TORTURE: AN ENTRENCHED PART OF CRUEL, INHUMAN & DEGRADING LEGAL SYSTEMS AHRC TORTURE: AN ENTRENCHED PART OF CRUEL, INHUMAN & DEGRADING LEGAL SYSTEMS A study on the use of torture as a routine part of criminal investigations in developing countries; lessons from the situation in Sri Lanka Basil Fernando ASIAN HUMAN RIGHTS COMMISSION AND ASIAN LEGAL RESOURCE CENTRE TORTURE: AN ENTRENCHED PART OF CRUEL, INHUMAN & DEGRADING LEGAL SYSTEMS A study on the use of torture as a routine part of criminal investigations in developing countries; lessons from the situation in Sri Lanka Edited by Jessica Fernando and Junko Asano Print Version 978-962-8314-72-0 AHRC-PUB-001-2017 Cover design Jessica Fernando Published by Asian Human Rights Commission Ground Floor, 52 Princess Margaret Road Ho Man Tin, Kowloon Hong Kong SAR, China Tel: +(852) 2698 6339 Fax: +(852) 2698 6367 Web: www.humanrights.asia Printed by Clear-Cut Publishing and Printing Co. A1, 20/F, Fortune Factory Building 40 Lee Chung Street, Chai Wan Hong Kong DEDICATION This book is dedicated to the hope that a better understanding may emerge of the wrongs that people who live in countries with broken justice systems suffer, giving rise to a heightened level of concern and a drive to undo such wrongs through local and international strategies and actions, all to create environments where the life and liberties of people are protected. Contents v Contents FOREWORD ix INTRODUCTION 1 PART ONE 5 1. QUELLING MASS PROTESTS WITH EXTRAJUDICIAL KILLINGS 6 2. FATHER, MOTHER, AND SON KILLED IN RETALIATION FOR FILING A FUNDAMENTAL RIGHTS PETITION AGAINST FIVE POLICE OFFICERS 8 3. DESCENT INTO THE SELLING OF CHILDREN 11 4. UNHRC FINDS FAULT WITH THE POLICE, THE FORENSIC PATHOLOGIST, THE ATTORNEY GENERAL, AND THE SUPREME COURT 14 5. A CONVERSATION WITH THE PRIME MINISTER ON THE PERIODIC MASSACRES OF YOUTH SINCE 1971 20 6. PATTINI RAZEEK’S BODY BURIED WITHIN A HALF BUILT PRIVATE HOUSE 23 7. DELAYS IN ADJUDICATION AS A MANIFESTATION OF LEARNED HELPLESSNESS 26 8. INSTITUTIONS FOR THE ADMINISTRATION OF JUSTICE ARE FAR MORE IMPORTANT THAN THE MILITARY 29 9. THE RAPE VICTIM WHO GOT ONE HELL OF A JUSTICE 32 vi TORTURE: An entrenched part of cruel, inhuman & degrading legal systems 10. THE “JUSTICE SYSTEM” AS A THREAT TO DEMOCRACY AND THE RULE OF LAW 35 11. SMALL MIRACLES THAT CAN BE ACHIEVED THROUGH JUSTICE 40 12. TOWARDS AN EXPLANATION OF VIOLENCE, BASED ON THE FAILURES IN THE POLICING, PROSECUTORIAL, AND JUDICIAL INSTITUTIONS 42 PART TWO 45 1. THE GOVERNMENT’S DELAY IN DEALING WITH THE LAW’S DELAYS 51 2. DOUBLING THE NUMBER OF HIGH COURTS WILL DRASTICALLY REDUCE CRIMES 54 3. ATTORNEY GENERAL’S DEPARTMENT COMES UNDER SERIOUS PUBLIC SCRUTINY 58 4. TORTURE IS A COMMON PRACTICE IN SRI LANKA – UN SPECIAL RAPPORTEUR 65 5. THE ARREST OF FORMER D.I.G. ANURA SENNANAYAKE AND THE PROBLEM OF COMMAND RESPONSIBILITY 72 6. KONDAYA, RAISED TO THE STATUS OF MYSTERIOUS CRIMINAL 76 7. WHAT PODDALA JAYANTHA MEANS TO US 81 8. LETTER TO THE HRC-SL; REQUEST FOR SPECIAL ACTION REGARDING MS. M. K. MALANI – TORTURED, SEXUALLY ABUSED AND INCARCERATED UNDER FABRICATED CHARGES BY NAWALAPITIYA POLICE 84 9. LETTER TO THE ATTORNEY GENERAL REGARDING ACCEPTING APOLOGIES FOR HUMAN RIGHTS VIOLATIONS 91 Contents vii PART THREE 97 1. CONSEQUENCES OF LETTING A CRIMINAL JUSTICE SYSTEM PERISH 99 2. WHY INVESTIGATIONS INTO MASS GRAVES HAVE FAILED SO FAR 106 3. INABILITY TO MOURN - THE SRI LANKAN EXPERIENCE 115 4. PREVENTING THE IMPROPER USE OF FORCE & VIOLENCE 122 5. ABSURDITIES ARISING OUT OF DELAYS IN LITIGATION 139 6. A BASIC PROPOSAL TO STOP THE COLLAPSE OF THE CRIMINAL JUSTICE SYSTEM OF SRI LANKA 141 PART FOUR 145 1. SRI LANKA’S DYSFUNCTIONAL CRIMINAL JUSTICE SYSTEM AND THE CAUSES THEREOF 146 2. ALTERNATIVE REPORT TO THE COMMITTEE AGAINST TORTURE IN CONNECTION WITH THE 5TH PERIODIC REPORT ON SRI LANKA 196 3. A SUBMISSION FOLLOWING THE EXPERT CONSULTATION HELD IN WASHINGTON, 7-8 JULY 2016, ON INTERROGATIONS, INVESTIGATIONS, AND CUSTODIAL PRACTICES 211 APPENDIX 1: REPORT OF THE SPECIAL RAPPORTEUR ON TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT ON HIS MISSION TO SRI LANKA (2017) 221 viii TORTURE: An entrenched part of cruel, inhuman & degrading legal systems APPENDIX 2: REPORT OF THE SPECIAL RAPPORTEUR ON THE INDEPENDENCE OF JUDGES AND LAWYERS ON HER MISSION TO SRI LANKA (2017) 256 APPENDIX 3: A letter to THE PUBLIC from A RETIRED JUDGE (2017) 289 BIBLIOGRAPHY 294 Contents ix Foreword By Dr. Sunil Coorey1 (Attorney at law) Torture is a cancer that attacks the foundations of a democratic, just and orderly society. The prevalence of State-sponsored torture begets a fear psychosis in the general public. Freedom of thought and expression cannot