Dr. Sunil Cooray is a senior lawyer who is very well known in Sri Lanka. He has been in legal practice for 46 years. He is the author of the two volumes of the authoritative text Principles of Administrative Law in Sri Lanka. Basil Fernando of the Asian Human Rights Commission interviews Dr. Sunil Cooray.
Basil Fernando: You have done several cases in Sri Lanka relating to torture. Could you tell us a bit about your experience?
Sunil Cooray: In torture cases, I have appeared for both the petitioner and, on a few occasions, the respondent police officers. My experience is that the court generally leans in favour of the respondents. That is to say, as far as possible they try to claim that the case for the petitioner has not been proved. If I am for the respondents then I am OK. But I’ve found that for the petitioner it is a slightly uphill task to convince judges that police officers and prison officers have committed torture. That has been my experience.
BF: Why do you think this is? In a courtroom, both sides must be equal and evidence must be assessed accordingly. For example, in Sri Lanka, medical evidence and similar things are used. Is the difficulty you mentioned the result of some kind of psychological bias?
SC: It is, I suppose, something like a psychological situation, because most of our judges in the Supreme Court – and that is where all fundamental rights cases are heard – come from the Attorney General’s Department. Throughout their lives as practicing lawyers in the department they have been in touch with police officers, and they have a tendency to believe what the police say rather than what an ordinary citizen has to say. I think that is part of the problem.
BF: Now you would have seen this book Narrative of Justice In Sri Lanka told through stories of torture victims?
SC: Yes I have seen it.
BF: There are 400 cases and that is a very large number of cases. Why do you think such a widespread practice exists?
SC: I think that there are various reasons, but I also think that there are things that can be put in place to minimise or even eliminate torture. I think there are numerous reasons why torture is committed and one reason might be that some police officers have sadistic tendencies and if they get hold of an innocent man, a defenseless man, they want to satisfy their sadism by beating him up. And it also happens that many police officers drink liquor in the evenings so they are badly under the influence of alcohol and they want to have a little fun with these defenseless people who have no one to turn at that time. Those are mainly poor people, and they are harassed and tortured.
There are other reasons as well. For instance, a person may be caught up in a case, rightly or wrongly, and the police may be under instructions from somebody else that torture should be committed by them on that man. This may be for political reasons or similar. Even a straight police officer may be under some compulsion in those circumstances because he might fear that unless he complies he may face a transfer order or some disciplinary proceedings or similar. They also resort to torture to extort money and that also depends on the wages of the police officers. So those are some aspects to be looked into. Police officers should be paid a living wage so that they can maintain themselves and their families in reasonable comfort, and lack of that may be one reason. And then of course there is a general feeling, and some judges and lawyers agree, that torture is something that should not be totally prohibited because according to them torture is an integral part of investigations. That is a completely wrong view and of course is completely against the law but unfortunately it is an embedded idea in the heads of some of our judges and lawyers. And that is one reason why they tend to side with the police officers who are accused of committing torture rather than siding with the petitioner.
BF: Would it be correct to say that at no stage, either by the government or the high ranking officers of the police, a sincere message has been given to the police that torture is wrong?
SC: I think that is so. I don’t think that there is any sincerity when higher ranking police officers tell their lower grades not to commit torture; it is taken with a pinch of salt. They think it is just a matter of words that torture should not be committed. I think what you said is quite right.
BF: So, in other words, the use of torture is a matter of accepted unofficial policy?
SC: Some sort of accepted unofficial policy, but I am sure that sort of policy is losing ground. I am sure this idea, which is in the back of the heads of our judges, lawyers, and senior police officers, is losing ground and I hope the day will come when the idea does not exist anymore because it is brutal. By modern standards it is brutal to commit torture and I hope the day will dawn when the idea is eliminated totally from our lawyers and judges.
BF: What is obvious in this large number of cases is that torture is committed in relation to trivial matters.
SC: Of course, that’s correct.
BF: So doesn’t that demonstrate that there is no real idea of criminal investigation involved? Does this have anything to do with our criminal procedure?
