By Colombo Telegraph –
The Committee against Torture this morning began its consideration of the combined third and fourth periodic reports submitted by Sri Lanka on how it implements the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Introducing the report, Mohan Pieris, President’s Counsel and Senior Legal Advisor to the Cabinet on Legal Affairs, said that in May 2009 the 30-year terrorist conflict was defeated and the task of rebuilding a fractured nation commenced. Despite grave atrocities committed by non-State actors, Sri Lanka had not invoked any justification for torture, nor resorted to or acquiesced in torture. The State had a policy of zero tolerance to torture. A Thematic Action Plan on Torture had been prepared along with other initiatives, including programmes to ensure a respect for human rights within the armed forces, a Directorate on Human Rights and Humanitarian Law within the Sri Lanka Army, and a Human Rights Division within the Police Department. A nation-wide initiative to care for and return internally displaced persons and ex-combatants, called the Way Forward on Rehabilitation, Reinsertion and Reintegration, included rehabilitation for under-age boys and girls who were forcibly recruited into the armed forces.
Legislation to reform the Criminal Code in order to eliminate the opportunity of torture was being considered, as was the proposed introduction of a duty attorney in every police division, said Mr. Pieris. The state of emergency was now a thing of the past, since its total abolition on 30 August 2011, in fulfilment of the pledge the Government of Sri Lanka took before the Human Rights Council. Sri Lanka remained committed to upholding its obligations assumed under the Convention, and giving life to the goal of a Sri Lanka boasting the golden ideals of no torture, no ill treatment and no exceptions.
Felice Gaer, the Committee Expert who served as Rapporteur for the report of Sri Lanka, said that despite the report claiming ‘at no time has the Government resorted to or acquiesced to acts of torture’, the Committee had received extensive allegations of torture and ill-treatment by the State party, ranging from ordinary corners of the country to the centre of the conflict zone. The allegations included cases of disappeared persons, acts of cruelty and ill treatment by the police, harassment of humanitarian workers, human rights lawyers, journalists and ordinary persons, of secret detention centres and of deaths in custody. There was a huge lack of data and statistics, of independent investigations into cases of alleged torture and of prosecutions. Sri Lanka’s Convention Against Torture Act of 1994 seemed to be effectively dormant. Ms. Gaer asked questions about the rights of detainees, over 5,000 enforced disappearances, persons held without trial and incommunicado under the Prevention of Terrorism Act and alleged secret detention facilities.
Other Committee Experts raised questions about specific cases of alleged torture, forced disappearance and particularly harassment of human rights lawyers and activists. Detention facilities, prison overcrowding and specific allegations of torture in prisons were also raised, as were the supposed ‘rehabilitation camps’ which some Experts said were alleged to be actually mass detention centres under military rule. Experts also asked about impunity, deaths in custody, fair trials, especially juvenile justice and detention facilities for children, and also the rights of domestic workers, and gender violence towards women and children.
The delegation from Sri Lanka included representatives from the Cabinet of Ministers of Sri Lanka, the Attorney General’s Department, the Department of Police of Sri Lanka and the Permanent Mission of Sri Lanka to the United Nations Office at Geneva.
The Committee will next meet in public at 3 p.m. this afternoon when it will hear the response of Germany to questions raised by the Committee on Friday, 4 November. It will hear the responses of Sri Lanka on Wednesday, 9 November, starting 3 p.m.
Report of Sri Lanka
The combined third and fourth periodic reports of Sri Lanka (CAT/C/LKA/3-4) note that in May 2009, Sri Lanka was successful in definitively defeating terrorism perpetrated by the Liberation Tigers of Tamil Eelam – LTTE, a terrorist organization proscribed by over 30 democratic countries worldwide. Despite the grave atrocities committed by the LTTE, the Government reiterates that it has at no time sought to invoke any justification for torture nor has it resorted to or acquiesced in acts of torture. As a matter of State policy and practice, the Government maintains a zero tolerance policy on torture, as is evidenced by the meaningful measures taken to curb acts of torture.
