19 September, 2020

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Deterioration Of The Legal Intellect – IV

By Basil Fernando

Basil Fernando

Basil Fernando

Deterioration of the legal intellect: (4) – UNHRC finds fault with the police, the forensic pathologist, the Attorney General, and the Supreme Court

A determination issued by the United Nation’s Human Rights Committee on 1st April 2015, reveals extraordinary failures on the part of Sri Lankan State agencies – the police, the forensic pathologist, the Attorney General, and the Supreme Court – regarding a custodial death that took place at the Moragahahena Police Station on 26th July 2003. The following Committee Members participated in the examination of the case in question: Yadh Ben Achour, Lazhari Bouzid, Sarah Cleveland, Olivier de Frouville, Yuji Iwasawa, Ivana Jelic, Duncan Muhumuza Laki, Photini Pazartis, Mauro Politi, Sir Nigel Rodley, Victor Manuel Rodriguez-Rescia, Fabian Omar Salvioli, Dheerujlall B. Seetulsingh, Anja Seibert-Fohr, Yuval Shany, Konstantine Vardzelashvili, and Margo Waterval.

The facts of the case are that Sunil Hemachandra (Sunil) was once a healthy and a literate man with no criminal record. He was a daily paid labourer, mostly engaged in tapping of rubber and climbing trees for plucking coconuts.

His misfortunes began, ironically, when he won a lottery ticket of a little over 3 million rupees (approximately USD $25,000). Through the lottery agent, the Moragahahena police learned about Sunil having won the lottery; the Officer-in-Charge of the Moragahahena Police Station sent a police officer with the message that Sunil should arrive at the Station, along with his ticket, and stay there for his own safety. Sunil did not comply this request. Instead, he went with his mother and aunt, en-cashed his winning ticket, and immediately deposited it in his aunt’s bank account. Thereafter, he bought a van for 1.2 million rupees, a three-wheeler for one of his nieces, and gave 5,000 rupees to his nephew as a gift.

A few weeks later, a team of police officers from the Moragahahena Police Station came looking for Sunil; they inquired from his aunt whether Sunil had spent his lottery money. One of the police officers warned, “his [Sunil’s] happiness would not last long”. The police officers left a message for Sunil to report to the Moragahahena Police Station.

On the same day, Sunil, accompanied by an acquaintance, Chanaka, and along with the son of the lottery agent, Lionel, went to the police station. At the Police Station, one of the police officers (a Sub Inspector) requested Sunil to pay money as “support”. Sunil had replied that the money was not with him and declined to pay. The same police officer then insisted on the payment of 25,000 Rupees “to cover the expenses of a procession of the Vidyaratne Temple in Horana”, to which Sunil agreed.

On 22nd July 2003, five police officers from the same police station arrived in a vehicle at Sunil’s aunt’s house and, seeing him asleep in his room, identified him as being “the one who won the lottery” and then they proceeded to beat him, which included hitting him on his head. The police officers proceeded to arrest Sunil and Chanaka and continued beating Sunil at the time of the arrest and during the ride in the police jeep to the police station, when he was hit on his head and in his abdomen. Chanaka was hit in the face, several times, when he asked the officers to stop beating Sunil.

Sunil and Chanaka were taken to the Moragahahena Police Station and placed in a small cell with several other detainees. Next morning, Chanaka found that Sunil was visibly unwell and was bleeding from his nose and his mouth, and was not able to stand. Chanaka alerted the police officers of Sunil’s critical health condition. However, the officers merely asked Chanaka to take Sunil to the backyard and to wipe the blood off his face. The bleeding however, continued uninterrupted from his nose and mouth and Sunil began vomiting blood clots. One of the police officers directed Chanaka to give Sunil an iron rod to hold, which is done in the case of epileptic attacks.

The same morning, Sunil’s aunt came to the police station and found Sunil lying on the floor of the cell bleeding from his nose and mouth. She too alerted the police about Sunil’s serious condition, but was chased away by the police.

