1. Action
against torture has had a place in Sri Lanka's law since 1883.
Any person who tortures another would be guilty of the offence
of causing hurt or other offence which is punishable under the
criminal law of the country (sections 310-329 of the Penal Code).
In this the Penal Code makes no distinction between a private
individual and a State officer who causes hurt to another. Both
are guilty of the same offence. The Penal Code, however, provides
for an aggravated form of committing the offence of hurt for which
the punishment is greater where the hurt is caused in order to
try to extract information or a confession which may lead to the
detection of an offence or to compel the restoration of property
or satisfaction of a claim (section 321). Although no distinction
is made between State officers and private persons in the penal
provisions, it is significant that three of the four illustrations
given by the Penal Code under section 321 refer to an act of torture
by a State officer.
2. The
right to freedom from torture was recognized in the First Republican
Constitution (1972) which declared that "no person shall be deprived
of life, liberty or security of person, except in accordance with
the law". The Second Republican Constitution of Sri Lanka (1978)
very specifically recognized the right to freedom from torture
in article 11 and infringement or imminent infringement of this
right was made justiciable before the highest court of the land
- the Supreme Court.
3. It
must be noted that the Supreme Court in exercising its fundamental
rights jurisdiction under article 126 of the Constitution does
not function as a criminal court. The standard of proof that is
required in these cases is proof by a preponderance of probability
as in a civil case and not proof beyond reasonable doubt. Moreover,
the method of adducing evidence varies significantly. In a fundamental
rights application, the Court relies solely on the petition, affidavits
and documentary evidence. Oral testimony is heard only in exceptional
circumstances. Thus, the Court has neither the opportunity of
observing the demeanour of witnesses nor the benefit of cross
examination. For these reasons relief granted by the Supreme Court
in cases of torture is in the nature of compensation awarded to
the victim and an order to the appropriate authority to take disciplinary
action against the offender. It should be noted that the Supreme
Court is free to order compensation to a victim of torture where
it is satisfied on a balance of probabilities that some State
officer is liable for the infringement of the fundamental right
guaranteed by article 11, although he may not be identified upon
the evidence available.
4. On
the basis of information which is disclosed in a fundamental rights
application the Attorney-General is empowered to set in motion
the machinery of the criminal law against any offender in respect
of whom there is sufficient evidence to maintain a criminal charge.
For this purpose, he can direct the police to investigate any
allegation of torture and a decision would be taken as to whether
any offender should be prosecuted upon the basis of the material
submitted to the Attorney-General by the police. The Attorney-General's
discretion to prosecute would be confined to cases where both
the identity of the offender and the commission of the offence
can be proved beyond reasonable doubt.
5. In
September 1982, the Government of Sri Lanka deposited with the
Secretary-General of the United Nations a Unilateral Declaration
on Torture declaring its intention to comply with the United Nations
Declaration on the Protection of All Persons from Being Subjected
to Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment adopted by the General Assembly in 1975, and undertook
to implement by all appropriate means the principles set forth
in the Declaration.
6. Sri
Lanka acceded to the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment by depositing the
instrument of accession with the Secretary-General of the United
Nations on 3 January 1994. The Convention entered into force for
Sri Lanka on 2 February 1994. Enabling legislation to give effect
to Sri Lanka's obligations under the said Convention was passed
by Parliament on 25 November 1994. The Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment
Act No. 22 of 1994 (CAT Act) strengthened considerably the existing
legal framework in which torture was prohibited.
7. The
CAT Act designates and defines torture as a specific crime and
vests the High Court of Sri Lanka jurisdiction over offences of
torture committed in and even outside Sri Lanka. It also amends
the extradition law to provide for an "extradite or prosecute"
regime as envisaged in the Convention. Procedure relating to investigations,
taking a suspect into custody, prosecution, etc. will continue
to be governed by the general penal law of the country.
8. Other
laws relating to rules of criminal procedure and evidence are
also geared towards the elimination of torture.
B. International and national legislation which contain
provisions of wider application than the Convention
9. Sri
Lanka is party to the following international instruments which
contain provisions of wider application than those provided for
under the Convention against Torture: International Covenant on
Civil and Political Rights (ICCPR); Geneva Conventions of 12 August
1949 on the protection of war victims.
10. Domestic
legislation of a wider application is contained in the Penal Code.
11. It
is relevant to mention that Sri Lanka has taken a decision to
ratify the Optional Protocol to the ICCPR and is also in the process
of drafting a new Constitution which would abolish the Executive
Presidency and vest executive power in Parliament, strengthen
the Fundamental Rights chapter and provide for extensive devolution
of power. The Parliamentary Select Committee comprising representatives
of all political parties holding seats in Parliament, which was
entrusted with the task of drafting the new Constitution, formally
released 18 chapters of the draft new Constitution to the public
in March 1997. The Select Committee process has involved widespread
consultations with members of the public, registered political
parties, non-governmental organizations and academics.
12. The
Fundamental Rights chapter in the draft Constitution is wider
in scope than that of the present Constitution. It introduces
a number of new rights not contained in the old chapter, such
as the right to life, the right to affirmative action for disadvantaged
sections of the society, the right to leave the country, the right
to own property and to fair compensation for acquisition, the
right to privacy and the right to information.
13. The
proposed new Constitution also confers to a broad range of rights,
which have always formed the cornerstone of the general criminal
law of the land, the status of constitutionally guaranteed fundamental
rights. These rights which have direct relevance to the implementation
of the provisions of the Convention, are:
The right of an
arrested person to communicate with a relative or friend (article
10 (4));
The right to retain
legal counsel (article 10 (5));
The right to be
told the reasons for arrest, and the practice of a 24-hour
limit of custody prior to being brought before a judicial
officer (article 10 (6));
The right to reasonable
bail (article 10 (7) (a));
The right to be
charged or released without unreasonable delay (article 10
(8));
The freedom from
self-incrimination (article 10 (12));
The right not
to be tried more than once for the same offence (article 10
(14));
The right to humane
treatment whilst in custody (article 10 (16)).
14. In
the draft Constitution, the restrictions on fundamental rights
have been strictly limited to specific situations where they are
necessary in the interests of a democratic society. The rights
expressed in the 1978 Constitution were mainly available to "citizens"
but this has been expanded in many instances to "persons" under
the draft Constitution. The right to apply to the Supreme Court
in respect of infringement of fundamental rights by the executive
or an administrative authority has been expanded to include infringement
by judicial action in respect of criminal proceedings in courts
of original jurisdiction. Public interest litigation has been
accorded recognition and the time-limit for filing a fundamental
rights application has been extended from one month to three months.
15. Under
the draft Constitution the Supreme Court is to have the power
of judicial review of future legislation. In aiming to strike
a balance between two very important interests, the stability
of the law and the compliance of the law with fundamental rights
and freedoms protected by the Constitution, the Parliamentary
Select Committee, after much deliberation, has agreed that the
Supreme Court should have the power to review future legislation
up to a period of two years from the date of enactment. These,
however, remain draft provisions at the time of writing. Parliament
will consider these proposals with a view to their adoption in
the near future.
C. Judicial, administrative and other authorities
having jurisdiction over matters dealt with in
the Convention
1. High
Court
16. Under
the CAT Act, the High Court has been vested with the jurisdiction
to hear cases of torture committed within and outside Sri Lanka.
The jurisdiction of the High Court has to be invoked by the Attorney-General
after he is satisfied that there is sufficient evidence to proceed
against the suspect on the basis of the report made consequent
to an investigation of the incident of torture by the police.
17. No
cases have as yet been filed before the High Court for torture.
The primary reason for this is the availability of an alternative
remedy by way of a fundamental rights application filed in the
Supreme Court. The constitutional remedy is simpler and more expedient
than a criminal trial before the High Court, on a higher degree
of proof.