The Government of Sri Lanka is of the opinion that the definition of torture under its domestic law covers all the elements contained in article 1 of the Convention. Although the word suffering “is not specifically mentioned in the definition of torture in Act No. 22 of 1994”, the Government is of the view that the words “severe pain whether physical or mental” invariably encompasses “suffering” both in its physical and mental forms.
The National Police Commission was established under the 17th Amendment to the Constitution of the Democratic Socialist Republic of Sri Lanka with the objective of creating an independent, impartial and efficient Police Service which will respect and safeguard human rights. The Government reiterates its commitment to promptly and impartially investigate allegations of torture. Also, during the last examination in 2005, the Committee had formulated the following recommendations: making a declaration under articles 21 and 22 of the Convention; becoming a party to the Optional Protocol to the Convention; and becoming a party to the Rome Statute of International Criminal Court. These matters are receiving serious consideration from Sri Lanka.
Presentation of the Report
MOHAN PIERIS, President’s Counsel and Senior Legal Advisor to the Cabinet on Legal Affairs, said that the 30 year terrorist conflict had compelled Sri Lanka to assume an expanded and formidable task of maintaining national security, law and order. The State had pursued ambitious national development plans that sought to enhance the quality of life of its people. The pursuit of peace saw the Government engage in negotiations with a terrorist movement acknowledged as the most ruthless in the world, which over time lost its credibility as one with a sincere desire for peace. Finally, in May 2009, terrorism was defeated and the task of rebuilding a fractured nation commenced. Despite the ongoing conflict the Government of Sri Lanka remained committed to complying with international norms, demonstrated by the invitation extended to two Special Rapporteurs on Torture who had twice visited Sri Lanka. Despite grave atrocities committed by non-state actors, Sri Lanka had not sought to invoke any justification for torture, nor resorted to or acquiesced in torture. The State had a policy of zero tolerance to torture, evidenced by the meaningful measures taken to curb acts of torture. A stocktaking of the human rights situation in Sri Lanka identified eight thematic areas, one of which was torture. Consequently a Thematic Action Plan on Torture identified seven focus areas: legal framework; detection and post-investigation; prevention; institutional mechanisms for monitoring; addressing impunity; special protection for women and children; and rehabilitation and reparation.
Prior to that initiative, several programmes to ensure a respect for human rights within the armed forces were implemented. Those included a Directorate on Human Rights and Humanitarian Law within the Sri Lanka Army, which conducted training and awareness-raising programmes on human rights and humanitarian law for security personnel, and a Human Rights Division within the Police Department, with the objective of strengthening the role of law enforcement officers in the protection of human rights. In early 2006 a special Ministry vested with responsibilities for human rights and humanitarian assistance was opened. A Ministry of Resettlement and Disaster Relief Services was given responsibility for approximately 300,000 internally displaced persons left after the armed conflict. A nation-wide initiative to care for and return internally displaced persons and ex-combatants, called the Way Forward on Rehabilitation, Reinsertion and Reintegration, included rehabilitation for under-age boys and girls who were forcibly recruited into the terrorist group, and who subsequently surrendered to the Government. Those children were now reunited with their families in their own communities.
The legislature was currently considering an amendment to the Code of Criminal Procedure, in order to improve legal norms that would facilitate the elimination of the opportunity of torture. The legislature proposed introduction of a duty attorney scheme in every police division, in line with the practice and procedure of PACE in the United Kingdom. The duty attorney would then have a statutory right of access to a suspect upon arrest, to ensure the suspect was not subjected to extra judicial procedures, and was afforded all constitutional guarantees. The legislature was also considering the introduction of an investigatory magistrate required to direct the investigatory process. The state of emergency was now a thing of the past, since its total abolition on 30 August 2011, in fulfilment of the pledge the Government of Sri Lanka took before the Human Rights Council. The Government was the ultimate guarantor of human rights, and could not violate or fail in its responsibility to protect them. It was accountable, and was required to take appropriate measures to end any infringements of human rights. Sri Lanka remained committed to uphold its obligations assumed under the Convention, and give life to the goal of a Sri Lanka boasting the golden ideals of no torture, no ill treatment and no exceptions.
