The RESIST (Reducing Effects and Incidences of Torture) Program resulted in a 60 page Report titled “Sri Lanka- the Right Not to be Tortured: A Critical Analysis of the Judicial Response” which comprehensively discusses over fifty judgments of the Supreme Court delivered between 2000-2006 in terms of its jurisdiction under Article 126 of the Constitution in relevance to violations of Article 11. The Study also examines the judicial response of the High Court to prosecutions under the 1994 Anti-Torture Act as well as the prosecutorial and investigative processes relevant thereto.
The methodology adopted involved comprehensive analysis of the relevant judgments/bench orders/ petitions pertinent to applications filed under Article 11 as well as analysis of the trial proceedings/decisions of the High Court relevant to prosecutions in terms of the CAT Act. A summary of the research is as follows:
The Introduction commences with a brief description of the prohibition of torture in international law and national law. Part One of the Study examines relevant judgments of the Sri Lankan Supreme Court between the years 2000 and 2006. It must be noted that, for the purpose of this Study, judgments delivered by the Court prior to 2000 have not been specifically examined though case law in this respect is examined as part of the contextual analysis. The analysis particularly emphasises deficiencies in prevalent constitutional provisions including the absence of the right to life in the Constitution, the prescribing of time limits for FR applications, absence of provision for judicial review of enacted laws and strict rules of standing at the Supreme Court level.
Part Two of the Study looks at judgments of the High Court and examines judicial responses to the use of the criminal law to prosecute torture offenders in custodial uniform, deterrent sentences imposed in terms of the act, lapses on the part of the prosecutorial and investigative authorities and so on. Given the difficulties encountered in obtaining the relevant documentation, this segment of the Study is confined to examining six decisions of the High Court, three decisions pertaining to convictions and three decisions pertaining to acquittals.
Part Three examines the use of international human rights mechanisms, particularly in terms of the Optional Protocol procedure under the International Covenant on Civil and Political Rights (ICCPR), relevant Communications of Views forwarded by the United Nations Human Rights Committee in terms of Sri Lanka’s obligation to prevent torture/cruel, inhuman or degrading treatment and the lack of implementation of these Views.
The research interrogates why practices of torture/cruel, inhuman or degrading treatment are yet so commonly resorted to in Sri Lanka despite stringent constitutional and statutory safeguards. Some lacunae are easily identifiable. The fact that enforcement authorities, (i.e. the police), do not take judgments of the Court seriously is an identified problem. Disciplinary action is not imposed in regard to individual police officers found culpable of human rights violations. Oversight agencies such as the Human Rights Commission of Sri Lanka and the National Police Commission have been demonstrably ineffective in checking this trend. In recent times, their independence and integrity have been seriously compromised as a result of appointments of their members being made by the President without the constitutionally mandated approval by the Constitutional Council as stipulated in the 17th Amendment to the Constitution.
In a context where heightened conflict has made grave human rights violations a common occurrence, the absence of effective deterrents in regard to the right to freedom against torture is deeply worrying. It is our hope that this Study would forge a common consensus as to the extent of this problem and lead to new initiatives in this regard.
Advocacy activities were also engaged in with relation to the work. These included conducting extensive discussions with grassroots networks, state law officers, police officers and officers of monitoring bodies such as the National Police Commission to ascertain the most effective methods of advocacy in a climate where torture, cruel, inhuman and degrading treatment and other grievous rights violations have become generally accepted due to resumed conflict. Four provincial consultations were held in the Southern Province, the Uva Province, the Eastern Province and the North-Central Province.