By Chandra Kumarage –

Chandra Kumarage

It was reported in the media that a police constable and his wife were killed by unidentified persons in the Southern Province. It was also reported later that one of the suspects of that crime nabbed by the police when taken in handcuffed to recover some productions was shot dead by the police when he allegedly picked a bomb and tried to hurl it towards the police officers. A fourth and the last suspect Ketayam Chinthaka also died under same circumstances, when taken in custody in hand cuffs to show productions. But what is stranger than fiction is that two other suspects in the same murder case were drowned in a nearby lake whilst attempting to escape from custody, by swimming for safety in hand cuffs. The latest fable is much more surreal and Incredible, Aesop’s fables vanish into thin air compared to these fables a la the Police Department of Sri Lanka. Very funny isn’t it?

Conversely if these fables are to be believed one tends to question the competence of the police force to give protection to the general public, investigate crimes, and guarantee the protection of the lives of persons in their custody.  It is common knowledge that killing of alleged suspects immediately after assassination of someone will prevent the mystery of the murder being solved and the identifying of the other assailants and/or abettors if any. Soon after President Kennedy was shot dead the identified suspect Lee Harvie Oswald was also killed as a result of which President Kennedy’s killing remains an unsolved crime up to the present time.

In a report submitted to Parliament by the Additional Secretary of the Ministry Defence, Law and Order in December 2009 the  number of persons died in police custody from December 2005 till September 2009 had been 91 out of which 49 persons had died of the same cause namely, ‘when the suspect was taken out to recover hidden weapons he suddenly grabbed a bomb which was hidden at the spot and tried to throw it at the officers and the police officers had to shoot and kill him in the exercise of the right of private defence. According to a news report this modus operandi of shooting suspects when they were taken to discover hidden weapons has been recurring without the police top brass or the executives in charge of the police force taking any preventive action whatsoever. The killings at Kamburupitiya may not be the last such killings.

In cases where persons in police custody die under suspicious circumstances like in the recent case from Kamburupitiya where it was alleged by the police that they took two suspects on two different occasions, handcuffed, to some place to recover some productions the handcuffed suspect pulled a bomb and aimed it at them and the officers acted in the exercise of private defence and shot them dead. This is not the first time that police in Sri Lanka had to face such circumstances and had to shoot and kill suspects in custody. Not even a small child will believe this tall story. There is a very clear question to be asked from the I.G.P. Having had this experience for the umpteenth time why did you not instruct the police hierarchy to give special training   to handle such situations? Has not the police in Sri Lanka learnt from the famous saying,’once bitten twice shy.’ These staged killings have been given the name ‘faked encounter killings’ in India. They are none but clear cases of extra-judicial killings.

Whilst condemning the killing of the police constable and his wife in no uncertain terms, it is stated  strongly that projecting these incredible stories and expecting the people of Sri Lanka to buy this fables is an affront to the common sense of the people. Conversely this totally negates the trust and confidence they have reposed in the police service in this country. Moreover in the backdrop of high ranking police officers being put behind bars having allegedly conspired and assassinated innocent people for hire, and  some other officers having undertaken contracts to suppress evidence on gruesome killings, and yet some others for many grave crimes exacerbates the distrust in the guardians of the law. If one keeps in track of killings involving police officers as reported in the media on a daily basis he will see many bizarre crimes in which guardians of law and order are suspects and accused. How can a reasonable and prudent person trust that hundreds  of cases of murder and other grave crimes based on the investigations done by police officers, pending in courts all over Sri Lanka are  based on well founded facts or fabrications done for monetary considerations. To name one among many such cases is the Shyam murder case in which an DIG who was once a ‘sample cop and a crack investigator ’ is the main accused in a premeditated and gruesome murder.

Police officers are committing these crimes with impunity because they have been covered by immunity guaranteed to them by politicians in power who employ them to commit crimes and other illegal acts on their behalf.  The reports of the Presidential Commissions of Inquiry appointed by President Chandrika Bandaranaike to probe enforced disappearances committed during the UNP regime (1989-92) bear testimony to these facts.

