Abuses that remain whether the war continues or ceases
COLOMBO: 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.
The counsel claimed that he had received various
letters from detainees imprisoned under the FCR
following which he visited the lock-up at Ghalanai,
the headquarters of Mohmand Agency.