2. Magistrates
Court
18. The
magistrate plays an important role in the protection of personal
liberty and security of persons. Under article 13 (2) there is
a constitutional duty and a duty under section 36 and section
37 of the Criminal Procedure Code for a person making an arrest
to produce the arrested person before a magistrate without unnecessary
delay and within 24 hours. When a person is brought before him,
the magistrate must ascertain whether he is well or has any complaints
to make and record what he observes and hears. This information
can be useful in considering subsequent claims that such person
may make regarding torture in custody. The magistrate also plays
an important role in preventing torture in his capacity as supervisor
of places of detention under Emergency Regulations.
19. Under
the Penal Code the Magistrates Court has jurisdiction to hear
and try charges of acts amounting to torture.
3. Supreme
Court
20. The
Supreme Court, under its fundamental rights jurisdiction, is competent
to hear complaints of torture. In the years 1993, 1994 and 1995
the Supreme Court received between 50 and 70 applications under
article 11. The majority of petitions referred to the violation
of the protection from torture by police officers. Only in a very
few cases were army officers named as respondents.
21. In
the cases where the Court has found in favour of the petitioner
appropriate compensation was awarded. In the more serious violations
the relevant higher authority was ordered to take action against
the offending officer and/or maintain a record for departmental
purposes.
Supreme Court cases filed under article 11 of the 1978 Constitution
|
1993
|
1994
|
1995
|
Total number of cases filed
|
68 |
58 |
70 |
Cases against police officers
|
62 |
57 |
68 |
Cases against army officers
|
4 |
1 |
2 |
|
28 |
20 |
15 |
22. It
must be noted that the Supreme Court has taken the view that freedom
from torture must be "jealously protected" and every case is scrutinized
extremely carefully. Details of cases filed in 1994 and 1995 are
annexed.
4. Court
of Appeal
23. The
Court of Appeal has jurisdiction in proceedings for the grant
and issue of the writ of habeas corpus to examine also allegations
of mistreatment whilst in custody. The Court has exercised this
jurisdiction in several cases.
5. Human
Rights Task Force (1991-1997)
24. The
Human Rights Task Force (HRTF) was established in 1991 by regulations
made under section 19 of the Sri Lanka Foundation Law No. 31 of
1973 to function as an independent, non-governmental organization
which could "monitor observance of fundamental rights of persons
detained in custody otherwise than by a judicial order". Its mandate
was later continued by regulations made under the Public Security
Ordinance (see Emergency (Establishment of the HRTF) Regulations
No. 1 of 1995).
25. The
HRTF was vested with authority to conduct regular inspection of
places of detention, maintain an accurate register of persons
in detention, ensure that the fundamental rights of detainees
are respected and that humane treatment is accorded to them. The
HRTF received complaints and representations by the detainees
and took steps to remedy any shortcomings.
26. HRTF
officers were able to make unannounced visits to army camps, police
stations and detention camps and had unrestricted access to detainees.
The HRTF head office worked round the clock to allow relatives
and others to make inquiries at all times. It had nine regional
centres and one sub-centre and moved strongly to prevent torture
by quick responses to arrests and detention.
27. The
newly established independent Human Rights Commission (HRC) of
Sri Lanka which has wider investigative powers, has taken over
the tasks carried out by the HRTF. The HRTF's work will therefore
continue under the HRC.
6. Human
Rights Commission (HRC) of Sri Lanka
28. The
Human Rights Commission of Sri Lanka, which was established in
March 1997, is vested with monitoring, investigative and advisory
powers in relation to promotion and protection of human rights.
It was set up as a permanent national institution to investigate
any infringement or imminent infringement of a fundamental right
declared and recognized by the Constitution and to grant appropriate
relief. The powers of the Commission are wider than those of the
Supreme Court and will complement the existing national framework
for the protection of human rights.
29. In
terms of section 14 of the Human Rights Commission of Sri Lanka
Act No. 21 of 1996, the Commission may on its own motion or on
a complaint made to it by an aggrieved person or group of persons
or a person acting on behalf of an aggrieved person investigate
an allegation of the infringement or imminent infringement of
a fundamental right of such person.
30. According
to section 15 (3) of the Act, where an investigation conducted
by the Commission discloses the infringement of a fundamental
right, the Commission may recommend to the appropriate authorities
that prosecution or other proceedings be instituted against the
person or persons infringing such fundamental right. Alternatively,
it may refer the matter to any court having jurisdiction to hear
and determine such matter. Or it may make such recommendations
as it may deem fit to the appropriate authority or person or persons
concerned with a view to preventing or remedying such infringement
or the continuation of such infringement.
31. Section
15 (6) provides that a copy of any recommendation made by the
Commission must be sent to the aggrieved party, the head of the
institution concerned and the minister in charge of the institution.
32. Under
section 15 (7) any authority, person or persons to whom a recommendation
is addressed must report to the Commission, within a specified
period of time, the action which has been taken or is proposed
to be taken to give effect to such recommendation. On the failure
to make such report or to implement the recommendation, the Commission
is given the power to make a full report of the facts to the President
who shall cause a copy of such report to be placed before Parliament.
33. The
Act also envisages that the Commission may appoint subcommittees
at provincial level to exercise powers delegated by the Commission.
This would help create greater awareness of the availability of
redress by the Commission and provide easier access to such redress.
34. The
Commission has also been specifically vested with the power to
monitor the welfare of detained persons by regular inspection
of their places of detention. In order to facilitate this function,
all arrests and detention under emergency regulations and the
Prevention of Terrorism Act must be reported to the Commission
within 48 hours of arrest. Wilful omission to report an arrest
and detention will attract penal sanctions under the Act. Thus,
monitoring of the welfare of detainees is now part of the permanent
law of the land.
7. International
Committee of the Red Cross (ICRC)
35. In
July 1990 the Government of Sri Lanka invited the ICRC to commence
humanitarian functions in Sri Lanka in association with the country's
relief and rehabilitation authorities to provide humanitarian
assistance to people affected by violence initiated by the Liberation
Tigers of Tamil Ealam (LTTE) terrorist activity. The ICRC is granted
free access to all places of detention. The Government's policy
objective in this regard is to ensure that internationally accepted
norms are maintained for the safety and the well-being of inmates
by allowing the ICRC to interview detainees in confidence and
in private.
36. The
ICRC also conducts dissemination programmes aimed at further improving
awareness of humanitarian rules and standards for the armed forces,
police and others, with emphasis on training of instructors from
the military and police schools and academies
D. Practical difficulties in implementing the Convention
37. The
Government of Sri Lanka enacted the CAT Act No. 22 of 1994 on
25 November 1994. It is too early to analyse any possible difficulties
regarding implementation of the Act. No significant difficulties
have so far been encountered in this regard. A more meaningful
account and analysis could be given in future reports.
38. The
Government is however aware of allegations concerning acts of
torture reportedly committed by members of the security forces
in the context of counter-terrorist activities. Also, the police
in combating crime are alleged to use excessive force in the handling
of criminals. These transgressions are not the outcome of a deliberate
policy but isolated acts carried out by some individuals. The
Committee may be assured that every effort is being taken to eliminate
the occurrence of such excesses. The CAT Act No. 22 of 1994 further
strengthens the legal mandate of the State prosecuting authorities
to take action to investigate and prosecute offenders.
