We reproduce below the first of a series of five cases researched on the basis of the information collected by the Asian Human Rights Commission in the past years reflecting the type of issues faced by persons who, having become victims of crime or abuse of rights faced extraordinarily repressive conditions when they sought redress. The dysfunctional nature of the institution of justice and the problems of the mentalities of those who hold authority demonstrate the common problems that people who wish to assert their rights face particularly in the south Asian context. These five cases are from Sri Lanka and the AHRC has closely worked with the victims in their long struggle to seek justice.
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When you meet Amitha Priyanthi, it is difficult at first to tell if you are in the presence of hope or bitterness. A woman of exceptional dignity and determination, Amithas bearing — formal, measured, precise — betrays little of her inner life. This is by design, one senses. Amitha conveys the presence of powerful emotions precisely by withholding all emotion from view. Her assertions and explanations of things — events of the past, plans for the future — always reflect years of careful consideration. But this same feeling as she has pursued the cause of justice in the name of her late brother, and what she feels as she looks to the future, are not made available. One does not know, equally, whether to feel hope or bitterness oneself as Amitha tells her story. Only at the end, when Amitha brings events up to the present and explains the way forward, does the recognition come: Hope and bitterness are not separable in Sri Lanka. The pursuit of justice in Sri Lanka brings both, even in victory.
There are many deserters from the Sri Lankan army — a consequence of the long, senseless war in the North and East between government troops and the Liberation Tigers. And it is with an act of desertion that Amithas story begins.
Her younger brother, Lasantha, was a soldier. He seems not to have held a strong view about the war, although he opposed it and did not wish to fight in it. Stronger were his feelings about his wife and newborn baby. In the spring of 2000, while serving in the north, near Jaffna, Lasantha was refused leave to see his family. Instead he was given a few days to travel to his village, then ordered to return to his unit. Lasantha went home but never returned.
“He was granted a short holiday,” Amitha said when we discussed these events. “He had no intent to go back.”
On June 12, 2000, the police arrested Lasantha in Payagala, the village south of Colombo where he lived. Eight days later he died in a hospital, still under remand, of injuries sustained while he was in police custody. The cause of death was acute renal failure: Lasanthas kidneys had been irreparably damaged when the police beat him with a wooden pole.
Seven years later, Amitha was still fighting for justice in the case of her brother. There had been victories and defeats. She had gone from police station to police station, from court to court, from one session of the Sri Lankan Medical Council to the next. And there would be more to come.
In August 2003, a case she had pursued in the Supreme Court on behalf of her widowed sister-in-law ended successfully. It created a precedent regarding the rights of the next of kin to seek redress through an application to the Supreme Court based on the fundamental rights clause in the Sri Lankan constitution. The court held that the police were responsible for torturing her brother and granted compensation to the widow and child from their marriage.
Amitha also won a case in magistrates court when a doctor testified that her brothers death was homicide — death by assault. Criminal charges — culpable homicide — were then filed against one police officer. But complications accumulated in this case. The non-summary inquiry into the homicide case took six years — until March of 2006. The case had gone to the high court, but by the summer of 2007 the Attorney General had yet to file an indictment. In the course of these delays, the officer charged absconded — disappeared, as Lasantha had done when he went on unauthorized leave.
In a district court, Amitha followed another strategy. She filed a civil claim against three police officers, the Inspector General of Police, the Attorney General and the Commissioner of Prisons. She also filed a further civil action against the Judicial Medical Officer (JMO), the Attorney General and the Administrative Secretary to the Ministry of Justice, whom she claimed were complicit in her brothers murder. A civil case such as this involves prolonged litigation; anything from 5 upto 20 years.
On July 26, 2007, Amitha had another breakthrough. This occurred when the Sri Lanka Medical Council ruled on the case of the doctor charged with examining Lasantha while he was in police custody. The council had been deliberating this case since October of 2001 — nearly six years. It finally found the examining doctor guilty of eight offenses and suspended him from practice for three years.
