Practice Relating to Rule 90. Torture and Cruel, Inhuman or Degrading Treatment
Sri Lanka’s Convention against Torture Act (1994) states: “Any person who tortures any other person shall be guilty of an offence under this Act.”
Sri Lanka’s Geneva Conventions Act (2006) includes the grave breach of “torture or inhuman treatment” as an indictable offence.
Sri Lanka’s Prisons Ordinance (1878), as amended to 2005, states:
37. (1) Every Visitor [from the Board of Prison Visitors established pursuant to Article 35 of this Ordinance] shall be entitled-
(a) to visit any prison at any time;
(b) to have free access to any part of any prison or to any prisoner therein;
(e) to inquire into the general condition and treatment of the prisoners in any prison;
41. (1) Every Visitor appointed under this Ordinance shall hear all complaints which may be made to him by any prisoner … respecting any ill-treatment that he may have received in the prison.
87. (1) Any jailer or subordinate prison officer charged with ill-treating a prisoner, … may be dealt with in accordance with the regulations for the time being in force relating to the dismissal or other punishment of public officers,
(2) Every jailer or subordinate prison officer, who ill-treats a prisoner … shall be guilty of an offence and may, where he is not in the discretion of the Commissioner-General deal with under subsection (1), be prosecuted in the Magistrate’s Court having jurisdiction over the place where the offence is alleged to have been committed, and punished by such court on conviction after summary trial with a fine not exceeding two hundred rupees, or with imprisonment of either description for a term not exceeding three months or with both such fine and such imprisonment.
These articles apply to persons deprived of their liberty under Sri Lanka’s Emergency Regulations (2005) pursuant to section 19 of these regulations.
In 2010, in its judgment in the Sivalingam case, the Supreme Court of Sri Lanka stated:
The Petitioner alleged that he was brutally assaulted with clubs at the Criminal Investigations Department (hereinafter referred to as the CID) and within the first week he suffered an injury to his right arm. After about two weeks in the custody of the CID he claims that his right arm was badly wounded and dislocated with severe [pain] … and swelling. He also had received back and head injuries. The Petitioner alleges that an officer, whose name was not known to him, assaulted him while the 1st Respondent subjected him to interrogation.
He claimed that he was assaulted as he was being forced by such officers to say that three others persons arrested were suicide cadres of the LTTE [Liberation Tigers of Tamil Eelam].
When considering the allegations made by the Petitioner against officers of the CID it is important to bear in mind that the burden of proving these allegations lies with the Petitioner. This court has held repeatedly that the standard required is not proof beyond reasonable doubt but must be of a higher thresh hold than mere satisfaction. The standard of proof employed is on a balance of probabilities test and as such must have a high degree of probability and where corroborative evidence is not available it would depend on the testimonial creditworthiness of the Petitioner.
… Section 114 of the Evidence Ordinance operates in favour of the police. This presumption is rebutted only by cogent, concise and consistent evidence which creates a strong case in favour of the Petitioner. Additionally there must be Uberrima fides evident in the disclosures made and there must be an overall credibility and creditworthiness attached to the Petitioner’s testimony based on the affidavits and documents submitted before Court.
… [W]here the Petitioner’s allegation of torture is supported by documents and records … maintained by the various officials who came into contact with the Petitioner since his arrest, … then the presence of such documents would militate against the presumption in favour of the validity of official acts and help the court reach a verdict in favour of the Petitioner on the cumulative value, even if his testimony taken independently, may be weak and contain minor inconsistencies.
However, it must be stressed that material inconsistencies in the Petitioner’s testimony before Court, which indicate palpable falsehood and improbable assertions will militate against the Petitioner and may result in his testimony being discarded in its entirety.
In 2008, in its combined third and fourth periodic reports to the Committee on the Rights of the Child, Sri Lanka stated:
101. The Constitution in article II provides that no person shall be subjected to torture or cruel, inhuman or degrading treatment or punishment. Sri Lanka has also executed a law giving effect to [the 1984] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which i[t] ratified. Cruelty to children is a specific offence under the penal code and includes any act of wilful assault, ill[-]treatment, neglect or abandonment in a manner likely to cause suffering or injury to the child.
