COMMITTEE AGAINST TORTURE HEARS RESPONSE OF SRI LANKA

The Committee against Torture this afternoon heard the response of Sri Lanka to questions raised by Committee Experts on the combined third and fourth periodic reports of that country on how it is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Responding to a series of questions raised by the Committee members on Wednesday, 7 November, the delegation of Sri Lanka, which was led by Mohan Pieris, President’s Counsel and Senior Legal Advisor to the Cabinet on Legal Affairs, spoke at length on the legal provisions of Sri Lanka to prevent torture, particularly relating to police officers, use of confessions in courts, and the Prevention of Terrorism Act. The delegation talked about the monitoring activities of the National Human Rights Commission, particularly in conjunction with civil society, and categorically denied the existence of any secret detention facilities in Sri Lanka. It also gave information on specific cases of human rights violations, alleged torture and harassment that were raised by the Committee, and also in reply to the allegations of serious sexual assault by Sri Lankan soldiers that were made by the UK TV broadcaster Channel 4. The delegation also spoke about plans to protect migrant workers, allegations of disappeared persons, and the issues surrounding the rehabilitation of former combatants in Sri Lanka.

The Committee will submit its conclusions and recommendations on the report of Germany at the end of the session on Friday, 25 November, 2011.

The delegation from Sri Lanka included representatives from the Cabinet of Ministers of Sri Lanka, the Attorney General’s Department, the Department of Police of Sri Lanka and the Permanent Mission of Sri Lanka to the United Nations Office at Geneva.

The Committee’s next public meeting will be at 10 a.m. on Thursday, 9 November when it will begin consideration of the initial report of Madagascar (CAT/C/MDG/1).

Response from the Delegation

Members of the delegation of Sri Lanka noted that there was a lot of suspicion over the treatment of detainees in police stations. Sri Lankan law provided that any statement or confession made to a police officer was inadmissible in law, unlike in English legal systems. Any statement or confession obtained under duress, threat or promise was also inadmissible.

An Expert had been correct in observing that confessions made under the Prevention of Terrorism Act were admissible, but 75 per cent of those confessions were rejected, one of the reasons that many cases against terrorists did not succeed. When a court received statements or confessions there was a presumption of voluntariness, and it was true that the burden was on the accused to show that the statement was obtained involuntarily or under coercion. However the burden was a low one; it did not require proof beyond reasonable doubt or even on a balance of probability. In one example a suspect told the court he had seen a police officer’s shadow while making his statement, so the court rejected it.

Any person arrested should by law be informed of the reason for the arrest. The delegation could not say whether a police officer would or would not abide by the law, but in most cases it was complied with as it was easy for a police officer to do so.

Concerning the right of a detainee to have access to a lawyer: as any statement made to a police officer was inadmissible in court, what was the use of having a lawyer present at that time? There was a low rate of convictions in Sri Lanka exactly because statements made to police officers were inadmissible. The road ahead for Sri Lanka on solving this problem involved putting in place a duty attorney scheme, as seen in England. The proposal was currently being studied by a committee, in recognition of the complaint that persons were subject to coercion in police stations. A delegate said that it was his dream that sooner or later that would be implemented, as Sri Lanka moved out from the shackles of old English law. A related matter was that there was no right for a lawyer to be present in a police station. On 11 June 2009, the Inspector General of the Police issued a circular regarding the conduct of police officers with lawyers, which had made marked improvement in police relations with the Bar.

Regarding the availability of Tamil-speaking interpreters in courts, the delegation confirmed that no trial had ever commenced when an interpreter had not been available, particularly if one of the parties was a foreign national. There was a dearth of interpreters, and capacity building was necessary. The reason was because an older generation of tri-lingual interpreters had passed on, and many younger persons were not tri-lingual. Furthermore, where possible the judge spoke Tamil and even came from the Tamil community, to ensure a fair trial.

