Photo courtesy of HRW

The recent economic crisis in Sri Lanka exposed the police as an authoritarian institution. Protestors were arbitrarily arrested by officers in plain clothing without warrants and with complete disregard to due process rights. The police incited fear in protestors by using tear gas, rubber bullets and water cannons to disperse crowds gathered to express their suffering under the government. There were reports of live ammunition fired at protestors on more than one occasion, resulting in the death of at least one person and leaving many others injured. Scotland Yard ceased its training work with the Sri Lankan police upon observing increased surveillance and intimidation of human rights activists.

However, this is only the tip of the iceberg of police brutality and misconduct. Allegations of torture and human rights violations frequently emerge but are subdued because of coercive pressure exercised by the police in the form of threats and harassment of victims and their families.

Facilitating torture

Torture has become an ingrained and routine practice within the security system. One of the root causes could be found in the provisions of repressive laws such as the Prevention of Terrorism Act (PTA). The UN’s special rapporteur in his report on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism on his visit to Sri Lanka in 2018 expressed concern that the PTA facilitated torture because it enabled confessions to be admissible in court if obtained by certain ranks of officials[1]. The special rapporteur noted that this was often the sole basis for convictions and called for the provision to be repealed.

A report by the Human Rights Commission of Sri Lanka (HRCSL) in 2020 said that the lack of adequate legal representation remained a key grievance among prisoners from low income backgrounds.[2] The report found that state appointed attorneys were complacent and barely communicated with their clients and that the Legal Aid Commission was unequipped to support detainees charged with serious offences under the PTA. Amending the Act to repeal the provision on the admissibility of confessions as evidence would ease the burden on a detainee while minimizing the risk that he or she would be subject to torture a second or third time in custody.

Another key reason why systematic torture takes place in the security system is due to the lack of effective accountability mechanisms for victims. Military and police officials frequently evade justice for the heinous crimes they commit because they are not brought to account for their actions through an impartial and independent process. This allows them to view police stations, prisons, detention centers and other places of custody as safe havens, enabling them to unpack the full force of their brutality upon defenseless detainees. The special rapporteur’s report contains disturbing details of the severity of torture methods such as beatings with sticks, asphyxiation using plastic bags drenched in kerosene and chili powder, waterboarding and pulling out of fingernails.

Refusing reform

The concluding observations of the Sixth Periodic Report of Sri Lanka by the Human Rights Committee under the International Covenant on Civil and Political Rights (ICCPR) noted that the Sri Lankan authorities have failed to provide any information as to the number of allegations of torture in custody that were made during the reporting period. This points to the conclusion that the state is not prepared nor willing to engage in any meaningful conversation to end its established torture practices. It demonstrates a lack of willingness to end the climate of impunity, which is deeply disheartening for those who want to see real progress in the country in terms of accountability and moving forward.

Why justice remains elusive for torture victims

Under the present mechanisms of justice, a victim of torture has limited scope for seeking redress for the physical and psychological trauma suffered. A complainant could file a Fundamental Rights petition against cruel, inhuman or degrading treatment under Article 11 of the 1978 constitution. However, there are several obstructions discouraging a victim from doing so. There are difficulties in securing competent legal representation. The HRCSL report said that those who complain of being tortured often come from low income backgrounds so they cannot afford experienced lawyers to represent them and would also incur additional costs such as travel to Colombo and accommodation if they are based in rural districts.

A further mechanism for reparation is through the lodging of complaints to the HRCSL. The HRCSL investigates the complaints and refers them to the Attorney General’s Department for prosecution. The Attorney General’s Department forwards the allegations to the police for further investigation.[3] This process is deeply flawed as there is no guarantee that the investigations are conducted in an independent and impartial manner since  police officers identify as a unified group and look out for their own, making it unlikely that a complaint would result in accountability of the perpetrators.

The Fifth Periodic Report observed that prosecutors do not launch investigations into torture but act only in cases where a complaint of torture is first submitted to the police and investigated by them. This again does not ensure that lawbreakers within the police will be held to account for their actions. To make matters worse, a study by Human Rights Watch found that police officers refuse to record complaints and First Information Reports by exerting pressure on victims by way of threats or continued harassment. This highlights the need for an independent justice mechanism to enhance and promote police accountability.

Discrediting interrogational torture

The study conducted by Human Rights Watch found that the police resort to torture techniques instead of conducting actual police investigations because the latter method requires more time and effort. This type of off the books torture not only undermines the notion of democracy but it has also proven to be ineffective. It has been demonstrated through empirical research that torture is not an effective interrogation technique. [4]

In 2008 Georgetown University Professor David Luban discredited the reasoning behind interrogational torture by referring to the ticking bomb scenario, explaining in detail how and why it is not an effective means of gathering intelligence. He draws on various examples to demonstrate that the conditions of a ticking bomb would seldom be met. He examines the capture of Abdul Hakim Murad in which a Pakistani bomb maker was captured by the Philippine armed forces and tortured until he finally revealed an al-Qaeda plot.

Professor Luban argued that the interrogators were on a fishing expedition with no tangible information of a plot when the interrogational torture began. Torture was their first choice and not their last. He noted that the interrogators expressed surprise that Murad didn’t die under torture, in which case the investigation would have failed. He observed that Murad did not reveal any information under even the most extreme interrogational torture but only agreed to talk when the interrogators threatened to hand him over to the Israeli forces.

This shows that torture is only a de-humanizing technique, which has as its primary objective to humiliate, oppress and destroy a person both physically and mentally. It is used by the police to inflict their own brand of punishment on a detainee before he is dealt with under the law and before his guilt is determined by a court of law. As Professor Luban puts it, torture breeds more torture so the vicious cycle must be broken, starting from the highest rank in the chain of command.

Proposed Reform

The Fifth Periodic Report of Sri Lanka under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment conducted in 2017 recommended an immediate institutional reform of the security sector and to develop a vetting process to remove from office military and security force personnel as well as other public officials where there are reasonable grounds to believe that they were involved in human rights violations. This has not taken place and police officers continue to enjoy impunity for their actions and are even promoted to higher ranks. Such practices not only enable but also actively encourage routine and systematic torture.

The recommendations laid down by the Fifth Periodic Report must be implemented to ensure that the systematic torture in detention centers is eradicated. The state must invest in human rights training for the police guided by the benchmark set by the UN Human Rights Standards and Practice for the Police and the UN Code of Conduct for Law Enforcement Officers before they are entrusted to enforce the law.

The concluding observations of the Sixth Periodic Report of Sri Lanka emphasized the need for law enforcement officials of all designations and ranks to receive regular training in human rights including on the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, better known as the Istanbul Protocol.

[1] Report of the Special Rapporteur on the promotion and protection of human rights while countering terrorism on his visit to Sri Lanka A/HRC/40/52/Add.3

[2] Prison Study by the Human Rights Commission of Sri Lanka, published on 3rd December 2020

[3] Fifth Periodic Review Report of Sri Lanka under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 2017 CAT/C/LKA/CO/5

[4] Luban, David, “Liberalism, Torture, and the Ticking Bomb” (2005). Georgetown Law Faculty Publications and Other Works. 148