II. INFORMATION RELATING TO ARTICLES 2-16 OF THE CONVENTION
Article 2. Measures to prevent torture
The
fundamental rights jurisdiction of the Supreme Court
39. The
Constitution of Sri Lanka makes the infliction of torture an infringement
of a fundamental right. Article 11 states that "No person shall
be subjected to torture or to cruel, inhuman or degrading treatment
or punishment." The fundamental right to protection from torture
is non-derogable and may not be abridged, restricted or denied
under any circumstance. Furthermore, every person (citizens and
non-citizens alike) resident in Sri Lanka is entitled to protection
from torture. It is (together with article 10 which guarantees
the freedom of thought, conscience and religion) entrenched in
the Constitution, in the sense that an amendment to this clause
would need not only a two-thirds majority in Parliament but also
a referendum.
40. Article
17 read together with article 126 of the Constitution provides
for the enforcement of fundamental rights. The Supreme Court is
vested with sole and exclusive jurisdiction to hear and determine
any question relating to the infringement by executive or administrative
action of any right recognized by the Constitution. Applications
to the Supreme Court for relief and redress must be made by the
person himself or through an attorney-at-law within one month
of the alleged infringement or imminent infringement. Once such
complaint is received and leave to proceed is granted the Court
is required "to grant such relief or make such direction as it
may deem just and equitable in the circumstances" within two months
of the filing of such petition.
41. In
the cases which have been filed under article 11, the Court has
strongly denounced torture and taken an increasingly firm stance
against persons found to have violated the right to freedom from
torture. In the early cases, where the respondents in a complaint
of torture were State officers, the Attorney-General appeared
on their behalf and compensation to the victim was paid by the
State. The Court in these cases emphasized the liability of the
State and drew attention to the failure on the part of the State
to discharge its obligation to give effect to the rights enshrined
in the Constitution. Soza J. in Vivienne Gunawardene v. Hector
Perera and others (1983 SC Appn. 20/83) stated that "Public
authorities clothed by law with executive and administrative power
are organs of the State and [an officer] using the coercive ...
power vested in him by law acts as an organ of the State. As much
as the State is served when he enforces the law, the State is
liable for the transgressions of fundamental rights he commits
when he is enforcing the law". On another occasion, Amerasinghe
J. in Samanthilaka v. Ernest Perera and others (1990 1
SLR 318) stated that "the State necessarily acts through its servants,
agencies and institutions. But it is the liability of the State
and not that of its servants, agents or institutions that is in
issue. It is not a question of vicarious liability. It is the
liability of the State itself".
42. Since
the late 1980s, however, the Court has not only emphasized the
liability of the State but also the personal liability of State
officers named as respondents in petitions under article 11. In
recent years the Attorney-General as a matter of policy has declined
to appear on behalf of such officers and they have had to retain
their own legal counsel. The Court has also now made it a practice
to order that part of the compensation be paid personally by the
offender from his own resources, pointing out that payment of
damages by the State can foster notions of impunity. In addition
to an order that compensation be paid, the Court generally refers
the matter to the appropriate authority concerned for action that
it deems fit and proper. For example, where police officers have
been found guilty of torture it has directed the Inspector General
of Police (IGP) to take disciplinary proceedings or directed the
registrar to forward a copy of the judgement to the IGP to maintain
a record of the findings for departmental purposes and to ensure
that the sums are paid expeditiously. In one case the Court ordered
that police officers who acted in violation of article 11 should
not be promoted for one year (SC Appn. 393/93). In Sudath Peiris
v. Adikari and others (SC Appn. 94/93) the Court on finding
that the medical officer of the government hospital at which the
petitioner was produced by the police had issued a false medical
certificate, instructed the Attorney-General to consider what
action should be taken against him (particularly with reference
to chapter IX of the Penal Code). Following this direction, the
Attorney-General instructed the Inspector General of Police to
conduct an investigation into the matter. On the findings of this
investigation the medical officer was indicted before the High
Court of Ratnapura, under section 215 of the Penal Code, for framing
an incorrect record with intent to save a person from punishment.
43. The
Police Department initiated a criminal investigation against some
of its officers, following the determination of the Supreme Court
in the case of Wimal Vidyamani v. Lt.Col. L.E.P.W. Jayatilake
and others (SC Appn. 852/91). Here the petitioner alleged
two incidents, one of illegal arrest and detention in May 1990
and another incident of illegal arrest, detention and torture
in November of the same year by officers of the Embilipitiya Police
Station. On the finding that there was a violation of article
13 in May and a violation of articles 13 and 11 in November, the
Supreme Court ordered the State to pay compensation. In addition,
the Court ordered the registrar of the Court to forward to the
IGP a copy of the judgement to enable him to take appropriate
action and to make a report to the Court within a specified time-limit.
Consequently, the IGP launched a criminal investigation into the
events of May and November 1990. The Special Investigation Unit
of the Police Headquarters, under the supervision of a senior
superintendent of police, investigated the matter. Based on the
findings of this investigation the Attorney-General's Department
instituted criminal proceedings against all the suspects.
44. The
Court has also taken a number of other initiatives and established
certain principles of law through judicial interpretation which
have resulted in a larger number of victims receiving redress
through the courts.
45. The
one-month time-limit has been held to be not mandatory, thereby
allowing cases which fell outside this specified period to be
heard. In petitions relating to torture in detention, the Court
has taken the view that to make the remedy under article 126 meaningful,
the one month prescribed should be calculated from the time the
person is under no restraint.
46. In
1990, the Court introduced a new rule whereby the jurisdiction
of the Court can be invoked simply by a letter addressed to Court.
(Previously the Court acted only on the basis of sworn statements.)
Letters received from persons in detention are forwarded to the
Bar Association or HRTF/HRC for inquiry and filing of petitions
on their behalf.
47. The
Court has held that failure to add as respondents the officers
whom the petitioner had identified and named in the petition and
affidavit as violating the prohibition against torture is not
a fatal defect and will not stand in the way of an application
for relief.
Torture
as defined by the Supreme Court
48. The
Supreme Court has defined torture very broadly to include both
physical and mental pain. In Kumarasena v. Subinspector Sriyantha
and others (SC Appn. 257/93) the petitioner was a young girl
who had been arrested without reasonable grounds and detained
for about six hours at a police station. During that time, several
police officers sexually harassed her. The Court held as follows:
"... in the circumstances
of this case, the suffering occasioned was of an aggravated
kind and attained the level of severity to be taken cognizance
of as a violation of Article 11 of the Constitution. The words
and actions taken together would have aroused intense feelings
of anguish that were capable of humiliating the petitioner.
I therefore declare that Article 11 of the Constitution was
violated by the subjection of the petitioner to degrading
treatment."
49. In
Bandara v. Wickramsinghe (1995 2 SLR 167) the petitioner,
a 17-year-old boy, was assaulted by the Deputy Principal, Vice
Principal and a teacher in his school. Although the physical injury
suffered was not severe, the student became mentally ill, requiring
hospitalization at a mental hospital for a month. The Court held
that the respondents were guilty of torture. It made reference
to the fact that the petitioner, who was a prefect of the school,
was likely to suffer humiliation and nervous shock from violence
of the kind complained of and that the assault was both cruel
and degrading.
Jurisdiction
of the High Court in respect of torture
50. In
keeping with Sri Lanka's obligations under the Convention, Act
No. 22 of 1994 has now made torture a criminal offence punishable
with imprisonment and a fine. Section 2 of the Act states that
any person who tortures any other person shall be guilty of an
offence. Similarly, attempts to commit torture, aiding and abetting
the commission of torture and conspiracy to commit torture are
also offences.
51. Section
12 of the CAT Act defines torture as any act which causes severe
pain, whether physical or mental, to any other person,
(i)
obtaining from such person or a third person any information or
confession,
(ii)
punishing such person for any act which he or a third person has
committed,
(iii)
intimidating or coercing such person or third person, or
"(2)
done for any reason based on discrimination."