The monitoring activities of the National Human Rights Commission could not be elaborated on beyond information given in the report, as it was an independent body. However, the delegation confirmed that, as of today, only 765 persons were under administrative detention orders, and were held at Bossa Detention centre. Facilities available to detainees included a monthly visit by magistrates, medical treatment from in-house doctors, weekly visits from family members who could come on any week day, recreational facilities and periodic visits from the International Committee of the Red Cross and the National Human Rights Commission. The National Human Rights Commission had the power to regularly inspect places of detention, and to make recommendations for improvements. The National Human Rights Commission was the body that gave other organizations permission to visit detention centres.

The delegation noted the Committee’s healthy interest in the ongoings of Sri Lankan police stations, and the Committee’s question about the Mount Laviniya Police Station where detainees had been held and allegedly tortured. A delegate said that he noted criticism, he had not known about it, but would follow-up the issue, which was a police irregularity.

In 2006 there were 60 complaints of ill treatment by police officers, in 2007 there were 48, in 2008 there were 102, in 2009 there were 67, in 2010 there were 103, and in 2011 there were 109. Of those cases, the numbers of cases still pending were 6 from 2006, 14 from 2007, 22 from 2008, 26 from 2009, 46 from 2010, and from 2011 there were 96; there were 50 cases of alleged torture pending from this year.

No police officer was allowed to be present when a suspect was examined by the Judicial Medical Officers. That was a carefully respected practice, guarded jealously by doctors. Judicial Medical Officers kept medical reports securely until they took them to a court to be considered for the trial.

The writ of habeas corpus was a very old legal mechanism, left from the English legal system. Habeas corpus was not very fashionable these days, as for example the human rights law governing the European Union went far beyond habeas corpus. However, habeas corpus was available in Sri Lanka, not only in the Court of Appeal in Colombo but in all High Courts.

The 150 Vavuniya cases were of beneficiaries going through a rehabilitation course whose parents filed writs of habeas corpus. Those persons did have an option not to go and take a rehabilitation course, but would instead have been charged and then jailed. The Government did not think that was an option that would promote reconciliation, especially after the 30 year conflict. Instead the Government opted to follow the route of restorative justice, and those persons all chose, in writing, to be rehabilitated. As a result there were currently only 689 persons in rehabilitation, from an original figure of 11,000.

The Working Group on Disappeared Persons identified Sri Lanka as having the largest number of disappeared persons in the world, but it was using data from the 1980s. That alarming figure of 5,000 disappeared persons, cited by the Working Group, included persons disappeared since the 1980s. The next of kin could request a death certificate after family members had been missing for one year; that was important as families needed to know what had happened to their loved ones, and the issuance of the death certificate would bring the whole episode to an end for them. If it was found the man was alive, there was legal provision for the annulment of the death certificate.

There were many questions about the Prevention of Terrorism Act, and it must be remembered that the Prevention of Terrorism Act could not be applied to just anybody. The Prevention of Terrorism Act offences were subject to two vital limitations, including that to be charged under it a person must have threatened a ‘specified person’, essentially authority figures and/or State property.

The age of consent in Sri Lanka was 16: any kind of ravishing of a young lady under the age of 16 was considered to be statutory rape. It was true that the minimum mandatory provisions could be restrictive, but in a recent rape case a judge got round that and did issue a longer sentence.

There were no unauthorized or secret detention centres in Sri Lanka. Poonthottam Educational College was one of the principal rehabilitation centres, not a secret detention facility. There were databases of detainees in every detention centre which were freely accessible by family members. However many detainees had said they did not want their information distributed to the media or to busybodies at any cost. The National Human Rights Commission also had a database, and anyone entitled to access it could make a request.

Regarding claims by Amnesty International on secret detention centres: once again, there were no secret detention centres in Sri Lanka. It was fashionable to say that there were, but there was no need for secret detention centres because there was no shortage of detention centres, including police stations.

Police officers had been indicted for over-zealous behaviour; 44 police officers were indicted between 2006 and 2011, and 20 were charged in magistrates courts, with a further three cases still under investigation. Complaints of enforced disappearances were trickling down to very small numbers, and numbers of complaints of torture were also going down; there were now complaints from 152 men and 26 women.

