhile, another important bill against torture was adopted by the United Nations on June 26, 1987. It is known as the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment.
The Government of Sri Lanka has also signed to that Convention on January 03, 1994. Sri Lankan government passed the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment Act No. 22 of 1994 as a special act on November 25, 1994. The law came into action in Sri Lanka on 20 December 1994 making torture and other cruel, inhuman or degrading physical or mental treatment a criminal offence. An offence under the act shall be liable to imprisonment for a term not exceeding seven years and to a fine not exceeding Rs.50, 000.
Accordingly, torture has been made a violation of the fundamental rights of the people and a criminal offense in the state of Sri Lanka. It has been 45 years since this law was incorporated into the Constitution, and 29 years have passed since it became a criminal offense.
Has torture in Sri Lanka been reduced through these laws?
Statistics released by the Sri Lanka Human Rights Commission
|Count of Torture
|Count of Degrading Treatment
|Restriction of individual freedom
Although the above statistics show that even though strong laws against torture have been enacted in our country, and a “zero tolerance on torture” policy has been recognized in Sri Lanka, does the government have a real desire to prevent torture? Therefore the data shown above shows that although very important and serious laws have been enacted against torture, the Sri Lankan government has not been able to implement those laws in practice.
Implementation of Act No. 22 of 1994
We recently conducted a study on how anti-torture laws are implemented in Sri Lanka. We made an inquiry to the Attorney General under the Freedom of Information Act, to know how many cases have been filed by the Attorney General under the International Act against Torture No. 22 of 1994.
As a response to the request, the Attorney General sent us a report stating that as of March 28, 2019, the number of cases filed by the Attorney General under this Act is 115, of which 34 cases have been completed so far.
According to the above statistics, it can be seen that no cases have been filed under this Act for 9 years with a period of five years from 1995 to 1999 and four years from 2012 to 2015. It should be re-examined how many cases have been filed since 2017.
It appears that more than 40% of the above mentioned 115 cases were filed in the years 2003, 2004, 2005 and the number of cases is reported to be 51. And it seems that one of the reasons for the successful prosecution of cases in the above three years is the activity of the first police commission appointed after the 17th constitutional amendment.
Out of the 34 cases filed under the Torture Act, we found 20 with great difficulty, and a study report on those 20 cases has been released by the Right to Life Human Rights Centre in all three languages. The report compiled by lawyer Dulan Dasanayake is available at www.right2lifelanka.org.
20 case judgments surveyed
In this study, we found that it took 4 to 10 years to complete a case assigned by the Attorney General under this Act. Another important fact was that found while investigating these 20 cases was that in 14 cases (70%) the defendants were acquitted. It can be mentioned as a special feature that out of the 14 cases in which the accused were acquitted that were released, 6 cases were released without summoning the defence.
Accordingly, in 6 of the remaining 8 cases, the accused were sentenced. However, in three cases, accused were given suspended prison sentences due to non-conviction previously, possible effects on employment, and the presence of small children in their families.
The Gerard Marvin Perera case judgment (HC326/2003 – Negombo) which gained international attention can be mentioned as a case where the maximum punishment was given under this Act. The accused were convicted 10 years rigorous imprisonment and a fine of Rs. 50,000 was also imposed, which is the maximum punishment under this act.
Implementation of the Fundamental Rights Law mentioned in the Constitution
Our institution conducted a similar study regarding the violation of Article 11 of the Constitution using based on 100 case verdicts delivered by the Supreme Court. This report was authored by lawyer Keshani Dias Sumanasekara and is available at www.right2lifelanka.org.
Violations of Article 11 and concurrent Articles 12(1), 13(1), 13(2) of the Constitution have been selected for these studies. Accordingly, to find the 100 cases, we had to go 38 years back from 2019 to 1981.
In this study, we found that the excessive backlog in the courts has spread to the Supreme Court. Our constitution states that a petition regarding violations of fundamental rights should be heard and concluded within 2 months, but it was difficult to find a petition that was concluded within such a period.
Among these, it was possible to find 13 cases that were completed within a year or less, and those were fundamental rights cases that were heard between 1983 and 1995. Among these, seven cases lasted 10 years or more.
In the period from 1981 to 2019, the year 2017 can be considered as the year in which the highest number of judgments was given and the number was 12. In 2016, 11 judgments were delivered and in 2018, 5 judgments were given. Between 1981-1989 only eight verdicts were given. Out of 100 fundamental rights petitions filed during 1981-2019 related to torture, 21 were dismissed.
In general, compensations were not encouraging for plaintiffs. Among the judgments given during 1981-1989, the minimum compensation awarded was Rs. 2,500 and the maximum compensation is Rs.50, 000.
During the 1990 – 1999 period the minimum compensation offered was Rs. 2,500 and Rs. 2,500 as litigation fees. The maximum compensation was of Rs. 200,000 as compensation and Rs.5,000 as legal fees.
During 2000-2009, the minimum compensation awarded is Rs.15, 000 and the maximum compensation is Rs.1, 504, 788. This compensation was offered for the case filed on behalf of Mr. Gerard Marvin Perera, resident of Wattala in connection with the petition bearing SCFR 328/2002. During the period 2000-2019, there was an increase in compensation, with four cases where the compensation was more than Rs.500,000.
Measures to be taken to prevent torture
According to the above information, it is evident that the implementation of very strong laws against torture in Sri Lanka is slow. To avoid this situation, attention should be paid to the following suggestions.
1 The government must sincerely intervene and demonstrate full commitment to eliminate torture within the Sri Lankan state (police/prison/schools).
2 The implicit societal discourse that torture should exist must be ideologically and practically defeated.
3 Well trained and educated officers who can use modern technology should be appointed for criminal investigation.
4 The relevant Officer-in-Charge of the police station and the Assistant Superintendent of Police must be made answerable for the torture that takes place in a police station.
5 Officials who are found guilty before the court of torture should be suspended and subjected to internal disciplinary procedures.
6 The implementation of the anti-harassment law in Sri Lanka should be active. For that, the deficiencies should be identified and remedies should be sought
7 The possibility of filing false cases should be completely curtailed and steps should be taken to prevent delay in justice.
8 Officers should be trained and technical resources should be provided to carry out criminal investigations according to modern technology and scientific methods.
9 Various problems faced by officers (stress/lack of job satisfacation/not getting proper allowances and payments) should be solved and their promotions and transfers should be done in a proper manner and the officers who do not commit torture must be appreciated and encouraged.
- Establishing a separate and independent unit for prosecuting cases under the Torture Act under a transparent system and related trials should be conducted formally.
11 The 30-day time barrier for filing fundamental rights petitions should be removed and the related petitions should be completed within one year.
(Philip Dissanayake is a long-time human rights defender and executive director of the Right to Life Human Rights Centre.)