52. In
accordance with Article 2 (2) and (3) of the Convention, section
3 of the CAT Act goes on to declare that the fact that torture
was committed at a time of emergency, war, threat of war or internal
political instability or on order of a superior office or public
authority is not a defence.
The
jurisdiction of the Magistrate Court in cases of torture
53. Previous
to the enactment of CAT Act No. 22 of 1994, the offence of torture
was punishable under the general penal laws of the country. For
instance, in Magistrate Court, Embilipitiya, case No. 77818, five
police officers are being charged with abduction (under section
356 of the Penal Code), wrongful confinement (under section 333
of the Penal Code) and grievous hurt (under section 314 of the
Penal Code). The case was filed in August 1993, following the
decision of the Supreme Court in the case of Wimal Vidyamani
(see above) where the Supreme Court found that there was a violation
of article 13 (1) and (2) and article 11 by certain police officers.
Other laws relating to criminal procedure and evidence aim at
the prevention and elimination of torture.
Arrest
and detention
54. Article
13 (2) of the Constitution guarantees that no person shall be
arrested except in accordance with procedure established by law
and that every person held in custody, detained or otherwise deprived
of personal liberty shall be brought before a judge and shall
not be further held in custody except upon terms of the order
of such judge made in accordance with the procedure established
by law.
55. Under
the Criminal Procedure Code a person arrested has to be produced
before a magistrate within 24 hours (section 37). Such person
cannot be further detained or held in custody except upon and
in terms of the order of such judge. Thus, an order for remand
must necessarily be made by a magistrate and it is the duty of
the magistrate to consider independently whether the person arrested
should be released on bail or whether he should be remanded to
the custody of the superintendent of a prison, pending trial.
The law recognizes that a person may not be kept indefinitely
in custody pending trial. Where proceedings are not instituted
within a period of three months from the date of arrest, the suspect
may be released on bail.
56. The
provisions requiring production of an arrested person before a
magistrate within 24 hours is also found in the Police Ordinance
in the form of a positive duty imposed on a police officer. Section
65 provides that any person arrested without warrant by a police
officer shall be forthwith delivered into the custody of the officer
in charge of a station, and if not released on bail shall be produced
before a magistrate within 24 hours unless circumstances render
delay unavoidable. Section 82 imposes a penalty on any police
officer who is guilty of willful culpable neglect of duty in not
bringing any person who shall be in his custody without warrant
before a magistrate.
57. Arrest
and detention can also take place under the emergency regulations
made by the President under section 5 of the Public Security ordinance
(see emergency (miscellaneous provisions and powers) regulation
No. 4 of 1994 as amended) and the Prevention of Terrorism Act
No. 48 of 1979 ( as amended). These laws were necessitated by
the exigencies of the security situation brought about by terrorist
activity and for the preservation of public order and the maintenance
of supplies and services essential to the life of the community.
These laws are constantly reviewed and maximum precautions are
taken to ensure the physical and mental well-being of the detainees.
58. In
terms of regulation 17 of the emergency regulations (ERs) the
Secretary, Defence can order the detention of a person for a period
not exceeding three months at a time up to a maximum period of
one year if he is satisfied upon material submitted to him that
such an order is necessary. The Secretary's order under emergency
regulation 17 cannot be arbitrary or mechanical and can be questioned
on the grounds of reasonableness. The Secretary must be able to
state that he himself formed an opinion objectively by means of
sufficient evidence and that this opinion is one which he formed
as a reasonable person. Bold assertions are insufficient. His
decision must be reviewed every three months to ensure that reasonable
grounds exist for continued detention.
59. Regulation
18 (1) empowers a police officer or a member of the armed forces
to arrest any person who has committed or who is committing any
offence under the ERs. A person so arrested can be kept in custody
for a period not exceeding 21 days and if the arrest was made
in the Northern or Eastern province for a period not exceeding
60 days. At the end of such period he must be released unless
such person is detained under regulation 17 or is produced before
a court of law.
60. In
terms of section 6 (1) of the Prevention of Terrorism Act (PTA)
any police officer not below the rank of superintendent or any
other police officer not below the rank of subinspector authorized
in writing may arrest without a warrant a person connected with
any offence set out in section 2 of the PTA. Such a person can
be kept in custody for a period not exceeding 72 hours unless
a detention order is made under section 9 of the Act. A detention
order under section 9 is for a period of three months at the first
instance. Such period can be extended from time to time for a
period not exceeding 3 months at a time for a maximum period of
18 months.
61. Any
person aggrieved by a detention order under the emergency regulations
or the PTA can appeal to the Advisory Board under emergency regulations
(regulation 17 (5)-17 (11)) or the Advisory Committee established
under the PTA to have the detention order reviewed (section 13
(1) of the PTA).
62. Furthermore,
the Government, through the Committee to Process, Classify and
Recommend Rehabilitation and Release of Suspects, also works towards
the expeditious release of those taken into custody on suspicion
of subversive activity under ERs and the PTA. The Committee has
the power to recommend the release or rehabilitation of suspects
in the following circumstances:
(a)
Where a police investigation is completed and does not reveal
sufficient evidence to forward the case to the Attorney-General's
Department for indictment, the Committee receives the police report
and recommends release or rehabilitation;
(b)
Where findings of the police investigation are forwarded to the
Attorney-General for indictment but where the Attorney-General
reports that the suspect will not be indicted due to insufficient
evidence, the Committee considers these cases individually and
recommends release or rehabilitation;
(c)
Where representations are made to H.E. the President, Deputy Minister
of Defence or Secretary, Defence to review a detention order,
the Committee calls for a report and recommends release or rehabilitation;
(d)
The Committee may on its own initiative review a detention order
where it is brought to the notice of the Committee, e.g. by the
media, that a certain detention order is not based on sufficient
evidence or is not justifiable.
63. The
Committee has the power to conduct independent investigations
by calling for statements from or interviewing the detainee and
the police officer/army personnel concerned and to make judgements
based on the evidence available. Whilst the Committee has the
power to inquire and to dispose of direct complaints made to it
of unjustifiable arrest and detention, it also has ultimate authority
over the decisions of the Advisory Board under the ERs and the
Advisory Committee under the PTA.
64. Arrest
and detention, both under normal laws and the ERs and the PTA,
can be challenged by way of a fundamental rights application under
article 13 of the Constitution.
65. It
needs also to be emphasized that the procedure followed in respect
of persons detained and indicted under ERs and the PTA, i.e. regarding
investigations, filing of cases in the courts, leading evidence,
etc., is the normal procedure applicable in any criminal case.
Thus, once a persons is detained under ERs and the PTA the police
are under a duty to conduct an investigation into the case and
forward their findings to the Attorney-General's Department. Where
there is sufficient evidence, the suspect has to be indicted in
the ordinary courts according to the procedure established by
law. Every such detainee has the right to legal counsel.
66. A
new High Court in Colombo began sittings on 15 August 1997 and
a new High Court in Vavuniya began sittings on 11 September 1997
to expedite the hearing of cases under the PTA and the ERs, thereby
reducing the time spent in detention by persons detained under
these laws.
Protection
of the liberty and security of persons detained under ER's and
the PTA
67. Freedom
from torture is sought to be ensured under the ERs and the PTA
through a multiplicity of safeguards which have been built into
these laws. During the time the HRTF was in operation these safeguards
were reiterated/ strengthened by the emergency (establishment
of the HRTF) regulations and by the directives issued by the President
to the armed forces and the police thereunder.
68. On
the functions of the HRTF being taken over by the HRC, the monitoring
of the welfare of persons detained without judicial order has
become part of the permanent law of the land (see sections 28
(1)-(3) of the HRC Act). On 7 September 1997 the President reissued
directions to the armed forces and the police, which are identical
to those issued under the regulations establishing the HRTF to
ensure that the armed forces and the police cooperate with and
assist the new Commission so as to enable the Commission to efficiently
and without interruption continue the work commenced by the HRTF.
