17 October, 2021

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Institutional Theories About The Use Of Torture  

By Basil Fernando

Basil Fernando

There are a number of entrenched beliefs which have become institutional doctrines within the Policing system which contribute to the continuing practice of torture.

No suspect will ever tell the truth. Therefore it is better not to waste time asking questions before torturing the person. This is a practice almost invariably followed in the cases of people from low income groups. However, the same assumption is not applied when the suspects are from more affluent classes or are persons that wield some political or social influence. For example, there have been many cases in recent years against politicians and high officials relating to corruption charges. However, none of these persons made any complaints that they were tortured or harassed in any way. As opposed to that, there are thousands of complaints from persons from lower income earning groups who are often arrested for very petty crimes. The interrogation takes place, accompanied by torture and ill treatment along with the use of very harsh language against the suspect. This issue was discussed before the Supreme Court in the case of Gerald Mervin Perera. Gerald Mervin Perera was brought to meet the Police by forcing his wife to call him to come immediately. Upon arrival, he was put in a Police jeep and taken to the Wattala Police Station. At the Police Station, no questions were asked from him. He was taken to an isolated room where he was hung. Here, the Police officers beat him with wooden poles and iron rods. As he was beaten, he was told to reveal what he knows about a triple murder case that had taken place within the jurisdiction of that Police Station. He did not know anything about the issue so he was beaten more. The Police were under the impression that he was such a stubborn person that he refused to divulge the information even after being severely tortured. The victim was taken down only after the Police received the news that the actual culprits of the case had been identified and that Gerald Perera knew nothing about this case. Due to his injuries, Gerald Perera suffered kidney failure, remaining unconscious for nearly two weeks. This is what the Supreme Court observed in this case. If after the arrest, a few questions had been asked, the whole matter could have been brought to an end within a few minutes, with the suspect being released.

On a number of occasions, the Police officers, particularly OICs of Police stations, have been questioned on this issue by persons engaged in human rights work. The general reply to that has been something similar to this. You do not expect us to call these people gentleman or sir. Unless we are rough, they will not divulge anything. Particularly in the cases of theft and robbery, there is no point in wasting time asking questions, because we know that they will never tell the truth. The only way to get the truth out is to treat them in a rough way, meaning, through the use of force.

Among the higher officers, there is a general assumption that it is not possible to develop sophisticated means of criminal investigation as Sri Lanka is a poor country.

Even at very high levels, the officers have asserted the following at meetings. Due to the economic backwardness of the country, they cannot afford to provide first class treatment to the suspects. Implied in this attitude is that the use of torture and ill treatment is the only affordable method that could be used to extract information from the suspects.

There is also this institutional agreement. Although statements obtained from suspects cannot be used against them during a trial, the use of such force is quite useful in extracting information that would lead to the identification of other witnesses.

Their evidence can be presented before the courts. Such evidence is not admissible to be held as evidence of a confession or an admission by a suspect. However, the use of torture is permissible as a first step into the discovery of details about the commission of a crime. Thus, the inquiries do not begin generally with an independent investigation into the evidence. It is on the basis of incriminating evidence that could be discovered from the suspect himself. Where the suspect is innocent and is unable to give evidence about the alleged crime, he/she is repeatedly tortured. Actually, it is more than in the case of an actual suspect who may divulge what he knows with the hope of avoiding torture.

It is also institutionally accepted that a crime is solved even with the wrong person as the suspect rather than admitting a failure in the investigation. The reason for this is an institutional assumption. If proper reports are filed before the courts and to the higher authorities about solving a crime, it saves them from being questioned about unresolved cases. These could have an impact on promotions and other matters within the institutional framework. In addition, this solves the problem in terms of the possible questioning by the media or politicians. What is needed is not to resolve crimes in a manner as is required by the Law. It is to create the appearance of such being solved. This is accomplished by way of any kind of subterfuge for which torture could be used as an efficient instrument.

The Belief that Fear is a Necessary Condition for the Social Control of the Poor.

