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| Sunday, 27 June 2004 |
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Committed to eradicating torture by Prof. Ravindra Fernando, Professor of Forensic Medicine & Toxicology, and Director, Centre for the Study of Human Rights University of Colombo, Sri Lanka.
Though inflicted by the King's men, and deemed "lawful", they were inhuman, cruel and degrading. Robert Knox has vividly described this with diagrams the methods of punishments in the Sinhala Kingdom. After the British captured Kandy, the Convention signed by the British Governor and the Principal Chiefs of Kandyan Provinces expressly prohibited the practice of torture. Section 6 of the Kandyan Convention states that "Every species of bodily torture and mutilation and limb, member or organ are prohibited and abolished". After the horrifying and inhuman acts and experiences of the second world war, the United Nations adopted the Universal Declaration of Human Rights in 1948. Article 5 of the declaration states that, "No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment". Although international and humanitarian law consistently prohibit torture it is practised in more than half the countries in the world. The World Medical Association in 1975 declared, "Wherever it appears, torture constitutes a serious threat to human health and dignity and to freedom of thought, expression and action". The current Penal Code and the Criminal Procedure Code of Sri Lanka has provided several clauses to protect the victims of torture and to punish the perpetrators. Victims of assault can claim for compensation from the perpetrators under the civil law of the country. Article 11 of the 1978 constitution of the Democratic Socialist Republic of Sri Lanka has expressly prohibited torture. It states, "No person shall be subject to torture, or to cruel, inhuman or degrading treatment or punishment". Amnesty International stresses that abuses by opposition groups or rising crime can never provide a justification for governments disregard their obligations to respect human rights. This includes the right not to be tortured even in times of public emergency which threatens the life of the nation as set out in Article 4 of the International Covenant on Civil and Political Rights (ICCPR), to which Sri Lanka acceded in 1980. In 1984 the United Nations approved the Convention Against Torture, and Other Cruel Inhuman and Degrading Treatment and Punishment. In 1994, the government of Sri Lanka by an Act of Parliament gave effect to this convetion. However, only a few cases have been filed by the State against the perpetrators of torture so far and only one conviction is reported. Torture can be defined as an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person. Torture is an aggravated and deliberate form of cruel, inhuman, degrading treatment or punishment. State sponsored torture is carried out at the instigation of or with the consent or acquiescence of a public official/s or other person/s, acting in an official capacity. The purpose of inflicting pain or suffering can be to obtain information or a confession or to punish or intimidate or for any reason based on discrimination of any kind. Pain or suffering arising from, inherent in or incidental to lawful sanctions is not considered as 'torture'. Torture can be divided into physical torture and mental torture. All types of physical torture invariably cause some mental torture. The two types of torture can be caused simultaneously. Pure mental torture can be threats, insults, forcing to watch friends, relatives or others being tortured, and mock assassinations. Pure mental torture can have physical consequences. There are many types of physical torture practised all over the world. They include beating with blunt instruments (batons, pipes filled with sand, rubber pipes, cables etc.), kicking, suspension of a person in different ways, attempted asphyxiation, burning by cigarettes, flames, hot domestic water heaters or irons, scalding by hot water or other liquids, sexual torture, subjecting to prolonged physical exhaustion, exposure to intolerable noise, sleep deprivation, non-therapeutic administration of drugs, exposure, especially genital regions, to animals, prolonged blindfolding, prolonged exposure to bright light, heat or cold, deprivation of food and water, prolonged interrogation, lifting by hair and forcible removal or burning of hair. Torture, as well as disappearances and deaths in custody, were rare in the independent Sri Lanka up to 1971. The armed struggles of People's Liberation Front or JVP in 1971 and in late eighties, and the civil war situation in the North and the East of the country, led by the LTTE from late seventies gave rise to widespread torture. These acts were practised by state agencies, state sponsored paramilitary groups and armed terrorist groups. The state has provided compensation to many victims of the families of the disappeared but prosecutions of torturers were infrequent.As a result of torture, it is well documented that victims commonly experience anxiety, depression, guilt, shame, humiliation, a loss of self-esteem, distrust and dissociation. The body loses its ability to function properly and a person loses his or her identity as a human being. Sleep disturbances and nightmares, anxiety, impaired concentration and memory, depression, numbness, feelings of general fatigue or lethargy, generalised fear, social withdrawal and sexual dysfunction are some of the commonly reported symptoms by victims. The state as well as the judiciary has clearly expressed their views against torture and other violation of human rights, whether there is war or peace. For example, Minister Lakshman Kadirgamar, delivering a speech at commissioning parade of the Sri Lanka Military Academy at Diyatalawa on 20 June 1998 stated, "The armed forces have to make an effort- an almost