The government needs to be constructive rather than combative

Is the essentially combative tone adopted by the Government to the Juan Mendez report finding that a “culture of torture” is still being practised in Sri Lanka quite wise, one might ask?

Of course, we live in an age where, confounding his own advisors and despite solid evidence to the contrary, the President of the United States is on record stating bombastically that ‘torture works’ as an interrogation method.

Key Mendez findings

But Sri Lanka’s state representatives have long adopted a far more devious method of denial. The immediate response has always been to rebut off hand, allegations that torture is commonly practised. That reaction does not appear to change, let it be the ‘yahapalanaya government’, or any other. So this blunt rejection as reported in this newspaper last week is unsurprising. Yet the larger question is whether a more sober appraisal will not actually help the country more than an obstinate ostrich-like denial.

Let us dispassionately consider what Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Mr Mendez had said. He issued the report to the UN Human Rights Council consequent to a visit made to the country early last year. It is due to be considered by the Council at its 34th session, scheduled to run from February 27 to March 2017.

A key finding is that ‘while the practice of torture is less prevalent today than during the conflict and the methods used are at times less severe…a culture of torture persists.’ Physical and mental coercion is employed as an interrogation method by both the Criminal Investigations Department (CID) in ‘regular cases’ and by the Terrorism Investigation Division (TID) under the Prevention of Terrorism Act (PTA).

Grave trends in the report

Where the TID is specifically concerned, ‘a causal link seems to exist between the level of real or perceived threat to national security and the severity of the physical suffering inflicted by agents of the Division during detention and interrogation’ Mr Mendez observed. Linked to this is the observation that he had received ‘credible reports’ of “white van abductions” by officers in plain clothes as recently as ‘up to April 2016.’ As he says, such abductions in the past, more often than not, led to enforced disappearances.

However these recent instances have led to ‘incommunicado detention of the suspect with the purpose of obtaining a confession before transfer to official Department or Division facilities.’ Meanwhile brutal abuse of detainees predominantly of Tamil ethnicity under the Prevention of Terrorism Act (PTA) in order to induce confessions is found akin to a recurring decimal in interrogation practices.

The other equally grave trend in the report is his finding that Magistrates are ‘overly passive’ and rubber-stamp detention orders made by the executive branch and do not inquire into conditions of detention or potential ill-treatment. This is a conclusion that is supported by Sri Lanka’s own Supreme Court where the dereliction of duty by judicial officers has been lamented. In effect, this constitutes a most eloquent justification as to why Sri Lanka’s proposed counter-terror Act (CTA) meant to replace the PTA should not superficially put forward this excuse of ‘magisterial supervision’ in preventing torture, when practically that protection is almost nil. The initial draft of the CTA proceeded exactly on this basis, justifying the whittling down of protections accordingly.

Suspicious secrecy surrounding the revised CTA

And we still remain in a state of suspended animation in regard to what revisions have been made to the CTA. As has been remarked in these column spaces previously, the proposed CTA appears to be more draconian than the PTA. The fact that the CTA had been ‘revised’ was announced by the Government with impeccable and splendid timing just before the European Commission stated that it would recommend to the EU, the restoration of the GSP Plus trade benefit to Sri Lanka.

But the revised draft appears to be guarded with a passion that can only arouse suspicion as to the bona fides of its defenders. And this seems to have conveniently slipped off the radar of the merry travelers on the ‘transitional justice bandwagon’ who have also (and predictably so) received a series of short and sharp shocks recently by de-prioritization of transitional justice on the Government agenda.

Other aspects of the Mendez report mirror concerns stressed domestically. These include the right of a suspect to legal representation at a police station immediately after arrest and during detention. Extreme concern is expressed in regard to the ‘willingness of judges to admit confessions in criminal proceedings without corroboration by other evidence, creating conditions that further encourage torture and ill-treatment.’

Reflecting domestic concerns

Thus too, a common practice of conducting the investigation while the suspect is in custody, rather than determining the need for detention based on preliminary investigations. Certainly these particular conclusions reflect a recurrent pattern confirmed by innumerable academic and activist reports buttressed also by fundamental rights decisions of the Supreme Court from almost two decades ago.

Indeed, continuing weaknesses in Sri Lanka’s institutional processes receive special attention in the report with the confirmation by the Chief Justice to the Special Rapportuer that there is a backlog of some 3,000 fundamental rights cases before the Supreme Court. Mr Mendez acknowledges strides taken by the National Human Rights Commission but makes the pertinent point that this has left untouched the task of remedying impunity for past and present abuses through effective prosecution. He passes down graver strictures on reliance of the National Police Commission on police investigations and the ‘worrying lack of will’ on the part of the Attorney-General to investigate and prosecute torture allegations.

These are serious findings no doubt. Yet in many respects, they only echo what has been said before, by Sri Lanka’s own monitoring and advocacy bodies. They come as no surprise even though state representatives may throw up their hands in horror at the very idea.

A considered response needed

Thus, the Mendez findings and recommendations merit a considered response by the Government. Much of the recommendations also echo long standing institutional reforms that have been pending for decades. A rejection of this report out of hand will help no one, least of all Sri Lanka’s own albeit increasingly strained case that it is painfully plodding to regain a measure of normalcy after decades of terrorized abnormal state behaviour.

It is hoped that sanity rather than unhelpful hysteria will prevail in future official responses.