It was only later during the day that Sunil was finally taken to the Horan Base Hospital in a police vehicle. Sunil’s aunt visited him at the Police Station and was told by Sunil that he had been brutally assaulted by the officers. She found him to be in severe pain and his face was red and swollen.

Later, on the same day, two police officers from the same station arrived at the hospital to record Sunil’s statement. But he was only able to mention his name. However, the police officer wrote something on two lists of paper while talking to the other. The officers then obtained two impressions of Sunil’s left thumb, in lieu of his signature, although Sunil was capable of signing his name.

The next day Sunil’s family learned that he had been transferred to the National Hospital in Colombo, where he had undergone brain surgery. On 26th July 2003, staff at the National Hospital informed his aunt that Sunil passed away earlier that day.

Three days before his death, while Sunil was in hospital, Sunil’s aunt went to the office of the Assistant Superintendent of Police in Horana, and attempted to complain of Sunil’s arrest and torture. But her complaint was not recorded by the Superintendent of the Police. It was only on 26th July 2003, that the Assistant Superintendent of the police in Horana recorded a statement from the aunt and Chanaka, who was released from police custody.

Sunil’s aunt also made a complaint to the National Human Rights Commission (NHRC), and with the help of a human rights organisation “Janasansadaya” lodged a Fundamental Rights Petition before the Supreme Court of Sri Lanka, in which a number of officials and institutions were cited as respondents.

The aunt’s complaint to the NHRC remained unanswered till August 2008, when the NHRC stated that as a Fundamental rights case had been filed before the Supreme Court, the NHRC will not make any inquiry while the case is pending. Since then, Sunil’s family has not heard from the NHRC.

The Additional Magistrate of the Colombo Chief Magistrate’s Court opened an inquiry into Sunil Hemachandra’s death and heard the statements of Sunil’s aunt and Chanaka. The Additional Magistrate noted that in the police report from Moragahahena Police Station “there was no entry whatsoever, revealing the reason for which Sunil has been arrested by the police”. The Magistrate also noted after observing the victim’s body in the mortuary, that among other injuries he noted an injury of “about one inch slightly above the buttocks on the left side of the back”.

A few days later, a Consultant Judicial Medical Officer (JMO) from Colombo conducted a post mortem examination. His report documented ten pre-mortal injuries, four contusions, four aberrations, one peri-orbital haematoma (“black eyes”) around the left eye and one surgical incision. However, the JMO made no record of the injury on the left side of the back observed by the Additional Magistrate. The JMO identified the cause of Sunil’s death as “acute subdural haemorrhage following a head injury caused by blunt trauma”. The report identified four possible origins of fatal haemorrhage: a heavy blow on the back of the victim with a weapon or a kick with boots; a fall due to being pushed; accidental fall; or a fit due to alcohol withdrawal or epilepsy. Strangely, the report concluded that it was “possible that the cause of death was a fall following alcohol withdrawal, a finding seemly derived solely from the discovery of an “enlarged and fatigued liver” in the body of the deceased.

On 8th August 2003, the Magistrate of Horana directed the Senior Superintendent of the Panadura Police to investigate and produce the suspects before the court as the circumstances surrounding the victim’s death seemed suspicious.

However, on 29th August 2004, the Attorney General decided that no charge could be filed in connection with Sunil Hemachandra’s death as there was no evidence of any assault on the victim. On the basis of this reference by the Attorney General, the Magistrate removed the case from the roll.

Regarding the author’s petition to the Supreme Court, which was made in September 2003, a decision was made on 6th August 2010. The Supreme Court dismissed the application based on the conclusion that “the fall being due to a fit following alcohol withdrawal was highly possible”.

