MINISTRY of JUSTICE LEGAL REFORMS: Treatments aggravating disease instead of curing

By Kalyananda Tiranagama

Executive Director

Lawyers for Human Rights and Development

The Code of Criminal Procedure (Amendment) Act No. 14 of 2021 and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Amendment) Act No. 15 of 2021 were passed by Parliament on July 6, 2021 under the Law Reforms Project of the Ministry of Justice for the purpose of making the country torture free by strengthening the law against torture.

This Criminal Procedure Amendment requires every Magistrate to visit every police station situated within his judicial division, at least once in every month and examine the persons detained therein. Torture Convention Amendment Act has increased the fines that can be imposed on persons found guilty of torture.

Commencing the Second Reading Debate on these two Acts, the Minister of Justice had said in Parliament that Articles 11 and 13 (5) of the Constitution have guaranteed freedom from torture and presumption of innocence of every person, until proved guilty by law. The Release of Remand Prisoners Act of 1991 enabled the Magistrates to visit prisons, but the proposed Amendments have gone further to guarantee freedom from torture. The Government has identified the importance of treating suspects humanely and this proposal is just one of the measures that the Government takes to guarantee these rights of the people.

However, how lofty the Minister’s objective may be, it can be categorically stated that the Government would never be able to achieve its declared objective of eradication of torture in custody with these amendments. Both these are impracticable and unnecessary Amendments brought in, without a proper understanding of the ground realities and the actual operation of the existing law. The concerned authorities have found the Torture Act of 1994 impracticable due to an inherent weakness in a provision in the Act. Without identifying and removing that obstacle that retards its effective implementation, torture cannot be eliminated by increasing the fines.

Torture Act Amendment

By this Amendment Act, S. 2 of the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Act No. 22 of 1994 has been amended in subsection (4) of that section by substituting for the words ‘a fine not less than 10,000 rupees and not exceeding 50.000 rupees‘ of the words ‘a fine not less than 50,000 rupees and not exceeding 200,000 rupees.‘

Over the years, in a large number of fundamental rights applications the Supreme Court has found law enforcement officers responsible for torture and ordered them personally to pay compensation to the victims of torture. Human Rights Commission also has found in its inquiries a large number of officers responsible for torture and ordered them to pay compensation to the victims. Yet since the enactment of the Torture Act in 1994, only a very small number of officers have been prosecuted under the Torture Act.

The Torture Act of 1994 contains an inherent flow which prevents its provisions from being effectively implemented. Under S. 2 of the Act torture, or the attempt to commit, or aiding and abetting in committing or conspiring to commit torture is a criminal offence punishable with imprisonment for a term not less than 7 years and not exceeding 10 years and a fine not less than 10,000 and not exceeding 50,000 rupees. Not only torture but even attempt to commit or conspiracy to commit torture is punishable with the same penalty, a mandatory minimum jail sentence of seven years and a minimum fine of 10,000 rupees. A police officer who slaps a man on his face causing a minor scratch, if indicted under the Torture Act, will invariably get a jail sentence of seven years.

Under the normal criminal law of the country, the maximum penalty that can be imposed for causing simple hurt, even with a sharp cutting weapon, causing the victim to receive treatment in a hospital for several days, is six months jail sentence. It is a compoundable offence. A court has no jurisdiction to entertain a case for causing simple hurt under S. 314 of the Penal Code without a certificate from a Mediation Board certifying that the dispute cannot be settled. In torture cases, under the Act, the Court has no discretion, but to impose the mandatory minimum jail sentence laid down in the Act. It is common knowledge that our Courts give suspended sentences to accused even in murder cases when they plead guilty for culpable homicide not amounting to murder under certain circumstances.

The maximum penalty that can be imposed even on the worst torturer who subjects the victim to the most cruel, degrading and inhuman acts of torture is 10 years imprisonment. There is no much of a difference between the minimum sentence and the maximum sentence despite the varying degrees of acts of torture. Courts have no discretion on the matter of sentence. This imbalance in sentences which does not take into consideration the different grades of culpability has prevented the law enforcement agencies from giving effect to this provision of the Torture Act. So long as the minimum and maximum penalties for torture remains in this state, the Police, the Attorney General’s Department and the Courts will find it difficult to act on this law.