superhuman effort to observe the distinction - the difficult line - between combatants and non-combatants. We have fighting ultimately to build up a lasting peace in our country that can only some about by welding our different communities together, not by driving them apart, by seeing to it that the war does not leave permanent scars on the psyche of its innocent victims." Justice Athukorale in a fundamental rights case stated, "Article 11 prohibits every person from inflicting torture some, cruel or inhuman treatment on another. It is an absolute fundamental right subject to no restrictions or limitations whatsoever. Every person in this country, be he a criminal or not, is entitled to this right to the fullest content of its guarantee. Constitutional safeguards are generally directed against the state and its organs". In the case against the Officer-in-Charge of Aranayake Police in 1998 Justice Wijesekera stated, "In my opinion it is indeed a matter of concern and trepidation that Magistrates in spite of repeated reminders by this Court do not exercise what is their duty, namely, to question and probe from a person produced before them from Police custody and to so record his observations. It has been my experience that if Magistrates did act so and it was a deterrent to breaches of fundamental rights even when they were not enshrined by a Constitution. It is a further tragedy that some members of the legal profession do not act with courage and fearlessness in what is their duty". In May 1998, Sri Lanka appeared for the first time before the Committee against Torture, the international body of experts monitoring the implementation of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The government's delegation acknowledged torture was a problem in the country and pledged that "every effort would be made" to put into effect the conclusions and recommendations of the Committee. ###### Future expectations and hope Amnesty International calls on all governments to implement a 12-point programme for the prevention of torture by agents of the state. Amnesty International believes that the implementation of these measures is a positive indication of a government's commitment to end torture and to work for its eradication worldwide. 1. Condemn torture The highest authorities of the country should condemn torture unreservedly when it occurs and should make clear to all members of the police and security forces that torture will never be tolerated. 2. Ensure access to prisoners Governments should ensure that all prisoners are brought before an independent judicial authority without delay and prisoners should have access to relatives, lawyers and doctors. 3. No secret detention Governments should ensure that prisoners are held only in recognise places of detention and accurate information about their arrests and their whereabouts is made available immediately to relatives, lawyers and courts. 4. Provide safeguards during detention and interrogation Governments should ensure that conditions of detention conform to international standards for treatment of prisoners. The prisoners should have the right to complain about their treatment and have a judge ruled without a delay on the lawfulness of their detention. A lawyer should be present during interrogations. 5. Prohibit torture by law Government should adopt laws for the prohibition and prevention of torture incorporating the main elements of the UN convention against torture and other relevant international standards. 6. Investigate All complains of torture should be promptly, impartially and effectively investigated by a body independent of the alleged perpetrators. Officials suspected of committing torture should be suspended from active duty during the investigation. 7. Prosecute The governments should bring those responsible for torture to justice, irrespective of the position of the perpetrator. There should be fair trials and order from a superior officer must never be accepted as a justification for torture. 8. No use of statements extracted under torture Governments should ensure that statements and other evidence obtain through torture may not be invoked in any proceeding accept against a person accused of torture. 9. Provide effective training During the training of officials involved in the custody, interrogation or medical care of prisoners it should be made clear that torture is a criminal act and they have a right and a duty to refuse to obey any order to torture. 10. Provide reparation Torture victims and their dependents should be entitled to obtain from reparation from the state including restitution, fair and adequate financial compensation and appropriate medical care with rehabilitation. 11. Ratify international treaties All governments should ratify without reservations international treaties containing safeguards against torture and they should comply with the recommendations of international bodies and experts on the prevention of torture. 12. Exercise international responsibility A government should use all available channels to intercede with the governments of the countries where torture is reported and should ensure that transfer of training and equipment for military or police or security forces use do not facilitate torture. Governments must not forcibly return a person to a country where he or she risks being tortured. The National Human Rights Commission, the National Police Commission and all concerned non-governmental organisations should work together to eradicate all forms of torture in Sri Lanka. |
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Torture
and other human right abuses have been known throughout the history of
man. It is well known that for many centuries judges in France could order
the torture of prisoners to obtain information and during the American
civil war, deserters were branded. In ancient Sri Lanka, thirty two types
of torture were described.