exist if terror is instilled in the minds of the general public by State-sponsored terror. State-sponsored torture is a weapon to quash democracy and freedom in all its forms, and to usher in totalitarianism. As far as criminal justice is concerned, justice is always rooted in truth, and truth will not prevail amidst the practice of torture. Everyone has a limit beyond which torture cannot be endured, and the most innocent of people will confess to any crime when that limit of endurance is reached. To tolerate torture is to subvert criminal justice. The use of torture in criminal investigations is presently endemic in the Sri Lankan Police Force. Usually, it is the comparatively lower ranks in the police force who actually torture those who are suspected of crimes. However, if the higher ranks do not encourage it, at least they condone it. Torture is always dehumanizing for both the victim as well as the perpetrator. Nevertheless, for several reasons, torture has become entrenched in the Sri Lankan criminal justice system. 1 Dr Sunil F A Coorey is the author of the monumental work ‘Principles of. Administrative Law in Sri Lanka’, Vol I & II, and a leading lawyer in Sri Lanka. x TORTURE: An entrenched part of cruel, inhuman & degrading legal systems When the British introduced the general principles of their law of evidence into their colonies (including Sri Lanka, then Ceylon), they were careful to provide that (unlike in their own country) a confession to a crime made to a police officer, or a confession to a crime made while in the custody of the Police, was inadmissible in evidence when the person who made the confession was put on trial for the crime he had confessed to. This shows that even over a century ago, when the Evidence Ordinance was enacted by the British in Sri Lanka, the Government of the day distrusted the methods used by the Police in obtaining such statements. Police officers practice torture for different reasons. Sadism may not be a prominent cause. It often happens that a police officer whose duty it is to investigate a crime lacks proper training and knowledge of the correct and effective methods of detecting crime. He may lack the necessary equipment for his task. Nevertheless, he may be keen to “solve” the crime and to show his superiors that he is efficient and that he has found the “perpetrator” of the crime, so that he can be considered for promotion. In such situations, he will resort even to torture to impress his superiors and show them that he has successfully carried out his task, and that he has “solved” the crime (even though a confession from the “perpetrator” may not be admissible evidence in a court of law). The biggest obstacle to the eradication of the practice of torture by the Police is the apathy with which the State machinery as a whole, and those in the higher strata of society (including judges, lawyers and the comparatively well to do), look upon it. Somehow, the idea lurking at the back of their minds is that, after all, if one becomes a victim of a crime, it is the Police that one turns to in order to have the matter investigated and the perpetrators brought to book, and if the Police accomplish that task, there is no harm in their using torture on those suspected of the crime as part of their investigation. This old idea, not articulated very much now, still prevails with some. There also used to be an idea that a police officer worth his salt must be a man who is prepared to resort even to torture if he cannot otherwise get hold of a culprit. Foreword xi The eradication of police torture must therefore begin with a change of attitude to it on the part of judges, lawyers and the intelligentsia in general. The evils of torture, how it will subvert criminal justice, and where it will lead us, must be something we all come to realize. The endeavours made by Mr. Basil Fernando towards that end in Sri Lankan society during the last quarter of a century have no parallel. Almost single-handedly, he has waged an all out war on the practice of torture in Sri Lanka and in other Asian countries. His endeavours are writ large in his numerous publications, and have been well-articulated in the innumerable seminars, workshops and discussions he has organized or attended. This book is yet another important publication of Mr. Basil Fernando, and everyone interested in upholding human rights and freedom will find it of value. xii TORTURE: An entrenched part of cruel, inhuman & degrading legal systems Contents 1 Introduction This book consists of several essays written over a long period of time. They all converge on the problem of impunity and the impact it has on individuals and the legal system as a whole.