CONFIDENTIAL

Submission to UN Special Rapportuers on Independence of Judges & Lawyers and

Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
These submissions are further to the discussion between civil society actors and the two
United Nations mandate holders on 30th April 2016.
Torture is used routinely by the police as a systemic investigative tool, and as an
alternative to more scientific means of investigation 1. We believe the prevalence of
torture is closely linked to the absence of adequate safeguards, of which an independent
and proactive judiciary is key. The absence of administrative checks on police/military
power over civilians, insufficient mechanisms for accountability and punitive action
against offenders, and regressive legislation such as the Prevention of Terrorism Act, are
further contributory factors that enable the widespread and systematic use of torture.
The role of the judiciary, in protecting individuals from torture by state officers is
critical, particularly in the context of war and conflict where the executive has
traditionally acted with impunity. The lack of a proactive stance by judges and the
failure to protect victims even where clear evidence of torture emerges in certain cases
has contributed to the lack of protection for victims.
The following are key issues relating to independence of the judiciary and incidents of
torture, inhuman, cruel and/or degrading treatment and detail issues that we (the
undersigned) believe are of relevance to the two mandate holders.

A. Torture of Minors
1. There have been at least 3 verified instances of torture and/or cruel, inhuman or
degrading treatment of minors in 2015, under the current Government 2.

1 Human Rights Watch, Sri Lanka- Routine Police Torture Devastates Families,
October 2015, https://www.hrw.org/news/2015/10/23/sri-lanka-routine-policetorture-devastates-families; Wimalanath Weerarathe, Sunday Leader, Policing Sri
Lankas police force, 24 January 2016,
http://www.thesundayleader.lk/2016/01/24/policing-sri-lankas-police-force/

2. In the case of the disappearances of a minor in Atchchuveli, (Killinochchi

District) in June 2015, 2 minors were among those detained as suspects by the
police. The minors were detained without due process and were denied the
traditional legal safeguards afforded to minors. At least one of the minors, (who
was 14 years old at the time), was subjected to torture by the police while in
detention3.
3. Having failed to find any evidence linking the minor to the crime, the police then
made false and baseless submissions to court of the minors sexual history
accusing him of having homosexual relations with other minors 4. Despite failing
to prove these allegations, the police are now believed to have raised a charge
accusing the minor of sexually abusing a mentally handicapped minor.
B. The role of judges and lawyers in protecting victims of torture
4. In all three incidents involving the torture of minors, there appears to be a clear
lack of interest/commitment/willingness among the judiciary (Magistrates
before whom the cases are heard) to question the manner in which the police
conduct investigations and inquire into allegations of custodial torture.
5. In the case of the minor in Killinochchi, he remains in juvenile detention, despite
allegations of torture by the police, and the lack of any evidence linking him to
the crime.
6. So far, this case has been heard before two Magistrates (the first judge was
transferred mid-way through investigations), and in both cases, the judiciary has

2 Thulasi Muthulingam, The Case of Little Jerusha, Daily FT, 18 August 2015, at
http://www.ft.lk/article/458805/The-case-of-Little-Jerusha; Ceylon Today, Rape
Murder of Seya School boy abused and tortured by police, 2 October 2015 at,
http://www.ceylontoday.lk/51-105392-news-detail-rape-murder-of-seya-school-boyabused-and-tortured-by-police.html; interview with legal aid lawyer.
3 The mother of the disappeared minor was also severely tortured by the police
while in detention which case has been
4 The B report, which is the investigative report submitted to Court by the police
includes these allegations of homosexual conduct.