Doctors of this kind are known as Judicial Medical Officers, and in this capacity they have quite specific responsibilities. This doctor’s offenses as a J.M.O. in Lasantha’s case are telling in themselves: They were mostly matters of omission. He had not asked Lasantha for his consent before examining him. He did not ask Lasantha the names of the police officers who assaulted him. He failed to give Lasantha a comprehensive examination — neglecting even to take his blood pressure. He failed to record any diagnosis nor to recommend hospital admission. In all, the doctor appears to have spent fifteen to twenty minutes with Lasantha. But we do not know, for that is by the doctor’s account, and he made no record of his procedures.
One of the doctor’s offenses involved what he did, not what he failed to do. He examined Lasantha in the presence of the police officers in the station where he had been tortured.
The facts of Lasantha’s case, and of Amitha’s long search for justice, are matters of record now. And Amitha, as she pursues the cases still pending, will add more to these facts and records. What do we see when we look closely at them? What do the records tell us about the matter of justice in Sri Lanka?
There is, first, the question of time. And related to this is the question of care and carelessness as they exist side by side in Sri Lanka.
Lasantha was dead within eight days of his arrest in the spring of 2000. Whether or not a court would have found him guilty of an offense we will never know, because he never got that far. Guilty or not, he was deprived of justice. And we now know that the examining physician spent all of fifteen to twenty minutes (and quite possibly less) examining the patient. As the medical council concluded, a proper examination would very likely have saved Lasanthas life.
These facts stand against the seven years it has (so far) taken Amitha to bring justice to the case of her brother.
The medical councils ruling in the summer of 2007 is the most recent to be issued in Lasanthas case. When we read it, we cannot but be struck at the meticulous care taken in the councils deliberations over a period of several years, during which all efforts were made to provide the examining physician an opportunity to defend his conduct.
All Sri Lankans are due the amount of time that is required, however much, in the delivery of justice. All Sri Lankans deserve the attention to procedure the medical council brought to the case of the J.M.O. who examined Lasantha. But when this time and attention are placed next to the swiftness of Lasanthas torture and death and the carelessness with which the doctor handled his case, a paradox emerges: When time and attention to procedure are given to some and withheld from others, they stand as a perversity.
We must also recognize in the records the presence of what many civil society activists concerned with the judicial system term “the network.” The network consists of judges, lawyers, police, and doctors who work in concert — not for the proper administration of justice, but for the benefit of one another. A judge will collude with the attorney who is supposed to represent a defendant. Or he will collude with the police. Or the lawyer for the defendant will collude with the police. Or (as in this case) a doctor will collude with the police in his official capacity as a J.M.O.
Note the doctor’s evident attitude in Lasantha’s case. The examination was cursory by any reasonable measure. The physician examined Lasantha in the presence of the police. He failed to recommend hospitalization because (as his counsel testified) he assumed the police would continue to hold him. These attitudes, these assumptions, this kind of conduct — all are prevalent in the Sri Lankan system. It is how the network functions. The presence of the network is the reason many of Amitha’s friends and acquaintances advised her not to embark on her search for justice in the first place.
But here we come to a question that is everywhere evident in the record even if it is nowhere stated. This concerns the power of the powerless. We must not overstate the present position. Abuses — police abuses, medical abuses, and judicial abuses — are thought by many to be increasing in Sri Lanka, not declining. Amitha is in many respects something other than typical. Many cases such as hers do not end in justice. But Amitha brought sufficient courage and determination — a certain hardness, we can say — to her search for justice. And she proved that the powerless can assume power over their lives and circumstances.
There is another way to put this: If Sri Lanka is to cure itself of its ills, Amitha represents the future, while the guilty in the death of her brother represent the past. Or still another way: In Amitha, a person of complex emotions but someone who is also in control of them, we find a certain kind of hope. It is the possibility of hope without bitterness.
