By Basil Fernando
An amendment to the Code of Criminal Procedure allowing the Magistrates to visit places of detention has been turned into a political issue by a section of the government and by some extreme nationalist elements.
What this means is that the opposition to the amendment is supporting the continuous practice of torture in Sri Lanka.
In international law, torture is considered as one of the most heinous crimes; it is also considered a serious crime in Sri Lankan law through the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Act, No. 22 of 1994 that prescribes a seven-year prison sentence and heavy fines for anyone who commits such an act.
The need for the amendment to the Code of Criminal Procedure arose from strong pressure by groups within Sri Lanka itself and also due to international criticism of the use of the barbaric practice of routine torture in places of detention that includes police stations, prisons and other detention centres.
Opposition to the amendment is a manifestation of the politicization of cruelty against citizens and demonstrates the extent to which the politics of cruelty has entered not, only into politics, but the Sri Lankan way of life.
Opposition to the move arises not from religious reasons, although it is couched in such language. The real reason is the heavy authoritarian tendency within the government to repress the population, and particularly the people who are protesting against the serious breakdown of their economic conditions and livelihoods.
The government’s perception that torture needs to be maintained for political purposes has led to a rift within, with Justice Minister Ali Sabry, a close associate of President Gotabaya Rajapaksa, becoming a target.
This is no surprise. Former Chief Justice Neville Samarakoon was a close friend and personal lawyer for President J.R. Jayewardene. However, Jayewardene did not hesitate to take stern measures against Samarakoon when he defended the legal framework of the country against the onslaught by the president.
When it comes to the use of cruelty, no one is spared. This is a lesson Sri Lanka has learnt over and over again for about half a century now. The cruelty includes enforced disappearances, which means the torturing of persons after arrest and then killing them and disposing of their bodies in secret. Sri Lanka ranks second among the countries that have experienced this most deadly form of cruelty in terms of numbers.
Torture is a regular part of the arrest and detention process. Thousands of case studies and also hundreds of cases decided by the Supreme Court itself under its fundamental rights jurisdiction clearly demonstrates that torture is not only rampant but that it also carries no legal consequences.
Why does the government want to continue to allow the use of torture? Although the objection to the amendment has been taken on the basis of people who have been kept under detention at the Criminal Investigation Department (CID), this is only a pretext as to why the government itself is objecting to this law.
The importance of objections relating to detention in the CID is that in recent times most people who have been kept under the custody of the CID have been detained on fabricated charges and often for political reasons. Creating a fear that if one opposes the government for whatever legitimate reason, he could be exposed to torture and even custodial death is being seen as a necessary tool for creating intimidation and maintaining a high level of fear.
The right-wing elements that support the use of torture for what they claim to be a measure against the Muslim community are using it as a pretext for supporting the continuity of heavy repressive practices by the government.
A community of people who tolerates the use of serious forms of cruelty against each other can never develop a social consciousness for the benefit of the people of the country. The use of cruelty is meant to benefit only a few who use violence in order to protect their own personal property, wealth and power.
People who cannot agree that torture and custodial deaths should be stopped altogether cannot claim to be a civilized nation in the modern world. The most minimum requirement of decency as a civilized society is the condemnation of all forms of cruelty without any conditions.
Objections to the passing of this law should not merely be seen as a conflict relating to the Minister of Justice; it is a conflict of the government with its own people, that is, the entirety of the population.
If all sectors of society unite to make a collective effort to demand that this law should be passed, it is not possible to resist such a demand. The opposition should not only make one or two comments in Parliament but, given the importance of this law, it should make a serious collective effort to get it passed as soon as possible. It is the duty of all people who are concerned – particularly for the low-income groups who are often the main targets of the use of torture – to rally around to get this law incorporated into the legal framework.
The legal profession, in particular, should, in their care for the maintenance of the rule of law and protecting criminal justice in the country, support this law and do everything in its power to ensure that people will have the benefit of Magistrates’ visits to ensure that torture does not take place in detention centres.
-AHRC