Concerning specific cases raised by the Committee, a delegate said he had been personally involved in the case of J.S. Tissainayagam. Mr. Tissainayagam personally wrote to the President asking for a pardon, saying he was remorseful for what he did. He had been convicted and sentenced, but his complicity in what he did was confirmed by his letter, which was sent through his lawyers. He did receive a pardon. The attorney Amitha Ariyarante, who claimed harassment, had so far not made any complaint, but the entire unit of police officers who dealt with Mr. Ariyarante had been subject to disciplinary procedures and transferred. The attack on the house of Mr. Welliamuna, a colleague of Mr. Kunanayakam, was very sad and the Government denounced it. Unfortunately the investigation was limited as there were no witnesses and no suspects.

The so-called ‘Black Cloak Lawyers’ were called ‘traitors to the country’ in an article on the Ministry of Defence website; but it was just linguistics, that over-enthusiastic publication had no real impact on the individuals.

The seven-year-old boy who was allegedly gunned down had nothing to do with the Convention against Torture. A group of persons were fleeing a crime scene, and were pursued by the police into a town, where there was a shoot-out. Unfortunately that little boy was hit by the gun fire. The police did not gun down a seven-year-old boy. It was just an unfortunate accident, and a very sad situation.

Government policy on accession to the Optional Protocol and the Rome Statute was that domestic laws were quite capable of dealing with all situations, and accession was not required.

Follow-Up Questions by Committee Experts

FELICE GAER, the Committee Expert who served as Rapporteur for the report of Sri Lanka, said that the delegation’s responses just hit the tip of the iceberg, and she was left with as many questions, if not more, than before. The Human Rights Action Plan was an admirable initiative, especially as it engaged civil society, and the things presented in it were very impressive. It covered issues such as prevention, monitoring, tracking torture, impunity, special protection for women and children, restitution for victims of torture and establishing the Convention. Should it be implemented, members of civil society and victims of torture would be very pleased. However, Ms. Gaer said she looked closely at the discussion but did not find a single reference to prosecution. The verbs used were ‘to train, strengthen, establish, create, assist’ etcetera. There were enough studies running to keep every lawyer in Sri Lanka busy. But there was no reference to investigating and prosecuting persons responsible for torture. States parties to the Convention were obliged to maintain prompt and impartial investigations whenever there were reasonable grounds to believe an act of torture had taken place – not just when a complaint had been made. Could the delegation comment on that central issue?

Would the State party publish a list of all persons in Government custody or detained? That included the 5,000 persons still missing, whose families had no idea where they were. The delegation may claim that publishing such a list was a privacy issue, but Ms. Gaer said it would clarify the whereabouts of those 5,000 persons. The delegation said that the secret detention facilities cited by Amnesty International did not exist. Would they undertake an impartial and independent investigation into allegations that secret detention facilities did exist?

There were concerns that allegations of sexual violence against women in Sri Lanka, at the end of the conflict, and done by the soldiers, had not been investigated. Furthermore in 2007, 114 members of a Sri Lankan battalion attached to the United Nations peacekeeping force in Haiti were accused of sexual exploitation of minors. One hundred and eight of those soldiers were repatriated to Sri Lanka on disciplinary grounds. The United Nations found that such acts were frequent, happened at night and those repatriated soldiers should be charged with rape. What charges were brought against those soldiers, where were the persons involved serving today, if at all?

The Committee asked about photo and video footage from the conflict depicting naked female bodies of women who had been members of the Liberation Tigers of Tamil Eelam (LTTE), which contained commentary from Sri Lankan soldiers that strongly inferred sexual violence had occurred before the women’s execution. The footage showed some bodies had mutilated sexual organs. That footage was published in a documentary by United Kingdom broadcaster Channel 4. Had any of those soldiers been prosecuted, suspended or even transferred? The Government may claim that the footage should not have been filmed in the first place, or published, but there should be an investigation.

The Black Cloak Lawyers group included the individual lawyer Srinath Perera, who was tortured at a police station and murdered by a police officer. The Supreme Court paid out the highest compensation ever given to Mr. Perera’s family. However nobody was prosecuted for those crimes and the police officer responsible was now reportedly working again as a police officer. Could the delegation please comment?

