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Indulging in Sunshine Stories and Taking Foolhardy Risks

Dec 12 2016 - If the thinking was that the risks of taking an intelligence chief as part of the Government delegation to brief the United Nations Committee against Torture (UNCAT) recently would be offset as a result of sunshine stories spun by the Government’s policy propagandists living in cloud cuckoo land, then a rude shock was administered this week.

The drama was completely unnecessary

This came in the form of a sharp reprimand issued by the UNCAT using less than the normal diplomatic language than is wont in responding to Sri Lanka’s failure to meet state party obligations under the Convention against Torture. The Committee professed itself ‘alarmed by the presence of the Chief of National Intelligence, Sisira Mendis, as part of the Sri Lankan delegation, since he was the Deputy Inspector General of the Criminal Investigations Department (CID) from March 2008 to June 2009.’

This was in the background of allegations of torture being leveled against officers of the CID during that period by detainees kept in the premises. The Committee proclaimed its ‘deep regret that neither Mr. Mendis nor any other member of the delegation provided information in response to the many specific questions raised.’

From any sensible standpoint, this drama was completely unnecessary. It beggars the imagination as to why this provocation occurred at all in the first instance. Was the Government so woefully ignorant and so bereft of representatives that it had to include an official whose very presence was bound to raise red flags? Or was it that it was so arrogant that it thought that no challenge would come in the first instance? In either respect, the conclusion was absurdly wrong. It put the country into an impossible position of having to defend itself against the indefensible.

Long list of concerns
The Committee’s concerns were made against a background of the State’s failure to perform. While acknowledging some advances on the ground after the change of political power last year, the Committee drew up a long list of pending issues. Heading this list was the finding that torture during law enforcement investigations remained routine in Sri Lanka. The focus was on practical issues rather than esoteric matters of law which were unsuccessfully attempted to be used by the Government representatives as proverbial red herrings.

Indeed, two emblematic cases illustrate persistent concerns pointed to by the Committee very well even though these were not specifically raised before the jurists as such. The first of these instances concerns a torture case of a teenager way back in 2003. This was a case of mistaken identity as much as in many other such instances painfully symbolized in the well known case of Gerald Perera an employee of the Colombo dockyard.

Perera was peacefully living his life until the police arrested him mistakenly when searching for a known criminal going by that same name and tortured him to the point of renal failure. He succeeded in the Supreme Court when an outraged Bench awarded him compensation but later, was killed by the very same torturers days before he was due to give evidence in the criminal trial under Sri Lanka’s Convention against Torture (CAT) Act.

Justice denied by laws’ delays
Here too, the tortured teenager living in a remote village had testified to officers of the Saliyawewa Police Station compelling him to sit on an ant hill for the alleged petty crime of stealing a necklace. He was thereafter hung from a beam with his hands tied behind his back. If that was not bad enough, the responsible police officers identified the real culprit the following day and tendered an apology to the teenager and his family. The Attorney General (AG) then filed an indictment under the CAT Act against the officer in charge (OIC) of the police station and a ‘grama arakshaka niladhari.’

This was a notable instance where the AG found it fit to indict the OIC in the wake of earlier refusals to do so in response to which judicial queries had been raised in Gerald Perera’s case. However, the case was concluded in the High Court recently with numerous delays and with six trial judges hearing segments of the testimony with no continuity. In all, the matter had taken virtually thirteen years to conclude with the judge on record finding that torture had been proved but that the identity of the accused as culpable in terms of the law had not been sufficiently established on the evidence.

Activists monitoring the case however contend that the identification of the accused was sufficiently established on the record by prosecution witnesses and have appealed to the Attorney General to go against the acquittal in the appeal court. The larger point here is that, when a torture trial takes so long to hear, what possibility could there be of a positive outcome in the case?

Use of detention to terrorise
The second instance which is relevant in this discussion is last month’s finding of another juristic body of the United Nations, this time the UN Human Rights Committee (UNHRC) which considered the torture and brutal interrogation in Colombo of a visiting Canadian citizen of Tamil ethnicity, Roy Samanatham who had been arrested in 2007 under the emergency law on flimsy charges of acting in a manner prejudicial to national security upon being found to be in possession of 600 mobile phones.

His protests that these were items that he had imported from Singapore for a friend’s business and that he was visiting Sri Lanka to carry out his marriage were to no avail. Unsurprisingly the Committee found a violation of Covenant rights and asked the state party to provide redress by locating and prosecuting those responsible for Samathanam’s torture.

It was observed that the reasons for his arrest had not been given, he had not been detained on lawful grounds, he was not given the opportunity to challenge the lawfulness of his detention, that he was brought to a judge after one year of being detained, in or about September 2008 and that during this period he was held in detention without charges.

Common struggle for accountability
In sum, the UNCAT’s recent findings reflect these same striking patterns of impunity, regardless of whether it occurs in what part of the country or whether it targets individuals of a particular ethnicity. That fact may be remembered as driving what must be a common struggle to restore accountability in law enforcement.

This story was originally published by The Sunday Times, Sri Lanka

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