Sri Lanka acceded to the UN Convention against Torture in January 1994. In its first four-yearly periodical country report presented to the UN Committee against Torture in May 1998 outlining the steps taken to eliminate torture and punish perpetrators of torture, Sri Lankan Authorities had made a clever attempt to cover up its failure to prosecute torturers under Torture Act. The Report stated that action against torture had a place in Sri Lanka’s law since 1883 and that any person who tortures another would be guilty of an offence punishable under the criminal law of the country. It referred to Ss. 310 – 329 of the Penal Code dealing with voluntarily causing hurt.

Considering Sri Lanka’s Periodical Country Reports, the UN Committee has expressed its concerns repeatedly on the failure of Sri Lankan Authorities to deal with torturers under the provisions of the Torture Act.

In S. C. Reference No. 03/08, the Supreme Court, citing several previous Supreme Court decisions, discussed at length the constitutionality and the impact of mandatory sentences on the exercise of judicial discretion and held that the minimum mandatory sentence in S. 364(2)(e) of the Penal Code is in conflict with Articles 4(c), 11 and 12(1) of the Constitution and that the High Court is not inhibited from imposing a sentence that it deems appropriate in the exercise of its judicial discretion notwithstanding the minimum mandatory sentence laid down in the law.

A few years back, some Police Officers were indicted under the Torture Act in a High Court case and, on conviction, sentenced to seven years rigorous imprisonment. They appealed against the sentence and the Court of Appeal, following the Supreme Court Judgement in S. C. Reference No. 03/08, varied the sentence of seven to two years imprisonment.

As early as 1999, in its comments on the first periodical report of the Government of Sri Lanka to the UN Committee in 1998, the Lawyers for Human Rights and Development (LHRD) pointed out this weakness in the Torture Act and the urgent need of amending the provision relating to minimum mandatory sentences of imprisonment allowing judicial discretion on the matter of sentence.

So long as the Torture Act remains in this state, the Authorities will find it difficult and be hesitant to prosecute their colleagues involved in torture under the provisions of the Torture Act. This amendment brought to the Torture Act for increasing fines that can be imposed for the offences under the Act is an utterly meaningless exercise. Torture cannot be eliminated by increasing fines. What is important is not the heavier penalties, but prosecuting all offenders under the provisions of the Torture Act. Only then it will have a deterrent effect. If the government is serious about giving effect to the law, it should amend the Torture Act laying down more realistic penalties compatible with the ordinary criminal law of the country and take necessary steps to enforce the law directing the IGP and the AG to prosecute all offenders.

Code of Criminal Procedure (Amendment) Act No. 14 of 2021

The enactment of the Code of Criminal Procedure (Amendment) Act No. 14 of 2021 is also another meaningless exercise. There was no need at all to bring this amendment and it will not serve any purpose. Existing legal provisions and judicial practices are quite adequate to address the problems if properly enforced with necessary guidelines and supervision. This Amendment will only add an additional, unnecessary burden on Magistrates. It is another instance of these legal advisers of the Ministry groping in the darkness without any understanding of the ground realities.

This Amendment has added a new Section – S. 43B to the Criminal Procedure Code:

S. 43B (1) It shall be the duty of every Magistrate to visit every police station situated within his judicial division, at least once in every month to ensure that the suspects under the police custody at such police station are protected to the extent provided for in the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Act No. 22 of 1994.

(2) For the purpose of subsection (1), the Magistrate who visits the police station shall (a) personally see the suspect, and look into his well-being, welfare and conditions under which he is kept at such police station: and (b) record his observations and any complaint the suspect may make.

(3) Where the Magistrate is of the opinion that the suspect may have been subjected to torture, the Magistrate may direct that the suspect be produced before a JMO or a govt. medical officer for medical examination, and a report be submitted by such medical officer to the Magistrate.

(4) Where the report of such medical officer reveals that the suspect has been subjected to torture, the Magistrate shall make an appropriate order, including directions to provide necessary medical treatment to the suspect and to change the place of custody of such suspect.

(5) The Magistrate shall also direct the IGP to commence an investigation into the alleged torture in order to enable the AG to institute criminal proceedings against the person who is alleged to have committed the torture.

