International Day to Support Victims of Torture: When police brutality tortures fundamental rights

The gruesome aftermaths of Rathupaswala and Rambukkana incidents are proof of how the Police have been brutal towards people

“I saw the Police pointing a rifle towards us. But I didn’t think that they would shoot. The first bullet missed my head by inches. That was when I turned to run. My hand felt heavy and then I realised that I was being shot at. Even after being shot at I wanted to run. While I was running my leg was shot at too. After some time I felt dizzy and that’s all I remember,” recalls 24-year-old Ashen Chamikara, a victim of the Rambukkana incident who survived. 
The gruesome aftermaths of Rathupaswala and Rambukkana incidents are proof of how the Police have been brutal towards people. Police brutality, torture, grave inhumane harassment, extrajudicial killings and enforced disappearances are incidents that violate people’s fundamental rights. However, due to limited knowledge regarding legal provisions, people decide against filing a fundamental rights case regarding such incidents. But many countries around the world have implemented advanced technologies such as telephone analysis and DNA fingerprinting to prevent law enforcement authorities from torturing and harassing victims and suspects. 

The regime has transformed this crisis into a fight between people and the police. Even police officers are victims at this point. There are some officers who cross their limits, but some are well disciplined. People should also protest within their limits.
-  DIG Priyantha Jayakody

Tensions between people and Police

“Our DNA process including the laws and investigations is quite complex,” opined retired DIG Priyantha Jayakody at a panel discussion held in view of the International Day to Support Victims of Torture organised by the Right to Life Human Rights Centre in collaboration with the Sri Lanka Collective Against Torture. “But in other countries there are DNA facilities like photocopy machines that  are frequently used during the criminal investigation process. “Telephone analysis is another important aspect for investigations. Every police station in India has two officers for telephone analysis. That way, we are still at a primitive level. Since we are devoid of these facilities, police officers tend to opt for convenient means such as beatings, harassment and torture. Other countries have introduced technology to avoid such physical harassment. There are two aspects in criminal investigations; it’s not only about the suspect but the complainant/victims too have been affected. Within the criminal investigation process both suspects and complainants are subject to torture. Most complainants say that they suspect someone. After he or she’s being questioned, the victim says that the suspect should be beaten if he is to confess. The Police shouldn’t be put under pressure. The police department was established during the colonial period and therefore Police officers think they are superior to others,” explained DIG Jayakody. 

Many peaceful protesters engaging in recent protests were subject to police brutality and harassment. “We need to have a balanced perception. People think that the Police are responsible for the fuel crisis. People are under severe stress as they have to spend long hours in queues. It’s difficult to maintain law and order during an unprecedented crisis like what we are experiencing right now. Therefore I like to remind the people that they have to fight against the rulers and not against the police. But the regime has transformed this crisis into a fight between people and the police. Even police officers are victims at this point. There are some officers who cross their limits, but some are well disciplined. People should also protest within their limits. Police officers have been trained to respond to intimidation, violence etc,” DIG Jayakody said. 

Jayakody further said that during the Rambukkana incident the police did cross their limits, but we see that there was an issue with leadership. “A shooting is a complex process. I too have been involved in protests and demonstrations, but we always try to minimise the damage and bring the situation under control. If there were no batons, teargas or shooting in Rambukkana the matter would have ended there. Around 10 police officers were remanded. In most places protesters try to fight with police. As a result people will violate the civil law. The Constitution is the supreme law. When a person is arrested lawyers have limited protection and the laws should be amended to address these matters. The state has no right to kill a citizen. This is why a death sentence cannot be imposed. Civil society organisations should therefore keep adding pressure until the law is strengthened to protect civilians,” he said. 

If we receive a complaint from anywhere in the country we will refer a lawyer depending on the area from where the complaint has been lodged. If a person contacts us saying that he is being tortured we respond immediately.
-  Attorney-at-Law Hashani Pathirana representing BASL

Procedure to file a FR case 

The Anti-Torture Unit of the Bar Association of Sri Lanka provides legal services to survivors of custodial torture where their right to be free from torture and inhumane treatment is violated. “If a person is subject to custodial torture while in a state institution we consider it as a violation of his fundamental rights and we come forward to file an FR case,” said Attorney-at-Law Hashani Pathirana representing BASL. “However we have received fewer complaints with regards to incidents of torture during January and February. I believe this is a positive sign. The legal aid sub-committee runs the Anti-Torture Unit. If we receive a complaint from anywhere in the country we will refer a lawyer depending on the area from where the complaint has been lodged. If a person contacts us saying that he is being tortured we respond immediately. We also focus on women who are subject to torture in addition to persons with disabilities,” said Pathirana. 

Explaining the legal process further, Pathirana said that once they receive a complaint it is initially referred to the legal aid committee. “The Committee analyses whether it’s an incident of torture or an inhumane treatment. If they decide that it is an incident of torture we contact the victims to get their consent to file a FR case. If they agree we refer a lawyer depending on the nature of the incident to continue the process free-of-charge. We do not consider financial constraints or employment status of the victim. Our priority is the extent of torture and the incident,” explained Pathirana.

“Sometimes people call us expecting us to give them bail, but bail is a personal matter,” Pathirana further said. “The Anti-Torture Unit doesn’t influence Police investigations either. We take steps to help them file an FR case if they have been subject to an incident of torture. We are going to file FR cases on 28 victims at Mirihana, the spouse of the victim at Rambukkana and another individual who was shot in Rambukkana.We need to strengthen provisions with regards to human rights. I believe that people have changed their mindsets with regards to maintaining law and order. One of the charges levelled against us by the Police is that the BASL is taking the law into their hands. But the aim of the Anti-Torture Unit is to strengthen law and order. We have no intention of bypassing them, but we want to work hand-in-hand with the Police. We are not going to obstruct their duties unless there’s an incident of torture and we produce the police officer in courts. When talking about people’s mindsets they question from us whether the police have a right to handcuff them. There’s nothing wrong in getting arrested as it is part of the investigation process. Everybody who gets arrested is not a criminal. Putting handcuffs is not an incident of torture. Torture includes everything from inhumane beating to breaking limbs etc. The Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Act No. 22 of 1994 describes incidents that fall into the definition of torture,” added Pathirana.

