By Laksiri Fernando –

Dr. Laksiri Fernando

National sovereignty cannot be a defence of torture, if the claims are true. Torture undoubtedly is the most inhuman conduct on whatever the pretext that is conducted or defended. Terrorism, national or international, equally is not a reason to sanction torture, directly or indirectly. If the proposed Counter-Terrorism Act, repealing the PTA, preserves the ‘admissibility of confessions in law courts made to a police officer in custody,’ there is a great possibility for the torture to continue. If a suspected ‘terrorist’ in custody would wish to make a voluntary confession, he or she could be immediately brought before a Magistrate. 

This would not mean that the correction of the proposed legislation on that matter alone would suffice to eliminate torture in custody that is allegedly extensively practiced in Sri Lanka. However, that is one measure among others, to make the Sri Lankan law enforcement system more humane and civilized.

Other measures could be (1) strict discipline, (2) awareness, education and training, (3) swift punishing of the perpetrators, (4) close monitoring by the National Human Rights Commission and (5) clear condemnation of torture by such government leaders like the President, the Prime Minister, the Minister of Justice and the Minister of Law and Order. The latter should not be just ritualistic, but genuine. It would be good if the leaders of the opposition also do so, including the Joint Opposition (JO). 

File photo| Sri Lankan Tamil Torture Victim – Photo by Uvindu Kurukulasuriya

Rapporteur’s Report

The main purpose of the visit of the Special Rapporteur on human rights promotion and countering terrorism, has been, as the UN office in Colombo has stated, to assess the progress Sri Lanka has achieved in its ‘laws, policies and practices in the fight against terrorism, as measured against international human rights law.’ In this respect, his Report has highlighted two main matters that hardly any sensible person can disagree: (1) the apparent prevalence of torture in the security establishment, irrespective of the governmental change or many declarations and commitments given, and (2) the inadmissibility of confessions under police custody for convictions, in the proposed Counter-Terrorism Act, among other matters.

It is mainly on the second matter that there had been a ‘confrontation’ between the Minister of Justice and the Special Rapporteur (SR).   

There are other matters that the SR has opted to comment on, like the non-prosecution of those members of the armed forces who have ‘allegedly’ committed gross human rights violations during the war and thereafter. In addition, there are general comments on reconciliation, peace and the vulnerability of the Tamil community, and those comments are undoubtedly his prerogatives in presenting such a report, as all are relevant to gather, as he says, ‘the picture as a whole.’    

Questionable Pronouncements

On his reportage of torture, any unbiased questions could be on (1) whether his ‘facts’ are completely accurate, (2) has he got the right sources to ascertain them and (3) whether the ‘deterministic’ language that he has used would help or hinder the country on the path of reconciliation, accountability and peace. It should be noted that his report goes as the ‘Preliminary Findings of the Visit to Sri Lanka’ and that is the title of the Report.

Let us first look at what he has reported on the situation of torture. Two pronouncements are quite questionable as ‘findings.’

1. “Entire communities have been stigmatised and targeted for harassment and arbitrary arrest and detention, and any person suspected of association, however indirect, with the LTTE remains at immediate risk of detention and torture.”

2. “In Sri Lanka, however, such practices are very deeply ingrained in the security sector and all of the evidence points to the conclusion that the use of torture has been, and remains today, endemic and routine, for those arrested and detained on national security grounds.”

His use of the phrases ‘entire communities’ and ‘remains at immediate risk of detention and torture’ in the first pronouncement is quite questionable. He talks not about the past, but about the present as well. The second pronouncement is entirely questionable as ‘findings’ and although he says, ‘all of the evidence points to the conclusion,’ he has not given any concreate evidence in my observation.

Another questionable part of his report is the ‘brutal methods of torture’ that he reports on the basis of what he heard from some detainees, as ‘findings,’ without proper corroboration. This part would extremely damage the country’s image as a reliable state which can handle law enforcement, at present and in the future.    

The Sources of Questionable Evidence

SR’s visit has been from 10 July to 14 July, and that means only five days, on a very liberal estimation, if the arrival and departure are not included.   

His itinerary has been quite busy. His meetings have included 5 Ministers including the PM; 14 senior most officials including the Secretary to the President and Secretary of Defence; 4 Judges including the Chief Justice, and 3 Commissioners of Independent Commissions. That is on the official side, while the judges and the commissioners are quite independent.

The Report also notes that “He visited New Magazine Prison in Colombo and the prison in Anuradhapura, and was given an opportunity to meet privately with detainees accused under the Prevention of Terrorism Act, as well as to observe the impoverished conditions in which some of them were detained.” It further sates, “He also met with their lawyers and with their families, as well as with other individuals affected by the operation of counter-terrorism legislation and policies in Sri Lanka.” No numbers are given. “Finally, he met with the Chair and one of the Commissioners of the National Human Rights Commission, as well as representatives of civil society.”

