Credibility Of ‘Tainted Peace’ Report Questionable

By Waruni Karunarathne-Tuesday, August 18, 2015

Although Freedom from Torture, a UK based charity organisation recently published a report titled ‘Tainted Peace: Torture in Sri Lanka since 2009’ giving a very bleak image of the country and its human rights track record by claiming that state detainees are still being tortured in the hands of the security forces; top human rights activists dismissed such allegations, questioning the credibility of the Report.

According to the report, “torture has been part of the modus operandi of the military, police and intelligence services in Sri Lanka for decades and changing this requires a radical transformation which has not been possible in the country yet.”

The report has mostly looked at 148 cases of apparent torture victims who were subjected to torture from 2009 to the end of the previous regime; however the charity claims that it has continued to receive referrals of Sri Lankan torture victims in 2015, indicating that state detainees continue to be tortured in Sri Lanka.

According to the study, the overwhelming majority of their study (139) were of Tamil ethnicity, all of them were reportedly tortured because of a real or perceived association with the Liberation Tigers of Tamil Eelam (LTTE) and more than one third of the people in this study were tortured after returning to Sri Lanka from the UK after the end of the armed conflict.

The report establishes that the torture is wide spread in state detention and occurs in facilities throughout the country under the control of the military, police and intelligent service.

However, Legal Secretary and Media Spokesman of the Human Rights Commission of Sri Lanka (HRCSL), Nimal Punchihewa denied claims of detainees being tortured inside the Sri Lankan prisons at present.

“We cannot accept such claims. HRCSL officials visit Sri Lankan prisons on regular basis but no incident of torture has been reported and we have not received any complaints. However, we believe that it is not acceptable to keep them in prisons for long years without a case or a proper hearing. That is wrong. Those without cases should be released and the process of hearing cases should be expedited,” he noted.

According to Punchihewa, Tamil detainees held in relation with war time activities are often held in Boosa and once a month, HRCSL officers visit those prisons as well as CID and TID yet they have not received complaints related to any incident of torture. Besides, with reference to the arrests made on arrival at the country, he said that the detention under the Prevention of Terrorist Act is no longer taking place.

However, Attorney-at-Law and Human Rights activist Prathiba Mahanamahewa said that he has several questions to ask in order to establish the credibility of this report.

The report tries to establish that Sri Lankan security forces continue to torture Tamil detainees and it claims that 55 people of their study were detained and tortured after they returned to Sri Lanka from the UK after the civil war ended – 48 of these people were arrested within three weeks of arriving in the Sri Lanka, 18 were arrested immediately on arrival at the airport, 19 were taken from their home address, and seven were abducted from the street.

However, Mahanamahewa said that according to the legal process, if anyone is to be arrested on arrival to the country, they are arrested by the Immigration and Emigration and handed over to the CID or the police.

“People can be arrested on arrival for committing an offense under the Penal Code, under Prevention of Money Laundering Act, under Prevention of Terrorism Act or Emergency Regulations. In a circular issued sometime back, it states that if anyone is arrested under 1979 Prevention of Terrorism Act or under Emergency Regulations, it has to be reported to the HRCSL within 48 hours of the arrest. Then the HRCSL will investigate into these cases,” he explained.

According to him, even though the report has highlighted the element of torture undergone by the detainee, it has failed to study the legal aspects and as to where they were arrested and they were arrested for committing which offenses.

Mahanamahewa added that Emergency Regulations are no longer in operation in Sri Lanka. He further assured that there are no secret torture houses or secret torture camps in Sri Lanka.

“It was established by the police and even civil society members that there are no secret torture houses or camps in Sri Lanka. Those detainees could be held only in Boosa, Welikda or in Pallekele prisons. All the 182 suspected terrorists were earlier held in Boosa have now been shifted to Welikada prison,” he said.

According to Mahanamahewa, he has personally visited when some of the top suspects detained in connection with terrorist activities handed over to the CID by Malaysia and at that point the Human Rights Watch published an article worldwide raising concerns for the lives of those detainees. However, he claimed that those detainees had no complaints of torture in Sri Lanka but they had undergone torture when they were held in Malaysia.

He noted that those cells where the detainees are held in the CID are observed 356 days under CCTV surveillance and anyone can go to courts to obtain an order requesting for the CCTV recordings which is accepted as evidence under Evidence (Special Provisions) Act No.14 of 1995.

Besides, he added that Magistrates visit these cells once a month, whilst HRCSL also visit those detainees on regular basis and the relatives of the detainees are also allowed to visit them. Therefore, in case of a torture incident, there is enough and more room for the families to take the matter to the Supreme Court and obtain relief.

In addition, Mahanamahewa noted that there are civil society organisations, Tamil Diaspora, Global Tamil forum, human rights watch, amnesty international and many such organisations that are constantly on watch to question if such incidents of torture are taking place.

However, he said that he would not be able to vouch whether the Sri Lankan prisons are completely void of torture or not and there may be instances of torture during the police inquiry but after 2012 cases of torture have drastically come down. He also insisted that there is provision in the Sri Lankan law to protect detainees from torture and the detainees are encouraged to seek legal protection in case of such abuses. He noted that Article 11 of the 1978 Constitution of Sri Lanka specifically says that no person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment – including psychological torture.

Thus according to Mahanamahewa, the Constitution provides legal provisions to protect people against torture and now people have proper access to the legal system. According to him, even before 2009 at the time of the war, there were certain provisions that protected detainees from torture. However, he refused the claim about security forces currently detaining persons on arrival to the country or arresting them at random – he said that the days of white van abductions have come to an end.

“At present, the rule of law has been established and the forces cannot even secretly arrest any suspect let alone torture them and later admit to a hospital or keep them in a camp. That is not possible because there are so many parties concurrently on the watch,” he said.

However, he admitted that such incidents of torture using methods described in the report such as ‘torture’ included beatings, burning, rape and other forms of sexual violence, asphyxiation, electric shocks, mock executions, and stabbings may have happened a long time back – and there are so many Supreme Court cases against such past incidents of torture. But he assured that detainees no longer go though abuses of that nature.