Posted on July 24th, 2021


(Continued from C11)


Sri Lanka ratified the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) Convention in January 1994 and incorporated the Convention into Sri Lankan law by enacting the ‘Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Act, No. 22 of 1994’, more commonly referred to as the ‘Convention against Torture Act’ (CAT ACT). 

In the UN Convention against Torture, the act of torture is a separate criminal office.  The Convention restricts its application only to police and armed forces and other forces of the state. Others like LTTE are exempt from the provisions of this Act. Which means this Convention is intended only to control the armed forces and not on terrorists.

 the  Convention provided for  a UN Committee against Torture made up of representatives of member states, set up to investigate allegations of torture in member states. All member states are required to co-operate in the investigations of the committee. 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”.

This Convention gave its  member countries the power to arrest former or serving state officers suspected of committing torture which took place in another member state. This means that officers of the state will be hunted by the governments of foreign countries but terrorists will not, observed critics.

The Sri Lanka Act was better than the UN Convention, said analysts. It 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 Act also provides for extradition of a foreigner suspected of committing torture to his own country or another country asking for his extradition.  But these provisions were already in operation in the Sri Lankan legal system even before the Sri Lanka Act.

The UN prepared a second document, Optional Protocol of the International Convention against Torture” which became effective in June 2006. Yahapalana government signed this on 14 November 2017. The decision was implemented soon afterward on 5 December and would come into force from 4 January 2018.

The Optional Protocol declared that a UN Subcommittee of the Committee against Torture would be established. The members of this Subcommittee 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. The Subcommittee must pay regular visits to places of torture, and make confidential reports.

The Protocol stated that the Sub Committee has the right to choose the places it wants to visit and the persons it wants to interview.  Objections to a visit to a particular place of detention may be made only on urgent and compelling grounds and that can only be temporary. The existence of a state of emergency cannot be used as an objection. Persons and organization must be free to communicate with the Sub Committee. The state must not prevent this. The state must also not retaliate against these groups for having communicated information to the Subcommittee, whether true or false.

Member states are obliged to give the Sub-committee access to places of detention and provide unrestricted access to all information concerning the number of persons deprived of their liberty and 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 their private interviews without witnesses, as well as with any other persons who the Sub-committee believes may provide information.

Under the Optional Protocol, each member state is also expected to set up at the domestic level one or more national preventive mechanisms. The state must            guarantee the independence of these mechanisms” and their staff. The national mechanisms are to have unrestricted access to places of detention and information and exercise all the powers the international Subcommittee is entitled to.

The UN Sub Committee will maintain direct, and if necessary confidential, contact with the national preventive mechanisms and offer them training and technical assistance. The national mechanisms must be given unrestricted contacts with the Subcommittee, 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.

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.  It is western governments that provide funding to UN bodies for particular projects. One can see the opportunity provided for physical intrusion by outsiders through the provision of funds into activities of a country, commented Bandu de Silva.

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, said Chandraprema.

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. 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 give their foreign masters an opportunity to intervene directly in Sri Lanka.

Yahapalana government has, through this action   given foreign powers the opportunity to intervene directly in Sri Lanka’s internal affairs. This 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, said Chandraprema. The question is whether we need foreign parties nosing around in Sri Lanka and maintaining fifth columns in this country.   (Continued in C12.)

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