69. The
following safeguards against torture are contained in the ERs
and the PTA:
(a)
The arresting officer must issue a document informing of the arrest
to the spouse, father, mother or other close relative of the detainee.
The document must contain the name and rank of the arresting officer,
the time and date of arrest and the place at which the person
will be detained or held in custody (regulation 18 (8));
(b)
Every arresting officer must report an arrest made under regulation
18 within 24 hours to a superior officer (regulation 18 (7));
(c)
Every place of detention under the ERs has to be approved by the
Secretary, Defence and be published in the government gazette.
The existence of and the address of places of detention has to
be notified to the magistrate within whose jurisdiction such places
are located. It is a punishable offence to detain a person in
any place other than in a place authorized by the Secretary (regulation
19 (4) and 19 (8));
(d)
Every officer in charge of a detention camp is obliged to furnish
the magistrate every fortnight a list of detainees held by him.
The magistrate is obliged to post this list on the court notice
board and to visit the camp every month (regulation 19 (6)).
70. The
following provisions are contained in the Presidential directives
issued to the armed forces and the police to enable the HRC to
exercise its powers, and perform its functions and duties and
for the purpose of ensuring that the fundamental rights of persons
arrested or detained are respected and that such persons are treated
humanely:
(a)
Every member of the armed forces and the police shall assist and
facilitate the HRC and any person authorized by the HRC in the
exercise of its powers, duties and functions, and also ensure
that the fundamental rights of persons arrested or detained are
respected;
(b)
No person shall be arrested or detained under any ERs or the PTA
except in accordance with the law and proper procedure and by
a person who is authorized by law to make such arrest or order
such detention;
(c)
At or about the time of the arrest or, if it is not possible in
the circumstances, immediately thereafter,
(i)
The person making the arrest must identify himself by name and
rank to the person arrested or any relative or friend of such
person upon inquiry being made;
(ii)
Every person arrested or detained must be informed of the reason
for the arrest;
(iii)
The person making the arrest/detention shall issue to the spouse,
father, mother or any other close relation a document in a form
specified by the Secretary, Defence, acknowledging the fact of
arrest. The name and rank of the arresting officer, the time and
date of arrest and the place at which the person will be detained
shall also be specified. It shall be the duty of the holder of
such document to return the same to or produce the same before
the appropriate authority when the person so arrested or detained
is released from custody. Where any person is taken into custody
and it is not possible to issue such document, it shall be the
duty of the arresting officer, if such officer is a police officer,
to make an entry in the Information Book giving the reasons why
it is not possible to so issue a document, and if the arresting
officer is a member of the armed forces to report the reasons
why it is not possible to issue a document to the officer in charge
of the police station, whose duty it shall be to make an entry
of such fact, along with the reasons in, the Information Book;
(iv)
The person arrested should be afforded means of communicating
with a relative or friend to enable his whereabouts to be known
to the family;
(d)
When a child under 12 years or a woman is sought to be arrested
or detained, a person of his/her choice should be allowed to accompany
him/her to the place of questioning. As far as possible, a child
or woman should be placed in the custody of a women's unit of
the armed forces or the police force or in the custody of female
military or police officers;
(e)
A statement of a person arrested/detained should be recorded in
the language of that person's choice, who should thereafter be
asked to sign the statement. A person who desires to make a statement
in his or her own handwriting should be permitted to do so;
(f)
The members of the HRC or any person authorized by it should be
permitted access to the person arrested or detained and should
be permitted to enter at any time any place of detention, police
station or any other place in which such person is detained in
custody or confined;
(g)
Every officer who makes an arrest or detention shall forthwith,
and in any case not later than 48 hours from the time of such
arrest/ detention, inform the HRC or any person specially authorized
by the HRC, of such arrest/detention and the place at which the
person so arrested or detained is being held in custody.
External
monitoring of the welfare of detainees
71. There
is also monitoring of conditions of detainees by the ICRC. The
ICRC is allowed full and free access to all places of detention.
The ICRC visits places of detention on a regular basis and interviews
detainees without any oversight on the part of the prison authorities.
They monitor conditions of detention, focusing on the way detainees
are treated in physical and psychological terms. They check the
detainees' state of health and arrange exchanges of messages with
their families. On the basis of these visits and their findings
the ICRC is able to make oral and written representations to the
Government where necessary.
Rules
of evidence
72. Under
the Evidence Ordinance confessions caused by any inducement, threat
or promise are inadmissible in criminal proceedings in a court
of law. Under the same Ordinance, no confessions made while a
person is in the custody of a police officer can be proved against
such person (see sections 24, 25 and 26). The Supreme Court has
extended this prohibition to include even confessions made to
police officers in their private capacity or when the accused
was unaware that he was making the statement to a police officer.
73. The
emergency regulations do provide for a departure from the normal
rules of evidence (regulation 49), but the general judicial reluctance
to convict a person purely on a confessional statement in the
absence of other evidence works as an important safeguard. The
High Court has emphasized that in all these cases the prosecution
must prove its case to the hilt and that the ingredients which
constitute the offence under the PTA and the ERs have to be independently
proved while the confession which is otherwise not relevant could
be led in evidence to corroborate the story of the prosecution.
The Court has held that "it would be a travesty of justice
to convict a person merely on a confession without any other corroborative
grounds" (case of Krishnapillai Nageswaran as reported
in The Island of 13 September 1994).
Prisoners
74. Every
person admitted to prison is examined by a doctor who records
his observations, and such record serves as a reference to check
whether the condition of the prisoner has deteriorated in any
manner whilst in detention. The detainee is also informed of his
rights and duties as a detainee and such instructions would include
the detainee being informed of his right to complain about any
ill-treatment whilst in custody.
75. The
Board of Prison visitors appointed by the Minister of Justice
under the Prison Ordinance are empowered to visit any prison in
the island to examine conditions, hear complaints of inmates and
make appropriate recommendations to the authorities. There are
also local prison visitors committees for each prison entrusted
with the task of overseeing the welfare of prisoners.
76. The
Prison Ordinance also authorizes a magistrate to visit a prison
at any time and to question any detainee.
Article 3. Non-refoulement
77. The
Extradition Law No. 8 of 1977 of Sri Lanka incorporates recognized
restrictions on extradition which include the possibility of punishment,
detention or restriction by reason of race, religion, nationality
or political opinion (section 7 (1)). This provision is wide enough
to be invoked in situations envisaged by article 3 of the Convention.
78. As
a matter of policy Sri Lankan nationals are not extradited to
countries where the death penalty or other forms of degrading
punishment are likely to be imposed. These considerations would
apply even in cases of non-nationals. Non-refoulment of an offender
to a State where he/she would be in danger of being subjected
to torture would be given effect to by way of administrative or
executive action taking into account all relevant factors.
Article 4. Torture as a criminal offence
79. In
keeping with Article 4 (2) of the Convention the Act recognizes
the grave nature of the offence of torture; the offence is made
a non-bailable, cognizable offence and the jurisdiction to try
cases of torture at the first instance has been vested with the
High Court.
80. A
person convicted of the offence of torture after trial by the
High Court is punishable with imprisonment for a term not less
than 7 years and not exceeding 10 years, and a fine not less than
Rs 10,000 and not exceeding Rs 50,000 (section 2 (4) of the Act
of 1994).
81. Prior
to the enactment of CAT Act No. 22 of 1994, persons suspected
of having committed torture were charged under the provisions
of the Penal Code. It must be noted that the Penal Code does not
specifically provide for the offence of torture as defined in
the Convention. But the penal provisions under the chapter relating
to "Offences affecting the human body" is wide enough
to cover the offence of torture as contained in the Convention.