Concluding findings of the UNHRC

The UN Human Rights Committee considered Sunil’s case on the basis of information placed before the Committee. It should be noted that Sri Lanka as a State party was under obligation to reply to complaints placed by the UNHRC under the Optional Protocol to the International Covenant on Civil and Political Rights. However, despite requests having been made to the state party, twice, by the UNHRC, the State party made no reply to the allegations made in this Communication.

UNHRC arrived at the following findings:

Arbitrary deprivation of life

Regarding the author’s claims under Article 6, in relation to arbitrary deprivation of Sunil Hemachandra’s life, the Committee recalled its jurisprudence, in which it determined that by arresting and detaining individuals, the State party takes the responsibility to care for their life, and that a death of any type in custody, should be regarded as prima facie a summary and arbitrary execution. “Consequently there should be a thorough, prompt, and an impartial investigation to confirm or rebut this presumption, especially when complaints by relatives or other reliable reports suggest unnatural death”. Members of the Moragahahena Police Station arrested Sunil Hemachandra on 22nd July 2003 at his place of residence. Four days later, on 26th July 2003, he died in the National Hospital in Colombo, as a direct result of an “acute subdural hemorrhage following a head injury cause by blunt trauma”. Although the victim was bleeding uninterruptedly, i.e. he was in a visibly critical medical condition the day after his arrest and placement in detention (23rd July 2003), the police failed to seek medical assistance for at least three hours.

State party’s investigation into suspicious circumstances of the death of Sunil inadequate

The Committee has recalled that criminal investigation and consequential prosecution are necessary remedies for violations of human rights, such as those protected by Article 6 and 7 of the Covenant. In this case, the Committee has observed that all investigative steps undertaken by the State party were carried out by members of the Moragahahena Police Station, i.e. the same police forces which arrested and detained Sunil Hemachandra; that the investigation ordered on 8th August 2003 by the Magistrate of Horana was closed, further to the Attorney General’s decision of 29th April 2004 not to pursue charges for assault; that it took the Supreme Court seven years to rule on the Fundamental Rights Petition filed by the author; that, in its decision on 6th August 2010, the Supreme Court discarded the possibility of the victim’s custodial death as a result of torture, without ordering any independent investigation to ascertain the facts and identify possible perpetrators: no police officer was identified as a suspect and interrogated, let alone suspended or brought to justice. In the absence of any explanation by the State party, the Committee has concluded that the State party’s investigations into the suspicious circumstances of the death of Sunil Hemachandra are inadequate. The Committee has concluded that the State party’s authorities, either by action or omission, were responsible for not taking adequate measures to protect Sunil Hemachandra’s life, and to properly investigate his death and take appropriate action against those found responsible, in breach of Article 6 paragraph 1, read alone, and in conjunction with Article 2 paragraph 3 of the Covenant.

Torture and failure to provide immediate medical attention

The UNHRC has concluded that severe torture had been committed at the Moragahahena Police Station and that the State party has also failed to provide immediate medical attention even after the serious condition of the detainee was brought to their notice.

Illegal arrest

The UNHRC concluded that the arrest and detention of Sunil Hemachandra was also illegal and that the State party failed also to inform the reason for his arrest.

UNHRC Recommendation to be fulfilled by the Government of Sri Lanka within 180 days

The UNHRC has recommended that Sri Lanka as a State party should undertake a prompt, thorough, and independent investigation into the facts, ensuring that the perpetrators are brought to justice, and ensuring reparation, including payment of adequate compensation and public apology to the family. The State party should also take necessary measures to ensure that such violations should not recur in the future. The State party had been requested to provide information about measures taken to give effect to the Committee’s views within 180 days. The State party is also requested to publish the Committee’s views and to have them translated into the official language of the State party and be widely circulated.

Will the new government act differently from the Mahinda Rajapaksa government?

The Mahinda Rajapaksa government completely ignored all the views and recommendations of the UNHRC delivered during the term of its office. The question now is whether the new government headed by President Maithripala Sirisena – who has promised to discontinue with the way the previous government conducted itself in relation to international affairs including relationships to the United Nations – will act differently with regard to the findings and recommendations of the UNHRC in Sunil Hemachandra’s case.

