The following excerpts adapted from the author’s most recent book, The Use of Confessionary Evidence under the Counter-Terrorism Laws of Sri Lanka
by VISAKESA CHANDRASEKARAM
Despite reforms over the last few decades, the practice of coercing suspects to confess seems to continue, albeit in a rather inconspicuous manner, in the West. For example, police interrogation practices often involve convincing suspects that their situations are hopeless and using ploys to convince suspects of their guilt by emphasising the embarrassment caused to their family and the harm caused to the victims. During interrogation, without being specific the police can allude to the opportunities for leniency if the suspect confesses.[i] In such hostile environments, it is not surprising that many suspects ignore the formal cautions (of their right to not answer self-incriminating questions) and eventually admit their guilt for crimes that they may not have committed. According to McConville et al., if a confession is fabricated, obtaining the suspect’s signature requires little persuasion because the suspect is likely to ‘say and sign anything’ in order to escape the atmosphere of hostility.[ii] Kassin notes that such hostile environments may also compel a vulnerable, worn-out suspect to believe that s/he is guilty of an offence that s/he has not committed.[iii] In this scenario, the suspect may give a confession known as a ‘coerced-internalised confession’, believing that s/he is guilty of something that s/he has not done.[iv]
The above-cited evidence paints a very bleak picture for a suspect in police custody under ordinary circumstances, and a state of emergency only makes the situation more damaging, as the suspect’s civil liberties are suspended. Under such circumstances, we must ask how far a Tamil Tiger suspect is able to exercise his/her free will in giving, or choosing not to give, a confession. To what extent is a suspect capable of substantiating any defence under section 24 of the Evidence Ordinance (that confessions taken by inducement, threat or promise are inadmissible)? Although section 24 of the Evidence Ordinance continues to be in force under the counter-terrorism measures in Sri Lanka,[v] it appears that these measures propagate the very oppressive elements (inducement, threat or promise) purported to be restricted by the Ordinance. This is because these measures also equip the police with powers to use oppressive methods to interrogate a suspect by: (a) allowing indefinite detention outside judicial protection; (b) ensuring the secrecy of the investigation process; and (c) retracting the right to silence of the suspect. Indeed, these oppressive measures are pre-emptive steps taken by the state to prevent suspects from accessing any evidence that could prove any inducement, threat or promise on the part of the police.
The voluntariness of a confession derives from the suspect’s right to silence; thus, a confession is presumed to be voluntary only if the suspect was able to exercise this right. Although the Constitution of Sri Lanka does not guarantee the right to silence, section 110 (2) of the Code of Criminal Procedure explicitly protects a suspect’s right to silence. This section states that the suspect is bound to answer the questions of a police interrogator but that the suspect does not have to provide answers that could ‘expose him to a criminal charge’. In contrast, counter-terrorism laws retract the suspect’s right to silence by enacting specific provisions that force the suspect to cooperate with interrogators. Section 5 of the PTA provides that the failure to report any information related to an act of terrorism is a punishable offence.
The provisions that allow the indefinite detention[vi] of suspected terrorists effectively remove suspects from the protection of the judiciary, allowing them to be lost in a realm of secrecy, held by paramilitary institutions. This secrecy is reinforced by the state’s bureaucracy (by issuing detention orders) and the code of silence upheld by the rank-and-file of the police.[vii] The police often argue that maintaining the secrecy of an interrogation is the only way to protect the evidence and other witnesses, who could be influenced by the suspect in their custody.[viii] However, according to McConville et al., shielding police interrogation from external scrutiny has historically been viewed with ‘deep suspicion’.[ix] The secrecy surrounding investigative processes helps the police to reject claims of ill-treatment of suspects and to disclaim their liability, because the suspect is unable to bring independent evidence to prove their exposure to abuse while in custody. In particular, during a period of a state of emergency, the details of paramilitary units that arrest and detain suspects are often not provided to the family members of suspects. For example, when the suspect’s family reports a missing person, the police often deny any connection to the arrest or advise that the suspect has already been released.[x] In some cases, the suspect simply ‘disappears’[xi] on their way to work or school, because they are abducted by secret paramilitary units. During the course of this research, a medical officer mentioned that once when he was examining a Tiger suspect brought to him by the police, another patient came forward, claiming that the suspect was her son who she had not seen for six months since his ‘disappearance’. Another Tiger suspect was kept incommunicado for a year during which time his family believed that he was dead.[xii] When suspects are in police custody, in many cases they are denied access to legal assistance and lawyers are not allowed access to the police interview rooms. Indeed, most of the time lawyers are required to obtain written permission from the Ministry of Defence to gain access to their clients (suspected terrorists), and in the majority of cases permission is granted for the lawyer to meet with the suspect only in the presence of a police officer, who could listen to their conversation.[xiii]