106. The Constitution in article 11 provides that no person shall be subjected to torture or cruel, inhuman or degrading treatment or punishment. Sri Lanka has also enacted a law giving effect to the  Convention against Torture which it ratified. Cruelty to children is a specific offence under the Penal Code.
In 2009, in its combined third and fourth periodic reports to the Committee against Torture, Sri Lanka stated:
13. … Sri Lanka … reiterates that it has at no time sought to invoke any justification for torture nor has it resorted to or acquiesced in acts of torture. As a matter of State policy and practice, the Government maintains a zero tolerance policy on torture, as is evidenced by the meaningful measures taken to curb acts of torture. … [T]he Government … has taken a number of important legal steps in order to prevent and combat torture as well as to hold perpetrators accountable. Most notably the enactment of the [Convention against] Torture Act No 22 of 1994 and the Corporal Punishment (Repeal) Act No 23 of 2005 as well as legal safeguards in the Code of Criminal Procedure constitute positive legal measures in the fight against torture.
27. The supreme law of the land, the Constitution of the Democratic Socialist Republic of Sri Lanka[,] recognizes the right not to be subjected to torture as a fundamental right. …
37. … The High Court has continuously asserted its jurisdiction over alleged torture cases under the Convention against Torture Act (1994).
41. One of the measures taken by Sri Lanka to prevent torture is to ensure unannounced visits to places of detention. As per existing Regulations, all Magistrates are legally empowered to visit and inspect remand prisons, where suspects are held on remand on judicial orders of the Magistrates.
43. The Government reiterates its commitment to promptly and impartially investigate allegations of torture.
[footnotes in original omitted]
Sri Lanka also stated:
3. Sri Lanka recognizes and respects the absolute prohibition of torture and other cruel, inhuman and degrading treatment contained in article 7 of the  International Covenant on Civil and Political Rights and article 5 of the Universal Declaration of Human Rights adopted by the [UN] General Assembly on 10 December 1948. Sri Lanka has also deposited its Declaration on the Protection of All Persons from being subject to Torture or other Cruel, Inhuman or Degrading Treatment or Punishment in terms of the General Assembly Resolution 3452 (XXX) of 9 December 1975.
5. The Constitution of the Democratic Socialist Republic of Sri Lanka, (“Constitution”), gave domestic expression to Sri Lanka’s commitment to eliminate torture and all forms of cruel inhuman and degrading treatment or punishment, even before the entry into force of the  Convention against Torture. Article 11 specifically prohibits torture, or cruel, inhuman and degrading treatment or punishment and the Constitution considers the right not to be tortured a non-derogable, absolute and salient right under the Fundamental Rights Chapter of the 1978 Constitution. …
14. The Constitution of Sri Lanka recognizes the right not to be subject to torture as a non-derogable and absolute right. Certain fundamental rights under the Constitution may be
… subject to such restrictions as may be prescribed by law in the interests of national security, public order and the protection of public health or morality, or for the purpose of securing due recognition and respect for the rights and freedoms of others, or of meeting the just requirements of the general welfare of a democratic society.
However, no such restriction is permissible for the right against torture under the Sri Lankan Constitution. This protects the sanctity of the prohibition and serves as a deterrent even in times of war and public emergency.
15. Further, under article 126 of the Constitution the Supreme Court of Sri Lanka has sole and exclusive jurisdiction to hear and determine any question relating to the infringement or imminent infringement by executive or administrative action of any fundamental right recognized by Chapter III of the Constitution [including torture]. Thus, Sri Lankan law is progressive to the extent that it recognises not only violations of fundamental rights, but also grants jurisdiction to the Supreme Court of the country to consider any issue relating to the imminent infringement of fundamental rights. This is an important safeguard in the prevention of the occurrence of torture.