This is impracticable and meaningless for the following reasons:

This amendment requires every Magistrate to visit every police station situated within his judicial division, at least once a month. It is a matter of common knowledge that almost all the Magistrate’s Courts are overburdened with work, having a large number of cases to handle every day. In the Judicial Division of every Magistrate’s Court there are 3 – 4 police stations. Despite their heavy schedules, every month a Magistrate will be compelled to devote at least two days to discharge this additional burden placed on them.

Under the normal law of the country, a person arrested cannot be detained in Police custody for more than 24 hours, they have to be produced before the lapse of 24 hours before a Magistrate. Such detention in Police custody over 24 hours is a violation of fundamental rights. Suspects arrested on the previous day are produced before the Magistrate on the following day before the lapse of 24 hours. Suspects are not arrested and not kept in Police custody every day. Quite often the Magistrates will find in their visits that there are no suspects held in Police custody for them to examine.

Persons arrested can be kept in custody for more than 24 hours only when arrests are made under laws with special provisions for detention of suspects such as the Prevention of Terrorism Act, Emergency Regulations or the Opium and Dangerous Drugs Ordinance. Persons arrested and detained under these laws are not kept at Police Stations, but in special Police Units such as the Criminal Investigation Department (CID), Terrorist Investigation Division (TID), Crime Detection Bureau (CDB) or the Narcotics Bureau of the Police.

Instead of making provisions for visiting these special units of investigations and examining detainees held therein, there is no point in requiring all Magistrates to visit all the Police Stations in the country situated within their jurisdictions.

Moreover, there are other institutions already functioning with adequate powers, facilities and resources to make regular visits to police stations like the Human Rights Commission (HRC) of Sri Lanka. HRC has a 24-hour functioning hotline to receive complaints of torture and illegal detention of suspects in excess of 24 hours. The moment HRC receives a complaint of torture or arrests and detention of persons, HRC officials immediately contact the relevant Police Station and conduct inquiries, visiting the place if necessary. We know of a large number of instances where the HRC has intervened over the years in this manner.

As the Minister himself has mentioned in his speech in Parliament, there is an Act enacted in 1991 requiring all Magistrates to visit Prisons situated within their judicial divisions once a month.

S. 5 of the Release of Remand Prisoners Act No. 8 of 1991 requires every Magistrate to visit every prison situated within the judicial division in respect of which he is so appointed, at least once a month.

However, only a handful of Magistrates in the country have complied with this legal requirement. If the Ministry of Justice could ensure that this legal requirement is strictly complied with by all Magistrates that would certainly result in addressing many of the grievances of suspects in custody and reduction of the heavy congestion in our prisons.

As held by the Supreme Court in fundamental rights applications, when a suspect is produced in Court from Police custody it is the duty of the Magistrate to question and probe the suspect so produced and record his observations. To do that the Magistrate need not visit Police stations.

In this connection it is relevant to quote from the Supreme Court Judgement of Justice L. H. G. Wijesekera in the case of Pradeep Kumar Dharmaratne vs. Inspector of Police Dharmaratne and others, S. C. Appn. No. 163/98, SCM 17. 12. 1998: “In my opinion it is indeed a matter of concern and trepidation that Magistrates in spite of repeated reminders by this Court do not exercise what is their duty, namely to question and probe from a person produced before them from Police custody and to so record his observations. It has been my experience that Magistrates did act so and it was a deterrent to breaches of fundamental rights even when they were not enshrined by a constitution. It is a further tragedy that some members of the legal profession do not act with courage and fearlessness in what is their duty. I say so with responsibility inasmuch as an allegation of assault and of torture has been made to the Superintendent of Police on the 17th of February 1998 after this release of the petitioner by the Magistrate in consequence of which the petitioner was produced before the JMO, but the Attorneys-at-Law did not bring this to the notice of the Magistrate.’’

If the Ministry of Justice is serious about guaranteeing freedom from torture what the Ministry should do is not enacting this type meaningless and impracticable amendments but issuing a Circular to all Magistrates with the approval of the Judicial Service Commission stressing the need of strict compliance with the provisions in the existing law and the Supreme Court decisions and call for regular reports on the compliance with directions in the Circulars.