It is possible that he obtained information about the ‘continuous torture’ from the latter sources, although he has not revealed the sources which might be his prerogative. Whenever he gives some figures those are in percentages and not numbers. For example, the Report says, “In this context, the Special Rapporteur was extremely concerned to learn that 80 per cent of those most recently arrested under the PTA in late 2016 complained of torture and physical ill-treatment following their arrest, in cases which were later dealt with under ordinary criminal law.” 

As a person interested in (if not committed to) human rights, I would like to know at least approximate figures. How many were arrested under the PTA in late 2016, and how many have been tortured. If they were tortured, why their lawyers whom the SR have met, as reported, did not file fundamental rights cases under the present Constitution? Article 11 of the Constitution very clearly stipulates, “No Person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The Special Rapporteur has not mentioned about this constitutional provision at all.

Although the SR has mentioned the appointment of a ‘Committee to Eradicate Torture by the Police’ in July 2016 (not late 2016!), there is no indication that he has ever met with that committee at all. That is one source he should have obtained information about the situation without completely depending on other sources. National Human Rights Commission also has responsibilities in dealing with the situation with or without any complaints made before the Commission. I am not at all saying that torture is non-existent in Sri Lanka, but to deal with the existing situation, more reliable, unbiased and more measured information are necessary.     

Reported Confrontation

On the second matter that I have taken up in this article, namely the question of inadmissibility of confessions under police custody for convictions, in the proposed Counter-Terrorism Act, there cannot be any doubt that the SR is correct in principle. It is on this matter, among others, that there had been an altercation between the Minister of Justice and the Special Rapporteur as reported in many newspapers (The Island and Daily Mirror, 15 July). Or is it more correct to say that it was an outburst on the part of the Minister, and the SR was ‘somewhat taken aback’? This is according to the initial Island report on 14 July. 

When the Daily Mirror contacted the Minister (15 July), his explanation was that “Mr. Emmerson didn’t have any diplomatic qualities, basic courtesy and that he displayed an-army-commander-like approach.” This may be or may not be correct. However, the Minister’s attitude or the way he has interacted also doesn’t appear that diplomatic or displaying statesmanship. The following is what was reported in the Daily Mirror. 

“He said the Special Rapporteur (SR) questioned him about admissibility of suspects and detainees’ confessions in Sri Lankan legal system. I reminded him that confessions are admissible in UK as well and therefore, invited him to repeal their laws first.”

When matters are discussed in respect of Sri Lanka, with a representative of the UN, or for that matter even a representative of another country, it is not appropriate to counter attack that person accusing that person’s country. On the matter, particularly pertaining to the proposed Counter -Terrorism Act, the following is what appears in the SR’s Report and it is in principle correct.

“In a country with such a grave and widespread problem of torture and ill-treatment in custody, the only means by which counter-terrorism legislation could conform to international human rights standards would be the prohibition altogether of the use of confessions made to the police.”

Although the wording, intentionally or not, might counter the argument of the Minister of Justice, or would imply that UK is superior to Sri Lanka, at least in respect of torture, that does not matter since the purpose in Sri Lanka should be to correct the situation. The above also would not, however, exclude the possibility of a terror suspect making a voluntary confession before a Magistrate. That is my position. This is something that Sri Lanka could incorporate instead of allowing confessions before the police. Because in terrorist investigations, there are possibilities that the confessions that suspects make would be useful for his or her case, or for the terrorism investigations in general.

What is Unfortunate? 

Related to the above confrontation or not, as the Special rapporteur has stated, “I am pleased to be able to announce today that the Government has undertaken to engage in a process of constructive dialogue with my mandate in an effort to improve the draft legislation before it is placed before Parliament.” This is the very proposed legislation that he reported that there had been no proper ‘ministerial, parliamentary or public consultation.’ He in addition particularly mentioned that “Indeed, even the Human Rights Commission has not been informed or consulted on the draft framework.” As it implies, now the main consultation on the proposed legislation would be with the Special Rapporteur’s ‘team in Geneva.’

It is normal in these matters that when some wants to unnecessarily confront; the others want to go ‘bending.’ They almost do this in competition. The larger truth is that on international matters, particularly when a country or diplomats want to tread ‘confrontational diplomacy,’ the result is always more and more international pressure or intervention. This should not be the case particularly in the field of human rights. But it is unfortunately the reality. One may denounce this as ‘imperialism’ or Western ‘intervention,’ but at the same time too much of ‘defensive postures’ or ‘confrontations’ can lead to natural suspicions.