Thus, in case No. 77818 before the Magistrate Court of Embilipitiya,
police officers found guilty of torture by the Supreme Court pursuant
to a fundamental rights application have been charged with grievous
hurt under section 214 of the Penal Code.
Article 5. Jurisdiction of the High Court in respect
of torture
82. The
Magistrate Court and the High Court have jurisdiction over all
criminal offences, including torture committed within the territory
of Sri Lanka.
83. In
terms of section 4 of the CAT Act, the High Court is to have jurisdiction
over acts of torture committed outside the territory of Sri Lanka
in cases where:
(a)
The offender is in Sri Lanka or on board a ship or aircraft registered
in Sri Lanka;
(b)
The alleged offender is a citizen of Sri Lanka;
(c)
The alleged victim is a citizen of Sri Lanka.
Article 6. Criminal proceedings
84. Every
person suspected of having committed a criminal offence is liable
to be arrested under the criminal law of Sri Lanka. As torture
is a cognizable offence, an offender can be promptly taken into
custody without a warrant. Bail, remand and the institution of
criminal proceedings consequent to such person being taken into
custody will be in accordance with the general penal law of the
country. Accordingly, a person suspected of having committed torture,
once arrested, must be produced before a magistrate within 24
hours of arrest. The magistrate can release the suspect on bail
until the institution of criminal proceedings or detain the suspect
pending further investigation, for a total period of 15 days and
no more. If at the end of this period proceedings are not instituted
the magistrate must either discharge the suspect or release him
on bail.
85. Once
the investigation is completed according to the procedure specified
in the Criminal Procedure Code, a report of the investigation
should be forwarded to the Attorney-General's Department for advice.
If the Attorney-General is of the view that there is sufficient
evidence to proceed against the suspect he will file an indictment
in the High Court.
86. Section
6 of the CAT Act provides that where a person who is not a citizen
of Sri Lanka is arrested for the offence of torture, he is entitled
to communicate without delay with the nearest appropriate representative
of the State of which he is a national.
87. Section
7 (1) of the CAT Act provides that where a person is arrested
for the offence of torture, the Minister of Foreign Affairs will
inform the relevant authorities in any other State having jurisdiction
over that offence of the measures taken to either prosecute or
extradite such person.
88. Section
7 (2) of the CAT Act provides that where a request is made to
the Government of Sri Lanka for the extradition of any person
accused or convicted of torture, the Minister of Foreign Affairs
must inform the requesting State of the measures which Sri Lanka
has taken or proposes to take for prosecution or extradition of
that person.
Article 7. Prosecution and guarantee of fair trial
89. Section
7 of the CAT Act, in keeping with article 7 of the Convention,
contemplates the prosecution or extradition of any person who
is arrested for an offence under the Act.
90. The
Constitution guarantees that all persons charged with an offence
are entitled to due process of the law. Article 13 (3) of the
Constitution states that any person charged with an offence shall
be entitled to be heard in person or through an attorney-at-law
at a fair trial by a competent court. Principles such as complete
intimation of the charge, facilities for the preparation of defence,
the right to legal assistance, the right to examine witnesses,
etc. are well established in the law.
Article 8. Extradition
91. In
terms of the Extradition Law No. 8 of 1977, extradition is conditional
on the existence of an extradition treaty except in the case of
Commonwealth countries. In relation to Commonwealth countries,
extradition is possible in respect of extraditable offences as
laid down in the Schedule to the Extradition Law. Prior to the
enactment of CAT Act No. 22 of 1994, the following offences under
the Penal Code were listed in the Schedule as extraditable offences:
(a)
Voluntary harm causing grievous hurt;
(b)
Voluntary harm causing hurt;
(c)
Rape.
92. The
Act brings the law relating to extradition in line with article
8 of the Convention by making the following provisions and amendments:
(a)
Section 9 (1) of the CAT Act No. 22 of 1994 now provides that
where there is an extradition agreement between the Government
and any other State, it is deemed to include provision for extradition
in respect of torture as defined in the Convention and of attempting
to commit, aiding and abetting the commission of or conspiring
to commit the offence of torture;
(b)
Section 9 (2) of the CAT Act provides that in the absence of an
extradition arrangement, the Minister may, by order published
in the gazette, treat the Convention as an extradition arrangement
for extradition in respect of the offence of torture.
The Act
also amends the Extradition Law No. 8 of 1977 to include torture
as an extraditable offence.
Article 9. Cooperation and assistance in connection
with criminal
proceedings for the offence of torture
93. The
CAT Act, in section 10, provides that the Government shall afford
such assistance to the relevant authorities of any other State
as may be necessary in connection with criminal proceedings for
the offence of torture.
94. As
a matter of international comity, the Government of Sri Lanka
extends its cooperation to other States in connection with criminal
proceedings on a case-by-case basis and on assurance of reciprocity,
for example, by serving legal documents from abroad and recording
evidence. Mutual legal assistance in the recording of evidence,
etc. is usually afforded on the basis of bilateral or multilateral
agreements on receipt of a letter rogatory.
Article 10. Education and information on the prohibition
against torture
95. Human
rights education forms part of the training of all law enforcement
officers, members of the armed forces and prison officers. This
training includes lectures on the fundamental rights guaranteed
by the Constitution, international human rights norms, other laws,
the rights of citizens and the duties and obligations of law enforcement
officers. These lectures are reinforced by demonstrations and
visual aids. Seminars and discussions are held during various
stages of the officers' service.
96. Human
rights education was introduced into police training in the early
1980s. It is now a subject of instruction in the Sri Lanka Police
College where basic training is provided for new recruits, at
the Police Higher Training Institute where promotional and refresher
courses are provided, and at Divisional Training Centres where
in-service training is provided. Officers are questioned on aspects
of human rights at all examinations. In 1997, all officers in
charge, assistant superintendents of police, deputy inspectors
general and superintendents of police will undergo a special training
programme on international human rights norms.
97. As
a matter of policy the Government is committed to ensuring that
all service personnel are properly instructed and trained to respect
and observe standards of human rights and humanitarian law, so
that their powers are not used arbitrarily or excessively and
that weapons are not used indiscriminately. While the law of war
and humanitarian law have been part of the education and training
of the armed forces, the scope and content of these programmes
are being revised with emphasis on understanding and practice.
98. Consequent
to a recent high-level conference held at the ICRC in Geneva which
was attended by a delegation of senior officers from the army,
it was decided in early 1997 to establish a separate directorate
at army headquarters to deal exclusively with international humanitarian
law. The role and tasks of the directorate include ensuring respect
for international humanitarian law and the law of war in the ongoing
operations of the security forces, planning and implementing an
information programme on a regular basis for all ranks in operational
areas and in training institutions, and working out a new syllabus
to be taught to army personnel ranging from recruit to captain
level for the purpose of introducing this as a compulsory subject
at promotion exams.
99. The
Government has also benefited from the assistance received from
non-governmental organizations in conducting human rights awareness
programmes for the armed forces, the police and other public servants.
International
Committee of the Red Cross
100.
ICRC began conducting seminars aimed at further promoting the
awareness and understanding of international humanitarian law
among the armed forces in Sri Lanka in 1986. Since the establishment
of an ICRC delegation in Sri Lanka in 1990, these programmes have
continued and were expanded to include law enforcement officers,
members of special task forces, paramilitary units, public servants
and Sri Lanka Red Cross workers. Regular courses/lectures are
held for all levels of armed forces personnel in training centres
and in operational areas. Approximately 35,000 persons have participated
in these seminars since June 1993, 25,000 of them armed forces
personnel. In March 1997, the ICRC conducted a week-long seminar
on humanitarian law for 10 army majors and 15 captains. These
officers are expected to be sent in teams to training centres
and operational areas to disseminate this knowledge.
