Torture continues, but incidents have come down: UN Rapporteur

U.N. Special Rapporteur on torture Juan E. Mendez, who was in Sri Lanka along with another Rapporteur on independence of judges and lawyers Monica Pinto for nine days, from April 29 to May 7 to assess recent developments and identify challenges related to the use of torture and other cruel, inhuman or degrading treatment or punishment, and to the independence of the justice system addressed the media on Saturday 7 May 2016.

The human rights experts met with governmental authorities, members of the judiciary and prosecution services, lawyers, civil society, the National Human Rights Commission, and victims and their families.

The Special Rapporteurs will each present a comprehensive report containing their findings and recommendations to the Human Rights Council in Geneva in March 2017 and June 2017, respectively.

The Special Rapporteur on Torture and other cruel, inhuman and degrading treatment or punishment, Juan E Mendez, noted that ‘torture continues to be used’ in Sri Lanka, stressed that a lack of structural reform posed a ‘real risk that the practice of torture will continue.”

Mr Mendez said, that though the number of cases of torture were much less than during the height of the conflict, “torture remains in frequent use in Sri Lanka by CID and TID because of weak provisions in law.”

“Sadly the practice of interrogation under physical and mental coercion still exists and severe forms of torture, albeit probably in less frequent instances, continues to be used,” he added.

Mendez, said that 90 percent of the convictions under the Prevention of Terrorism Act (PTA)  in Lanka are based on “confessions” made to the police in detention. As such, it could be safely assumed that these confessions were made under duress, including various forms of torture, he said.

Detailing the common methods of torture, Mendez,said that these could range from striking with poles and cricket bats to hanging the suspect upside down while being handcuffed, asphyxation by covering the face with a polythene bag drenched in kerosene, throwing chilli powder into the eyes, to mutilating the genital area.

The period of torture could vary from a short time to several days or weeks. Those detained under the PTA are the worst sufferers because they could be detained without charge for 18 months to conduct investigations. Mendez, found detainees under PTA being in remand up to 10 years.

“These places are very old, some 170 years and they never seem to have been maintained. They are literally crumbling on the prisoners even with the stairs that are very unstable and walls and ceilings seem to be falling on the prisoners.”

He said overcrowding in certain places is about 5 times the capacity and it is a result of lengthy sentences for less severe offenses and long detention periods, in some cases up to 15 years before the cases are concluded.

He acknowledged that the Lankan authorities had given him unrestricted access to detention centres and prisoners, but he noted that while some prisoners spoke boldly, others said that they were instructed not to complain of torture.

As he was accompanied by a forensic expert, Mendis was able to verify complaints of torture and found them to be factual. He observed that only 20 percent of the cases which came to court had been examined by a Judicial Medical Officer to ascertain if torture had been resorted to.

The UN Rapporteur observed that Magistrates who visited detention centres tended to be rubber stamping what the police wanted done.

The detention centres run by the Terrorist Investigation Department (TID) are not ventilated and are often without electricity. On the infamous detention centre at the Trincomalee Naval Base, which was discovered in 2015 when it was defunct, he said conditions there must have been  “horrific”.

Calling for urgent measures to be taken to prevent further torture and undermining of the transitional justice process, in is preliminary statement said,

“The Government should repeal the current PTA. In the context of any replacing legislation, if at all necessary, a robust and transparent national debate should take place that provides for full participation of civil society.”

“Sri Lanka needs urgent measures adopted in a comprehensive manner to ensure structural reform in the country’s key institutions. A piecemeal approach will not be compatible with the soon-to-be-launched transitional justice process and could undermine it before it really begins.”

“A transitional justice agenda needs to be trusted by victims and other stakeholders in order to be effective. Stopping torture altogether will not be enough, but it is a step that is absolutely indispensable. The necessary confidence in the transitional justice system will otherwise not be there.”

Highlighting that Sri Lanka was not able to provide him with details of how many people were still held in arbitrary detention under the Prevention for Terrorism Act (PTA), the UN expert added,

“The Government should repeal the current PTA. In the context of any replacing legislation, if at all necessary, a robust and transparent national debate should take place that provides for full participation of civil society.”

Noting ongoing reports of white-van abductions and arbitrary detention of former cadres, Mr Mendez added,

“the arrests of rehabilitated persons alleged as happening recently – by plainclothes agents, after days of being followed and after asking questions to family members, neighbours and associates – raise fears in the respective communities and only add to distrust about the motives for those re-arrests.”

Mr. Mendez was responding to questions on the reports of the Terrorist Investigation Department having arrested over 20 persons in the Northern and Eastern provinces including three former functionaries of the LTTE.

Mr. Mendez urged the government to initiate measures to assure the population that “there is no reason to believe the recurrence of illegality of arrests that this nation faced some years ago.”

While making it clear that rehabilitated persons “are not immune from investigation of possible new crimes,” he wanted the authorities to be “transparent on the reasons and evidence on which a detention order rests.”

The head of the Poonthottam Rehabilitation Centre in Vavuniya of the Northern Province informed him that 12,146 detainees “have been processed through the PTA [Prevention of Terrorism Act] to date.”

However, the U.N. Rapporteur had not yet received figures on persons prosecuted instead of being rehabilitated; those who had been convicted and acquitted and those who were still under arbitrary detention.

He wanted the authorities to release unconditionally detainees if there was no sufficient evidence to hold them even after keeping them in detention for many years.

IS threat

To a query on the dilemma of the Sri Lanka government in repealing the PTA in the backdrop of reports of a body such as the Islamic State being able to draw supporters from many countries, Mr. Mendez replied that it was possible to design laws and administrative arrangements not to leave a country defenceless against terrorism and organised crime, while respecting fully the rights of everybody, including those suspected of crime.  Effectiveness against terrorism and organised crime did not require “breaking down the minimum guarantees for the protection of life, liberty and personal integrity.”

Ms. Pinto emphasised the need for establishing transitional justice mechanisms with independent and impartial people.

INDEPENDENCE OF JUDICIARY

In her report, the UN Rapporteur on the Independence of Judges and Lawyers, Monica Pinto, said that the Lankan judiciary must not only evolve a Code of Conduct for judges,  but it must address the glaring ethnic imbalance in its composition.

There is only one Tamil-speaking judge in the higher judiciary.In the  Supreme Court, only the Chief Justice is Tamil-speaking.There is none in the Court of Appeal. Likewise, there is a marked ethnic imbalance among the government’s law officers, Pinto pointed out.

Pinto also urged the government to ensure that every person detained has access to a lawyer from the moment of the arrest and that every person is told about this right. “This right should be enshrined in the Constitution but pending an amendment, it should be embodied in national legislation and law enforcement agents should be entrusted with the duty to tell detainees about their rights,” she said.

“Sri Lankans need to be in a position to reach the courts and to have their cases timely adjudicated. 335 judges at all instances and in the whole country, a number given to us by the Judicial Service Commission, seem insufficient for a population of more than 20 million inhabitants. Further, the number of judges does not seem enough to deal with the variety and complexity of legal issues faced in Sri Lanka. Appointing more judges also needs to be accompanied by adequate facilities and resources, including building new court houses,” she added.