TORTURE: ASIAN AND GLOBAL PERSPECTIVES | JUNE 2012
VOLUME 01 NUMBER 02
by UCP PERERA
Torture has been practiced throughout the human civilization in various forms since time immemorial and Sri Lanka is no exception. Barbaric forms of torture were adopted in the country with full awareness and approval of the monarchy. Capital punishment was in practice since the Anuradhapura period (3rd century BC-10th century AD) and the ‘Mahavamsa’ or ‘Great Chronicle’ is full of descriptive events related to numerous massacres and homicides allegedly committed by the monarchial rulers to retain power. Slavery was continued in the society with Buddhist monasteries being the main beneficiary since medieval period. The western colonial powers who occupied Sri Lanka in early 16th century used torturous practices to achieve their own political goals. The conceptual denial of torture in modern Sri Lankan history originated in the early eighteenth century when British became signatories to the Kandyan Convention 1815. However they violated its conditions against torture by brutally massacring civilians in 1818 and 1848 rebellions. In 1948 Sri Lanka received its independence from western colonialism with a legacy of torture as a significant component of many other residual appendages from the past.
The human rights portfolio of modern Sri Lanka is deeply entrenched with repeated events of torture, extra judicial killings and enforced disappearances that have occurred during the last four decades. Many international sessions including United Nations (UN) meetings and UN special rapporteurs highlighted the gravity of the issues concerneddespite denials of allegations by the state. Sri Lankan governments never accepted officially until recent times that torture is being committed by state machinery and such events were brought to the surface through the continuous efforts of non-governmental organizations and international pressure groups.A However two major government initiatives observed in the human rights field in Sri Lanka during the last two decades denote that torture is an unresolved ongoing major human rights violation. The first initiative was the adoption of the UN Convention against Torture into the domestic legal system in 1994.1The other one is the accommodation of a separate chapter for Torture in the most recent National Human Rights Action Plan2 put forward by the Sri Lankan government ahead of the critical UN Human Rights council meeting held in scheduled for March 2012. One can easily arrive at the following conclusions after analyzing the content and relevance of these two efforts.
Torture is a continuously growing issue in modern Sri Lanka. It does not have an effective institutional structure to fight against torture despite adopting international principles on human rights into local legislation.
The adoption of torturous practices against civilians by the state and its allies in post independent Sri Lanka have been increased in an exponential rate over the last three decades. The state has taken the stance of prevention of terrorism in some cases to negate the argument. The Prevention of Terrorism Act No. 48 of 19793 is such a draconian law which provides sweeping powers to the security forces to arrest and torture civilians in long term detention without a trial, bypassing and hence making the formal court procedures dysfunctional. The law enacted originally as temporary for
3 years was made permanent in 1982.
The recollection of a convict of the first youth uprising in 20th century Sri Lanka narrates the hidden aspects of the initial part of this gruesome story. “Frequently Lionel witnessed people being pulled out of the prison and taken to the police stations or CID for questioning. When they were brought back to the prison Lionel could see from their injuries that they had been tortured. News filtered through that around 10,000 people had been killed by the armed forces. The government had appointed military governors for each district.”4 According to the official Criminal Justice Commission (specifically appointed by then government to hear the charges against youth rebels in 1971) statistics the ratio between the deaths caused by the JVP (the political party behind 1971 uprising) and the youth and civilians killed by the state forces in retaliation was approximately 1: 100.B In the midst of the endemicity of torture currently experienced throughout Sri Lanka, it is essential to review the historical past of these activities and how it influenced the present regimes. It provides an essential preface for the understating of the mindset of rulers and the longevity of torturous practices in Sri Lanka.
