By Jeevan Thiagarajah
Torture is an accusation levelled on occasion by citizens. The short piece today sets out in the public interest the existing safeguards and makes reference to the plan of action in the National Human Rights Action Plan which is an effort to bring further improvements.
Article 11 of the Sri Lankan Constitution provides that “No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment and recognises the right not to be subject to torture as a non-derogable and absolute right.
Accession to international instruments-
Sri Lanka deposited its instrument of accession to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment and Punishment, on 3 January 1994 and the Convention entered into force for Sri Lanka on 2 February 1994.
Domestic legal provisions
Subjecting a person to cruel, inhuman or degrading treatment is punishable under the Penal Code of Sri Lanka as, inter alia, voluntary causing of hurt (Sect. 314), voluntarily causing grievous hurt (Sect. 366), voluntarily causing hurt to exhort a confession or compel restoration of property (Sect. 321), voluntarily causing grievous hurt to exhort a confession or compel restoration of property, (Sect. 322), wrongful restraint (section 330), wrongful confinement (sect. 331), assault or use of criminal force (Section 343, and criminal intimidation (Sect. 483).
Judgments of the Supreme Court-
Fundamental Rights Applications 73, 74, 75, 76 of 2002, the Supreme Court directed the Police to be vigilant when they detain suspects in Police custody and to provide them with human conditions and treatment in place of detention. It is a requirement that these persons should also be given sufficient water, enough space to sleep and sufficient ventilation, while in custody. In certain cases the Supreme Court has directed the authorities not to keep suspects in congestion when interrogating suspects.
Fundamental Rights Application No. 297/2007, the Supreme Court gave an order to Police and the Security Forces not to conduct house searches in the night between 9.00 pm and 6.00 am. Security Forces and the Police could do so for a specific purpose regarding Terrorist activities. (SC No.3 of 2008) delivered on 15/10/2008. The Court held that “In the circumstances we hold that the minimum mandatory sentence in S. 364 (2) (e) is in conflict with articles 4(c), 11 and 12 of the Constitution and that the High Court Judge is not inhibited from imposing a sentence that it deems appropriate in the exercise of its judicial discretion not withstanding minimum mandatory sentence.”. This judgment is binding on the lower courts including the High Courts which has jurisdiction to try cases of torture. As such applying the principle in this case, the High Court Judge can deviate from the minimum mandatory sentence required.
The Police and HRC –
The IGP has issued a circular number 1796/2004 dated 27 September,2007 regarding entry into places of detention by Persons authorised by the HRC under section 28(2) of HRC Act. In this circular instructions have been given to all ranks in the Department of Police by the IGP to allow officers from HRC to inspect any place where it is suspected that a person is detained.
The National Human Rights Action Plan has identified the following areas for further scrutiny -legal framework is being reviewed to prevent inadvertent promotion of torture ,efforts to improve medico legal work, implementation of zero tolerance policy of the State, ensuring accurate examination/identification of alleged torture victims during pre- trial stages, protection of alleged victims from further harassment/torture and effective monitoring of detainees by the Police.