Strong Laws, Weak Enforcement: Torture Persists Despite Legal Protections

Photo courtesy of Will Baxter

Today is the International Day in Support of Victims of Torture

Torture refers to the act of deliberately inflicting severe physical or psychological pain and suffering on someone, usually to extract information, coerce a confession, punish, intimidate or as an act of cruelty. It is considered a severe violation of human rights and is prohibited under international law, including the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). Article 1 of UNCAT says:

“For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

UNCAT was adopted on December 10, 1984 by consensus at the UN General Assembly. Sri Lanka accepted the convention since January 3, 1994 by a practicable letter sent to the Secretary General of the UN on December 19, 1993. The convention has been enforced in Sri Lanka since February 2, 1994.

Sri Lanka is a signatory to the International Covenant on Civil and Political Rights (ICCPR) that states “No one shall be subject to torture or to cruel, inhuman and degrading treatment or punishment.”. Sri Lanka is also party to UNCAT that states, “Each state party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction”. It is by these obligations that the fulfillment of Sri Lanka’s international commitments are measured at every review.

Recognising the prevalence of torture in the world and the need to take active steps to combat it, medical, legal and human rights experts from a range of countries drafted the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, known as the Istanbul Protocol.

The Istanbul Protocol is endorsed by the UN and serves as a guideline for the assessment of persons who allege torture and ill treatment, for investigating cases of alleged torture and for reporting findings to the judiciary or any other investigative body. It was finalised in August 1999.

The set of Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (The Istanbul Principles) annexed to the Istanbul Protocol was included in the Resolution on Torture unanimously adopted by the UN General Assembly in December 2000. Subsequently, the UN Commission on Human Rights drew the attention of governments to these principles and strongly encouraged them to reflect upon them as a useful tool in combating torture.

The lack of political commitment to implement the Istanbul Protocol in Sri Lanka is a significant barrier to addressing torture and ill treatment effectively. Several factors contribute to this lack of commitment, which impacts the overall human rights situation in the country. The implementation of the Istanbul Protocol is a crucial aspect of the country’s efforts to combat torture and ill treatment. Continuous efforts by the government, civil society and international community are necessary to ensure that the guidelines of the Istanbul Protocol are effectively integrated into national practices and that victims of torture receive justice and rehabilitation.

Under Article 11 of the Constitution, freedom from torture is a fundamental right:

“No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”.

Torture is a criminal offence under the Torture Act No.22 of 1994. Section 12 of this Act defines torture as follows:

“Torture, with its grammatical variations and cognate expressions, means any act which causes severe pain, whether physical or mental, to any other person, being an act which is

(a) done for any of the following purposes:

(i) obtaining from such person or a third person any information or confession;

(ii) punishing such other person for any act which he or a third person has committed, or is suspected of having committed; or

(iii) intimidating or coercing such other person or a third person; or

(b) done for any reason based on discrimination, and being in every case, an act, which is, done by, or at the instigation of, or with the consent or acquiescence of, a public officer or other person acting in an official capacity.”

Several Supreme Court judgments enshrined the right to be free from torture and other cruel inhuman or degrading treatments. In the judgment W.M.K. De Silva v. Chairman of Ceylon Fertilizers Corporation, the court has expanded the concept of torture to include mental and emotional suffering.

In the recent judgement K.A. Hemasiri v. OIC Hakmana Police Station and Others, the Supreme Court held that “the Court was mindful that the fundamental right of ‘no person shall be subjected to torture, or to cruel, inhuman or degrading treatment or punishment’ recognized by Article 11 is one of the two fundamental rights out of all the fundamental rights recognized under Chapter III of the Constitution, which is not subject to any restrictions set out in Article 15 of the Constitution”. Further the court held that “The police force is an organ of the State. It is designed to protect and defend the fundamental rights of all persons of this country and the 1st and 2nd Respondents being members of such police force are duty bound to safeguard such right and not subject any person to torture or cruel, inhuman or degrading treatment”.

Despite the existence of strong laws like Act No. 22 of 1994 and judgments from superior courts aimed at preventing and punishing torture, many incidents of torture continue to be reported.

Statistics provided by the Sri Lanka Human Rights Commission (SLHRC) revealed a persistent and concerning trend of torture, degrading treatment and harassment complaints. The numbers highlight both the prevalence of such abuses and the challenges in addressing them. In 2019 there were 400 complaints about torture, 49 complaints about degrading treatments and 267 complaints on harassment. In 2020 there were 415 complaints about torture and 36 complaints about degrading treatments and 315 complaints on harassment. In 2021 there were 302 complaints about torture and 12 complaints of degrading treatment and 391 complaints of harassment, In 2022 there were 560 complaints of torture, 16 complaints of degrading treatment and 588 complaints of harassment.

The persistent high number of torture and harassment complaints despite strong laws and judicial decisions underscores the need for comprehensive and sustained efforts to address the root causes of these abuses.