President Maithripala Sirisena has made good governance the major slogan of his government. The UNHRC observations and recommendation in this case expose the extreme deficiencies relating to good governance in Sri Lanka; of particular importance are the failures mentioned by the UNHRC regarding the failure to conduct impartial inquiries into custodial deaths. Also of importance is the UNHRC criticism of the Attorney General’s interventions into criminal cases in order to stop the investigations, as it happened in Sunil’s case.

What is also unique in this case is that the UNHRC has made observations regarding the failures of the Supreme Court of Sri Lanka to call for a fresh inquiry, whereby the Court could have intervened to defeat the police scheme to deny justice by subverting inquiries into a custodial death.

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Latest comments

  • 7
    0

    Who ever investigating this case should arrest the Police officers involved, the JMO who did the post mortem and the Attorney General who refuse to file a case. The two institution which are extremely corrupt are the Police and the Judiciary. Urgent revamp required.

    • 3
      0

      Ebahtog

      “Who ever investigating this case should arrest the Police officers involved, the JMO who did the post mortem and the Attorney General who refuse to file a case. The two institution which are extremely corrupt are the Police and the Judiciary. Urgent revamp required.”

      One may get better results by hiring hit-men to injure or make the criminals accountable.

      1. The police officers
      and the others.

      It is rather, unfortunate that the LTTE hit men are not there any more. Otherwise they could have been recruited for a price to punish the culprits.

      After all Mahinda Rajapaksa, Basil Rajapaksa and Tiran Alles recruited Velupillai Prabakara of LTTE, not to let the Tamils with Common Sense vote in the Presidential Election of 2005.

      • 0
        0

        Sure Amarasiri. But let us not lose track of everyone’s goal i.e to make the country phosphorous so that we (and our children) can all live in peace and harmony, just like, may be about 40 years ago.

        • 0
          0

          Ebahtog

          “Sure Amarasiri. But let us not lose track of everyone’s goal i.e to make the country phosphorous so that we (and our children) can all live in peace and harmony, just like, may be about 40 years ago.”

          Agree, that should be the goal of the civilized, in the Land of native Veddah Aethho. Unfortunately. the Liars, the Crooks, the Robbers, the criminals, the Shills, the cronies and other undesirables make it very difficult.

          Go Must expose these rascal and murderers as much as possible.

  • 5
    2

    Be fair and generous with The Tamils and bring justice and peace and achieve fair governance. What ever said there was law and order under Eelam rule. No fear of rape and murder. No bribe . I wouldn’t say there was no corruption but may be at a minimum level. If it happen to be a 3rd party to involvement for a political solution, it will be like sharing the appam by a 3rd party. by doing so The diaspora will help develop not only the north east but also the rest of the Sri Lanka.

    • 4
      3

      ‘What ever said there was law and order under Eelam rule. No fear of rape and murder. No bribe .’

      God Almighty, what a ‘king clown! Was there murder of moderate opponents? Was there torture of captured soldiers and civilians? Was there kidnapping of children?

    • 3
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      Pacs

      “No fear of rape and murder. No bribe . I wouldn’t say there was no corruption but may be at a minimum leve”

      Are you out of your mind? No bribe taking? MR. BR and Alles gave bribes to Mootal Maveeran VP.

      Take Bus 134 from Colombo, and get some treatment. Ask the driver to drop you off at the Angoda stop. He will understand. You need it.

    • 0
      0

      ‘The diaspora will help develop not only the north east but also the rest of the Sri Lanka’

      Pacs thambi you are off your head. The diaspora need their money to educate their children at top colleges and marry off their daughters to rich doctors of the right caste. Very little will go to ‘develop the North East’

  • 0
    1

    Not revamp but replacement. sent all the police home or Jail and bring new police selected from good families and they should be graduates. no training by any foreigners. The police should be sent to jail en masse fore their collective brutality. All the present corrupted police are trained by the foreigners.