There is little doubt according to the historical narrations that torture existed in Sri Lanka for centuries prior to western colonization. Torturous practices were mainly in use as punishments executed by the monarchy. There was a wide range of punishments, which the Dhampiyā-atuvā-gatapada of Kassapa V (914-923), broadly classified as corporal (kāya-danda), verbal (vachi-danda), financial (dhana-danda), and mental (mano- danda). Death was a recognized form of punishment. A sentence of death could only be passed by, or with the acquiescence of, the king. The execution was a recognized part of the system even in the days of King Pandukabhaya (377-307 BC). Whipping, beating, branding, mutilation and cutting off hair were other recognized forms of punishments.5In ancient Sri Lanka, 32 types of torture were described. Though inflicted by the King’s men,C and “lawful”, they were inhuman, cruel and degrading.6
The Mahāvamsa or Great Chronicle which is believed to be the main source of written history of ancient Sri Lanka provide ample evidence of application of torturous practices. The chapter X of Mahāvamsa which describes the consecration of Pandukābaya in detail illustrates how the killing spree continued at various stages before he claimed the throne after defeating his eight uncles. “The prince’s men killed all the soldiers of the enemy’s army and the eight uncles with them, and they raised a pyramid of skulls.”7,8 “Torture was originally recognised as a stage in the administration of the law, and in the original organisation of the capital in the fourth century B.C., a place for its infliction was established adjoining the place of execution and the cemetery as stated in Chapter X, Mahāvamsa.D It was abolished in the third century by king Wairatisso9; but the frightful punishments of impaling and crushing by elephants continued to the latest period of the Ceylon monarchy”.10
The Sinhalese kings were absolute rulers whose will was the law of the land.11 They have had state torturers designated as “Wadhakaya”s. Robert Knox, who was a captive of king Rajasinghe II during the Dutch occupation in Sri Lanka (1658-
1796AD) gives a vivid description of cruel and inhuman punishments carried out at the Kandyan kingdom.
“He seems to be naturally disposed to Cruelty: For he sheds a great deal of blood, and gives no reason for it. His Cruelty appears both in the Tortures and Painful deaths he inflicts, and in the extent of his punishments12, viz, upon whole Families for the miscarriage of one in them. For when the King is displeased with any, he does not alwayes command to
kill them outright, but first to torment them, which is done by cutting and pulling away their flesh by Pincers, burning them with hot Irons clapped to them to make them confess of their Confederates; and this they do, to rid themselves of their Torments, confessing far more than ever they saw or knew. After their Confession, sometimes he commands to hang their two Hands about their Necks, and to make them eat their own flesh, and their own Mothers to eat of their own Children; and so to lead them thro the City in public view to terrifie all, unto the place of Execution, the Dogs following to eat them. For they are so accustomed to it, that they seeing a Prisoner led away, follow after. At the place of Execution, there are alwayes some sticking upon Poles, others hanging up in quarters upon Trees; besides, what lyes killed by Elephants on the ground, or by other ways. This place is alwayes in the greatest High-way, that all may see and stand in awe. For which end this is his constant practice.”13
The Dutch were said to have been equally cruel when they conquered the island nation at the initial stages. “A conspiracy against them was discovered at Jaffna and fourteen of the alleged ringleaders were sentenced to death. It was considered necessary to strike terror into the hearts of the disaffected, and horrible punishments were inflicted on the condemned men; three of them were stretched out on wooden crosses laid on the ground, and after being stabbed in the neck and breast, were disembowelled; their hearts were then taken out and laid on their mouths, after which their heads were cut off and exposed in the market-place. A Jesuit was beheaded and eleven others were hanged, their bodies being left to rot on the gibbets.”E
Some Dutch rulers such as PetrusVuyst (appointed in 1726) were cruel and inhuman in their administration. He began by quarrelling with the civil and military officials, whom he treated in the most imperious fashion; he ended by the infliction of inhuman tortures and murder.F The Dutch court system operated in the coastal areas of Sri Lanka was also not immune of adopting capital punishment and torturous practices. “The proceedings of the Courts were characterized by serious irregularities, delay and negligence. The system of penal law which prevailed, and which was in accordance with the practice in Europe, was appallingly severe. For instance it is recorded that in 1669 an unfortunate Chetty who had been guilty of what today is regarded as merely a social offence, was sentenced to be hanged, his corpse to be put into a sack and cast into the sea. However, this sentence was commuted, and instead, he was flogged under the gallows, branded, and banished for life. In 1751 a woman named Joana, who was found guilty of slave stealing, was strangled by being tied to a pole, her head was then sundered from her body, which latter was dragged to the public place of execution and stretched on the wheel and left there to be devoured by the fowls of the air.
