By Kishali Pinto Jayawardene

When a teenager is accused of stealing a bunch of plantains to cram into his mouth, should we be surprised when he claims that he is tortured thereafter by the police who ask him to confess to the crime, to the extent that he temporarily loses the use ofhis left arm?

One paragraph judgment

This month, Sri Lanka’s High Courts handed down yet another acquittal in a prosecution against police officers of torture of a minor in precisely the above factual circumstances. As was reportedly observed, the judgment consisted of one paragraph as follows; “When looking at all the facts in totality, the court has no other option but to come to the conclusion of wholly disbelieving the evidence put forward by the prosecution. On that basis, the court allows the request of the defence lawyers made under Section 200(1) of the Criminal Procedure Code and without calling a defence, acquits the accused.” (Sri Lanka Guardian, November 7 2010).

In this instance, Chamila Bandara Jayaratne was allegedly tortured from July 20 to 28 2003 at the Ankumbura Police Station on grounds that he had committed a petty crime. A one-man inquiry committee of the National Human Rights Commission concluded years back that the young boy had, in fact, been tortured, overruling an earlier inquiry which had collided with the responsible police officers. An investigation by a senior police officer also found that the medical reports to the fact of the torture were correct.

This acquittal swells the more than seventeen acquittals handed down by the High Courts in prosecutions initiated under the Convention Against Torture and Other Inhuman and Degrading Punishment Act No 22 of 1994 (CAT Act). During the past sixteen years since this law was enacted, we have had only three convictions and an overwhelming number of acquittals. Some acquittals peculiarly concern cases where the accused police officer had been found responsible of abuses, (or of consenting and acquiescing in abuses committed by his subordinates), by the Supreme Court in fundamental rights proceedings under the Constitution.

Legal system facilitates acts of torture

It is often said that a different burden of proof applies in the parallel criminal proceedings and therefore acquittals in the criminal cases when the prosecutor falls short of establishing proof beyond all reasonable doubt, is nothing to be surprised at. This observation has some truth in its thrust. However, as we have seen, the acquittals of these police officers in the High Courts are not always owing to the difficulty in satisfying the burden of proof.

Much is also due to lack of prosecutorial diligence, the difficulties that judicial officers face in comprehending the special rationale underlying the enactment of the CAT Act, absence of witness protection to the family members of the torture victim, the intervention of politicians in protecting erring police officers and a host of other systemic failures in Sri Lanka’s legal system. Law’s delays are also a significant factor. Many trials in the High Court are delayed for years. According to available data, out of the more than fifty eight trials as at June 2008, thirty-five cases were still pending before the relevant High Court. Chamila’s case itself was pending in the High Court for over five years.

Corruption of the policing system

As this column has commented previously, the increasing prevalence of cases of torture for various reasons, ranging from petty crime to suspected terrorism may be traced to corruption/subversion of the policing system and the command structures of the police. Despite adverse judgments by the Supreme Court, police officers remain at their posts and continue to have enormous powers in the locality. For example, the officer in charge of the Wattala Police Station, found by the Supreme Court to have violated the rights of Gerald Perera (Sanjeewa v Suraweera, [2003] 1 Sri LR 317) still remained in service right up to the day that Perera was killed at point blank range, days before he was due to give evidence in the torture trial under the CAT Act.

Without that evidence the prosecution crumbled and the High Court returned a verdict of acquittal (Republic of Sri Lanka vs Suresh Gunasena and Others, HC Case No 326/2003, Negombo High Court, HC Minutes 02.04.2008). The Attorney General was meanwhile reprimanded for withdrawing the name of the officer-in-charge of the Wattala Police Station from the indictment. Police officers found complicit in the torture were later indicted for the murder.

Limited role of oversight monitors

Oversight monitors have also played a limited role. Since 2005, the impact and authority of the National Police Commission has been affected by the Commissioners being appointed unconstitutionally. From late 2009, both the National Police Commission and the National Human Rights Commission have not been effectively functioning as the terms of the Commissioners lapsed and new appointments were not made.

Under the 18th Amendment, with the appointment of these Commissioners remaining effectively in the hands of the President and the throwing out of the Constitutional Council, we do not expect this situation to change overmuch. Perhaps it is time to go the full circle and also repeal the CAT Act.

Source: The Sunday Times – 14.11 2010