Be that as it may, we hear from the media of instances where some magistrates whilst holding inquests to ascertain the cause death go in excess of their powers  by pronouncing that those deaths in custody or alleged by encounters were justifiable homicides. There are no homicides called justifiable homicides known to our criminal legal system. There is provision in our criminal procedure for suspects in cases of homicide to take up the defence that the death was caused in the exercise of the right of private defence. This right is available as a general exception to criminal liability under the Ceylon Penal Code. However the exercise of the right of private defence can be raised at the end of a trial. Under no circumstances can person suspected of causing a death of another cannot take up this defence and go scot free at preliminary inquiry stage or at an inquest.

Sectiion 103 of the Evidence Ordinance stipulates that ‘The burden of proof as to any particular fact is on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person’ and Section 105 of the Evidence Ordinance mandates  that, ‘When a person is accused of any offence the burden of proving the existence of circumstances bringing a case within any of the general exceptions in the Penal Code, or within any special exceptions or proviso contained in any other part of the same Code, or in any law defining any offence, is upon him and the court shall presume the absence of such circumstances.

It should be the duty of the magistrates holding such inquests to send those bodies to the JMO for the holding the autopsy. These investigations must be handed over to the CID for investigation. The duty of magistrates holding inquests is to ascertain the cause of death of the deceased, whether it was by drowning or as a result of injuries inflicted on the deceased or by aspixiation. There is no provision in the Sri Lankan criminal procedural law for the magistrates to lead evidence ex -parte and hold that the death was a justifiable homicide. There is no such procedure and there is no legal term in the criminal procedure in Sri Lanka and its lexicon called ‘justifiable homicide.’

Since there is no state of emergency in force in the country at the present time, inquests have to be held under the normal procedural law which is the Code of Criminal Procedure Act No. 16 of 1979 (hereinafter CCrPCA).

Chapter XXXII generally deals with inquests of deaths which mandates that an inquests  shall not be held except under the provisions of this Code. Section 370(1) provides for the appointment of inquirers to hold inquests and to draw up a report of the apparent cause of death, describing such wounds, fractures, bruises and other marks or injury as may be found on the body and such marks, objects and circumstances as in his opinion may relate to the cause of death. The report shall be signed by such inquirer and forthwith forwarded to the nearest Magistrate.

Having considered the report and other material before him if he holds that it discloses a reasonable suspicion that an offence has been committed the Magistrate shall take proceedings under Chapter X IV and XV and in such event the record of evidence and the inquirers report shall be annexed to the record of the proceedings before the Magistrate.

Anything herein contained shall not preclude a magistrate from holding an inquiry by himself under the powers vested in him under section 9 of the Code which empowers the magistrate ‘to inquire to all cases in which any person shall die in any prison or metal or leprosy hospital or shall come to his death by violence or accident, or where the death shall have occurred suddenly, or where the body of any person shall have found dead without it being known how such person came by his death.

It was held by the Supreme Court in Seneviratne v. the Attorney General[1] inter alia that ‘the duty cast upon the Magistrate at an inquest of death by the provisions of section 362(1) (c) was purely to hold an inquiry into the cause of death. The purpose of section 362 and 363 is to secure reliable material as to the cause of death of a human being, when death has occurred in unusual circumstances or places mentioned in these sections, so that the material will be readily available in case such death was the result of an act of another amounting to an offence. It is therefore not the function of the inquirers or the magistrate acting under Chapter XXX of the Criminal Procedure Code to include in these proceedings an investigation into an alleged crime or offence. The recording of the findings as to the cause of death concludes the inquest.

The court also held ‘If such a findings as to the cause of death whether by an inquirer or a magistrate, gives rise to the magistrate’s mind to a reasonable suspicion that a crime has been committed the Magistrate shall then act under 362(3) and initiate criminal proceedings. But the right to initiate criminal proceedings upon the findings at an inquest of death cannot alter the nature of the inquest proceedings themselves.’