She further said that there are incidents where police officers threaten victims in order to stop them from filing a FR case. “As a result most victims don’t contact us at all. As human rights activists the victims should be made aware of the legal provisions that can protect their rights. They should be encouraged to fight for their rights,” she said.  

People believe that the police have a right to torture and harass them, some feel that there’s no point in pursuing the incident and getting re-victimised and others have lost faith in the judicial system as these cases drag for long years.
-  Philip Dissanayaka Convener of the Sri Lankan Collective Against Torture

People’s fundamental rights at stake 

“Apart from the Police, other places such as the Department of Prisons opt for means of torture to maintain the prison system,” said Philip Dissanayaka, Convener of the Sri Lankan Collective Against Torture. “Torture takes place in schools and hospitals as well. Therefore torture is something that is there in our system, but these incidents are frequent in the Police Department. Torture is being used during the criminal investigation process. There are less reports of torture from CID, but there are grave violations of fundamental rights in police stations,” said Dissanayaka. 

“However, most cases don’t get reported and this is due to many reasons. People believe that the police have a right to torture and harass them, some feel that there’s no point in pursuing the incident and getting re-victimised and others have lost faith in the judicial system as these cases drag for long years. A criminal case would take anything between 15-20 years. In this backdrop people don’t want to file a case. Most NGOs and the legal fraternity have been involved in the process and if not for these organizations FR cases won’t be filed at all. During a recent survey we wanted to find 100 cases related to violating Article 11 of the Constitution. For that we had to check files from 1980s to 2019. This shows that only a few cases are being filed in relation to violation of fundamental rights,” said Dissanayaka. 

Dissanayaka further said that even though the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Act was enacted in 1994, only 115 cases have been filed until 2019. The first case was filed in 2000. In any case we don’t have an idea about how the process works. Initially the Department of Police had a special investigations unit which was linked to the Attorney General’s Department. And it is from here that the case was filed. Even though it’s a powerful Act with seven years maximum imprisonment and a fine of Rs. 50,000 only a few people have been found guilty under this Act.

“Along with torture there are extrajudicial killings and disappearances,” he added. “All these inhumane treatments have been frequent in Sri Lanka. But over the past few years forced disappearances haven’t happened for some time. But, every year there are many incidents of extrajudicial killings. Most of these killings happen when suspects try to show weapons during encounters. Due to the black mark we had with regards to forced disappearances the previous regime had to bring about a mechanism to serve justice to families of victims. But they couldn’t expedite it in full. Therefore even though there are no disappearances, the mechanism to investigate on forced disappearances too has disappeared,” he said while adding that Sri Lanka has been unable to protect the fundamental rights of people.

When you go to courts you may not have access to a lawyer and you may not understand the language in which the case is being prosecuted. These too are incidents where the Police are inflicting some sort of violence against you.
-  Ambika Satkunanathan Former Commissioner of the Human Rights Commission

A glimpse of torture in prisons 

Shedding light on the situation at prisons, Former Commissioner of the Human Rights Commission Ambika Satkunanathan recalled a study on prisons done during her tenure. “We visited around 20 prisons and spent at least 8 days in them. During that time there was no economic crisis, but the conditions of the prisons were horrifying. The buildings were built during the colonial era, there was sewerage leaking through buildings. For instance, the Chapel Ward at the Welikada Prison is where people on death row are being kept. But it is always dark in there and as a result they lose their eyesight. The bathrooms are inside the ward and there’s water that comes through quarter of the way of the ward. Therefore it’s always wet and people are in their cells for 23 hours a day. They get to go out for one hour, but if it rains or if there are no guards they don’t get to go out at all. Therefore they are inside 24 hours a day. We think about torture as someone being slapped, beaten with a baton, someone being strung up and beaten with wires but within the definition of torture there’s also degrading and inhumane treatment. 

The conditions of most of our prisons would be degrading, inhumane treatment.“It’s not a place where a human should live. Even the quality of food is poor. They complain of a rash from the fish given in their meals. When they fall sick it’s not easy to get medical assistance. If they fall sick at night they get to visit the doctor in the morning. So if they get a heart attack the chances are that they will die. The problem is that we also need to recognise that the entire criminal justice system is violent. We speak about arrests; but the person experiences different types of violence from the point of arrest throughout the trial process until you go to prison. There’s also structural violence where institutions discriminate against you. When you go to courts you may not have access to a lawyer and you may not understand the language in which the case is being prosecuted. These too are incidents where the Police are inflicting some sort of violence against you,” explained Satkunanathan. 

Silent protest at GotaGoGama, Kandy 

In view of the International Day to Support Victims of Torture a silent protest was organised by the Human Rights office in Kandy. The theme of the protest was to condemn police brutality against civilians who have been affected by the prevailing crisis. The protest witnessed the participation of families of the disappeared, families of prisoners, victims of torture, clergy, lawyers and civil society activists. Speaking at the event, Attorney-at-Law Suren D Perera said that article 11 of the Constitution which states that ‘no person shall be subjected to torture or cruel, degrading and inhuman punishment’ has been challenged since people are languishing in queues to purchase essential items. He said that the incumbent president and the administration should take responsibility for creating a medicine, food, cooking gas and fuel shortage which has harassed people to a greater extent.