Breaking on the wheel was not customary, and instead it was usual to crush the thigh- bones of criminals with an iron club. As a rule the death sentence was executed by the gallows and not by the sword; an accused person could not be sentenced to death till he confessed his guilt, and the difficulty this created was taken care of by torturing the man whose guilt was considered proved, till a confession was wrung from him.”G
Slavery in Sri Lanka
Slavery is distinguished as one of the worst forms of cruel and inhuman treatment that has existed in human civilization. Many references pointed out the fact that Slaves were present in ancient and colonial Sri Lanka. Though detail documentation of practice of slavery in ancient Sri Lanka is not available it was shown that Buddhist monasteries in medieval times were the largest owners of slaves in Sri Lanka. In the tenth century the lord’s officials and the village headmen (kemiyan) were paid for their service by `maintenance’ (divel) lands, as were also the temple slaves and village servants.14 “……. the prevalence of slavery at monasteries is beyond doubt. According to Cūlavamsa, Silāmegavanna (AD 619-628) granted captives taken in battle as slaves to monasteries, and Aggabodhi IV (667- 683), Potthakuttha and Sena I (833-853) provided slaves for the various religious establishments which they founded. The Galpāta-vihāra inscription is even more specific. It mentions that two types of slaves – “hereditary slaves” (anvayāgata) and “bought slaves” (ranvahalin). In fact, it records an actual instance in which slaves were purchased with gold belonging to a monastery. It also lists eighty-three slaves, in groups of families, as having been granted to serve the monastery in various capacities as cowherds, potters and tailors.”15
History often recounts the grant of men and women slaves with other movable property to temples. The unpublished documents connected with the dedication of land to PepiliyānaVihāra in the fifteenth century show that these slaves were, largely artisans, blacksmiths, potters, lime-burners, and the like, and doubtless the slaves of’ the tenth century already referred to performed similar duties. The tenants of the king’s villages in the early seventeenth century are definitely stated to, have been slaves, and their presence in the royal and temple villages, though long forgotten, accounts for the low esteem in which the tenants on those properties are still held.13 In fact, the Kandyan nation being the slaves of the monarch – slavery was permitted, and practiced to a greater extent throughout the kingdom.16
Davy in his detailed account on the Kandyan kingdom17 describes how slavery was applied across the civilian life and the caste system. “Insolvency amongst the Singalese was very cruelly dealt with; slavery was its consequence. The creditor applied to the Dissave or Raté –mahatmeya, and having proved his claim just, and the debtor having acknowledged his incapacity to meet them, leave was granted to the former to make
the debtor and his family his slaves, and to retain them and their offspring in slavery, till payment of the debt were made. The debtor could not be sold, but if he died, leaving his children in slavery, they and their children might be sold. No interest was allowed to accumulate for the original debt, the labour of the slaves being considered an equivalent. In respect to slavery, there was no privileged caste; it was a punishment to which all insolvent debtors were liable. It was not usual for the Goéewanse to become the slaves of people of low caste; when in danger of this degradation, some chief generally paid the debt and made the debtors his slaves. The state of slavery is of course considered disreputable; by marrying a slave, a free woman would be utterly disgraced.”17 Davi explored further into the slavery issue and had attempted to quantify the slaves in then Kandyan kingdom. “What the total number of slaves may be in the Kandyan country, no register having ever been kept, it is impossible to estimate with any precision: an intelligent chief, from whom I collected the above particulars, guessed that they amount to about 3000.”H Davy was one senior government servant who recommended the colonial rulers to abolish slavery in Sri Lanka.
The Dutch were involved in extensive slave trade across Indian Ocean and it was recorded that 1791 slaves (most probably of non Ceylonese origin) were found in Colombo in 1694.18 The British continued the slave trade in more vigorous numbers. Although there were no recorded major events of distress or/and uprisings in Asian slave communities during their colonial period many references point out that they were subjected to inhuman living conditions.
It could be seen that in many stages of the ancient and colonial history of Sri Lanka causing fear and terror among public had been the modus operandi of the administrators to maintain their policies and the survival. This practice has been continued in the post independent Sri Lanka by all elected governments up to now. The accuracy of Knox’s description on torturous practices could be verified by the contents of the Kandyan Convention19 signed between the British rulers and the Kandyan chieftains in March 1815, approximately 145 years after Knox’s departure from Sri Lanka. The 1st section of the Kandyan convention states as follows:
“ That the Cruelties and Oppressions of the Malabar ruler, in the arbitrary and unjust infliction of bodily tortures and the pains of death, without trial and sometimes without an accusation or the possibility of a crime; and in the general contempt and contravention of al civil rights, have become flagrant, enormous , and intolerable;”
According to the section 6 of the convention “every species of bodily torture and all mutilation of limb, member or organ are prohibited and abolished”. The Kandyan Convention 1815 could be considered as the first serious attempt in the recent history to eradicate torture in Sri Lanka. The draftsmen of this convention could well have been influenced by a preceding event witnessed in Europe in 1764 which saw the arrival of a landmark publication, “On crimes and punishments” by CesareBeccaria. He was an Italian jurist, philosopher and politician who put forward the first modern argument against torture and death penalty. “Every act of the will is invariably in proportion to the force of the impression on our senses. The impression of pain, then, may increase to such a degree that occupying the mind entirely, it will compel the sufferer to use the shortest
method of freeing himself from torment. His answer, therefore, will be in effect, as necessary as that of fire or boiling water; and he will accuse himself of crimes of which he is innocent. In effect this implies that the very means employed to distinguish the innocent from the guilty, will most effectually destroy all difference between them.”20 Beccaria effectively nullified all reasoning behind the justification of torture in the criminal justice system. However it is regrettable to note that even almost after two centuries of legislative and institutional developments Sri Lanka has still not shown a significant attempt to intervene and prevent torture in civilian life.