Questions by the Rapporteurs
FELICE GAER, Committee Expert who served as Rapporteur for the report of Sri Lanka, said that a lot had happened since the last report, and the Committee agreed there had been significant developments since Sri Lanka defeated the Liberation Tigers of Tamil Eelam (LTTE), a terrorist organization prohibited by over 30 countries. As the United Nations had said, terrorism aimed to destroy democracy and human rights. The report said that ‘Despite the grave atrocities committed by the LTTE, at no time has the Government resorted to or acquiesced to acts of torture’. However, the Committee had received extensive allegations of torture and ill-treatment, ranging from ordinary corners of the country to the centre of the conflict zone. The allegations included cases of disappeared persons, acts of cruelty and ill treatment by the police, harassment of humanitarian workers, human rights lawyers, journalists and ordinary persons, of secret detention centres and of deaths in custody.
Upon reviewing the report it appeared that there were three particularly worrying trends: the lack of data specifically asked for, the lack of independent investigations into cases where there was reason to believe acts of torture had taken place, and the lack of prosecutions. Sri Lanka’s Convention against Torture Act of 1994 seemed to be effectively dormant. Out of 21 questions in the list of issues that requested statistical data, 12 of the Government’s replies provided no data, and five replies gave scant data. Only three of the 21 provided the asked-for data, and there was very little detail on specific practices. That was surprising as the Government had previously provided a great deal of data in other contexts. Could the State party please explain the absence of the data, and also provide the data requested, ideally by tomorrow’s meeting?
What had the National Human Rights Commission found during their visits to places of detention? Magistrates did not routinely enquire about custodial treatment; were there plans to issue instructions to magistrates to make such enquiries? Furthermore the Government did not respond to a question on the availability of Tamil-speaking court-appointed interpreters?
It seemed detainees could not request independent medical examinations from the police, but had to apply to the court. Who approved the request, and what was the length of time? How were medical records noting injuries systematically brought to the prosecutor’s attention, and how were detainees told about their right to demand an independent medical examination? Furthermore, how many instances were there in which police officers who failed to issue arrest receipts were prosecuted? All detained persons were guaranteed the ability to challenge effectively and expeditiously the lawfulness of their detention through habeas corpus – how was that right enforced in practice, and could the delegation provide dates of habeas corpus claims? What was being done to make habeas corpus more accessible?
Sri Lanka had the second-largest number of cases of enforced disappearances in the world, with over 5,000 un-clarified cases. Ms. Gaer regretted that the Sri Lankan Ambassador was not able to attend today’s meeting, as she had been present throughout the recent Working Group on Enforced Disappearances.
Under the Prevention of Terrorism Act, persons could be detained ‘up to one year for investigation and interrogation purposes’. The burden of proving a detainee had made a forced confession fell to the detainee, which was very difficult. Furthermore could the State party comment on the case of J. S. Tissainayagam? There were reports that many individuals had been held under the Prevention of Terrorism Act for years, far longer than the 18 months permitted. As at May 2010 over 1,900 persons were being held without charge or trial, including 1,300 members of the LTTE. Were those individuals permitted to contact attorneys and family members, and would they be charged with an offence?
Could the delegation please comment on the existence of secret detention facilities? The Ministry of Foreign Affairs previously told the Heads of Diplomatic Missions in Colombo that a database of Tamil detainees existed and would be made available to their families. However subsequently the Government said that such a database did not exist, and if it did, it had not been made public. Could the delegation please comment on that?
Seven sites of irregular detention have been cited: Poonthottam Educational College, 211 Brigade Headquarters, Vavuniya, Velikulam School, Plote Paramilitary Detention Centre, Dharmapuram (holding hundreds of top-level Tamil persons) and also Vettuvaikal and Iranaipalai. Could the Government please comment on whether those secret detention facilities, and others, existed?
Mr. Gaer raised cases of harassment and intimidation of lawyers, including the specific case of Amitha Ariyarantne, who reportedly received death threats from police officers in January 2009. Mr. Ariyarantne and his wife filed a complaint, but the State party said they could find no record of it. A well-known human rights lawyer, Mr. J C Welliamuna, was attacked in 2008. An article on the Ministry of Defence called human rights lawyers ‘traitors to the country’, and published the names and photographs of five individual human rights lawyers, the so-called ‘Black Cloak Lawyers’. What protection did the State party provide to those individuals, as labelling them as traitors on the website of the Ministry of Defence was extremely threatening.
