The decision by the Government to appoint Yasantha Kodagoda, Deputy Solicitor General (DSG) as the Chairperson of the Government’s Steering Committee on ‘Torture Prevention and the Law’ of the National Human Rights Action Plan has met with protests on grounds that Kodagoda is not a person suitable for the position as he has played a negative role in the prevention of torture.

Yasantha Kodagoda

In a letter addressed to the Minsters of Foreign Affairs Mangala Samarawickrema and Minister of Justice Wijeyadasa Rajapakshe,, the Asian Human Rights Commission (AHRC) said that they are not aware of a single instance where Kodagoda played a positive role in the prevention of torture.

“Our objections are based on our experiences working on torture prevention for over 20 years in Sri Lanka. In fact, this network consists of the most active civil society groups that act specifically on the prevention of torture.

Due to this long involvement, we are fully aware of those in the government services and, in particular, the Attorney General’s Department, who have played a positive role with regard to the prevention of torture, and also those who have played quite a negative role relating to this matter. Mr. Yasantha Kodagoda’s role belongs to the second category and, despite our involvement in this work, we are not aware of a single instance in which he has played a positive role in the prevention of torture,” AHRC said in a letter dates 13th September 2016.

While emphasizing that the purpose of the was not to launch a personal attack against Kodagoda, the Commission said that the letter was an effort to prevent this committee, which has the immensely difficult task of contributing to the prevention of torture, from becoming seen negatively because its chairman is a person with no positive record of any active engagement in the prevention of torture.

Citing reasons over their claim, AHRC said in his public role before the Udalagama Commission of Inquiry is well known given that Kodagoda was specifically and negatively named by members of the International Independent Group of Eminent Persons (IIGEP) monitoring that Commission. Kodagoda was the Lead Counsel for the Attorney General at the Commission even though the Commission was inquiring into actions of state officers in regard to failure to properly investigate and prosecute certain cases of gross human rights abuses in regard to which he had been himself involved at the preliminary stage of advising on the investigations, which was a clear conflict of interest.

“In addition, while the role of the Attorney General’s Department’s officers was to assist the Commission, Mr. Kodagoda aggressively cross examined the witnesses who came before the Commission, in a vigorous attempt to protect state agents against whom these witnesses were giving evidence. We are also aware that, regarding the detention of Tamil prisoners at Boosa camp, he prevented discussions on the arrest and detention of Tamil prisoners without grounds for reasonable suspicion,” AHRC said.

The commission said that the Ministries of Foreign Affairs and Justice along with the National Human Rights Commission, would certainly agree that the prevention of torture in Sri Lanka is one of the most formidable challenges in the area of protecting and promoting human rights. The practice of torture is deeply embedded in the very criminal investigation system, and there has been official approval of the practice of torture for many generations. “The police department itself accepts the grave challenge in preventing torture and ill treatment. Common reasons given for justifying this practice is that the department has not been able to provide adequate scientific training and other facilities to enable its officers to conduct criminal investigations without the use of torture and ill treatment. A further justification is that certain cultural habits entrenched in the population, often put pressure on police officers, encouraging them to use ‘third degree’ methods for the quick resolution of crimes,” the commission said in its letter.

The letter said that “The role of the Attorney General’s Department, on the whole, has been negative in relation to the prevention of torture. It was only when Mr. K C Kamalasabayson was the Attorney General that the Department took a more proactive approach to enforce Sri Lanka’s law against torture, contained in the CAT Act No. 22 of 1994. It was only during this period that a significant number of cases were investigated through a special unit of inquiry and nearly sixty prosecutions were launched. In contrast, Mr. CR De Silva, as Attorney General, gave categorical instructions to his officers not to institute cases under the CAT Act, famously saying that ‘the department is not going to listen to NGOs.’ What in fact happened was that the Department in fact gave into the pressures that were mounted against such prosecutions by a section of the police and also the armed forces. Since then, all the other Attorneys General have adhered to the same negative policy of not prosecuting under the CAT Act.

Regarding fundamental rights, at one time there was a policy of counsel from the Attorney General’s Department not representing officers against whom there were allegations of torture. However, also beginning with the time in which CR De Silva was Attorney General, this policy was changed and counsel from the AG’s Department began to represent such officers. Their role in fact needs to be recorded and analysed in detail in order to examine some of the most unacceptable practices pursued regarding this matter by the Department.”

Therefore, according to AHRC if any member of the Department were to be nominated for the purpose of drafting a national policy in regard to the prevention of torture that should be done only if such an officer has taken the exceptional step of not following the wrongful practices that the Department pursued regarding the issue of prevention of torture.

“We hope that the Ministries of Foreign Affairs and Justice in collaboration with the Human Rights Commission of Sri Lanka would consider the above concerns and review the decision to designate Yasantha Kodagoda as the Chairperson of this vital committee, which has the potential to contribute positively to the task of preventing torture, which the Human Rights Commission has declared as one of its major priorities,” AHRC said.

“We have also been informed that persons have been nominated /named to this committee without prior obtaining of consent, resulting in at least one such invited person declining to serve with others to possibly follow suit In any case, as far as we are aware, no public consultation has been conducted regarding the constitution of such committees. In particular, we wish to point out that the Human Rights Commission, by its very nature, is committed to a policy of transparency. The Commission has also declared in the past that it considers that civil society organizations engaged in the work relating to the protection and promotion of human rights are its partners. In these circumstances, it would benefit the Commission as well as the people of Sri Lanka if this policy of transparency is pursued in such matters and in regard to the Government’s aim to improve the protection of human rights which is the first priority of any reconciliation effort,” the letter added.