It is clear that these secretive investigative mechanisms are designed to allow, if not encourage, the police to apply oppressive methods and coerce confessions from suspects. Behind closed doors, the police can apply pressure or force such as deprivation of food and sleep or physical assault against tough or silent suspects who are not willing to speak. Further, the Emergency Regulations authorise the police to dispose of the bodies of suspects without conducting an autopsy—a provision that has been criticised as ‘active encouragement’ of torture of suspects in custody, and for institutionalising abusive practices.[xiv] During the field interviews, a senior police officer denied that police assault suspects in custody in the present day, although admitted that such assaults have been widely practised in the past.[xv] The officer added: ‘As the police officers are now appointed, disciplined, and dismissed by an independent commission, the officers are not risking any complaints from the suspects. If a complainant goes to the Supreme Court to file a fundamental rights application, the officer could be temporarily or permanently dismissed or even be asked to pay compensations’.[xvi] Defence lawyers disagree: ‘Despite the clear wording of our Constitution, enunciating the presumption of innocence, persons arrested by the police are, more often than not, presumed guilty and treated in like fashion’.[xvii] A defence lawyer who had appeared for many Tamil Tiger suspects said: ‘At least 70% of my clients had been severely tortured and the rest have been assaulted […] Once I recall outside the courtroom one police officer casually admitting, “we hit them and type the confession. The ASP only signs papers later”’.[xviii]
There is an endemic belief among Sri Lankan police officers that ‘the only way to get the truth from the suspect is to bash them’.[xix] Some are of the opinion that ‘if torture is not allowed in the police stations, they will have to close down the stations and go home’.[xx] Even ordinary suspects (not terrorist suspects) such as common thieves or sex workers in Sri Lanka are subjected to torture and other types of ill-treatment on an almost daily basis.[xxi] It is evident that terrorist suspects who are held in special units and under long-term detention orders, with limited or no access to the outside world, are treated far more brutally than are common criminals. This harsh reality is reiterated in Ramani’s story[xxii]:
I was arrested by the police while I was at work. I was not given any reasons for the arrest. They forced me to get into the police jeep. There were four police officers including the driver. The police officers assaulted me in the jeep, slapping across my face, kicking me with their boots, stabbing with their guns and they abused me using filthy words. I told them that I want to see my parents but my parents were not informed of my whereabouts. I was taken to a dark room without windows. I was interrogated for a long time. The interrogating team included 12 police officers but there were no female officers. The officers said that I was arrested because they received information that I had been supporting Tamil Tigers. I denied all the allegations because I did not have any connections with Tamil Tigers. One officer was seated with a typewriter and typed while the others interrogated me. I was not allowed to see what was typed.
Dr. Visakesa Chandrasekaram worked as a human rights lawyer and an independent arts practitioner in Sri Lanka and Australia. He has written and presented several creative pieces including Forbidden Area, a play, The King and the Assassin, a fiction and Frangipani, a feature film.
[i] Henkel and Coffman, ‘Memory distortions’, p. 572.
[ii] McConville et al., The Case for the Prosecution, p. 66 (citing Williams, ‘The authentication of statements to the police’).
[iii] Kassin, ‘True or false’, p. 178.
[iv] Coerced-internalised confessions could come into existence when the suspects lose confidence in their own innocence, feeling confused and in a heightened state of suggestibility which gradually leads to a distrust of their own recollections and beliefs. See Henkel and Coffman, ‘Memory distortions’, p. 568.
[v] See Chapter 1.
[vi] See Chapter 1.
[vii] The detention order is issued by the Ministry of Defence. Based on the evidence obtained from the field observations and interviews, the police do not acknowledge that they have arrested a particular suspect and the suspect’s whereabouts may be concealed for a long time. Also see the example of Veerakarthi in Chapter 3.
[viii] Field interviews, Colombo (June 2007).
[ix] McConville et al., The Case for the Prosecution, p. 56.
[x] Field interviews, Colombo (June 2007).
[xi] The term ‘disappearance’ is used in Sri Lanka to explain the fact that a person has been arrested by unidentified personnel.
[xii] Field interviews, Colombo (June 2007).
[xiii] Field interviews, Colombo (June 2007).
[xiv] The UN Special Rapporteur on Torture reported that torture and other forms of ill-treatment are employed on a widespread basis by members of the security forces in Sri Lanka, particularly against Tamils held in detention. See E/CN.4/1999/61, paras. 659–669, in Dias, ‘The role of the Attorney General’, p. 342. Also see the discussion on command responsibility and vicarious liability on perpetrating torture that appears in Jayewardene, Catching the Big Fish, pp. 6, 7, 32–39.
[xv] Field interviews, Colombo (June 2007).
[xvi] Field interviews, Colombo (June 2007).
[xvii] Sumanatilake, Torture, p. 96.
[xviii] Field interviews (June 2007). The lawyer did not seem to consider physical assault such as slapping to be a form of torture.
[xix] Public Seminar on Convention against Torture, Colombo (25 June 2007) and Seminar on Istanbul Protocol (July 2007, Galle, Sri Lanka).
[xx] Public Seminar on Convention against Torture, Colombo (25 June 2007).
[xxi] See Hanlon and Dabhoiwala, The Other Lanka. Also see Fernando and Puvimanasinghe, X-ray of the Sri Lankan Policing System.
[xxii] Field interview (August 2007).