  • 5
    1

    These are yakko Sinhalese involvement from top to bottom. This race is still a very much uncivilized race, this includes their leaders. In the good times when Lee Kuan Yew stated that Singapore needs to follow in the footsteps of Sri Lanka, this was because top positions were held by minorities i.e. burghers and Jaffna Tamils etc… on the basis of competence and merit, thus the country was compared to good governance and civilized behavior. Today look at Mahinda, what a damn third grade crook, is he fit to be a leader of a country or rather more qualified to become a bus conductor in a private bus. I leave it to the readers to decide. All the punks around him, who supported him in his twisted shameless endeavors, do they have a morsel of conscience. It is unbelievable that their are so many Sinhalese who are ready to become punks to the shameless criminal and corrupt attitude of Rajapakse and his family, this is the greatest tragedy of this nation. Today, the new government (thanks to the minority vote) is fumbling to bring charges amongst the crooks, even though the evidence is clear and glaring, why oh why??? because they are Sinhalese and even though educated like Ranil Wickremasinghe, they still remain punks to the system. Truthfully, we would have been better off under colonial rule… this country would not have been robbed to the extents to what is happening now. The biggest mistake was allowing the yakkos to govern.

    • 2
      1

      “It is unbelievable that there are so many Sinhalese who are ready to become punks to the shameless criminal and corrupt attitude of Rajapakse and his family, this is the greatest tragedy of this nation. “

      Dayan Jayatilleke Silva comes to mind.

  • 4
    1

    ‘These are yakko Sinhalese involvement from top to bottom. This race is still a very much uncivilized race, this includes their leaders’.

    No doubt you are looking forward to the Bill prohibiting the incitement of racial hatred.

  • 2
    0

    The police officers involved should be interdicted with/without pay and cautioned not to interfere or visit any police station till conclusion of the inquiry, after the Minister appoints a panel to inquire into their behaviour.
    The Sri Lanka Medical Council should be informed by the Attorney General, of the full details of the case so that the behaviour/reports of the JMO could be gone into, and his explanation obtained.
    The Minister of Justice should request the Attorney General to review the case and report within a month.

    Further action should be pursued after the attorney general’s and SLMC’s reports.

    Sri Lanka has a corrupt police force which was used by politicians for their own ends, and complete impunity has set in.
    The new regime should take serious note of malaise in law enforcement and the Rule of Law.
    Custodial deaths in police stations and prisons are increasing steadily as there have been no proper inquiries into them earlier.

  • 5
    0

    Nothing will be done in this godforsaken country. Why cant Sirisena & Ranil decide to clean up just one department of the Government? The rest will then know what is in store for them. Just clean up the Police for example. Call the bastard IGP in and tell him that if his people do not follow the rule book to the letter, his balls will not know what hit them. This will then flow down the line to the local cops. Anyone of them breaking the rules can be arrested and tried immediately.

    But no, that is far too sensible. Ranil & Sira want to repair the entire bloody nation in one go. His judges pontificating on amendments and clauses while the people go hungry. A Hundred days and not a single one of MR’s criminals convicted. They are all ‘taken in for questioning’. What is the use of that if there is no charge and trial?

  • 0
    0

    The country has been desensitized as a result of the MaRas rule.
    The collective guilt is replaced by each one looking after their own backs. The law has been entrusted to high handed criminals and murderers. Good governance for the mass is an utopian dream.
    MS& RW conspiring for their own survival. Ordinary citizens get up in the morning and say ‘ thank god I just survived to live for another day.

  • 1
    0

    The author’s long standing commitment to human rights, justice and accountability is well documented, at least by his own publications, however, I would have more respect for the man if he didn’t turn a blind eye to the discrepancies of his own organisation.

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