The Supreme Court of India has taken such extra-judicial killings committed by police officers seriously. In a recent case a Bench of the Indian Supreme Court comprising Justices Markanday, Katju, and Gayan Sudha Misra said that faked encounter killing fall within ‘the rarest of rare cases are and police men found involved in such killings’ must be  given the death sentence.’ Trigger happy police men who think they can kill people in the name of ‘encounter’ and get away with it should know that the gallows await them. Justice Katju who wrote the judgment, said that ‘the encounter philosophy, was a criminal philosophy and encounter killings on the pretext that they were carrying out the orders of their superior officers or politicians however high the bench stated.’

‘If a police man is given an illegal order by any superior to do a ‘fake encounter’ it is his duty to refuse to carry out such illegal order, otherwise he will be charged for murder and if found guilty – sentenced to death’ the court said. Justice Katju pointed to the Nuremburg Trial to bring home the point that one could not be absolved for obeying illegal orders. ‘Fake encounters are nothing but cold blooded and brutal murders by persons who are supposed to uphold the law.’ In our opinion if crimes are committed by ordinary people ordinary punishment should be given; but if the offence is committed by policemen much harsher punishment must be given to them because  they do an act totally contrary to their duties’ the bench said.

Taking note of the fact that the policemen had allegedly been paid by a person to kill his rival the court said ‘this case reveals the grisly depth our society has descended.’ The court said further said ‘the accused policemen whose duty was to uphold the law had far from performing their duty operated as criminals. This is a case where protectors had become predators.’ ‘If the salt has lost its flavor wherewith shall it be salted,’ Justice Katju said quoting the Bible.[2]

Moreover the Supreme Court of India has appointed a Commission headed by retired Supreme Court Judge H.S.Bedi to probe 22 alleged fake encounter killings in Gujarat between2003-2006 and has inducted police officers from outside the state to maintain the independence of the investigations.[3] In Sri Lanka where all state institutions are highly politicised and state -dependent the hapless and innocent people have only to turn to the judiciary for justice and for protection. But the judiciary is also under heavy pressure from the executive after the unlawful impeachment and removal of the Chief Justice. The principal cause of this grim situation is the negation of the Rule of Law. The people of Sri Lanka must put their political affiliations to the backburner and think as a nation and strive in unison to re-establish the Rule of Law and protect their inalienable rights being usurped and negated by the executive. The executive has violated the trust that was reposed in it by the people of the country.

Majority of the people including the leaders of the country boast about a proud and rich Sinhala Buddhist culture and civilisation. Respecting the right to perform last rites for the dead, and not to insult the dead are universally accepted noble principles but it is not so in this predominantly Buddhist Sri Lanka. Some media institutions proudly gave publicity to the fact of some persons eating kiribath on the high way to express their joy over the killing of an alleged assassin, and the refusal of the authorities to the next of kin of the deceased to perform the last rites. A reasonable person is at a loss to understand whether that is the policy of the 4^th estate to justify extrajudicial killings by agents of state or to ascertain the truth about those killings, in the interest of humanity and justice. Lest they forget the Sinhala saying ‘Labbata tiyapu athamai puhulata thiyanneth.’

Everybody who endorse extrajudicial killings including media men should remember the famous saying of the anti-Nazi German Pastor Neomollor,

‘First they came for the Jews and I did not speak out because I was not a Jew,

then they came for the communists and I did not speak out because I was not a communist;

then they came for the trade unionists and I did not speak out because I was not a trade unionist;

then they came for me and there was no one left to speak out for me.’

And may I add  to this, ‘When they killed suspects in custody I did not speak out because I was not a suspect.

When they forcefully disappeared their opponents I did not speak out because I am not an opponent of theirs.

But then they came for me, and there was no one left to speak out for me.’