By C. A. Chandraprema
The decision to accede to the Optional Protocol of the International Convention against Torture, and other Cruel, Inhuman or Degrading Treatment or Punishment was taken by the yahapalana Cabinet on 14 November 2017. The decision was implemented soon afterward on 5 December and it will come into force from 4 January 2018. Despite the gross inefficiency that this government has demonstrated in the day-to-day running of this country, they have demonstrated incredible in efficiency in implementing anything that gives the Western powers a handle over Sri Lanka’s internal affairs. The latest move made in this regard is acceding to the Optional Protocol of the Convention against Torture. In order to understand why acceding to the Optional Protocol of the Convention against Torture is inimical to Sri Lanka one has to understand what the Convention against Torture is about.
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The International Convention against Torture has the undeniably laudable objective of preventing torture which is defined as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him information or a confession or punishing him for an act he has committed or is suspected of having committed.” Who can object to such a laudable objective? However, the Convention against Torture restricts its application only to State actors and to public and military officials. No non state actors are affected by its provisions. This is a serious limitation in a country like Sri Lanka, which has had terrorists groups controlling parts of the country and significant parts of the population. The Convention against Torture has the effect of acting as a stricture on the armed forces while the terrorists were exempt from its application.
In this era of terrorism one would think that the most effective way of preventing torture would be to make the International Convention Against Torture applicable to anybody who has another person in his power – regardless of whether the person exercising power is a state actor or not. Ideally, the Convention Against Torture should apply even to a plane hijacker who has people in his power even for a few hours. What happens because of lopsided laws like the Convention Against Torture is that the armed forces of the State will get hauled up for the graver offence of torture while a terrorist who does the same or worse will get hauled up if at all, only for a lesser offence like ‘assault’ and that too only in instances when crude physical torture has been used. Physical torture that leaves no marks or psychological torture by terrorists will never even make it to a charge sheet.
Under the provisions of the Convention against Torture, every member state is required to make torture a separate criminal office which will apply only to the police and armed forces and other forces of the state. To make things worse, the Convention specifically states that “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be cited in mitigation of any violations. Furthermore, the provisions of the Convention against Torture give foreign countries that are member states of the Convention the power to arrest former or serving state officers suspected of committing torture in any other member state. What this means is that officers of the state will be hunted not only by their own government but the governments of foreign countries as well whereas terrorists will not be hunted either in Sri Lanka or overseas for committing torture.
Torture is never used
Acolytes of Pottu Amman can never be brought to justice under the provisions of the Convention against Torture. Sri Lanka acceded to the Convention against Torture in January 1994 at the tail end of the UNP government. Sri Lanka should never have acceded to this Convention at that moment in time. However, the unfortunate reality is that most nations sign these international conventions without thinking through their implications properly. The most celebrated instance in this regard is the 1998 arrest of the former Chilean leader Augusto Pinochet under the provisions of the Convention against Torture to which Chile had acceded to in 1987 when he was in power.
The substantive requirements of the Convention against Torture are fairly pedestrian and are matters that any civilised society and especially a democracy will practice as a matter of course without having to enter into an international convention. The parties to this Convention are required to ensure that all civil and military public officials having custody of persons be educated about the prohibition on torture, and to keep under systematic review interrogation rules, and practices as well as arrangements for the custody and treatment of persons subjected to any arrest, detention or imprisonment, to investigate any complaints of torture, and to ensure that the complainants are not intimidated and that the legal system provides redress to victims of torture as an enforceable right and finally that any statement which is established to have been made as a result of torture shall not be invoked as evidence in legal proceedings. One could loosely say that such provisions were in operation in the Sri Lankan legal system one way or another even before the Convention against Torture was signed. The Convention against Torture also envisages the setting up of a Committee against Torture made up of representatives of member states to investigate allegations of torture in member states. All member states are required to co-operate in such investigations. The Committee may designate one or more of its members to make a confidential inquiry and to report back to the Committee and this may entail a visit to the country concerned. Once the Committee has completed the inquiry, their findings and their observations will be submitted to the state party concerned. The proceedings will be confidential and the Committee will include a summary of its findings in their annual report only with the agreement of the member state concerned.
There are two important provisions in the Convention against Torture to which Sri Lanka has mercifully not acceded. A member state has the option of declaring that it recognizes the competence of the Committee against Torture to receive and consider communications by one member state that another member state is not fulfilling its obligations under this Convention. Fortunately, Sri Lanka had not acceded to this provision which would have given foreign countries a direct handle over Sri Lanka’s internal affairs. Acceding to this particular provision would have enabled a foreign state to write directly to SL saying that there are allegations that SL is not fulfilling its obligations under this Convention and SL will be obliged to explain things to that foreign country. If the foreign country is not satisfied with the answer provided by SL, it can take the matter before the Committee against Torture and the Committee in turn can set up an ad hoc conciliation commission to resolve the matter.
Any dispute between two or more member states concerning the interpretation or application of this Convention which cannot be settled through negotiation shall, be submitted to arbitration. If the arbitration does not work the next step is to take it to the International Court of Justice!
