Kishali Pinto Jayawardene.
Amendments certified on the 15th of July 2021 to Sri Lanka’s Code of Criminal Procedure Act (1979) and to the Convention against Torture (CAT) Act (1994) are, to put it baldly, an insult to the hundreds if not thousands of victims bloodied and battered by torture at the hands of law enforcement agents.
Core changes in the CCP Act and CAT Act
These amendments could not be reflected upon at the time that they were brought by the Government before the House in these column spaces due to other pressing matters of public concern at the time. The core change brought about by the amendments is that firstly, magistrates are enjoined to Magistrate to visit police stations to ensure that suspects in custody are ‘protected’ as provided for in terms of the CAT Act. In so doing, the magistrate is called upon to personally see the suspect, check the suspect’s well being and conditions of detention as well as record his or her observations and any complaints lodged by the suspect.
In the meantime, Sri Lankans continue to die, be tortured and be degraded at the hands of a brutalized state system. That is the hard practical truth that underpins these so-called ‘positive’ changes in the law.
If there is any suspicion of torture, the magistrate ‘may’ (note, the statutory language is not mandatory) require that the suspect be produced before a judicial medical officer (JMO) or a government medical officer with a report to be submitted thereafter to the magistrate. If it is found that torture has been committed, the magistrate may issue ‘appropriate order’ including directions to provide necessary medical treatment and to change the place of custody if that is so required.
Moreover, the Inspector General of Police ‘shall’ (here, the language is mandatory) be directed to commence an investigation into the alleged torture in order to enable the Attorney-General to institute criminal proceedings against the alleged perpetrator/s. Where the amendment to the CAT Act is concerned, this provides for an increased fine, from ten thousand as the minimum with fifty thousand as the maximum to fifty thousand as the minimum and two hundred thousand as the maximum.
Why these amendments are a insult
I say that these amendments are an insult to Sri Lanka’s victims in their thousands and potential others to join that unhappy group as a result of unchecked police brutality in yet more thousands in the months and years to come, for very simple reasons. After the spectacular failure in practice for more than two and a half decades of one of South Asia’s best laws in framing the legal regime for the prevention of torture, are these the measly amendments that the Government could envision? Why not scrap the CAT Act and be done with it?
Why this farce, this veritably insulting circus to change a law that is mocked in fact by state officers because they know very well that this has no impact in restraining torture? Why not explain the awful impact of these amendments to a victim abused within an inch of his life and cowering in a police cell, knowing very well that a magisterial inspection of his inhumane treatment will not transpire unless through an act of God? Just last month, the Court found in a 2014 incident, that brutal torture of a teenager had resulted in death and ordered police personnel at the Kandaketiya Police Station to pay compensation of rupees three hundred thousand to his mother.
Judgements have not changed state practice
So who has the means if not the courage to persist with a case such as this, in the face of intimidation by the police, even years after a person dies? Judgments such as these may come and go but state practice at various levels in the legal system as well as law enforcement remains unchanged. Last month’s changes to the CCP Act are moreover, just a fraction of the duties that the Supreme Court has, in any event, ordered magistrates to adhere to, from decades ago. However, this is simply not observed in fact. That is a manifest fault of the lower judiciary as well as law enforcement officers used to torture as a daily routine.
Our law books are replete with such examples. In Weerawansa v. Attorney General  for instance, remand orders had been made even though the Magistrate or the acting Magistrate did not visit or communicate with the suspect. The Court observed that this violated a basic constitutional safeguard in Article 13(2), that judge and suspect must be brought face to face before liberty is curtailed. It was observed that this safeguard was not an obligation that could be circumvented by producing reports from the police.
An earlier view of the Court (Farook v. Raymond, 1996] that remand orders, where they concern a patent want of jurisdiction, cannot be safeguarded under the cover of being ‘judicial acts’ with consequent immunity from fundamental rights challenge, was agreed with. But the stark failure of the CAT Act goes beyond singular failures (magisterial or law enforcement as the case may be) and speaks to the deliberate policy of the Sri Lankan State and by that, I mean all Governments to make sure that the CAT Act is not worked properly in practice.
Insanities that have taken place under the CAT Act
That is the only conclusion that we can come to after observing, with truly murderous fury, the insanities that have taken place under this Act during the past decades. At its enactment, it was a law that had promised to turn Sri Lanka’s spluttering criminal justice system around from crucifying justice to actually delivering it. The wide thrust of its well framed provisions went beyond even the standard setting United Nations Convention Against Torture on which it was modeled. But the pathetic few convictions of perpetrators that took place under the law during its decades of operation has made it nonsensical.
Merely increasing fines to be imposed under the Act is therefore not a panacea for fundamental problems with the way that the Act is worked. Much of the fault for this lies undoubtedly with the Department of the Attorney General, given the frequent collapsing of prosecutions under this Act. Lack of prosecutorial diligence and difficulties that judicial officers face in comprehending the special rationale underlying the enactment of the CAT Act are some of these problems.
We also continue to see the absence of witness protection to the family members of torture victims despite a so-called Witness Protection Authority. Meanwhile, interventions of politicians in protecting erring police officers are endemic. As a result, police officers accused of torture but ‘favourites’ of local politicians remain at their posts and continue to have enormous powers in the locality. A classic example concerns the case of a cook working at the dockyard Gerald Perera who was extensively tortured by the police and suffered renal failure as a result of the police mistaking him for a known criminal (Sanjeewa v Suraweera, ).
Systemic reforms are needed, not cosmetic amendments
Yet the officer in charge of the Wattala Police Station, found by the Supreme Court to have violated Perera’s rights 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. Many trials in the High Court are delayed for years, sometimes more than three quarter of the prosecutions launched under the Act. These are systemic issues that need to be addressed.
Cosmetic amendments that will not make a dent in the reality of a law that has failed due to the combined and coercive efforts of the establishment will achieve very little. In the meantime, Sri Lankans continue to die, be tortured and be degraded at the hands of a brutalized state system. That is the hard practical truth that underpins these so-called ‘positive’ changes in the law.
We will not applaud therefore.