‘You have to tolerate a little bit of torture’

In part one of a two-part interview Colombo based Attorney-at-law Ranjan Mendis explains how the Sri Lankan police continue to influence the outcome of torture trials taken against them, resulting in a mere handful of convictions since the domestic anti-torture law was passed sixteen years ago.

“Torture by police is the order of the day”

“As a regular practitioner in criminal courts I know the day-to-day. We meet a large number of people belonging to various walks of life; torture by the police is the order of the day – the order of the day. I want to emphasize that. In India torture is very common by the police as well as by the army, but in Sri Lanka torture by the army and other armed forces like the navy is not really common – other than in the theatres of war.  Here the police have the monopoly.”

I must say in fairness to everybody, immediately after a law is passed the authorities or the general public do not come to terms with this law. It takes a little time. If you give them five or six years to develop awareness, realistically we could put the effect of this legislation to the last ten years.

Between ’94 and today [since the anti-torture act was enacted] although incidents of torture are rampant, the number of cases that have come to courts is woefully inadequate… there’s no central record.  I would say that of concluded cases, there may not be more than 60-75 at the most; pending cases would be about another 40 to 50. My guess is that at the most about ten cases [were successful].

“You have to tolerate a little bit of torture”
In society in general there is a large number of people who believe that the police cannot do their job properly and get information, unless the suspects are tortured. They say with a firm sense of conviction that criminals have to be tortured. They go on saying that until someone from their family is taken by the police and tortured, then they change their views. Even the so-called educated people think so. Ask a university professor; ask five! Chances are that, unless it is a professor law, he or she would say, ‘well after all police have to do their job, so you have to tolerate a little bit of torture’. And judges, being people who come from that same society, usually take that view.

There are two or three reasons why people hold this view. A major reason is… in the west torture happens occasionally, but it is not done on a regular basis; four or five chaps may be kicked by the police and it is a big issue there. But investigation methods are not very modern in Sri Lanka. You cannot compare investigations here with the systems and methods employed in a western countries.

“In the West they have cameras…
Lack of training is one of the major reasons. Another reason is that our police force is slow to employ – mainly due to lack of funds and this being a poor country – the methods used in the West. In the West they have cameras, electronics; they use various scientific methods to track down people and to corner a man and say, ‘look, you did this’. The man then generally breaks down and will come out and cooperate with the police. For the judge it’s only a matter of sentencing.  But it is not necessary in our law, in proving a case, that a person should make a confession to the police. On the contrary the Evidence Ordinance, a paramount legislation that governs the criminal proceedings, has a very special section, 25, which says: No confession made to a police officer shall be proved as against a person accused of any offense.  …They are trying to change the English law to fall in line with this. They feel that the police officers serving in England are unsafe to believe, because standards have gone down, even there… Though confessions are not admissible [in Sri Lanka], if when using a confessional statement, somefact is found, that part of the statement can be used. But I am not promoting torture!

“They cook their books”
When a man is tortured he complains. That police station will never accept the complaint. Most of the people tortured are not educated people. They don’t know what to do so they go to a politician, or a lawyer, or someone. Finally after several days he will be told that there’s a special unit at the police headquarters where you can go if your complaint has not yet been accepted, and it will be deferred to the CID. But even the CID people are also police officers. There is this feeling of brotherhood, solidarity, amongst the police, and even if you get three CID people to investigate, who are 100% impartial, the charge of torture has to be filed mostly by relying on the records of that police station. They cook their books. That is the main reason [that torture cases fail].

In the medical profession there is a feeling that criminals should be tortured and we should help the police when they get into trouble. So doctors invariably – other than those specially trained and with thinking adjusted or attuned to the responsibilities as doctors to society – try to hide or hush up.

Police also write on these Information Books maintained at the station, and when things start going wrong against them… These are huge books, but police are permitted to use a more practical crime pad in the police station, for investigation notes, which are numbered. They write all sorts of irrelevant things and then they paste them. Other notes, related to other cases, they paste in! And contradictory important things are made to disappear, contradictory statements are recorded.

I can tell you a real case, way back in 1973, about the chief medical officer in a very remote village in the southern province. Police assaulted a man and there were broken limbs. They took him to the DMO (District Medical Officer), who wrote everything honestly, and in three days time an entire police party went, called the doctor out and assaulted him mercilessly.

“The police are running the show”
May not be in Colombo, may not be Kandy or Galle, but in the villages the police are running the show. I want to reiterate that the main reason why these cases fail is that the investigation and the police suppress all the evidence, they cook their books and they also influence the doctors. I have suggested time and again at numerous human rights torture conferences that the only way out of this problem is to create a unit which is administered by professionals who are not belonging to the police force -independent professionals.

“Torture cases are doomed”
We need more high courts, more judges, but the problem is this: you can’t just get somebody and make them a high court judge! The quality of judges has already badly deteriorated. But if you find more and more like that you will get judges, high court judges, who are unfit to be even magistrates.

Torture cases are doomed to failure, true enough, but every torture victim thinks that although other cases fail, mine will succeed. But they are being threatened by police don’t forget that. Witnesses are invariably threatened too. Most witnesses are the other people who were under arrest at a police station [at the same time] and the police get at them; they threaten them. This happens in a large number of torture prosecutions and they go back on their statements. I should have mentioned that a bit earlier, but it’s a very real factor.