How many complaints of torture under the CAT Act of 1994 had been made? The National Human Rights Commission said it had received over 270 complaints between January and September of this year alone. Were those complaints made under the CAT Act?
ALESSIO BRUNI, the Committee Expert who served as Co-Rapporteur for the report of Sri Lanka, thanked the delegation for their report. He noted that the report said the Government would give earnest consideration to the Committee’s recommendations on the ratification of the Optional Protocol and the Rome Statute of the International Criminal Court. Were they still under consideration?
The National Action Plan for the Promotion and Protection of Human Rights included specific proposals to prevent torture, such as the need to provide training under the Istanbul Protocol for law-enforcement, medical and legal personnel. Some measures had been taken, including establishment of a hotline against arbitrary arrest, regional officers, and a division for enquiry. What resources were those facilities given, and more widely what resources did the National Human Rights Commission receive?
The Sri Lankan authorities acknowledged the difficulties following the long conflict, but said that the Government ‘maintained a zero-tolerance policy on torture’. What practical measures had been taken to reach that zero-tolerance position? There were 1,500 documented cases of torture reported between 1998 and 2011, according to a non-governmental organization, which had been allegedly disregarded for political reasons. Another non-governmental organization report referred to around 1,500 Sri Lankans who had sought medical reports detailing their torture to assist their asylum claims. The list of reports and allegations of cases of torture submitted to the Committee was impressive. The point was that so long as those allegations continued to be submitted to various United Nations organizations, zero tolerance was not being achieved and more measures had to be taken.
Was access to military camps authorized when a detention there had been reported to the National Human Rights Commission? When such access had been authorized, which military detention facility had been most recently visited? Magistrates were also legally allowed to make prison visits, both planned and unannounced. Had any such prison visits ever taken place, and were reports of them available?
The law was very often violated in police stations. Had the State party received reports from the National Human Rights Commission and what recommendations had been implemented? A specific example was on 15 August 2011, officers of the Commission paid a sudden visit to Mount Laviniya Police Station. Although the Criminal Code provided that detention in police custody should not exceed 24 hours, the Commission found persons who had been detained for over seven days, and some of them appeared to have been tortured. The Commission prepared a report on the visit and summoned all police officers concerned. Had those police officers been prosecuted, and what sentence had they received? That was an example of the sort of information the Committee wished to receive, and would also show whether zero tolerance was being implemented.
Since August 2011 the state of emergency regulations were no longer in force. However the Prevention of Terrorism Act was still in force, under which persons could be detained for investigation for years. That did not seem admissible or even lawful. Since May 2010, approximately 1,900 persons were detained under the Prevention of Terrorism Act pending investigation, and by February 2011 there were around 1,300. Following his 2007 visit, the Special Rapporteur on Torture reported that detainees were locked in concrete cells without natural light, air circulation, left to sleep on concrete floors and treated inhumanely. What had been done to improve conditions of detention since then?
Concerning Government-run rehabilitation programmes, many non-governmental organizations indicated that so-called rehabilitation centres were actually mass detention centres under military rule. A person could be detained there for two years, without charge, in the name of rehabilitation. The conditions in such centres were deplorable. The Committee had been given information saying that over 25,000 persons remained in detention in military-controlled camps. Could the delegation please clarify?
Severe overcrowding in the Colombo Remand Prison had already been raised by the Special Rapporteur on Torture during his 2007 visit. The State party acknowledged that the problem of overcrowding still existed. What measures had been taken to reduce that overcrowding, and in general what was the rate of occupancy in prisons in Sri Lanka?
There were allegations of torture from former detainees held at Boosa Prison in Galle. Could the delegation please provide its views on those allegations? The enquiry on Sri Lanka carried out by the Committee Against Torture found that torture was frequently resorted to by paramilitary groups, who were not a regular accountable military force. The Conflict ended in 2009. Had the State party investigated the paramilitary accused and had there been any prosecution in that regard?