Hogtying law enforcement
One can only imagine what would have happened between 1994 and 2009 if SL had acceded to this provision. There is a similar provision where a member state has the option to declare that it recognizes the competence of the Committee to receive and consider communications from individuals in member states who claim to be victims of torture. In such instances the member state would have to submit an explanation to the Committee and the Committee in turn can convey its views to the member state concerned. Though there is a proviso saying that the Committee can consider such communications only if the individual concerned has exhausted all available domestic remedies, there was an exception to this rule which said that the Committee can consider such applications if the remedies are ‘unreasonably prolonged’ or ‘unlikely to bring effective relief to the person concerned’. Had Sri Lanka acceded to this provision in 1994, the LTTE would have been able to bind the armed forces hand and foot with complaints to the Committee against Torture.
The potential negative effects of the Convention Against Torture were mitigated to some extent by the fact that the SL government did not make the two declarations mentioned above which would have enabled other countries to sit in judgement over Sri Lanka and for individuals in Sri Lanka to be able to make complaints directly to the Committee Against Torture. The enabling legislation passed at the end of 1994 to make the provisions of the Convention against Torture applicable in Sri Lanka were also more realistic than the Convention itself. Act No: 22 of 1994 made torture a separate non-bailable criminal offence punishable with a prison sentence of between 7 to 10 years and a fine. Most importantly, its application was not restricted to officers of the state but to citizens of Sri Lanka and non-citizens who are within the jurisdiction of Sri Lanka. The enabling Act also provided for the extradition of a foreigner suspected of committing torture outside the jurisdiction of Sri Lanka to his own country or another country asking for his extradition etc. The question now is what the Optional Protocol to the Convention against Torture to which Sri Lanka has just acceded requires us to do. The primary objective of the Optional Protocol is to establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment. For this purpose, a Subcommittee of the Committee against Torture is to be established. Each member state is also expected to set up at the domestic level one or more national preventive mechanisms. The members of the Subcommittee of the Committee against Torture will serve not as representatives of their countries but in their individual capacity to ensure independence. Members of this Subcommittee will visit member states and make recommendations to the relevant governments. They are also supposed to maintain direct, and if necessary confidential, contact with the national preventive mechanisms and offer them training and technical assistance.
Member states that accede to the Optional Protocol are expected to give the Subcommittee access to places of detention and provide unrestricted access to all information concerning the number of persons deprived of their liberty and the places of detention and unrestricted access to all information referring to the treatment of those persons as well as their conditions of detention; as well as the opportunity to have private interviews with the persons deprived of their liberty without witnesses, as well as with any other person who the Subcommittee on Prevention believes may supply relevant information. Furthermore, the Subcommittee is to have the liberty to choose the places it wants to visit and the persons it wants to interview. Objection to a visit to a particular place of detention may be made only on urgent and compelling grounds of national defence, public safety, natural disaster or serious disorder in the place to be visited that temporarily prevent the carrying out of such a visit.
Unrestricted access for foreign powers
The existence of a declared state of emergency as such shall not be invoked by a State Party as a reason to object to a visit. No authority or official shall order, apply, permit or tolerate any sanction against any person or organization for having communicated to the Subcommittee on Prevention or to its delegates any information, whether true or false. The Subcommittee will communicate its recommendations and observations confidentially to the State Party and, if relevant, to the national preventive mechanism. If a member state refuses to cooperate with the Subcommittee the Committee against Torture may, make a public statement on the matter or publish it in the report of the Subcommittee on Prevention.
The national mechanisms that are to be set up under the Optional Protocol have to be granted functional independence and the necessary resources by the member states. These national mechanisms are to have unrestricted access to places of detention and information and exercise all the powers the international Subcommittee is entitled to. Moreover, the national mechanisms are to have the right to have unrestricted contacts with the Subcommittee of the Committee on Torture, to send it information and to meet with it and no sanctions can be applied to anybody who provides information, whether true or false to the national mechanism. Thus by acceding to this Optional Protocol, what we have done is to agree to give a body functioning under the Office of the UN Human Rights Commissioner unrestricted access to all places of detention in Sri Lanka and to provide them with all such information regardless of the situation prevailing in the country and to set up local mechanisms which can maintain direct links with the international Subcommittee and feed information to foreign parties without any restriction.
The question is whether we need foreign parties to be nosing around in Sri Lanka and maintaining fifth columns in this country at this point in time? The hasty accession to this Optional Protocol shows that if these foreign powers are unable to get in through the front door, they will enter through a window or even a chink in the roof. A special fund set up within the Office of the High Commissioner on Human Rights of the UN finances the activities of the Subcommittee of the Committee on Torture. This special fund is financed through ‘voluntary contributions’ made by governments, intergovernmental and non-governmental organizations. Western governments provide funding to UN bodies that is tied to particular projects. Needless to say the Sri Lankan project will receive plenty of funds. This is the first physical intrusion into Sri Lanka that the foreign powers have managed to make since the yahapalana government came into power.
Previous attempts to bring in foreign judges, investigators and prosecutors fell by the wayside due to stiff public opposition. The attempt to use the Office of Missing Persons as an entry point also failed because the provision that would have given the OMP unrestricted power to enter into agreements with foreign parties was dropped also due to public opposition. Now the government has signed this Optional Protocol to the Convention against Torture to give their foreign masters an opportunity to intervene directly in Sri Lanka.