16. Strict judicial supervision of allegations o[f] torture is another measure taken by the State to ensure prevention of occurrence of torture. …
18. It is recalled that the obligation of States under the  Convention [against Torture] is to take effective measures to prevent torture. The fact that torture is committed by a few overzealous individuals should not undermine the State’s commitment to prevent torture. Indeed, Sri Lanka has accepted that sporadic and isolated incidents of torture ha[ve] occurred within its territory in the past, however, the State has not made excuses nor acted with impunity to[wards] perpetrators. Instead the State has bolstered the measures taken to prevent the occurrence of torture at the judicial level and at the practical level.
22. … [T]he court closely monitors the investigation and other activities of the police in connection with persons arrested under any law. The suspects are given the opportunit[y] to complain to the judges or any other party, if they were tortured by the police. …
33. The … [Directions Issued by the President Commander-in-Chief of the Armed Forces and Minister of Defence on 7 July 2006] … takes measures to regulate arrests:
(e) Special provisions are … in place that … [operate] to prevent torture and ill-treatment of women and children. When such person is sought to be arrested or detained, a person of that women or child’s choice is allowed to accompany them to the place of questioning …
38. [Under] the CAT [Convention against Torture] Act (1994) … a person’s right not to be subject to torture is non-derogable …
41. …The commission of torture, attempt to commit, aid[ing], abet[ting] and conspir[ing] in the commission of torture are offences under the CAT Act. Under the CAT Act such an offence is a cognizable and non-bailable offence within the meaning of the Code of Criminal Procedure Act No. 1 of 1979.
59. The Government is committed to conduct prompt, impartial and comprehensive criminal investigations and domestic inquiries into all complaints and information received, relating to alleged perpetration of torture by public officials and members. The objective of conducting criminal investigations is to consider the institution of criminal proceedings. The objective of the conduct of domestic inquiries is to consider the adoption of necessary disciplinary action and the identification of suitable action for [the] prevention of torture.
82. Article 11 of the Sri Lankan Constitution provides that “No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” This gives the right not to be subject to cruel, inhuman or degrading treatment the same sanctity as the right not to be tortured, under the supreme law of the land.
83. Subjecting a person to cruel, inhuman or degrading treatment is punishable under the Penal Code of Sri Lanka as, inter alia, voluntary causing of hurt (Sect. 314), voluntarily causing grievous hurt (Sect. 366), voluntarily causing hurt to exhort a confession or compel restoration of property (Sect. 321), voluntarily causing grievous hurt to exhort a confession or compel restoration of property (Sect. 322), wrongful restraint (section 330), wrongful confinement (sect. 331), assault or use of criminal force (Section 343), and criminal intimidation (Sect. 483).
[footnotes in original omitted]
Sri Lanka’s Convention against Torture Act (1994) states:
“torture” with its grammatical variations and cognate expressions, means any act which causes severe pain, whether physical or mental, to any other person, being an act which is –
(a) done for any of the following purposes that is to say –
(i) obtaining from such other person or a third person, any information or confession; or
(ii) punishing such other person for any act which he or a third person has committed, or is suspected of having committed; or
(iii) intimidating or coercing such other person or a third person; or
(b) done for any reason based on discrimination,
and being in every case, an act which is done by, or at the instigation of, or with the consent or acquiescence of, a public officer or other person acting in an official capacity.
In its judgment in the Channa Pieris case
in 1994, the Supreme Court of Sri Lanka stated: “Torture, cruel, inhuman or degrading treatment or punishment may take many forms, psychological and physical.”
In 2004, in its second periodic report to the UN Committee against Torture, Sri Lanka stated:
6. Act No. 22 of 1994 designates and defines torture as a specific crime. The High Court of Sri Lanka is vested with the jurisdiction for offences of torture committed by a Sri Lankan or a non-Sri Lankan in or outside the territory of the country. Criminal proceedings are instituted upon indictment being preferred against the accused by the Attorney-General. With the introduction of this Act the Extradition Law was also amended by designating the offence of torture as an extraditable offence under the Extradition Law in order to provide an “extradite or prosecute” regime, as envisaged in the Convention.
