Sri Lanka's record on custodial torture is far from clean. The government's recent statement denouncing all forms of torture, pledging to introduce short and long-term preventive mechanisms to address the issue is yet to make any visible impact on the situation. Custodial torture is on the rise in this tiny island-nation, which relies heavily on extracting confessions to conduct successful criminal investigations. According to a recent report published by the National Police Commission (NPC) of Sri Lanka, nearly 200 people complained of torture while in custody in the last year.

President's Counsel Ranjith Abeysuriya, who heads the NPC, also accused the country's police chief of not co-operating with the authorities in the investigation of complaints against police officers. "We expect the police department to conduct internal inquiries on complaints. But unfortunately, we do not get sufficient support from senior police officers," he told reporters in July 2005.

Abeysuriya's comments come at a time when human rights groups and international watchdogs hope that the country's torture record will take a positive turn following the government's public condemnation of custodial torture.

"The government of Sri Lanka, taking serious note of recent allegations regarding torture while in police custody, has introduced short and long-term preventive mechanisms to address the issue, in line with the recommendations of treaty bodies," said late Foreign Minister, Lakshman Kadirgarmar, addressing the 61st session of the United Nations Commission on Human Rights.

These comments were made as the UN Committee against Torture was preparing to consider Sri Lanka's periodic report on torture in May 2005, after the first report was submitted in 1998 expressing the country's commitment to uphold human rights and eradicate all forms of torture. Custodial torture is prohibited under the Constitution of Sri Lanka (1978). Article 11 of the Constitution stipulates that every person is entitled to be free from torture, inhuman and degrading treatment. Domestic legislation was promulgated making torture an offence punishable with a minimum punishment of seven years imprisonment after the country became a signatory to the Convention against Torture in 1994.

Despite these legislative changes and the establishment of a special sub-unit under a senior Deputy Inspector General of Police to deal with complaints of custodial torture, human rights groups have been highlighting alleged attempts by police officers to prevent torture victims from seeking legal redress. Gerald Perera, a torture victim, was shot by an unidentified gunman last November before he could testify in his torture case. In another case, Channa Prasanna Fernando, who made a torture complaint was allegedly kidnapped and taken to an unknown place by a group of people (including the alleged perpetrator) and forced to withdraw the charges. He was also forced to write a letter to his mother saying that he was committing suicide of his own free will. Nimal Silva Gunaratne, a victim of brutal torture, complained to the authorities that Ranmal Koddithuwakku, Assistant Superintendent of Police (ASP) made attempts on his life through other police officers and also tried to implicate him in several fabricated cases. Gunaratne alleges that he was tortured at a torture chamber maintained by the ASP and as a result lost sight of one eye and suffered several serious injuries.

Custodial Torture Sketch by Chenthil Paramasivam

The Sri Lankan government's condemnation of torture "without any reservation" and the country's Human Rights Commission's (HRC) "zero-tolerance" policy on human rights abuses, therefore, have to be considered in the context of preventive measures introduced by the government to address the issue.

According to the Asian Human Rights Commission (AHRC), the Sri Lankan government has "at no stage properly recognised the institutional practices relating to torture at police stations, nor has it given any specific guidelines regarding this to the police or other law enforcement agencies."

There is a belief within police ranks in Sri Lanka that successful investigations are not possible without confessions obtained through torture. But Palitha Fernando, Deputy Solicitor General of Sri Lanka, dismisses this idea, indicating that a lot is being done by the government to educate police officers and safeguard the fundamental rights of persons in custody.

"Police officers sometimes feel investigations are not possible without 'rough handling,' in the absence of scientific evidence. We can't get the government analyst, finger prints expert or the DNA expert to come to a scene and assist police officers. As a result, police officers are left to question witnesses and extract information for the purpose of solving crimes," explains Fernando.

Following its reiteration of policy on custodial torture, the Sri Lankan government hopes to enlighten police officers about the legal situation on custodial torture as well as the consequences they will face if found guilty under the Torture Act.

The Attorney General's Department of Sri Lanka has officially decided not to defend any person called before the Supreme Court for violating Article 11 of the Constitution, thereby compelling police officers (who are normally defended by the State) to retain their own lawyers and incur personal expenses.

"The Supreme Court has on some occasions imposed fines on officers. Generally it is the state that is responsible for the actions of its officers, but the Supreme Court has in certain instances got the officers to pay out of their pockets. This has definitely acted as a deterrent," said Fernando.

The Police Department has also set out very clearly that any person whose career is tarnished with violation of a Fundamental Right during the last five years will not be considered for promotion.

"Despite these efforts, custodial torture is still a cause for concern This is because Sri Lanka's custodial officers persist with the same mindset they developed under the old emergency regulations and prevention of terrorism laws," says Kishali Pinto-Jayawardena, public interest lawyer .

It was alleged that the Sri Lankan police force maintained "torture chambers" during the 1983 and 1987 youth insurgencies, which saw a massive loss of life. Emergency regulations and prevention of terrorism laws implemented during the civil war have provided impunity to police officers in cases of custodial torture. "These extraordinary national security laws encouraged aberrant behaviour on the part of law enforcement officers because they set no minimum safeguards relating to conditions of detention," she says pointing out that the conduct of police officers under emergency and terrorism laws did away with normal procedure for inquests, post-mortem examinations and judicial inquiry after deaths in custody.

Some writers also blame the Human Rights Commission (HRC) of Sri Lanka for the status quo, accusing the commission of being inactive. Journalist, JS Tissainayagam, is of the view that the existence of the HRC has been exploited by the state craftily to deflect criticism on its human rights record.

"Time and again Sri Lanka has cited the existence of the HRC and the powers vested with the AG (Attorney General) to curb torture, as an escape valve from international criticism on human rights abuse," he says. However, with attention drawn towards Sri Lanka's condemnation of "torture without any reservation" at the UN, the international community will expect Sri Lanka to tackle its custodial torture record through the enforcement of effective preventive mechanisms.

Naomi Gunasekara
Attoerney-at-Law, Sri Lanka Supreme Court