refused to engage with allegations of torture, played down the conduct of the
police, and reprimanded lawyers appearing for the minor in open court.
7. Lawyers in Killinochchi also failed to take a stand in that case, and went so far as
to refuse to appear for the minor who was tortured or the mother of the
disappeared minor, who was also severely tortured by the police.
C. Incidents of mass violations where a large group of persons are tortured
and/or subjected to inhuman, cruel and degrading treatment
8. There have been several known incidents of large groups of persons being
tortured and/or being subjected to inhuman, cruel or degrading treatment by
police and/or military personnel with absolute impunity. In each of these cases,
the violations were publicly inflicted and known to state officials and the
judiciary.
9. To date, no action has been taken to inquire into the violence, identify those
responsible and provide justice/redress to victims. Instead, the victims
themselves have criminal charges or allegations leveled against them, which in
some cases continue to date.
10. For instance in Navanthurai, a village in the Jaffna District, in the Northern
Province of Sri Lanka, around a 100 120 men were dragged from their homes in
the early hours of 23rd August 2011 by a combined force of police and military
personnel from nearby camps. The men were brutally and indiscriminately
beaten with rifle butts and iron rods and dragged along the road towards the
Army detachment located around 300 meters from the village. Women and
children were also beaten in the attack. The victims were subsequently produced
before a judge and received treatment at the Jaffna Government Hospital. The
more seriously injured remained in hospital for several weeks after the incident 5.
11. To date, no action has been taken against the officers responsible for the incident
in Navanthurai, although the police/military officers present and participating in
the action could be easily identified. The fundamental rights application filed by
the victims before the Supreme Court of Sri Lanka has been pending for over 4
5 Watchdog, Jaffna Brutal Assault of Civilians in Navanthurai, 25th August 2011, at
http://groundviews.org/2011/08/25/jaffna-brutal-assault-of-civilians-in-navanthurai/

years without leave. Instead, the victims themselves have faced criminal charges
and are accused of damaging public property in relation to an incident that took
place on the night of 22nd August 2011.
12. The incident of prison violence inside the Welikada Prison in 2012, (Colombo
District, Western Province), is a further example.
13. On 9th November 2012, state security forces, entered the prison compound on the
grounds of controlling a prison riot and over a period of several hours, brutally
beat and shot dead a large number of prisoners. The eye witness testimony of a
prison guard, given confidentially to a watchdog member, relates that every five
minutes we heard the sounds of two gun shots. We knew that each time we heard
these twin shots, a prisoner was being killed. This prison guard, also reports
that an unknown number of prisoners wearing hoods/shrouds to cover their
identities, were taken away in military vehicles that day.
14. The present government ordered a commission of inquiry into the Welikada
prison massacre. However the report of this commission has not been made
public so far and no action taken against those responsible6.
D. Delays/Lack of action in addressing complaints of Torture and inhuman cruel or
degrading treatment
15. As referred to above, the lack of mechanisms and processes within the executive
to effectively contain and address incidents of torture have enabled offending
officers to continue in office and re-offend with impunity. Complaints to the
National Police Commission, and the Inspector General of Police, regarding
incidents of torture have not received adequate attention or response apart from
being informed that the officers responsible for custodial torture, which in some
cases has even resulted in death, have been transferred to another police station.
16. For instance in the case of the custodial death of Nimal Chandrasiri in April 2012,
while in the custody of the Wadduwa police, the Magistrate in the inquest
bearing No.05461 found that the victim had been in good health when he was
6 Ashanthi Warunasuriya, Whose Afraid of the Prison Riot Report, Sunday Leader,
14th February 2016, http://www.thesundayleader.lk/2016/02/14/whos-afraid-of-theprison-riot-report/

arrested by the police and that there was indications of blunt force trauma to his
chest and there were several discrepancies in the police account of events related
to his arrest and subsequent death in custody.
17. Despite these findings, and repeated complaints by the victims family, there has
been no action taken by the National Police Commission against the accused
officers and the fundamental rights case is still pending before the Supreme
Court of Sri Lanka. It is important to note that the victim was a witness in a case
against the police, for wrongful arrest of several persons, and was due to give
evidence against the police, when he was arrested and died in custody.
18. A writ application, challenging the lack of action by the National Police
Commission in this case (bearing No. CA Writ 473/2015) is currently pending
before the Court of Appeal Sri Lanka.
19. The judiciary have also failed to respond adequately to allegations of torture at
the Supreme Court level, in delaying fundamental rights applications routinely
for going on for several years (despite Supreme Court Rules to the effect that
fundamental rights applications should be heard and determined within 2
months), and entertaining and allowing technical objections raised by the State in
order to prevent such applications from being heard on merit.
20. In the case of Sarath Naidos, SC FR 608/2008, who was arrested and tortured by
the Moratuwa police in 2008, the Supreme Court has failed to hear arguments on
this matter for the past 8 years. Initially the Court was awaiting the judgment in
the two criminal cases, before the Magistrates Court, filed by the police against
the victim, even though the outcome of these cases had no legal bearing on
whether the victim had been arbitrarily detained or torture by police. Although,
the decision in fundamental rights case and a finding of torture in custody,
should have had a bearing on the admissibility of evidence before the Magistrate
Court criminal case, in a twist of justice, this position was entertained by the
Supreme Court as a valid grounds to in fact desist from hearing the fundamental
rights application out of fear that it would influence the criminal cases.
21. The Magistrates Court, acquitted the victim of all criminal charges in both cases
(MC Moratuwa Cases No.89984 judgment and No. 90215) and further found that
he had been tortured by the police while in detention, that his detention was

