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
?????????????????????????????????????????????????Friday, December 15, 2017
Govt.’s accession to Optional Protocol of Convention against Torture: Implications and dangers
By C. A. Chandraprema-December 14, 2017, 9:45 pm
The decision to accede to the Optional Protocol of the International
Convention against Torture, and other Cruel, Inhuman or Degrading
Treatment or Punishment was taken by the yahapalana Cabinet on 14
November 2017. The decision was implemented soon afterward on 5 December
and it will come into force from 4 January 2018. Despite the gross
inefficiency that this government has demonstrated in the day-to-day
running of this country, they have demonstrated incredible in efficiency
in implementing anything that gives the Western powers a handle over
Sri Lanka’s internal affairs. The latest move made in this regard is
acceding to the Optional Protocol of the Convention against Torture. In
order to understand why acceding to the Optional Protocol of the
Convention against Torture is inimical to Sri Lanka one has to
understand what the Convention against Torture is about.
Bottom of form
The International Convention against Torture has the undeniably laudable
objective of preventing torture which is defined as "any act by which
severe pain or suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as obtaining from him
information or a confession or punishing him for an act he has committed
or is suspected of having committed." Who can object to such a laudable
objective? However, the Convention against Torture restricts its
application only to State actors and to public and military officials.
No non state actors are affected by its provisions. This is a serious
limitation in a country like Sri Lanka, which has had terrorists groups
controlling parts of the country and significant parts of the
population. The Convention against Torture has the effect of acting as a
stricture on the armed forces while the terrorists were exempt from its
application.
In this era of terrorism one would think that the most effective way of
preventing torture would be to make the International Convention Against
Torture applicable to anybody who has another person in his power –
regardless of whether the person exercising power is a state actor or
not. Ideally, the Convention Against Torture should apply even to a
plane hijacker who has people in his power even for a few hours. What
happens because of lopsided laws like the Convention Against Torture is
that the armed forces of the State will get hauled up for the graver
offence of torture while a terrorist who does the same or worse will get
hauled up if at all, only for a lesser offence like ‘assault’ and that
too only in instances when crude physical torture has been used.
Physical torture that leaves no marks or psychological torture by
terrorists will never even make it to a charge sheet.
Under the provisions of the Convention against Torture, every member
state is required to make torture a separate criminal office which will
apply only to the police and armed forces and other forces of the state.
To make things worse, the Convention specifically states that "No
exceptional circumstances whatsoever, whether a state of war or a threat
of war, internal political instability or any other public emergency,
may be cited in mitigation of any violations. Furthermore, the
provisions of the Convention against Torture give foreign countries that
are member states of the Convention the power to arrest former or
serving state officers suspected of committing torture in any other
member state. What this means is that officers of the state will be
hunted not only by their own government but the governments of foreign
countries as well whereas terrorists will not be hunted either in Sri
Lanka or overseas for committing torture.
Torture is never used
by terrorists
Acolytes of Pottu Amman can never be brought to justice under the
provisions of the Convention against Torture. Sri Lanka acceded to the
Convention against Torture in January 1994 at the tail end of the UNP
government. Sri Lanka should never have acceded to this Convention at
that moment in time. However, the unfortunate reality is that most
nations sign these international conventions without thinking through
their implications properly. The most celebrated instance in this regard
is the 1998 arrest of the former Chilean leader Augusto Pinochet under
the provisions of the Convention against Torture to which Chile had
acceded to in 1987 when he was in power.
The substantive requirements of the Convention against Torture are
fairly pedestrian and are matters that any civilised society and
especially a democracy will practice as a matter of course without
having to enter into an international convention. The parties to this
Convention are required to ensure that all civil and military public
officials having custody of persons be educated about the prohibition on
torture, and to keep under systematic review interrogation rules, and
practices as well as arrangements for the custody and treatment of
persons subjected to any arrest, detention or imprisonment, to
investigate any complaints of torture, and to ensure that the
complainants are not intimidated and that the legal system provides
redress to victims of torture as an enforceable right and finally that
any statement which is established to have been made as a result of
torture shall not be invoked as evidence in legal proceedings. One could
loosely say that such provisions were in operation in the Sri Lankan
legal system one way or another even before the Convention against
Torture was signed. The Convention against Torture also envisages the
setting up of a Committee against Torture made up of representatives of
member states to investigate allegations of torture in member states.
All member states are required to co-operate in such investigations. The
Committee may designate one or more of its members to make a
confidential inquiry and to report back to the Committee and this may
entail a visit to the country concerned. Once the Committee has
completed the inquiry, their findings and their observations will be
submitted to the state party concerned. The proceedings will be
confidential and the Committee will include a summary of its findings in
their annual report only with the agreement of the member state
concerned.
There are two important provisions in the Convention against Torture to
which Sri Lanka has mercifully not acceded. A member state has the
option of declaring that it recognizes the competence of the Committee
against Torture to receive and consider communications by one member
state that another member state is not fulfilling its obligations under
this Convention. Fortunately, Sri Lanka had not acceded to this
provision which would have given foreign countries a direct handle over
Sri Lanka’s internal affairs. Acceding to this particular provision
would have enabled a foreign state to write directly to SL saying that
there are allegations that SL is not fulfilling its obligations under
this Convention and SL will be obliged to explain things to that foreign
country. If the foreign country is not satisfied with the answer
provided by SL, it can take the matter before the Committee against
Torture and the Committee in turn can set up an ad hoc conciliation
commission to resolve the matter.
Any dispute between two or more member states concerning the
interpretation or application of this Convention which cannot be settled
through negotiation shall, be submitted to arbitration. If the
arbitration does not work the next step is to take it to the
International Court of Justice!
