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Asian Human Rights
Commission
1. The Asian Human Rights Commission (AHRC) is
aware that many cases of torture and other cruel, inhuman or
degrading treatment or punishment come before the National Human
Rights Commission (NHRC) of Sri Lanka, almost on a daily basis.
2. The AHRC is also aware of the extremely
useful work done by the officers of the NHRC in visiting the
police stations or detention centres at initial stages of
arrests, their timely intervention in initial stages in alleged
torture cases, their assistance to victims to gain medical
treatment and medical certificates. All these aspects of the NHRC
interventions have added a new element to the legal practices
prevailing in the country and are likely to give rise to new
practices, ensuring the protection of human rights. AHRC has
spoken to many persons, who are involved in cases as lawyers,
human rights defenders and victims themselves, who have many
ideas as how to improve this aspect of initial intervention of
the NHRC.
3. The purpose of this report however is to
draw the attention of the NHRC to a very worrying aspect of its
work, which in fact seems to undermine the enforcement of the
existing law against torture set out in Act 22 of 1994, and the
obligations the Sri Lankan government has undertaken as a party
to several international instruments. The practices of the NHRC
that we refer to are settlements arrived at by the NHRC and
inquiries regarding cases of torture and other cruel, inhuman or
degrading treatment or punishment.
4. Under Act 22 of 1994, Sri Lanka has made an
attempt to incorporate the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment into the law
of Sri Lanka. There is some criticism that the Act is deficient
in some respects, and is not fully incorporating the
international law on torture and other cruel, inhuman or
degrading treatment or punishment.
5. Act 22 of 1994 has recognized torture as a
crime in Sri Lanka. Thus by the promulgation of this Act, the
legal position of torture and other cruel, inhuman or degrading
treatment or punishment has changed drastically. In the past
torture had been treated only as a breach of discipline by the
police or the state officers and was dealt with by way of
disciplinary actions, such as dismissal, demotions, transfers,
reprimand and the like. Under the 1978 Constitution, torture had
to be treated as a violation of a fundamental right, warranting a
declaration against a violation by the Supreme Court and the
payment of compensation.
6. With the adoption of Act 22, torture was
treated as a very serious crime, warranting a minimum of seven
years imprisonment and a fine of not less than 50,000 rupees. The
Act also recognizes extra-territorial jurisdiction and does not
recognise any circumstance as an excuse for committing the crime
of torture. This crime can be tried only in a High Court.
7. The powers of the NHRC are derived from Act
22 of 1994. Under this Act NHRC has some powers to settle cases,
where parties agree to do so. However, these provisions must be
used together with the relevant criminal law and also the
international law relating to violations of various rights.
8. The Criminal Procedure Code sets only
compoundable offences. Thus, the law recognises a difference
between less serious crimes that cannot be compounded or settled
between parties and those that can be. For example murder is not
compoundable. In the same way, there is no doubt that crimes of
torture and other cruel, inhuman or degrading treatment or
punishment are not compoundable.
9. Thus any settlement arrived at by NHRC
inquiries relating to complaints of torture cannot have a binding
effect. It cannot deprive a person from pursuing his complaint
with the aim of ensuring prosecution under the Act. Thus there
cannot be any free and fair settlements preventing such
prosecutions.
10. The NHRC is under obligation to explain
these legal provisions to the parties. Particularly, it owes an
obligation to the alleged perpetrators, since they may enter into
settlements and even payments of money with the view to prevent
prosecution in the future. They may thus make commitments that
may be used against them in future. On the other hand, victims
who are unaware of the legal provisions regarding torture may
agree to settlements thinking that there is no other redress in
law.
11. It is the moral aspects of such settlements
that are most appalling. Development of the international law
against torture has been a very difficult one. Since Cesare
Beccaria wrote An Essay on Crimes and Punishments in 1764,
it has been long and arduous struggle to develop the human rights
law against torture. Today international law recognizes torture
as one of the most heinous of crimes, falling within the category
of jus cogens. Allowing such a crime to be dealt with on
the basis of bargains for small sums of money is morally
repugnant.
12. The more useful functions that the NHRC may
undertake regarding torture cases include to
a) Intervene at the earliest possible stage
of incidents of torture and take all steps to record the
evidence and prevent torture;
b) Take actions to guarantee the security
of victims;
c) Instruct the victims of their rights and
the prevailing legal provisions regarding torture;
particularly to explain Act 22 of 1994;
d) Make initial investigations to gather
and protect evidence;
e) Inform the Attorney General (AG) of all
the complaints NHRC receives regarding torture and cooperate
with the Special Unit existing under the AG's
department. NHRC can monitor the progress of the cases
undertaken by the AG's department;
f) Follow up on cases filed by the AG in
courts and review progress;
g) Make recommendations on the prosecution
of torture cases to the Government on a regular basis;
h) Report to UN agencies on the progress of
implementation of Act 22 of 1994;
i) Assist with physical, psychological and
other treatment of victims of torture: rehabilitation needs
to become a prime consideration;
j) Educate the society by useful media
(particularly state media) on the Sri Lankan and
international law on torture;
k) Help to establish funds and facilities
for torture victims and their families;
l) Take initiative to establish proper
legal aid to victims of torture.
13. A further issue that needs to be addressed
is regarding the cases, that have already been settled during
NHRC inquiries. These settlements should not be treated as
obstacles for prosecution under Act 22 of 1994. All these cases
should be referred to the AG's department for prosecution.
Any payment that may have been made can be taken into
consideration at a later stage, in a civil case for damages. Such
payments do not in any way affect the prosecutions under Act 22
of 1994. All evidence available to NHRC must be given to the
investigators functioning under the AG's department. NHRC
investigators can provide all the support needed for such
prosecutions.
14. As for the future, the NHRC can seek
amendment to its statute, to gain greater power for prosecution
on human rights related issues, particularly under the Act 22 of
1994. With better resources it can develop its own legal teams
for investigations and prosecution of crimes falling under the
Act.
15. In conclusion, the Asian Human Rights
Commission strongly recommends the immediate cessation of the
prevailing practice of pursuing settlements in torture cases. We
also urge the NHRC to adopt the recommendations made in
paragraphs 12 to 14.
The Asian Human Rights Commission released
the above statement on 2 June 2002.
Posted on 2002-08-15
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