By Basil Fernando –

Basil Fernando

Last week in the High Court of Badulla 05 police officers and a security officer were sentenced to death for causing the murder of Sadun Malinga a 17 year old young boy. The boy and four of his relatives had gone to the town for the purpose of some business when police suddenly arrested them beat them in public and thereafter arrested them and took them to the police station and further tortured them. As a result Sandun Malinga became seriously injured and the relatives who were with is tried to get the attention of the police to get medical care for the boy immediately. However the police ignored all such requests.

Next day the parents of the boy came to the police station and saw his condition, and again tried to get the attention of the police and also some higher up police officers in order to get some medical attention for Sandun Malinga . The police refused and instead, produced the five of them before a lady Magistrate.

When they were produced a lawyers as well as the victim himself tried to get the attention of the Magistrate to the condition which Sandun Malinga was and tried to get her to make an order to refer him for medical assistance. The Magistrate too ignored these requests and did not take any trouble to consider the condition of the young boy. She instead ordered all five of them to be remanded at the request of the police.

The next day morning Sandun Mlinga was with his brother and was suffering from a serious condition and even then prison authorities failed to provide immediate medical attention to the boy and in the morning the boy die d in his brother’s arms inside the police station.

It was for this that the the high court sentenced the officers to death.

The death sentence on the police officers did not receive much media attention. Sentencing of six, persons connected with the police station should have been a news that should have received serious attention of the Sri Lankan society as a whole and for that purpose the media should have highlighted this issue and created opportunity for discussion of the case, so that the meaning of this sentence would have been brought to the homes of people and also to all police officers throughout the country, so that it could have some beneficiary effects in the prevention of similar deaths in the future.

Arrests Without Justifiable Grounds

Among the matters that should have been discussed are first of all the issue of arrest without any justifiable ground. It has become a common feature throughout police stations in Sri Lanka to arrest without any substantial grounds justifying this arrest. There are many instances in which serious injustices have happened and in some in which even very serious injuries have been caused on the innocent persons, simply because the police take this liberty to arrest anybody if they so wish. And most persons arrested by them are even without slightest evidence to connect them to any crime.

One of the most glaring examples of a similar case was the case of Gerald Mervin Perera who in 1992, was arrested without any reason by a number of policemen acting under the instructions of a Superintendent of the police . He was assaulted severely, at the Wattala police station with the hope that he may be able to divulge some information regarding a triple murder. The injuries were caused were so much that it ultimately caused a kidney failure. His life was saved only by the intervention of his wife and some local politicians who facilitated him to go to a private hospital in which he remained in a comma for nearly two weeks.

The matter later came before the Supreme Court of Sri Lanka headed by late Justice Mark Fernando who delivered a landmark judgment in this case. The Supreme Court found that there were no grounds to arrest Jerad Perera and even if they have arrested him he could have easily been released after a first few questions have been asked’ as the police would have discovered that this man knew nothing about any crime. The court went on to observe that even after injuring him the police failed to provide immediate medical care to Jerad Perera.

The Court came to the conclusion that the failure to provide medical care in such circumstances amounts to a violation of a fundamental the right to life. And the Court found that all the police officers have violated the basic right of the accused. In that case the court awarded exemplary compensation ordering the state to pay the full amount of medical costs which was over 900 000 rupees to the private hospital and also to pay a similar amount to Jerad Perera as compensation.

The matters that have not received adequate attention of the national police commission ,the IGP, and the other high ranking police officers in the police service of Sri Lanka, the Ministries of Justice and law and Order and also of the judiciary and the Attorney General’s Department are first of all the issue of arrest without substantial grounds for arresting a person. It is quite well known that in high profile cases which involved politicians who are known to the country, the criminal investigation division CID) takes a lot of precaution in order to have a thorough inquiry to satisfy themselves of the evidence available of an accused before taking the steps of arresting such an accused. However this is not the case at the police station level, where almost every police station arrested persons purely without any warrant or any justifiable grounds for arresting the person. This matter needs very careful consideration and instructions need to be issued either by way of legislation or by regulations in order to stop this practice immediately.

Need for Legislation On Warrants

Legislation that should be brought about is that no arrest except in exceptional cases recognised by law, should be carried out without a warrant issued by a Magistrate. This has been recommended by also the UN Rapporteur against torture an ill treatment and UN Special Rapporteur for Independence of Lawyers and Judges who visited Sri Lanka last year and observed this practice of arrest without grounds for such arrest. However there is no move on the part of the government in order to bring about a legislation to introduce arrest only after a warrant issued by the Magistrate except in exceptional circumstances that are recognised under the law. The National Police Commission has not initiated any type of discussion in order to facilitate such legislation and we hope that in the future it take steps to do so. Human Rights Commission of Sri Lanka has been doing some remarkably good work in the recent past also should they should take up this issue of getting legislation on the requirement of a warrant before arrest of any person except in those circumstances which law recognises as justifying arrest without a warrant.

