Legal framework regarding torture:
On the Convention against torture:
Sri Lanka has ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, in 1993. A law relating to torture entitled the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Act, No. 22 of 1994 was passed in 1994. Five police officers in four separate cases have already been convicted under this Act. The country has also ratified the Optional Protocol of the International Convention on Civil and Political Rights, allowing individual complaints to be filed to the Human Rights Committee. The Human Rights Committee has decided many cases against Sri Lanka.
On the existing domestic law:
The Constitution of Sri Lanka recognises freedom against torture as a fundamental right. The Constitution provides, under Article 126 that any person whose right against torture is violated may petition the Supreme Court under its fundamental rights jurisdiction. Under the Constitution the court has the power to hear and determine such petitions and to declare if, in fact, the rights have been violated. The court also has the right to grant awards of compensation for torture. Literally hundreds of cases have been heard on this basis and there is a large body of cases decided by the Supreme Court of Sri Lanka on this issue. The courts have clearly held that torture is a non-derogable right and that even the worst criminal is entitled to freedom against torture. In these judgements the court has also made many directions to the police and other authorities to institute proper investigations into allegations of torture and to have proper monitoring mechanisms to prevent torture. However, these directives have not been respected by the government and the relevant authorities.
The CAT Act, Act No. 22 of 1994 makes torture and other cruel, inhuman or degrading treatment or punishment a criminal offence in Sri Lanka punishable with a mandatory sentence of seven years of rigorous imprisonment and a fine of Rs. 10,000/=. The offence is defined in terms of the definition of torture found in the convention. The definition has been also expanded by hundreds of judgements relating to fundamental rights in Sri Lanka. There have been many cases filed against police officers and others under the CAT Act. There are three instances in which the officers have been found guilty and sentenced according to the Act. However, in an overwhelming number of cases the perpetrators have been acquitted. The reason for acquittals is often either poor investigations or the attitudes of many judges who are more sympathetic to the police, unlike regarding the accused in other cases. There are also several appeals from the judgements of high courts on torture cases and the Court of Appeal has granted leave for such cases.
On compensation:
Under the fundamental rights jurisdiction the courts may grant compensation and there are a large number of cases in which this has been done. However, the judgements on compensation indicate that there are no clear guidelines on this matter. Often the compensation varies and the variation is not based on merit. There is a clear need to bring uniformity in the allocation of compensation which also takes into consideration the gravity of the offence. Often, compared to the gravity of the offence the compensation is not proportionate and often paltry sums are awarded. The awarding of such paltry sums can carry the wrong message to society as well as the law enforcement system.
On witness protection:
There is no witness protection law regarding any of the cases in Sri Lanka. A bill has been introduced, particularly due to international pressure; however, the bill has not been pursued in parliament. There seems to be a serious reluctance to the passing of a witness protection bill mainly due to political reasons which requires assurance of impunity for officials. Impunity for officials has been a marked feature in Sri Lanka for a long period of time. This has also come under heavy international criticism.
There are several instances in which torture victims that had cases before courts have been assassinated by policemen. Almost all victims face severe threats over a long period of time while these cases last.
The magnitude of the problem:
Torture is endemic in Sri Lanka is it practiced at every police station and detention centre including those kept under the Terrorism Investigating Unit. Torture is the mode by which crimes are investigated and this implies even investigations into many offences. Torture is often used to implicate innocent people particularly from low income backgrounds in cases where the police have filed to find the actual culprits in these cases. Torture is often accompanied with the filing of fabrication of charges.
There is a large body of documented cases of torture.
Available documentation on torture:
There is a large body of documentation available in print and websites regarding torture in Sri Lanka. The following are some:
An X-ray of the Sri Lankan policing system & torture of the poor - published by the Asian Human Rights Commission (321 pages)
A Baseline study on torture in Sri Lanka - published by the Asian Human Rights Commission (176 pages)
Recovering the authority of public institutions - published by the Asian Human Rights Commission (545 pages)
The rule of law in decline - a study on torture by Kishali Pinto-Jayawardena - published by the Rehabilitation and Research Centre for Torture Victims (RCT). (242 pages).
There are also many cases documented in the websites of the AHRC and the ALRC. There are also several volumes of Article 2 covering the issue of torture in Sri Lanka.
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