The cultural belief ingrained into Policing and other law enforcement agencies is this: Fear is a necessary condition for the control of the poor and low income earning groups. This cultural belief has a long history related to the methods of social control that have been used in Sri Lanka for over 1,000 years. When the Policing system was introduced by the British, the colonial officers gradually began to understand this factor. It was the reason why the prohibition on leading the evidence of confessions and admission was introduced into the Evidence Ordinance itself. However, during the time of Colonial control over the Policing system, there were many measures to keep torture and ill treatment by law enforcement officers under control. However, after Independence, this gradually began to break down. Particularly, since the 1970s, the use of torture, ill treatment and extrajudicial killings, including enforced disappearances, was re-introduced on a large scale. This class element relating to torture is a necessary factor. Through that prism, one can understand the widespread use of torture within the Policing system and the institutional justification of and for it.

Another factor is the practices that exist within the Policing system itself regarding the treatment of the lower ranks by higher ranking Police officers.

The general practice (though there may be some exceptions) is the very harsh treatment of lower ranking officers in order to get them to perform various tasks. The use of very harsh language against them and imposing harsh schedules of work and the like is part of the institutional culture of Policing in Sri Lanka. The result is that the officers who are treated badly in this manner by their seniors, tend to repeat the same pattern of behaviour in their own interactions with people. Frequently, it is the lower ranking officers who do the direct torturing while the senior officers engage in such practices less often. The language used by the Police on persons from low income groups is of a harsh nature. They often use what is usually understood to be bad language and phrases. So, there is a pattern of reproducing internal violence to outsiders within the Policing system.

The firm conviction that torture and ill treatment and other forms of the use of violence will be protected by an effective system of impunity. High ranking officers collaborate in attempts to hush up the instances of the use of force by Police officers in two ways. They do not conduct inquiries as soon as possible (creating various kinds of harassment to the complaints). They even alter documents to eliminate any kind of evidence that may be in those records.

The Change of Institutional Mentality As a Result of Counter Insurgencies.

The 1971 insurrection virtually changed the course of history in Sri Lanka in the political as well as legal spheres. That was not due to the strength of the insurgency itself. Looking back from a distance, the insurgency was in fact extremely weak, carried out without any extensive organization or with any kind of substantial means. Many activities of the insurgency consisted of training some young people in a few classes about the casualty of the Janatha Vimukthi Peramuna (the People’s Liberation Front). The activities were mainly in making some Molotov cocktails and some work on the trade union front. The importance of the insurgency was that it exposed the weakness of the Sri Lankan State. The insurgents mainly relied on this weakness. They thought that they could create situations of disturbance in the country although the Leader and a few others may have thought of the possibility of coming to power. They had in fact not convinced any significant portion of the population about that capacity, nor were they prepared for such an eventuality. In fact, the insurgency was uncovered while some were making Molotov cocktails. Later documents which came up, for example, the statements given by the organization before the Criminal Justice Commission, clearly indicated that there was no grand plan of action for revolution or for the taking over of power. What made the insurgency have a decisive effect was that with the news of some incidents taking place in a few places, the weak State of Sri Lanka was thoroughly shaken. There was a state of panic, both among the Leaders of the Government and in the Policing system. The documents show that there was a real fear that the Government may collapse and that a revolution might take place.

The Government was taken completely by surprise by the few incidents of bomb blasts and some attacks. This reaction was not based on any detailed intelligence reports or the assessment of the actual strength of the insurgent groups. The command that came from the top, to shoot on sight, and to engage in whatever forms of action were needed in order to bring down the insurgency, led to relatively large scale killings. While the number of security personnel killed was around 50, the number of alleged insurgents killed exceeded 5,000. It was this large scale and the ruthless reaction to a relatively weak insurgency that virtually led to a crisis in the State. It was reflected mostly in its Policing system which made this event a very prominent event and decisive for change in the political life as well as security arrangements in Sri Lanka.