arbitrary and that the cases against him were false and the police had led false
evidence against him.
22. Despite these findings by the Magistrates Court, which has now been submitted
to the Supreme Court, the apex Court has decided to take up the technical
objection raised on behalf of the police, of whether the application of the victim
(Petitioner), has been raised within the one month time limit as per Article 126 of
the Constitution.
23. This case also highlights the role of the National Human Rights Commission and
its treatment of torture victims. The victim/Petitioner has filed a complaint with
the National Human Rights Commission. So far the Petitioner has received no
response regarding his case from the NHRC apart from a acknowledgement of
his complaint and a complaint number HRC/3552/08 dated 11th July 2008.
24. A complaint to the NHRC as per the rules, suspends during the course of the
NHRC inquiry, the time limit within which a Supreme Court Petition can be
filed. While this has been raised by counsel for the victim/petitioner as a
response to the technical objection of time bar, and the NHRC has been asked by
the Supreme Court to confirm the status of its inquiry, the NHRC has so far failed
to respond, claiming first that they could not trace the file, and finally that they
were moving buildings and therefore could not respond to the Supreme Courts
request.
25. In the case of Sunil Shantha and Shantha Amundara, SCFR 479/2009 alleging
torture against the Meegahathanna Police Station, in which the victim alleges that
he was tortured on 2nd March 2009 and was hospitalized for 7 days due to injuries
suffered during torture, and filed a fundamental rights application on the 22 nd of
June 2009, the case has yet to be heard by the Supreme Court on merits. The case
is delayed on the question of whether the wife of one of the victims Shantha
Amundara, who subsequently committed suicide, has standing to continue the
case following his demise.
26. The question of standing in this case, has been argued on three occasions and
been reserved for judgment. On each occasion the case had to be reargued
because judges would retire without delivering judgment. Bear in mind, that

these same benches to our knowledge have delivered judgment in other cases,
reflecting the lack of priority given to cases of torture.
27. These cases, give glaring insight into the attitude of courts, and administrative
officers including police officers7 including the police towards justice and redress
for victims of torture and their families.
28. Along with the administrative and judicial failings there is also the lack of clear
political will to stem the use of torture and extra judicial means as a method of
investigation and response to alleged crimes. The refusal to release the report of
the commission into the Welikada Massacre under the current government one
example of the lack of political will to follow through on public commitments to
human rights and accountability.
E. Regressive anti-terrorism laws that enable torture
29. The Prevention of Terrorism Act which was amended in 2011 to include
provisions of the Emergency Regulations which lapsed in 2010. This law contains
provisions which enable extended administrative detention of suspects without
charge, oust judicial scrutiny over detention and render admissible confessions
made by suspects to police officers above the rank of an Assistant Superintendent
of Police, which is not permissible under the ordinary criminal procedure in Sri
Lanka.
30. The PTA arguably does not conform to the requirements of legality or law
under International law, including as per the general comments to the
International Covenant on Civil and Political Rights, by which Sri Lanka is
bound.
31. This legislation and the emergency regulations, prior to 2010, have entrenched
the use of torture and confessions obtained under torture as legitimate means of
extracting information and evidence gathering, including by terrorizing
individuals and groups of persons, by the threat of torture against themselves or
their loved ones in return for information or submission. The law has been used
7 Such as to the Inspector General of the Police, Deputy Inspector General of Police,
Senior Superintendent of Police, Superintendent of Police and Assistant
Superintendent of Police