101.
The ICRC has also printed booklets in English, Sinhala and Tamil
on the law of war and instruction manuals which have been distributed
to the forces. It also sponsors members of the armed forces to
participate in international/regional seminars on humanitarian
law.
Centre
for the Study of Human Rights (CSHR)
102.
The CSHR launched a programme in June 1993 to provide human rights
education for the armed forces and the police with a view to sensitizing
them to the value of human rights and to point out the limits
of their powers. Subsequent to preliminary discussions with the
Directors of Training of the armed forces and police, two introductory
seminars/workshops were conducted for a group of 31 new assistant
superintendents of police and 7 naval officers, respectively.
103.
In 1995 steps were taken to supplement the training of three specific
target groups, i.e. the policy maker, trainer and recruit levels
of the armed forces and the police. A training manual has been
compiled covering human rights standards and court cases for the
trainers and a handbook for the recruits. The training manual
was formally presented to trainers in the armed forces and the
police in March 1995, at a one-day workshop held in Colombo.
Other
activities
104.
A diploma programme in forensic medicine, conducted for practitioners
of criminal law by the Faculty of Medicine of the University of
Colombo, also incorporates a human rights component. One section
of the course focuses on legal aspects of torture and deaths in
custody. The course content includes international and national
legal standards which outlaw torture and deaths in custody, with
emphasis on the Convention against Torture and the CAT Act No.
22 of 1994.
105.
Seminars and lectures on the medical aspects of torture have been
organized by the Forensic Medical Department of the Medical Faculty
in the recent past, for the information of those in the medical
profession as well as the general public. Human rights and torture
is soon to be introduced as a special subject of study for undergraduates
studying medicine at the University of Colombo.
Article 11. Mechanism to review rules with a view to
preventing torture
106.
A number of governmental and non-governmental, formal and informal
mechanisms exist to review laws and practices having an impact
on human rights.
107.
The Government is at present engaged in enhancing and further
expanding the fundamental rights entrenched in the Constitution.
The Parliamentary Select Committee on Constitutional Reform appointed
in 1994 to draft a new Constitution is entrusted with this task.
The Select Committee is a multi-partisan body comprising representatives
of all political parties holding seats in Parliament. Members
of the public, registered political parties, non-governmental
organizations and academics were also extensively consulted with
regard to their views on reform. Over 70 meetings have been held
and a broad consensus has already been reached on the draft chapter
on fundamental rights. The draft recognizes several rights not
recognized under the 1978 Constitution and allows a citizen to
obtain relief in respect of infringement or imminent infringement
of rights by lower courts which exercise original jurisdiction,
for example by failing to grant bail or failure to follow prescribed
procedures.
108.
Committees and commissions are appointed by the Government from
time to time to review specific laws and practices impacting on
human rights. A committee appointed in February 1995 "to Inquire
into and Report on the Reorganization of the Police" has reviewed
the human rights component in police training as well as the existing
mechanisms available to make complaints against police officers.
The Committee's recommendations in this regard are being considered
by the Ministry of Defence.
109.
Inter-Ministerial meetings convened as and when required also
afford an opportunity to review laws and practices impinging on
rights. The recommendations made by the Human Rights Committee
on consideration of Sri Lanka's fourth periodic report submitted
under International Covenant on Civil and Political Rights are
currently being reviewed and processed by the Ministries of Justice
and Defence with a view to their implementation.
110.
The newly established Human Rights Commission (HRC) of Sri Lanka
will function in an advisory capacity to the Government in the
fields of legislative and administrative practice and make recommendations
to the Government to ensure that these laws and practices are
in conformity with the Constitution and international human rights
norms.
111.
Non-governmental organizations concerned with human rights act
as watchdogs of governmental laws, regulations and practices impacting
on human rights. The Government maintains a dialogue with the
NGO community and their suggestions and recommendations are given
the fullest consideration. For instance, in 1991, the Centre for
the Study of Human Rights together with the Nadesan Centre undertook
to list, review and analyse the impact of emergency rule on the
human rights of the people. Recommendations to reduce the harsh
impact of emergency regulations were submitted to the President
in November 1992. In February 1993 the Government amended some
ERs and undertook to revise others in keeping with the Centre's
recommendations.
112.
This dialogue has been further strengthened by the appointment
of an advisory group comprising representatives of non-governmental
organizations active in the field of human rights, to assist the
Ministry of Foreign Affairs to deal with human rights issues,
in particular those relating to international obligations undertaken
by Sri Lanka. The members of the advisory group serve in an individual
capacity and on an honorary basis. Their appointment in no way
precludes them from continuing to engage in their public campaigning
for human rights including commenting upon or criticizing the
Government's performance in this area.
Emergency
regulations relating to arrest and detention
113.
The Ministry of Defence periodically reviews and amends ERs relating
to arrest and detention with a view to preventing excesses by
officers. Over the years these laws have been considerably improved
and strengthened. Most recently, regulation 22 relating to persons
surrendering was completely repealed and replaced with a new and
improved regulation. According to the amendment any person who
surrenders to a governmental authority in connection with certain
specified offences, including any offence under ERs, will not
be detained with other persons arrested under ERs or the PTA but
will be handed over to the Commissioner General of Rehabilitation
who shall assign the persons to a "Protective Accommodation and
Rehabilitation Centre" for the purpose of rehabilitation (Gazette
No. 938/13 of 29 August 1996).
114.
It must be noted that the Government alone cannot decide to continue
the state of emergency. It can only be extended a month at a time
on being approved by a majority vote after full debate in Parliament.
Articles 12 and 13. Right of complaint and provision
for prompt
and impartial investigation
115.
The police are duty bound to carry out a prompt and impartial
investigation whenever there is reasonable ground to believe that
an act of torture has been committed or when a complaint is made
alleging that a person has been subjected to or is being subjected
to torture.
116.
According to section 109 (1) of the Criminal Procedure Code any
person can give information relating to the commission of a crime
to any police officer or inquirer, orally or in writing. If from
receipt of such information or otherwise an officer in charge
of a police station or inquirer has reason to suspect the commission
of a cognizable offence he must send a report to the Magistrate
Court having jurisdiction in respect of such offences or to his
own immediate superior and must proceed to investigate the facts
and circumstances of the case and take such measures as may be
necessary for the discovery and arrest of the offender. Every
police officer making an investigation is vested with powers to
require the attendance of persons who are able to give information,
orally examine any such person and search any person. Once sufficient
evidence is obtained the suspect can be arrested and produced
before a court of competent jurisdiction within 24 hours of such
arrest.
Complaints
against police officers
117.
Complaints against police officers, including complaints of alleged
torture, can be made to a special subunit under the Senior Deputy
Inspector General (DIG)/Administration which has been set up for
the purpose. The head of the division is the Director/Disciplinary
Inquiries.
118.
Whenever a complaint is received, the Director/Disciplinary Inquiries
registers it and sends it to the respective divisions to be inquired
into. The respective deputy inspectors general supervising these
divisions send them in turn to the Superintendent of Police (heads
of division, functional or territorial) to make the necessary
inquiries. If a prima facie case against the officer is established
at this preliminary inquiry it is then sent for a further panel
inquiry chaired by an assistant superintendent of police. A member
of the public also serves on the panel.
119.
On the findings of the inquiry, disciplinary proceedings are pursued
in accordance with the Police Ordinance (section 55), Police Orders
(section 82) and the Establishment Code. If the preliminary investigations
reveal a case to proceed to criminal action this is done, but
any departmental inquiry which has been initiated continues as
stipulated in the Establishment Code.
120.