Concerning deaths in custody, Amnesty International said that in 2010, ten persons died in police custody under suspicious circumstances. Furthermore an October 2011 report by nine non-governmental organizations fully documented 54 cases of death in custody. What prosecutions had been brought on perpetrators of those deaths?
A Committee Expert said that the United Nations Secretary-General had commented on possible war crimes and human rights violations by the State party. On the issue of prosecutions for human rights violations, it seemed the judiciary was not independent. Where was the independent judiciary? The branches of power should be separate.
Regarding fair trials, and especially the situation of juvenile detainees, an Expert began by asking about the low age of criminal responsibility, saying that should be examined. In custody girls and boys were not separated from men and women, and there were repeated allegations of mistreatment, sexual abuse and torture of those children. Those children, minors, were provisionally detained for very long periods of time without trial. Efforts had to be made and the Committee needed to know whether there was any improvement in their detention facilities. Furthermore, children lived on the streets, and suffered from terrible conditions: in general childhood in Sri Lanka was often miserable and needed urgent reform.
The numbers of persons detained in military ‘rehabilitation centres’ had hugely decreased this year, from 11,000 to around 1,500. There were allegations of brutal treatment in the centres. Would there be any investigation into what went on there? Would those 11,000 people receive any redress or compensation for what they had suffered there, including both mental – psychological – and physical torture? Were there still 594 minors living in those camps? Would they be reunited with their families?
There had been extensive examples of gross violations towards women and children, especially gender-based violence. Would there be any investigations into those violations, and any redress for victims? There was no law to ensure that victims of torture received redress: were there plans to add legislation on that issue?
An Expert recalled the last time the State party faced the Committee, in 2005, and said much had happened since then. What protection was available to stateless persons in Sri Lanka, especially domestic women workers who often worked in Gulf States, and received inhuman treatment there? What was the Sri Lankan State doing to protect those persons?
Impunity remained the rule rather than the exception for violations of human rights in Sri Lanka. In formulating the Thematic Action Plan on Torture, had the State party taken into account specific recommendations made by the Committee on accountability?
There was no legislation that made evidence obtained under torture inadmissible in court, which directly contravened the Convention. The new Criminal Code proposed to make guarantees for detainee’s rights during police interrogation but what reforms were planned? Also was there specific legislation on holding persons incommunicado, especially in pre-trial detention?
An Expert noted that there had been intimidation and harassment of the press and journalists, and even acts against their premises. Those acts did not contribute towards democracy. Furthermore, the extradition policy did not consider the likelihood of a person being tortured upon extradition.
An Expert said that everyone had sympathy that such a beautiful country often referred to as the ‘Pearl of the Indian Ocean’ had been plagued by terrorism, with everybody and everything a target. The Committee did not condone terrorism of any kind. That said, the State party was duty bound to prevent torture, and also extra-judicial killings, of which there had been many allegations. One such case was of a seven-year-old boy who was gunned down and killed in a marketplace. Had those cases been investigated? It would be dangerous for the country if individuals were allowed to take the law into their own hands.
It was said that 860 persons were held under state of emergency legislation, which had not been in effect since August. What legal grounds were they now being held under, and could the delegation confirm the numbers? How many persons had been prosecuted under the Prevention of Terrorism Act? According to reports by non-governmental organizations, the Sri Lankan constitution provided the executive branch with immunity from prosecution. Did the delegation agree with that?
Human Rights Watch had noted that there was no systematic documentation of all persons who disappeared in the 16 year conflict. Was that true? The Expert asked for information on the situation of journalists and civil society members who had undergone enforced disappearance, including Poddala Jayantha, Dinesh Tharanga Fernando, Dhanushka Udayanga Aponsu and Stephen Suntharaj, among several others.
MOHAN PIERIS, President’s Counsel and Senior Legal Advisor to the Cabinet on Legal Affairs, said that his delegation took on board every matter raised with the greatest humility. Every question would be addressed with great sincerity and openness, and intent of a common objective to achieve an environment where every Sri Lankan could live as one family with dignity. The State party may fall short due to capacity and extenuating circumstances, but was 110 per cent with the Committee on its position with regard to torture: there could be no tolerance of torture and no exceptions.