against Tamil civilians in the North and East and to quash political dissent and
human rights defenders throughout the island.
32. The present Government has publicly pledged to review the PTA, although calls
from civil rights activists have been to completely abolish the regressive law. The
new law, to replace the PTA should be examined closely to ensure there are clear
checks and balances to prevent torture and other cruel, inhuman or degrading
treatment or punishment, enforced disappearances and extrajudicial executions.
Further, the proposed draft law should be checked to ensure that it doesnt take
away judicial supervision and discretion in relation to bail and remanding
suspects.
33. There are however disturbing inconsistencies and irregularities in this
Governments approach to the PTA. 1. The drafting process has been shrouded in
secrecy with versions of the draft bill currently in circulation and without any
consultation with citizens and civil rights activists. 2. PTA cases, against HRDs
and ordinary Tamil civilians, including against those released on bail, continue
(now for several years in some cases), without charge and without evidence. 3.
The spate of new arrests (nearly 23 based on media reports), that were referred to
during the discussion with the mandate holders on 30 th April, are believed to be
under the PTA, and in either case, do not conform to the constitutional
safeguards relating to arrest and detention.
F. Restriction on fundamental rights to non-citizens
34. While certain Articles under the Fundamental Rights Chapter such as freedom
from torture, inhuman, cruel or degrading treatment or punishment (Article 11),
and equality before the law and the equal protection of the law (Article 12) are
applicable to all persons including non-citizens there are other rights such as
freedom of speech, assembly and association (Article 14) which are applicable
only to citizens. Further restrictions placed on protection against arbitrary arrest
and detention (See Article 13 (7) ) to non-citizens often leads to them being taken
off the ambit of judicial protection
35. While equally relevant to tourists, aid workers and those visiting Sri Lanka for
other purposes, it is particularly relevant in the context of asylum seekers
including children, who arrive in Sri Lanka seeking refuge from persecution in

their home country, and are routinely detained by Sri Lankan police, often for
lengthy period of time, in overcrowded detention centers, without recourse to
court or the protection of the law.

G. Application of Human Rights Committee Decisions in Sri Lanka

36. Following the Sinharasa judgment in SC SPL (LA) No. 182/99 SCM 15.09.2006
by the Supreme Court of Sri Lanka, ruling that a Human Rights Committee
decision relating to the torture of the petitioner Nallaratnam Sinharasa, had been
tortured by the Sri Lankan police, was not enforceable or applicable within the
Sri Lankan legal system, there has been some doubt regarding the application of
such decisions and rulings in Sri Lanka.
37. The ruling in the Sinharasa decision was based on the legal position that Sri
Lankas accession to the 2nd Optional Protocol under the Government of President
Kumaratunga to the ICCPR was invalid.
38. In light of these decisions, and the current re-alignment of power at the center, it
would be useful to obtain an understanding of this Governments position
towards correcting or clarifying this anomaly. This is of particular importance to
those victims who have taken their cases to the Human Rights Committee (HRC),
at considerable personal risk and threat of reprisal, and whose cases alleging
violations by Sri Lankan state officials are currently pending before thee HRC.
H. Commitment to ratify the Optional Protocol to the Convention against Torture,
the Convention against Enforced Disappearances and the Refugee Convention.
39. In light of the ongoing transitional justice efforts, and wider protection for the
rights of citizens and non-citizens vis--vis the state, it is important to obtain
bound commitments from the government in relation to the Ratification of the
above international instruments.
I. Impunity for attacks against the judiciary and independence of judges

40. There appears to be total impunity in relation to attacks on independence of

judges and lawyers in the past such as physical attacks, death threats and
attempts to influence decision making.
41. In the month of July 2012, Minister Rishad Bathiudeen had allegedly threatened
the Mannar District Judge and Magistrate Anthony Pillai Judeson. This was after
the Judge ordered the arrest of a group of men alleged to be supporters of the
Minister over an arson attack of fisheries houses belonging to local Tamil
fishermen. He had telephoned the Judge and said if he does not change the order,
the Mannar court would be torched. On the 18th of July 2012, the Mannar Court
was pelted with stones by a group of Muslims believed to have political
affiliations to the Minister.8
42. Three senior lawyers, who actively campaigned against abuse of power and
human rights violations under the Rajapakse regime, received threatening letters
in January 2013.9 The home of the Director of the Sri Lankan branch of
Transparency International was subjected to grenade attack on the 27 th of
September 2008.10
43. In the Magistrates Inquiry into the disappearance of journalist Prageeth
Ekneligoda, following revelations of military involvement in his enforced
disappearance, a Bhuddist monk who is the leader of a right wing religious
extremist group called the Bodu Bala Sena, attempted to disrupt court
proceedings and threatened the wife of the disappeared journalist. While the
monk was later remanded by order of the presiding Magistrate, the culture of
impunity that has prevailed in Sri Lanka up to now, encourages such conduct
that undermine the entire justice system. The state counsel in this case is also
believed to have suffered threats and intimidation.

