SRI LANKA: Institutional theories about the use of torture

An Article by the Asian Human Rights Commission

By Basil Fernando

There are a number of entrenched beliefs which have become institutional doctrines within the policing system which contribute to the continuing practice of torture.

No suspect will ever tell the truth. Therefore, it is better not to waste time asking questions before torturing the person. This is a practice almost invariably followed in cases pertaining to people from low-income groups. However, the same assumption is not applied when the suspects are from more affluent classes or are persons that wield some political or social influence. For example, there have been many cases in recent years against politicians and high-ranking officials relating to corruption charges. However, none of these persons made any complaints that they were tortured or harassed in any way. As opposed to that, there are thousands of complaints from persons from lower income-earning groups who are often arrested for very petty crimes. The interrogation takes place, accompanied by torture and ill treatment along with the use of very harsh language against the suspect. This issue was discussed before the Supreme Court (SC) in the case of Sanjeewa, Attorney-at-Law (on behalf of Gerald Mervin Perera) v. Suraweera, Officer-In-Charge (OIC), Police Station, Wattala, and Others (SC FR 328/2002) (per President’s Counsel and Justice Mark Damien Hugh Fernando joined by Justices Punyadasa Edussuriya and Canagasabapathy Visuvalingam Wigneswaran PC). G.M. Perera was brought to meet the Police by forcing his wife to call him to come immediately. Upon arrival, he was put in a police jeep and taken to the Wattala Police Station. At the police station, no questions were asked from him. He was taken to an isolated room where he was hung (from the ceiling). Here, the police officers beat him with wooden poles and iron rods. As he was beaten, he was told to reveal what he knows about a triple murder case that had taken place within the jurisdiction of that police station. He did not know anything about the issue, so he was beaten more. The Police were under the impression that he was such a stubborn person that he refused to divulge the information even after being severely tortured. The victim was taken down only after the Police received the news that the actual culprits of the case had been identified and that Perera knew nothing about this case. Due to his injuries, Perera suffered kidney failure, remaining unconscious for nearly two weeks. This is what the SC observed in this case. If, after the arrest, a few questions had been asked, the whole matter could have been brought to an end within a few minutes, with the suspect being released.

On a number of occasions, police officers, particularly OICs of police stations, have been questioned on this issue by persons engaged in human rights work. The general reply to that has been something similar to this: You do not expect us to call these people gentleman or sir. Unless we are rough, they will not divulge anything. Particularly in the cases of theft and robbery, there is no point in wasting time asking questions, because we know that they will never tell the truth. The only way to get the truth out is to treat them in a rough way, meaning, through the use of force.
Not possible to develop sophisticated means of criminal investigation in a poor country

Among the higher ranking officers, there is a general assumption that it is not possible to develop sophisticated means of criminal investigation, as Sri Lanka is a poor country.

Even at very high levels, the officers have asserted the following at meetings: Due to the economic backwardness of the country, they cannot afford to provide first-class treatment to the suspects. Implied in this attitude is that the use of torture and ill treatment is the only affordable method that could be used to extract information from the suspects.

Institutional agreement

There is also an institutional agreement. Although statements obtained from suspects cannot be used against them during a trial, the use of such force is quite useful in extracting information that would lead to the identification of other witnesses.

Their evidence can be presented before courts. Such evidence is not admissible to be held as evidence of a confession or an admission by a suspect. However, the use of torture is permissible as a first step into the discovery of details about the commission of a crime. Thus, the inquiries do not begin generally with an independent investigation into the evidence. It is on the basis of incriminating evidence that could be discovered from the suspect himself. Where the suspect is innocent and is unable to give evidence about the alleged crime, he/she is repeatedly tortured. Actually, it is more than in the case of an actual suspect who may divulge what he knows with the hope of avoiding torture.

Crime is solved even with the wrong person as the suspect rather than admitting an investigative failure It is also institutionally accepted that a crime is solved even with the wrong person as the suspect rather than admitting a failure in the investigation. The reason for this is an institutional assumption. If proper reports are filed before the courts and to the higher authorities about solving a crime, it saves them from being questioned about unresolved cases. These could have an impact on promotions and other matters within the institutional framework. In addition, this solves the problem in terms of the possible questioning by the media or politicians. What is needed is not to resolve crimes in a manner as is required by the law. It is to create the appearance of such being solved. This is accomplished by way of any kind of subterfuge for which torture could be used as an efficient instrument.

The belief that fear is a necessary condition for the social control of the poor

The cultural belief ingrained into policing and other law enforcement agencies is this: Fear is a necessary condition for the control of the poor and low income-earning groups. This cultural belief has a long history related to the methods of social control that have been used in Sri Lanka for over 1,000 years. When the policing system was introduced by the British, the colonial officers gradually began to understand this factor. It was the reason why the prohibition on leading the evidence of confessions and admission was introduced into the Evidence Ordinance itself. However, during the time of colonial control over the policing system, there were many measures to keep torture and ill treatment by law enforcement officers under control. However, after Independence, this gradually began to break down. Particularly, since the 1970s, the use of torture, ill treatment, and extrajudicial killings, including enforced disappearances, was re-introduced on a large scale. This class element relating to torture is a necessary factor. Through that prism, one can understand the widespread use of torture within the policing system and the institutional justification of and for it.


Treatment of the lower ranks by higher ranking police officers

Another factor is the practices that exist within the policing system itself regarding the treatment of the lower ranks by higher ranking police officers.

The general practice (though there may be some exceptions) is the very harsh treatment of lower ranking officers in order to get them to perform various tasks. The use of very harsh language against them and imposing harsh schedules of work and the like is part of the institutional culture of policing in Sri Lanka. The result is that the officers who are treated badly in this manner by their seniors, tend to repeat the same pattern of behaviour in their own interactions with people. Frequently, it is the lower ranking officers who do the direct torturing while the senior officers engage in such practices less often. The language used by the Police on persons from low-income groups is of a harsh nature. They often use what is usually understood to be bad language and phrases. So, there is a pattern of reproducing internal violence to outsiders within the policing system.

Protected by an effective system of impunity

There is a firm conviction that torture and ill treatment and other forms of the use of violence will be protected by an effective system of impunity. High-ranking officers collaborate in attempts to hush up the instances of the use of force by police officers in two ways. They do not conduct inquiries as soon as possible (creating various kinds of harassment to the complainants). They even alter documents to eliminate any kind of evidence that may be in those records.

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The Asian Human Rights Commission (AHRC) works towards the radical rethinking and fundamental redesigning of justice institutions in order to protect and promote human rights in Asia. Established in 1984, the Hong Kong based organisation is a Laureate of the Right Livelihood Award, 2014.

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