A complaint against a police officer can also be made to the Special
Investigation Unit (SIU) which functions directly under the Inspector
General of Police. Whenever a complaint of a serious nature has
to be conducted, the Inspector General of Police, at his discretion,
refers those complaints directly to the SIU. The SIU reports directly
to the Inspector General of Police and, where necessary, files
complaints against police officers who are found to have committed
criminal offences.
121.
While an attempt is made to deal with all complaints promptly,
shortage of staff and other facilities in the Disciplinary Inquiries
Unit hampers the prompt disposal of complaints. Another drawback
is that the Department does not have a mechanism to keep proper
track of all the complaints that have been made against officers.
Since some complaints are referred to the SIU and only the balance
referred to the Disciplinary Unit, there is no central point at
which the monitoring of complaints can be done.
122.
A recent Police Commission report has recommended that a "cell"
be established directly under the Inspector General of Police
to monitor the progress of all such cases and for effective follow-up
action. The Committee has also suggested that all complaints against
police officers should be referred to a panel consisting of a
member of the public, even at the preliminary inquiry stage, so
that impartiality of the inquiry is ensured. Action is being taken
in this regard.
The
fundamental rights jurisdiction of the Supreme Court
123.
Any person has the right to make a complaint to the Supreme Court
where his/her fundamental right to protection from torture has
been violated. Under the new Supreme Court rules the Court's jurisdiction
can be invoked simply by a letter.
124.
The Court does not, however, conduct an investigation. Its decision
is based on the documentary evidence placed before it. Where the
Court's jurisdiction is invoked by a letter it may refer the matter
for inquiry and report to the HRC or the Bar Association. The
Supreme Court may also refer any matter arising in the course
of an application made to the Court under article 126 of the Constitution
to the Human Rights Commission for inquiry and report. See also
paragraphs 39-47 above.
Human
Rights Commission of Sri Lanka (HRC)
125.
The Commission has the following powers of investigation:
(a)
To procure and receive all evidence, written or oral, and to examine
all such persons as witnesses;
(b)
To require the evidence of any witness, to be given on oath or
affirmation;
(c)
To summon any person residing in Sri Lanka to attend any meeting
of the Commission to give evidence or produce any document or
other thing in his possession, and to examine him as a witness
or require him to produce any document or other thing in his possession;
(d)
To admit, notwithstanding any of the provisions of the Evidence
Ordinance, any evidence, whether written or oral, which might
be inadmissible in civil or criminal proceedings;
(e)
To admit or exclude the public from such inquiry or investigation
or any part thereof.
126.
The powers and functions of the HRC have been further explained
in paragraphs 28-34 above.
International
Committee of the Red Cross
127.
The ICRC is given full and free access to places of detention
and hear complaints in confidence. Complaints received by the
ICRC are forwarded to an appropriate authority for investigation.
See also paragraphs 35-36 above.
Article 14. Compensation and rehabilitation
128.
Where a fundamental rights application has been made to the Supreme
Court for the alleged infringement of the right to freedom from
torture, and the allegation has been proved, the Court in the
exercise of its power "to grant such relief or make such direction
as it may deem just and equitable in the circumstances" has invariably
ordered compensation for the victim. Varying amounts of compensation
have been granted by the Court.
129.
It is, however, recognized that the amounts ordered by the Court
may not always be adequate. In ordering the payment of compensation,
the Court is faced with certain difficulties. On the one hand,
the Court must endeavor to dispose of the matter expeditiously.
Thus, where serious personal injury is caused an assessment has
to be made before the victim's condition has improved. On the
other hand, the Court must make its decision on the basis of medical
reports that may be inadequate. Evidence on relevant matters such
as the income of the petitioner, past and future loss of income,
past and future medical and other expenses resulting from the
injury, etc. are also not generally placed before the court. Furthermore,
in determining the amount payable by the respondent the Court
has to have regard to his means.
130.
Although the Act does not specifically address the question of
payment of adequate compensation by the High Court to victims
of torture, in terms of section 17 (4) of the Criminal Procedure
Code a court can, upon conviction of a person of any offence or
where it holds the charge to be proved but proceeds to deal with
the offender without convicting him, order the person convicted
or against whom the charge is held to be proved to pay compensation,
to be determined by the court, to any person affected by the offence.
Accordingly, the High Court is vested with the power to award
compensation to victims of torture.
131.
There are a number of non-governmental organizations which provide
integrated medical, psychological and counselling services for
victims of torture. These services are tailored to the requirements
of each individual. Some NGOs specifically focus on assistance
and rehabilitation of torture victims and their families. Weekly
medical clinics are conducted in Colombo and at outreach centres
by these organizations. According to these NGOs the trauma of
torture is compounded by socio-economic factors such as difficulties
in finding a job. Thus, such persons are assisted by referring
them to other NGOs for self-employment loans, skills-training,
etc.
Article 15. Statements made as a result of torture
132.
Under the Evidence Ordinance a confession obtained by any inducement,
threat or promise is irrelevant in criminal proceedings in a court
of law. Under the same Ordinance no confession made by a person
whilst he is in the custody of a police officer can be taken as
evidence against such person. Legislation enacted to cope with
certain serious offences relating to the security of the State
and serious economic offences provide for the admissibility of
confessions in certain situations if made in the presence of certain
police officers or officers of certain departments. However, even
in those situations confessions caused by inducement, threat or
promise are regarded as irrelevant in criminal proceedings.
133.
Section 5 of the CAT Act of 1994, however, recognizes that a confession
otherwise inadmissible in any criminal proceedings will be admissible
in any proceedings instituted under the Act for the purpose only
of proving the fact that such confession was made.
Article 16. Other acts of cruel, inhuman or degrading
treatment
or punishment not amounting to torture
134.
Other acts of cruel, inhuman or degrading treatment or punishment
not amounting to torture as defined in the Convention are offences
under the Penal Code. Where such an offence is committed by a
person acting in an official capacity or at the instigation of,
or with the consent or acquiescence of a public official, any
one of the following provisions of the Penal Code may be invoked:
voluntary harm, causing hurt (section 314), voluntary harm causing
grievous hurt (section 366), voluntary harm causing hurt to extort
a confession or to compel restoration of property (section 321),
voluntary harm causing grievous hurt to extort a confession or
to compel restoration of property (section 322), wrongful restraint
(section 330), wrongful confinement (section 331), assault or
use of criminal force (section 343), criminal intimidation (section
483), etc.
135.
Note that three of the four illustrations given by the Penal Code
under section 321 refer specifically to public officers.
List
of annexes*
Convention
against Torture Act No. 22 of 1994
Penal
Code No. 2 of 1883
Code
of Criminal Procedure No. 15 of 1979
Evidence
Ordinance No. 14 of 1895.
Prevention
of Terrorism Act No. 48 of 1979 as amended by Act No. 10 of 1982
Emergency
(miscellaneous provisions and powers) regulation No. 4 of 1994
relating to arrest and detention (as amended)
Emergency
(establishment of Human Rights Task Force) regulation No. 1 of
1995
Presidential
directives issued in July 1995 to the armed forces and the police
under regulation 8 (1) of the emergency (establishment of Human
Rights Task Force)
Regulation
No. 1 of 1995 to enable the HRTF to exercise its powers and perform
its functions and for the purpose of ensuring that fundamental
rights of persons arrested or detained are treated humanely.
Regulation
made by the President under the Public Security Ordinance rescinding
the HRTF
National
Human Rights Commission Act No. 21 of 1996
Presidential
directives issued in June 1997 to the armed forces and the police
to enable the HRC to perform its functions effectively
Statistics
on fundamental rights cases filed in the Supreme Court under article
11 of the Constitution in 1995.
-----------
* The
annexes are available for consultation in the files of the Office
of the United Nations High Commissioner for Human Rights.