The National Action Plan for the Protection and Promotion of Human Rights 2011 – 2016 as well as the full series of Sri Lanka Rights Watch are available at the Peace & Reconciliation Website.
The Task Force held another consultation last week with regard to safeguards against Torture. We had gone into this at some length at a meeting of all Ministries particularly concerned with Rights Protection, and this had been followed by a discussion chaired by the Inspector General of Police, which had however also dealt with other matters such as the dissemination of information regarding police duties and responsibilities.
It was thought best, following that meeting, to have a smaller consultation as to particular issues, and we were helped immensely by the presence of those in the Attorney General’s Department who had been dealing with torture problems for a long period, extending back to well before I became Secretary to the Ministry of Human Rights and began to study the problem, following the extremely helpful visit of Manfred Nowak, the UN Special Rapporteur on Torture.
Unfortunately the former Attorney General, Mohan Pieris, could not attend the latter consultation though we had actually shifted the date to accommodate him. This was a pity because he had been full of good ideas at the meeting chaired by the Inspector General of Police, and agreement had been reached in a number of areas which he agreed to pursue to ensure quick action.
Amongst his innovative ideas was the concept of Duty Attorneys to be available at all police stations to which anyone was brought for questioning. At present there are State Counsel assigned to I believe every High Court area, but their duties are not clear, and they certainly do not perform the watchdog role that is required as a protection against possible abuse while people are being questioned.
At the latter discussion however attention was drawn to certain problems that might arise if State Counsel also operated as Duty Attorneys, and it was realized that we had to be very clear about the different obligations the State should fulfil, and make sure there was no conflict. The first obligation was to make sure that there was provision for observation with regard to anyone the police took in, but it was clear this should not be a task for attorneys who might subsequently appear for or against any such individual. This would lead to a conflict of interests, and to ask State Attorneys to protect those they might later have to prosecute made no sense. Similarly, it made no sense, given that lawyers taking on clients might feel obliged to use all sorts of tactics in their interests, to expect them to be objective.
The Action Plan indeed had considered this, for what it recommended was that the mandate of the Human Rights Commission be extended to ensure that its officials were kept informed when any arrest took place. Currently this is mandatory only with regard to Detention Orders, but in fact allegations of torture are more common with regard to simple arrests for simple crimes. Nowak seemed to be of the view that there was no policy that encouraged torture, but the actions of individual police officers needed to be checked if the practice were to be prevented.
It is for this reason, I believe, that the Action Plan also suggests that Duty Attorneys be kept informed of all arrests. Though they should not be expected to take any steps in this regard, the fact that two different organs of the State are aware of any situation that could lead to abuse is in itself a safeguard, where knowledge being confined simply to the police station concerned could be a limiting factor. Meanwhile the Human Rights Commission, with its independent mandate, would also be informed, and could exercise its right to enter any station, which unfortunately capacity limitations do not now permit to the required extent.
I should note that, a few years back, there were proposals to strengthen the Regional Offices of the Commission, and the refusal of the UN official concerned to take these forward, given his own belief that the Commission was not properly constituted, was one reason why I continue to worry about his further involvement in Human Rights protection activity here unless properly supervised. The refusal to make use of the money the Swiss had offered for this purpose, while claiming that aid was not available, is typical of the sleight of hand that was used to try to kill off the Commission when Justice Ananda Coomaraswamy was Chairman. That gentle idealist has now been replaced by a much more determined Chairman, which I hope means that the work of the Commission can be developed and its activities extended as envisaged in the Plan.
This task of observation, to ensure that those arrested would face only interrogation and nothing less innocuous, had been confused I realized with another obligation of the State, to facilitate consultation of lawyers by those arrested. Amendments to the relevant regulations have now been proposed to ensure ready access to lawyers. However what has not been provided for in those amendments already prepared is provision for those who do not have lawyers or the wherewithal to hire them to have representation.
This could be covered by the scheme of Duty Attorneys, but whether such a responsibility should be undertaken by the State is a matter of argument. The alternative would be to provide such services from the private bar, but the expenses of such a programme nationwide might be excessive. What has been proposed, to pilot this in some areas, might lead to allegations of unfairness.
I am not sure what the answer is, but the Action Plan certainly provides for setting up a Duty Attorney scheme. We need therefore to work out ways of providing at least that all those arrested are made aware of their rights and the procedures that should be followed by the police in interactions, and I believe from the police point of view too, ensuring the ready availability of information in this regard will help them to work within prescribed limits.