A. Annual US Dept. of State reports on Sri Lanka, Amnesty International, Human Rights Watch, International Commission of Jurists and many other organizations have continuously referred to torture in Sri Lanka during the last decade. In 2011, the Asian Human Rights Commission(AHRC) has published 323 case narratives of police torture out of approximately 1500 torture cases reported to them from Sri Lanka between 1998 and 2011.
B. Cooke MC. The Lionel Bopage Story. 2011. P160
C. These state torturers were referred to as “wadhakayas”
D. Geiger translation 1912, page 74, at lines 88-90
E. Peiris PE. Ceylon and the Hollanders. 1918 . page 1
F. Ibid, p.56
G. Ibid, p. 58
H. Davy J. An Account of the Interior of Ceylon. 1821. pages 184,185
1. Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Act, No. 22 of 1994
2. National Human Rights Action Plan of Sri
3. Legislative Enactments of Sri Lanka, Prevention of Terrorism Act No. 48 of 1979
4. Cooke MC. Rebellion, Repression and the Struggle for Justice in Sri Lanka. The Lionel Bopage Story. Agahas publishers Colombo,
5. Amerasinghe ARB. The Legal Heritage of Sri Lanka. SarvodayaVishvaLekha Publishers, Ratmalana, 1991
6. De Zoysa P & Fernando R. Methods and sequelae of torture. A study in Sri Lanka. Torture Vol. 17 No.1, 2007, p. 53
7. Geiger W. The Mahāvamsa or The Great Chronicle of Ceylon. Oxford University Press London, 1912, p. 73
8. Wijesinha LC. The Mahāvamsa. Part I.
Government Printer, Colombo 1889, p. 42
9. Peiris PE. Ceylon and the Portuguese.
American Ceylon Mission Press. 1920. p. 9
10. Tennent JE. Ceylon An Account of the Island.
Vol.I London,1859, p. 500
11. Perera SG. A History of Ceylon for Schools.
The Associated Newspapers of Ceylon Ltd. Colombo, 1943, p.2
12. Peiris PE. Ceylon and the Hollanders.
American Ceylon Mission Press. 1918, pp.26,27
13. Knox R. An Historical Relation of the Island
Ceylon. London 1681, Chapter II Part II, p. 39
14. Codrington HW. A Short History of Ceylon.
Macmillan and Company Ltd. London 1929. p. 46.
15. Gunawardana RALH. Plough and Robe.
Monasticism and Economic Interest in Early Medieval Sri Lanka. University of Arizona Press, 1979.p.121
16. Sirr HC. Ceylon and the Cingalese. Vol. I London 1850. p. 283
17. Davy J. An Account of the Interior of Ceylon.
London.1821. p. 184
18. Vink M. The Words Oldest Trade. Journal of
World History, University of Hawaii Press,
2003, Vol. 14, No. 2, p. 169
19. Kandyan Convention, 1815 – Legislative
Enactments of Sri Lanka 1980, Vol. XX, pp310-
20. Beccaria C. An Essay on Crimes and Punishments. Translation of original fourth edition. 1992. Boston, Chapter 16
Dr. Usliyanage Clifford Priyantha Perera is a senior lecturer and medico-legal specialist attached to the Dept. of Forensic Medicine Faculty of Medicine University of Ruhuna and Teaching Hospital Karapitiya Galle Sri Lanka since 2000. He has completed post graduate studies at the Victorian Institute of Forensic Medicine Melbourne Australia from 2003-2005. He served as a clinical senior lecturer in forensic medicine at the Centre for Forensic and Legal Medicine, University of Dundee in United Kingdom during 2010-2011. He is an outstanding researcher in human rights and forensic issues for more than a decade. He was awarded the prestigious human rights scholarship of the University of Melbourne Australia in 2006. He is also serving in the international editorial advisory boards of the journal of the Indian Academy of Forensic Medicine and the journal of the South India Medico-legal Association.