A Brief Colonial History Of Ceylon(SriLanka)
Sri Lanka: One Island Two Nations
A Brief Colonial History Of Ceylon(SriLanka)
Sri Lanka: One Island Two Nations
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Thiranjala Weerasinghe sj.- One Island Two Nations
?????????????????????????????????????????????????Thursday, July 27, 2017
Sri Lanka: Issue of Torture, PTA and Special Rapporteur’s Report
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.
( July 25, 2017, Sydney, Sri Lanka Guardian) 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).
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.’
- “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.”
- “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.