Politically, the Opposition Party which had been very seriously damaged by an electoral defeat in the 1970s, found a way to regain their strength within a short time. It was particularly through the shock and the unrest within the population as a result of the large scale killings that took place during the short period of the insurgency. The exploitation of this unusual situation was perhaps the major reason for the defeat of the coalition Government of the 1970s and the election of the United National Party Government with nearly 80% of the seats in the Parliament in 1977. That became decisive in 1978, seven years after the insurgency. The Constitution of Sri Lanka was completely changed from the rule of law based on a democratic system. It became an Executive based system which could undermine the normal legal process and resort more directly to the national security Law. In fact, the national security Law was incorporated into the Constitution itself. That, as subsequent decades would show, altered the political culture of Sri Lanka drastically. Among other things, the decision on the legality of any action depended more on the Executive and less on the Legislature or on the Judiciary. Both these institutions were undermined in favour of an Executive led Government.

The Change of Mentality Due to an Erosion of Discipline and the Erosion of the Traditions of Policing.

As far as the Policing system was concerned, the counter insurgency measures eroded the traditions of the adherence to the legal principles within the system as the Police were used for military purposes during the time of the insurgency. The Police were mobilized for illegal arrests, detentions and above all, the killing of persons after they had been arrested. The entire fabric of the criminal Law was based on the model introduced by the British. When a person is arrested, the protection of that person is the primary duty of the Police. This was completely abandoned. The killing of arrested persons was authorized. The arrest itself did not take place on the basis of any reliable evidence but more on petitions and on information obtained through torture. As a result of that, many who were killed could not be in any way characterized as persons who were involved in serious insurgencies. The theory, for allowing such arrests, was that in a situation of a conflict of this nature, it is not correct to find out who is involved and who is not involved. Now, the Police were given the liberty to act on the basis of their own judgment. The power of killing passed into the hands of the Police and other security personnel and their agents. Thus, there was for the first time, in modern Sri Lankan history, a unique situation. Power over life and death was passed from the Judiciary into the hands of the Police. Among the Police, those who carried out most of the actual implementing actions such as arrests, detentions and the killings, were the lower ranks of the Police. The higher ranks were silent. Some cooperated in the scheme of carrying out deaths.

The information collection at that time was about those who were engaged in the insurgency. And the main source of that were those who were arrested allegedly for insurgency related issues. So, this was a severe, extremely serious situation where the idea was to gain more information about other insurgents. The culture of the use of torture, underwent a drastic change during this period of the insurgency.

As such, the entire system of Policing underwent a transformation for the worst. Experiences of some countries in the use of Police units for insurgency control show the following. It is only those units who would have the power to use extra legal means. The basic institution is kept out of such activities so that the normal rule of law related functions could be exercised by the Police. However, in Sri Lanka, this was not the case. The entire system was used, causing extreme violence, including the killing of persons and the disposal of their bodies.

There was no real attempt to undo the damage that was done to the institution during this kind of Police mobilization for such illegal and basically criminal activities. Instead, the situations which unfolded in the later decades increased the use of the Police for military purposes. This had been acknowledged by persons like the former Secretary to the Ministry of Justice, later the President of Sri Lanka. Now, the problem of the Sri Lankan Police is that it is not useable for the enforcement of the Law according to the basic principles of the rule of law. And the problem has become so complicated that none of the Governments in recent decades have made any serious attempt at seriously reforming the institution. Instead, many actions that have been taken, have aggravated the situation. Take for example the recruitment of over 30,000 Policemen, without any training. It was done purely for the purpose of deployment as a political gesture by the Mahinda Rajapaksa Government. Thus, out of the 75,000 strong Police force, over 30,000 persons were those who were recruited without any basic training. They gradually gained additional persons within the organization through promotions.

The institution today is not capable of acting as a rule of law based law enforcement agency. It acts outside the Law. It replaces discussion as against the basic legal norms and legislative requirements. The supervisory capacity at the top has deteriorated to such a level that they are unable to carry out discipline within the system.

This perhaps is the greatest reason as to why the use of torture has become so commonplace in dealing with the ordinary people of the country.

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