That there is bound to be excesses in any State ,even in a Democracy, US India included.
But the Courts normally come down heavily on the Police and prison Authorities in cases where torture is involved.
But in Sri Lanka the State seems to assume Fear and Torture as state Policies and worse the Courts side with the establishment.
This is from an LTTE activist or Sri Lanka Tamil.
From a SrI Lanka Lawyer of 46 years standing.
It is worth mentioning that a Supreme Court Justice in Sri Lanka was tossed out by Impeachment (in land acquisition) for blocking an ordinance by the State , a new judge appointed and promptly the decks were cleared for the Bill which was passed .
Story:
Dr. Sunil Cooray is a senior lawyer who is very well known in Sri Lanka. He has been in legal practice for 46 years. He is the author of the two volumes of the authoritative text Principles of Administrative Law in Sri Lanka. Basil Fernando of the Asian Human Rights Commission interviews Dr. Sunil Cooray on practice of torture in Sri Lanka.
Basil Fernando: You have done several cases in Sri Lanka relating to torture. Could you tell us a bit about your experience?
Sunil Cooray: In torture cases, I have appeared for both the petitioner and, on a few occasions, the respondent police officers. My experience is that the court generally leans in favour of the respondents. That is to say, as far as possible they try to claim that the case for the petitioner has not been proved. If I am for the respondents then I am OK. But I’ve found that for the petitioner it is a slightly uphill task to convince judges that police officers and prison officers have committed torture. That has been my experience.
BF: Why do you think this is? In a courtroom, both sides must be equal and evidence must be assessed accordingly. For example, in Sri Lanka, medical evidence and similar things are used. Is the difficulty you mentioned the result of some kind of psychological bias?
SC: It is, I suppose, something like a psychological situation, because most of our judges in the Supreme Court – and that is where all fundamental rights cases are heard – come from the Attorney General’s Department. Throughout their lives as practicing lawyers in the department they have been in touch with police officers, and they have a tendency to believe what the police say rather than what an ordinary citizen has to say. I think that is part of the problem.
BF: Now you would have seen this book Narrative of Justice In Sri Lanka told through stories of torture victims?
SC: Yes I have seen it.
BF: There are 400 cases and that is a very large number of cases. Why do you think such a widespread practice exists?
SC: I think that there are various reasons, but I also think that there are things that can be put in place to minimise or even eliminate torture. I think there are numerous reasons why torture is committed and one reason might be that some police officers have sadistic tendencies and if they get hold of an innocent man, a defenseless man, they want to satisfy their sadism by beating him up. And it also happens that many police officers drink liquor in the evenings so they are badly under the influence of alcohol and they want to have a little fun with these defenseless people who have no one to turn at that time. Those are mainly poor people, and they are harassed and tortured.
There are other reasons as well. For instance, a person may be caught up in a case, rightly or wrongly, and the police may be under instructions from somebody else that torture should be committed by them on that man. This may be for political reasons or similar. Even a straight police officer may be under some compulsion in those circumstances because he might fear that unless he complies he may face a transfer order or some disciplinary proceedings or similar. They also resort to torture to extort money and that also depends on the wages of the police officers. So those are some aspects to be looked into. Police officers should be paid a living wage so that they can maintain themselves and their families in reasonable comfort, and lack of that may be one reason. And then of course there is a general feeling, and some judges and lawyers agree, that torture is something that should not be totally prohibited because according to them torture is an integral part of investigations. That is a completely wrong view and of course is completely against the law but unfortunately it is an embedded idea in the heads of some of our judges and lawyers. And that is one reason why they tend to side with the police officers who are accused of committing torture rather than siding with the petitioner.
BF: Would it be correct to say that at no stage, either by the government or the high ranking officers of the police, a sincere message has been given to the police that torture is wrong?
SC: I think that is so. I don’t think that there is any sincerity when higher ranking police officers tell their lower grades not to commit torture; it is taken with a pinch of salt. They think it is just a matter of words that torture should not be committed. I think what you said is quite right.
BF: So, in other words, the use of torture is a matter of accepted unofficial policy?
SC: Some sort of accepted unofficial policy, but I am sure that sort of policy is losing ground. I am sure this idea, which is in the back of the heads of our judges, lawyers, and senior police officers, is losing ground and I hope the day will come when the idea does not exist anymore because it is brutal. By modern standards it is brutal to commit torture and I hope the day will dawn when the idea is eliminated totally from our lawyers and judges.
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