Hogtying law enforcement
agencies
One can only imagine what would have happened between 1994 and 2009 if
SL had acceded to this provision. There is a similar provision where a
member state has the option to declare that it recognizes the competence
of the Committee to receive and consider communications from
individuals in member states who claim to be victims of torture. In such
instances the member state would have to submit an explanation to the
Committee and the Committee in turn can convey its views to the member
state concerned. Though there is a proviso saying that the Committee can
consider such communications only if the individual concerned has
exhausted all available domestic remedies, there was an exception to
this rule which said that the Committee can consider such applications
if the remedies are ‘unreasonably prolonged’ or ‘unlikely to bring
effective relief to the person concerned’. Had Sri Lanka acceded to this
provision in 1994, the LTTE would have been able to bind the armed
forces hand and foot with complaints to the Committee against Torture.
The potential negative effects of the Convention Against Torture were
mitigated to some extent by the fact that the SL government did not make
the two declarations mentioned above which would have enabled other
countries to sit in judgement over Sri Lanka and for individuals in Sri
Lanka to be able to make complaints directly to the Committee Against
Torture. The enabling legislation passed at the end of 1994 to make the
provisions of the Convention against Torture applicable in Sri Lanka
were also more realistic than the Convention itself. Act No: 22 of 1994
made torture a separate non-bailable criminal offence punishable with a
prison sentence of between 7 to 10 years and a fine. Most importantly,
its application was not restricted to officers of the state but to
citizens of Sri Lanka and non-citizens who are within the jurisdiction
of Sri Lanka. The enabling Act also provided for the extradition of a
foreigner suspected of committing torture outside the jurisdiction of
Sri Lanka to his own country or another country asking for his
extradition etc. The question now is what the Optional Protocol to the
Convention against Torture to which Sri Lanka has just acceded requires
us to do. The primary objective of the Optional Protocol is to establish
a system of regular visits undertaken by independent international and
national bodies to places where people are deprived of their liberty, in
order to prevent torture and other cruel, inhuman or degrading
treatment. For this purpose, a Subcommittee of the Committee against
Torture is to be established. Each member state is also expected to set
up at the domestic level one or more national preventive mechanisms. The
members of the Subcommittee of the Committee against Torture will serve
not as representatives of their countries but in their individual
capacity to ensure independence. Members of this Subcommittee will visit
member states and make recommendations to the relevant governments.
They are also supposed to maintain direct, and if necessary
confidential, contact with the national preventive mechanisms and offer
them training and technical assistance.
Member states that accede to the Optional Protocol are expected to give
the Subcommittee access to places of detention and provide unrestricted
access to all information concerning the number of persons deprived of
their liberty and the places of detention and unrestricted access to all
information referring to the treatment of those persons as well as
their conditions of detention; as well as the opportunity to have
private interviews with the persons deprived of their liberty without
witnesses, as well as with any other person who the Subcommittee on
Prevention believes may supply relevant information. Furthermore, the
Subcommittee is to have the liberty to choose the places it wants to
visit and the persons it wants to interview. Objection to a visit to a
particular place of detention may be made only on urgent and compelling
grounds of national defence, public safety, natural disaster or serious
disorder in the place to be visited that temporarily prevent the
carrying out of such a visit.
Unrestricted access for foreign powers
The existence of a declared state of emergency as such shall not be
invoked by a State Party as a reason to object to a visit. No authority
or official shall order, apply, permit or tolerate any sanction against
any person or organization for having communicated to the Subcommittee
on Prevention or to its delegates any information, whether true or
false. The Subcommittee will communicate its recommendations and
observations confidentially to the State Party and, if relevant, to the
national preventive mechanism. If a member state refuses to cooperate
with the Subcommittee the Committee against Torture may, make a public
statement on the matter or publish it in the report of the Subcommittee
on Prevention.
The national mechanisms that are to be set up under the Optional
Protocol have to be granted functional independence and the necessary
resources by the member states. These national mechanisms are to have
unrestricted access to places of detention and information and exercise
all the powers the international Subcommittee is entitled to. Moreover,
the national mechanisms are to have the right to have unrestricted
contacts with the Subcommittee of the Committee on Torture, to send it
information and to meet with it and no sanctions can be applied to
anybody who provides information, whether true or false to the national
mechanism. Thus by acceding to this Optional Protocol, what we have done
is to agree to give a body functioning under the Office of the UN Human
Rights Commissioner unrestricted access to all places of detention in
Sri Lanka and to provide them with all such information regardless of
the situation prevailing in the country and to set up local mechanisms
which can maintain direct links with the international Subcommittee and
feed information to foreign parties without any restriction.
The question is whether we need foreign parties to be nosing around in
Sri Lanka and maintaining fifth columns in this country at this point in
time? The hasty accession to this Optional Protocol shows that if these
foreign powers are unable to get in through the front door, they will
enter through a window or even a chink in the roof. A special fund set
up within the Office of the High Commissioner on Human Rights of the UN
finances the activities of the Subcommittee of the Committee on Torture.
This special fund is financed through ‘voluntary contributions’ made by
governments, intergovernmental and non-governmental organizations.
Western governments provide funding to UN bodies that is tied to
particular projects. Needless to say the Sri Lankan project will receive
plenty of funds. This is the first physical intrusion into Sri Lanka
that the foreign powers have managed to make since the yahapalana
government came into power.
Previous attempts to bring in foreign judges, investigators and
prosecutors fell by the wayside due to stiff public opposition. The
attempt to use the Office of Missing Persons as an entry point also
failed because the provision that would have given the OMP unrestricted
power to enter into agreements with foreign parties was dropped also due
to public opposition. Now the government has signed this Optional
Protocol to the Convention against Torture to give their foreign masters
an opportunity to intervene directly in Sri Lanka.