SC: Criminal procedure, yes, but I would say it’s also about the numbers. For instance, a police officer, the OIC [Officer-in-Charge] of the area, has to show the number of cases that have been investigated and that he was able to catch the perpetrators in very many of them, put them before the court and say, I have done my job. If he admits that he could not catch the culprits in very many cases then he looks bad from the point of view of his superior officers. So he has to show results. Whether they are convicted or not is a different matter, but he must at least be able to tell his superiors that he has been able to do an investigation, catch the people responsible for crimes, and bring them before the court. Of course he will try to go one better by torturing to get at various types of evidence like the weapon used and so on and so forth. Statements made to the police under torture, both under Indian law and our law, cannot be admitted in court, especially if it is a confession.
So that is also part of the problem: the numbers, police officers having to show numbers to their superiors; successful investigations.
BF: Now, you see that the possibility of changing the attitude towards torture largely depends on how much of a modern jurisprudential approach is present among the judges and the legal profession. In terms of that, how do you assess the situation in Sri Lanka?
SC: The situation in Sri Lanka is of course not at all geared towards changing the mindsets of lawyers and judges. I think things should change, beginning with law school in the universities and the law colleges; there must be an awareness of the extent of torture, such as by publications like what you have just done, documenting all that could happen in a police station. If anyone goes through the documents you have published, 401 cases, they would tend to change their attitudes. Especially because lawyers are coming from a certain class, they don’t come from the class of people who undergo torture. But they must be made aware that there are such people. It can be brought home to them only by this type of publication. And I think in the future, also as you suggested, there must be a mechanism of monitoring, recording and documenting instances of torture.
BF: In what ways do you think that the Bar Association and similar organisations can influence the thinking of the police hierarchy about a policy issue like this?
SC: There is rule of law committee of the Bar Association, which is expected to monitor and to be mindful of this type of situation of torture, and so on. So that committee can take the responsibility for collecting data from all over Sri Lanka about instances of alleged torture and document them. It is one thing that can be done, and they can publicise them. Also, if higher police officers can be contacted and shown the lectures and video clips that you have brought out, that should convince anybody that torture is possible and it is taking place. This is something that the Bar Association’s Rule of Law committee can do.
BF: What do you think is the future of fundamental rights, particularly in relation to issues like torture?
SC: Fundamental rights will of course live on. There will be stages and times when they will be under a cloud such as now and this depends on the judiciary and the legal profession; on how brave the legal profession will be to bring up these cases and how receptive the judges will be to allegations of torture, especially the judges from the Attorney General’s Department, who have long-term dealings with the establishment and especially with the police.
BF: The habit of the Attorney General’s Department of giving evidence from the bar affects the rights of people.
SC: I think that this is something that even I have failed in taking action against; I think that when it happens we should immediately retort to the bench that our opponent counsel is not entitled to make submissions of fact without having put forward any affidavit or document to back up what he is saying. He must make submissions of fact only confined to the record and what the record at that stage contains, in the petition filed by the complainant or torture in affidavits and medical documents, and so on. And I think it is up to us as counsel for the petitioner, as you have rightly pointed out and encouraged us to do in this seminar, it is our duty. I don’t think it would be difficult to do it and even by amendment of the law and rules of the Supreme Court it can be provided that when the counsel is heard he should confine himself to the record. If he has already filed affidavits, he can make submissions on those; if not, he must confine himself to what transpires on the application filed. For every application in a fundamental rights torture case, the Attorney General is a necessary party considering the constitution and rules of court so it may be that in that very provision it can be said that the state counsel appearing for the Attorney General at that stage must confine his submissions to fact on to the record.
BF: Now there is also the habit of not showing documents submitted through the Attorney General on behalf of respondents to the petitioner’s counsel.
SC: Yes that happens; it happened in one of my cases. It may have been a failing on my part and I should have protested and said that it should not be taken into account because it is not part of the record. I should have done it. I don’t know about the judges, what they might have said to that. But I think I failed in my duty as counsel to the petitioner to do that and insist the document should be disregarded in giving a decision in the case. They should consider a case based on the record and not on something brought outside and not shown to my client, something which he has no opportunity to contradict or comment on. That should not be taken into consideration.
BF: So there is nothing to support that a document is only for the eyes of the court?
SC: Absolutely there is nothing and it would be very unfair. It would be a failure of natural justice if one party is permitted to make secret submissions not shown to the other and if the courts rely on them to make a decision; that is an absolute failure of natural justice. (Scoop)