77. The Convention against Torture and Other Cruel, Inhuman and Degrading Punishment Act No. 22 of 1994 is in substantial conformity with the Convention against Torture. The Act defines torture as follows:
“‘Torture’ with its grammatical variations and cognate expressions, means any act which causes severe pain, whether physical or mental, to any other person, being an act which is done for any of the following purposes that is to say:
“(i) Obtaining from such other person or a third person, any information or confession; or
“(ii) Punishing such other person for any act which he or a third person has committed, or is suspected of having committed; or
“(iii) Intimidating or coercing such other person or a third party; or
“(iv) Done for any reason based on discrimination, and being in every case, an act which is done by, or other person acting in an official capacity.”
78. Sri Lanka has taken note of the point made that the word “suffering” does not appear in the definition of the term “torture” in section 12 of the Act. It is of the view, however, that the expression “cause severe pain whether physical or mental” would necessarily include any suffering that is caused to any person. It is also submitted that the judicial interpretation of the term “torture” would take into account any suffering, physical or mental, that any person would be subjected to. Furthermore, the Sri Lanka courts have always maintained that in the interpretation of any domestic law giving effect to Sri Lanka’s international obligations, the court would necessarily give expression to the provisions of the relevant international legal instruments.
In 2009, in its combined third and fourth periodic reports to the Committee against Torture, Sri Lanka stated:
The Government of Sri Lanka is of the opinion that the definition of torture under its domestic law covers all the elements contained in article 1 of the  Convention [against Torture]. Although the word suffering “is not specifically mentioned in the definition of torture in [Convention against Torture] Act No. 22 of 1994”, the Government is of the view that the words “severe pain whether physical or mental” invariably encompasses “suffering” both in its physical and mental forms. Therefore Sri Lanka is of the view that its definition is consistent with the definition of torture contained in the Convention. It has to be noted that purely mental torture is also included within the definition, so that the threat of torture may itself amount to psychological torture. Further the Government notes that Manfred Nowak in his report of February 2008 … [“]observes that the definition in article 12 [of the Convention against Torture Act] is in conformity with the definition of article 1 of the Convention: however, it does not expressly include suffering”. This is a clear indication that despite the lack of the term “suffering” the Convention against Torture Act No. 22 of 1994 (CAT Act) is consistent with the definition of the Convention. Professor Novak also states: According to this Act, torture is defined under article 12, which in principle corresponds to article 1 of the Convention, as any act which causes severe pain, whether physical or mental, to any other person, being an act, which is
(a) Done for any of the following purposes that is to say:
(i) Obtaining from such other person or a third person, any information or confession; or
(ii) Punishing such other person for any act which he or a third person has committed, or is suspected of having committed; or
(iii) Intimidating or coercing such other person or a third person; or
(b) Done for any reason based on discrimination and being in every case, … an act which is done by, or at the instigation of, or with the consent or acquiescence of, a public officer or other person acting in an official capacity.
[footnotes in original omitted]
Sri Lanka also stated:
8. Article 1, paragraph 1 of the  Convention [against Torture] defines the term torture. The definition of torture, under article 12 of the CAT [Convention against Torture] Act “… is in conformity with article 1 of the Convention …” and is in fact wider than that of the Convention. Under the CAT Act of Sri Lanka, for an act to be torture, it need not be intentionally inflicted as required under the Convention. Thus, the CAT Act contains “provisions of wider application” with regard to torture, than those stipulated in the Convention. …
9. Concerns were raised in the past by the Committee against Torture that the definition of torture in the CAT Act does not refer to the word “suffering”, unlike in article 1, paragraph 1 of the Convention. Sri Lanka has taken note of this observation and is of the view however that the expression “cause severe pain whether physical or mental” would necessarily include any suffering that is caused to any person.
10. The judicial interpretation of the term “torture” would take into account any suffering, physical or mental, that any person would be subject to. It is increasingly evident that in the interpretation of domestic law giving effect to Sri Lanka’s international obligations, the Court would necessarily give expression to the provisions of the relevant international legal instruments.
[footnote in original omitted]