Torture

In hundreds of cases the courts have made it clear that torture is a grave violation of human rights . However this has made no difference to the practice of torture that is taking place at police stations throughout the country. The reason is that the police take the liberty to arrest persons without substantial grounds for arrest, and try to find out whether there is anything that the person may know about a crime by assaulting him. It has been a trademark of the Sir Lankan police to beat up persons even without knowing anything about such a person, simply with the hope that by beating them up they may speak up and some information may come out which can then be used against them. And all the police hierarchy are fully aware of this practice. So it is with the connivance of police hierarchy that the practice of illegal arrests are being taken place in Sri Lanka followed by severe torture of innocent persons.

The Right to Medical Care

Third issue which comes up is regarding medical care for injured persons. This exposes the sheer inhumanity of people who can injure others and thereafter prevent them from taking medical care because through the medical care their misdemeanours may get to be exposed. The reason why the police do not get medical care for their victims is because, then there will be medical reports and other observations that of injuries which may be used later against them and they may become accused in cases. The way to prevent liability is to hide the fact of such torture and the consequence of such could be like the case of the death of Sandun Malinga.

The Liability of the Magistrate

The Magistrate in this case is also should have been held liable because it was the matter was brought to her notice and she should have taken the trouble to examine and to write the condition of the boy in the case records and thereafter make order to enable the boy to take medical treatment immediately. Had the Magistrate done this the boy would not have died the next day. Therefore the instances in which the Magistrates can become liable for the deaths of those who are brought under their custody should also be very seriously examined. Despite of many recommendations that have come over the many years, for Magistrates to examine whether the persons who come before them are or have been injured, by and large this requirement is being ignored by the Magistrates throughout the country. Neglect when it leads to a death is a matter that should not be ignored. When the neglect of a Magistrate could lead to the death of a person, the liability of the Magistrate for that death should not be ignored.

The Liability of OIC

Some basic issues that could be discussed is the liability of the officers OICS’) in charge of the police stations to prevent illegal arrest, to prevent torture, and thirdly in any case when there is an injured person to get them the medical attention as soon as possible. Further liability of an OIC, is to ensure that no fabricated charges are filed against any persons. Had not fabricated charges being filed against these five persons, they would have themselves taken the trouble to go to the hospital and to have the treatment required for the young boy. That was prevented by a fabricated charge and keeping him under the custody , so that they could not really move to get medical care. Again the motive is clearly to prevent the people going for medical care so that the police officers would not get exposed to the injuries they have caused to the accused. The extent of playing with the lives of the people for the purpose of escaping liability goes to this extent in Sri Lanka and nobody takes any notice about that matter.

The Liability of ASP

Next most important officer that should be held liable for such instances is the Assistant Superintendent of police (ASP) who is in charge of that particular police station. Every police station is supervised by an ASP, and the law lays down the obligation of a senior officer, who he is responsible for the proper conduct of all activities within a police station. And it is the duty of the ASP to make regular visits to a police stations, to take action when he gets to know such as torture, or illegal arrest to take steps to prevent that and also to be alert in instances where injuries have been caused on persons so that he could intervene in order to ensure that they receive proper medical care. However, illegal arrests, torture and also preventing victims obtaining immediate medical care is done with the connivance of most of the ASPs’ of police. Illegal arrest is a practice which is indirectly allowed. Torture is also a practice which is indirectly allowed. And also keeping these things secret is a law that prevails among police officers. So there is this conspiracy on the basis that without such illegal arrests, illegal detentions and torture it is not possible to conduct proper investigations into crime, which is a kind of a belief that is so entrenched among the police in Sri Lanka.

Police Criminality

What we are dealing with is high criminality within the policing system. If nothing can be done by the police the least that could be done is to prevent crimes being conducted by the police officers themselves. That is the duty of the higher ranking police officers including the IGP, as well as the Ministry of Justice and the Ministry of Law and order and the government itself. In the midst of such huge complaints about this type of behaviour, and observations by such bodies as the United Nations’ Human Rights Committee about the widespread practice of torture and illegal arrests and detentions in Sri Lanka, everyone keeps silent on this issue and thereby shares the criminal liability for allowing such crime to take place.

The Need for Social Discourse

It is time that there be a social discourse, on these terrible practices which prevails in the premier law enforcement agency in Sri Lanka. Without such a huge discourse and bringing pressure to stop these practices nobody’s life is safe. Sandun Malinga a bright student who had no reason at all to come into contact with the police is now dead. The death sentence is of course something that we do not celebrate, and fortunately death sentences are not carried out in Sri Lanka – it will be usually reduced to a life sentence. Our concern is not about tooth for a tooth, but for the purpose of bringing to an end these kind of criminal behaviour which are a threat to the liberty of the people of Sri Lanka. Not only does it cause the death of some, and injuries to others, but also it creates fear in everyone. Everyone has a reason to be afraid that he or she may be arrested for no reason at all, and the information would be sought by assaulting a person and then if injuries happen, the police will do everything possible to hide such injuries. Such a place will not be considered by anybody as a safe place to live.

It is time for civil society organisations, all professional bodies such as the Bar Association of Sri Lanka take more prominent position in taking steps to prevent crimes done by police and thereby ensuring protection of the people of Sri Lanka.