An X-ray of the Sri Lankan policing system & torture of the poor Editors Basil Fernando Shyamali Puvimanasinghe Asian Human Rights Commission Asian Human Rights Commission 2005 ISBN 962-8314-25-4 Published by Asian Human Rights Commission (AHRC) 19th Floor, Go-Up Commercial Building 998 Canton Road, Mongkok, Kowloon Hong Kong, China Telephone: +(852) 2698-6339 Fax: +(852) 2698-6367 E-mail: [email protected] Web: www.ahrchk.net September 2005 Printed by Clear-Cut Publishing and Printing Co. B1, 15/F, Fortune Factory Building 40, Lee Chung Street, Chai Wan, Hong Kong Table of Contents Preamble : Three Reports on Police Torture ................................................ 1 Introduction ......................................................................................................... 5 Chapter 1 : Towards Eliminating Crime and Criminal links within the Policing System .................................................................... 19 Chapter 2 : Kadirgamar Killing Highlights Police Crisis ....................... 24 Chapter 3 : Women Speak Out: Interviews with Four Women ............ 28 Chapter 4: Equal access to Justice: Where Should it Begin to Ensure Human Rights? ............................................................ 52 Chapter 5 : Gerard Perera: One Man’s Courageous Fight for Justice .......................................................................................................... 60 Chapter 6 : Calling for an Inquiry to Probe into the Security Lapses that Resulted in the Assassination of Judge Ambepitiya .................................................................................... 66 Chapter 7 : Case Reports ................................................................................ 69 Chapter 8 : The Sri Lankan Police: A Historical Perspective ................ 156 Chapter 9 : Tales of two Sri Lankan Massacres: The relevance of Embilipitiya to Bindunuwewa .............................................. 164 Chapter 10 : The tussle between the Executive President and Public Authorities .................................................................................. 172 Chapter 11 : The 1978 Constitution: Its Foundation is Flawed ............ 181 Chapter 12 : Paranoia of Regimes in Power ............................................... 193 Chapter 13 : Delays in Adjudication ........................................................... 199 Chapter 14 : Absence of Witness Protection .............................................. 213 Chapter 15 : Collapse of Command Responsibility ................................. 240 Chapter 16 : Absence of Forensic Facilities ................................................ 255 Chapter 17 : A Street Movement for Justice ................................................ 273 Chapter 18 : A question and answer from the European Commission on Human Rights in Sri Lanka ............................................. 277 Annex One : A sample of AHRC correspondence with local and international authorities ......................................................... 280 Annex Two : Janasansadaya responses to CAT ........................................ 303 Three Reports on Police Torture 1 PREAMBLE Three Reports on Police Torture This is the third report produced on police torture and other abuses in Sri Lanka by the Asian Human Rights Commission (AHRC) and its sister organization, the Asian Legal Resource Centre (ALRC). The first report entitled Special Report: Torture committed by the police in Sri Lanka was published in the ALRC’s bi-monthly publication article 2, vol. 1, no. 4 in August 2002. The second report entitled Second Special Report: Torture and the collapse of policing in Sri Lanka was published in the February 2004 edition of article 2, vol. 3, no. 1. Both of these may be found online at www.article2.org. They were widely circulated both in Sri Lanka and elsewhere. The reports were also submitted to all relevant state agencies in Sri Lanka as well as to relevant UN and other international agencies. Together, these three reports present a significant number of cases establishing a pattern of systematic torture taking place at police stations and during routine criminal investigations throughout Sri Lanka. The cases are more than sufficient for a serious theoretical study into the nature of policing in Sri Lanka and also on the widespread practice of torture at police stations. That these reports have been shared with all concerned state authorities and have been well publicised within and outside the country supports the veracity of the contents. Furthemore, certain UN agencies, including the UN Special Rapporteur against Torture, have taken up many of these cases with the Sri Lankan government; the Rapporteur has reported on such correspondence in his reports to the UN Commission on Human Rights. All three publications have included articles analysing the issue of police torture from different angles. Many of these articles have been separately published both locally and internationally, and have never been challenged. 2 Three Reports on Police Torture In fact, in discussions with various state authorities on several occasions the contribution of these articles has been appreciated. The factual material and analyses presented in these reports can give rise to serious studies in many fields such as political science, constitutional studies and sociological studies. The reports may even help to initiate new approaches to the study of Sri Lanka’s political, social and cultural problems. Such studies are very much needed, if only to prevent the current shallow discussions that take place. The insights gained from the study of one of the primary institutions in the country—the police—can shed light on most other problems in Sri Lanka. In presenting this material for research, a simple fact about theory that is often forgotten in theoretical discussions on human rights must be stressed. In the words of Carl G. Jung, Since self-knowledge is a matter of getting to know the individual facts, theories help very little in this respect. For the more a theory lays claim to universal validity, the less capable it is of doing justice to the individual facts. Any theory based on experience is necessarily statistical; that is to say, it formulates an ideal average which abolishes all exceptions at either end of the scale and replaces them by an abstract mean. This mean is quite valid, though it need not necessarily occur in reality. Despite this it figures in the theory as an unassailable fundamental fact. The exceptions at either extreme, though equally factual, do not appear in the final result at all, since they cancel each other out. If, for instance, I determine the weight of each stone in a bed of pebbles and get an average weight of 145 grams, this tells me very little about the real nature of the pebbles. Anyone who thought, on the basis of these findings, that he could pick up a pebble of 145 grams at the first try would be in for a serious disappointment. Indeed, it might well happen that however long he searched he would not find a single pebble weighing exactly 145 grams. The statistical method shows the facts in the light of the ideal average but does not give us a picture of their empirical reality. While reflecting an indisputable aspect of reality, it can falsify the actual truth in a most Three Reports on Police Torture 3 misleading way. This is particularly true of theories which are based on statistics. The distinctive thing about real facts, however, is their individuality. Not to put too fine a point on it, one could say that the real picture consists of nothing but exceptions to the rule, and that, in consequence, absolute reality has predominantly the character of irregularity. Within global human rights discourse the ‘ideal average’ that is often used is the experience of economically and politically more developed countries. However, these experiences cannot facilitate an understanding of harsh realities in other countries. For instance, how do the ‘ideal average’ policeman, prosecutor, judge or government compare with their counterparts described in these three reports on Sri Lanka? Should this material be dismissed because the experiences described are different to the theoretical ideal average? Or, should the reality described here be taken as a challenge, indicating the need for greater global understanding and cooperation? The purpose of these reports is to generate discussions on policy development, which is greatly needed to address the social instability and insecurity prevalent in Sri Lanka. At present such discussions are largely based on political doctrines without being supported by any serious studies. This merely serves to confuse the issues and contributes to the encouragement of various forms of violence. The dominant discussion within the country during the last few years has in fact legitimized the use of violence by the state, particularly the extrajudicial killing of alleged ‘criminals’ or ‘anti-social’ elements. It is also important to bring a more rational discourse on Sri Lankan problems into the international discourse regarding development theories and conflict resolution studies. All three of these reports make clear that Sri Lanka cannot make headway towards economic and social development without resolving the colossal crisis faced by its law enforcement agencies. This is also true of conflict resolution, including ethnic conflict. It should be noted that in the development of insurgencies both in the South and