Had there been any investigation into the so-called ‘grease devils’ cases, when in one instance over 100 young men were forcibly taken from their homes in the town of Puttalam and beaten, denied medical treatment and detained.

Yesterday the delegation said they were “with the Committee against Torture 110 per cent”, but were they 110 per cent behind their civil society when it exposed human rights violations and acts of torture?

ALESSIO BRUNI, Committee Expert who served as Co-Rapporteur for the report of Sri Lanka, said a large amount of information received concerned legal provisions, and only a small amount was about what happened in practice in the country. There was no doubt that legal and administrative measures existed to combat torture, but the reality seemed to be very different. The amount of allegations, coming from the most reliable sources, including United Nations sources, was impossible to ignore and meant that one could not say there was a real ‘zero tolerance policy’ in Sri Lanka.

Mr. Bruni said he had visited quite a few police stations and prisons in Sri Lanka, in a different capacity, so he had a visual picture of what they were. He corrected a detail about the Mount Laviniya Police Station, and said that he wanted to know what had been done.

He asked for clarification on whether statements made to the police were inadmissible in court, as if true that would be very frustrating to police who sometimes detained a person for 18 months of interrogation.

Mr. Bruni said it sounded like the rehabilitation camps were actually detention camps, and that saying former combatants were at ‘rehabilitation camps’ on a voluntary basis – as an option to standing trial – was mis-representing the term ‘voluntary’.

An Expert asked whether there was specific legislation for the treatment of stateless persons, and also what protection was given to migrant workers, particularly women working as domestic servants in the Gulf States. Those persons were often highly vulnerable and worked as indentured servants.

A Committee Expert observed that the delegation argued passionately that there was no need for a lawyer at a police station; however, a person should be able to access a lawyer from the outset to protect him or her from other forms of torture or ill-treatment.

Response by the Delegation

Responding to these questions and comments, a delegate said he would not be able to respond to the issue of Haiti, as there had been no pre-warning of it, or mention of it in yesterday’s questions.

Persons undergoing rehabilitation could file complaints about their treatment, and there was a huge window of opportunity for them to claim damages through the civil courts.

Sexual violence by the army complaints were being pursued within military law. There was still opportunity for new matters to be investigated and tried. However it was not fair to base the entire discussion on uncorroborated and unverified reports. Referring specifically to the Channel 4 report, a delegate said he had been associated with it from its very inception but due to time constraints he was not going to critique it now. He asked the Committee to bear in mind that it was convenient for an ex-combatant seeking greener pastures to exploit, and tell foreign jurisdictions stories of torture, in order to gain asylum. The Government had pursued a scheme of rehabilitation for even the worst terrorists, or ex-combatants, with a true aim of reconciliation.

The rights of migrant workers were being very seriously addressed, as there had been terrible situations in some foreign countries where Sri Lankan migrant workers were working. The Government was considering whether it was time to stop sending Sri Lankan female workers out to work in other countries at all, simply because of the conditions they often lived in. One thematic area in the national action plan was migrant workers, as while those poor men and women brought a lot of money into Sri Lanka they were a valuable asset to the country and needed to be looked after.

The explanation of legal provisions was to put things into context, but short of having a policeman here with the delegation, it was difficult to show the Committee all of the good and practical things that were done every day in Sri Lanka.

Around 600,000 persons were arrested every year, and there were around 400 allegations of torture annually. The Government was trying to make the Convention against Torture effective, but conceded that as it was dealing with human beings, and torture was something that was done clandestinely, behind closed doors, the reality may be different.

Until 1983 Sri Lanka never knew what terrorism was, until then the laws of the land worked perfectly. It was right to criticise the inadmissibility of statements to police officers. The Prevention of Terrorism Act was brought in because national law could not cope with terrorism. Now Sri Lanka has moved into a post-conflict phase, and was dealing with ex-combatants.


For use of the information media; not an official record

CAT11/038E