8 Minister Bathiudeen Threatened Mannar Magistrate on Telephone that Court

would be Torched, DBS Jeyaraj.com, 21 July 2012,
http://dbsjeyaraj.com/dbsj/archives/8324
9 Death threat to lawyers, Weliamuna targeted, Sri Lanka Brief, 18 January 2013,
http://srilankabrief.org/2013/01/death-threats-to-lawyers-weliamuna-targeted/
10 Grenade attack on Transparency International Director's residence, Tamilnet, 28
September 2008, https://www.tamilnet.com/art.html?catid=13&artid=27049

J. Failure to provide JMO Reports to victims

44. Under the current practice, victims of torture who are examined by a Judicial
Medical Officer, are not as a matter of course or practice given a copy of their
own medico-legal report. The report is made available to the police, and can only
be obtained by the victim by Court order either through the Magistrate or upon
the filing of a fundamental rights application before the Supreme Court.
45. The refusal to provide victims with a copy of their own medico-legal report is not
backed by any rule, regulation or law.
46. In a case involving a victim of torture, Arsn Rajnikanth in case No. SCFR
194/2012, the Supreme Court upheld the decision of the JMO not to release the
medico-legal report to the victim and refused leave on that issue.
K. Threats and intimidation of torture victims by police
As raised in the discussion on 30 th April, police routinely threaten, intimidate,
and bribe victims of torture who file cases or complaints against them, in order to
pressure them to withdraw their complaints.
L. Police routinely obtain ex-parte orders to prevent citizens from exercising their
rights
47. There several instances of the police routinely using ex-parte orders to prevent
citizens from exercising their rights. Under the previous regime, police used exparte orders obtained through Magistrates Court, to prevent protests,
demonstrations and gatherings of victims, families of the disappeared, human
rights defenders and political activists11.
48. In the case of the Panama land rights case, where the people of Panama fought
for years against the illegal land grabbing and occupation of land in Panama
(Ampara District, South East of Sri Lanka) and were finally given the right to
return to their land under the current Government, the police obtained ex-parte
orders seeking to prevent people from entering their land12.
11 J.C. Weliamuna, Basic Liberties Cannot be Taken Away by Any State Organ, 20
February 2012 at http://www.humanrights.asia/news/forwarded-news/AHRC-FAT-0062012/?searchterm=

M. Inability of judges to ensure compliance of interim orders

49. There have been several instances where judges have been either unwilling or
unable to ensure compliance with their interim orders, causing serious prejudice
to the rights of applicants.
50. In one case, involving a land dispute between a Buddhist priest and a returnee in
the area of Kokkulai (Mullaitivu District)13, the said priest continues to build on
the subject property despite an interim order, preventing any construction to take
place on that land until the final hearing and determination of the case. In this
case, the Plaintiff, had been displaced from his land due to the fighting and upon
returning in 2011, found that the monk was occupying his private land. While the
interim order is in place to prevent irreparable damage to the Plaintiff, the monk
has continued with construction of a bhudist temple on the land.
51. The case is now over 4 years old, and has been delayed partly due to the attitude
of the court, which insists on the Plaintiff showing clear legal title to the property
which is co-owns with his siblings, although this is not a requirement under law.

Submitted on behalf of Watchdog Collective by:

Deanne Uyangoda, Attorney-at-Law
Marisa De Silva, Human Rights Activist
Ruki Fernando, Human Rights Activist
Swasthika Arulingam, Attorney-at-Law
Shenali De Silva, Attorney- At- Law

12 NAFSO, Panama Lands are belongs to community court case backfires on

police, 30th March 2016, at http://www.nafso-online.org/2016/03/panama-lands-arebelongs-to-community.html
13 Tamil Guardian, Buddhist monks oversee vihara construction in Mullaitivu, 28
April 2016 at http://tamilguardian.com/article.asp?articleid=17819; Watchdog
collective member interview with Plaintiff.

AND
Ermiza Tegal, Attorney at Law

6th May 2016