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SRI LANKA: Police refuse to conduct investigation into malpractice during the Sri Lanka Law College exam and threaten the life of the complainant

January 5, 2011

ASIAN HUMAN RIGHTS COMMISSION-URGENT APPEAL PROGRAMME

Urgent Appeal Case: AHRC-UAC-002-2011

 

05 January 2011
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SRI LANKA: Police refuse to conduct investigation into malpractice during the Sri Lanka Law College exam and threaten the life of the complainant

ISSUES: threat to the life; police inaction in criminal investigation; impunity; rule of law
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Dear friends,

The Asian Human Rights Commission (AHRC) has received information that a law student Mr. Dasanayaka Mudiyanselage Thushara Jayarathna of No: 4/8, Edirisinghe road, Nugegoda, a final year student of the Sri Lanka Law College, has complained to the Keselwatte Police Station and other law enforcement agencies of the country regarding a malpractice which occurred at the recently held exam at the Sri Lanka Law College. The Keselwatte Police recorded his complaint only after the intervention of the Police Headquarters. However, the other agencies refused to accept his complaint. He is now receiving continuous threats to his life. Further, the Registrar of the Law College has contacted him by telephone and threatened him to withdraw his complaint. Neither the complaint about the malpractice at the exam and the threats to Thushara's life have been investigated. The life of this student is in very serious danger and this case is yet another illustration of the extreme nature of the exceptional collapse of the rule of law in the country.

CASE NARRATIVE:

According to the information that the Asian Human Rights Commission has received, on the 3 December, a final year student of the Sri Lanka Law College, Mr. Dasanayaka Mudiyanselage Thushara Jayarathna of No: 4/8, Edirisinghe Road, Nugegoda discovered that one of the papers for the final examination held recently at the Law College for which he sat had been leaked before the designated time which clearly constitutes a malpractice in the exam procedure of the Sri Lanka Law College. He immediately made a complaint to the invigilator of the exam and to the principle of the Law College but neither person accepted his complaint nor took steps to investigate the incident.

On the same day he attempted to make a complaint to the Keselwatte Police Station about the incident but his they refused to record his complaint. Upon learning of their refusal he then made a complaint to the Police Headquarters in Colombo regarding the irregularity that occurred at the Keselwatte Police Station and it was only after the intervention of this office that the officers at Keselwatte Police Station recorded his complaint under the number M.O.B. 81/39. However, to-date no inquiries have taken place on the basis of his complaint.

When Thushara realised that no action was going to be taken he attempted to record a further complaint at the Commission against Bribery and Corruption, but his request was once again turned down. One of the officers explained to him in Sinhala that it is the law of nature for big animals to eat the small ones, and that if he did not learn to live with this understanding, he might find it difficult to survive.

Despite having managed to record his complaint at Police Headquarters and by way of an affidavit to the Chief Justice of Sri Lanka and the Registrar of the Supreme Court no action has been taken to initiate any inquiry into the leakage of the paper or to declare the particular paper invalid.

Thushara then came under severe pressure when the Registrar of the Law College made threatening calls, demanding that he withdraw the complaint. He also received threats from other quarters and, for his own security, he had to stay away from sitting for two subsequent papers. He now lives in hiding for fear of his life.

It is believed that a powerful politician's son is sitting for this same exam and that this why there is reluctance on the part of the Law College authorities and all other agencies to intervene into this issue.

ADDITIONAL COMMENTS:

The Asian Human Rights Commission calls on the Sri Lankan government and also the Inspector General of Police to provide security for Thushara Jayarathne. The AHRC is fully aware of the Sri Lankan record of causing forced disappearances and is therefore particularly concerned about the security of this student.

The Law College is a premier institution for the training of lawyers in Sri Lanka. In recent times, the reputation of the college has begun to degenerate with widespread rumours and allegations of corruption at various levels, including at the stage of admission of students. That the institution that trains lawyers is facing this situation is an indication of the widespread lawlessness that has spread into the judicial system itself, due to the phenomena that is called politicization.

In essence, politicization means the control of all aspects of society and life by the direct influence of the executive presidential system. The idea of independent institutions has been rapidly lost. The Executive President is above the law and not answerable in any manner to any court. The AHRC has constantly pointed out that the supremacy of law has been undermined in Sri Lanka and that the authority of the judiciary itself has been reduced to a marginal position.

This incident about the leakage of a question paper is only the tip of the iceberg. The larger tragedy is the rule of law system itself.

What will be the role of lawyers who pass exams in this manner? Will they enter the legal profession with any sense of respect for the basic norms of the rule of law? Would it be a surprise if young lawyers who pass in this manner would exploit all possibilities of corruption within the legal profession? Some of them may also enter judicial positions.

The trustees and authorities of the Law College bear the responsibility to investigate this incident as well as the general criticisms about the corruption of their institution. Many of them may plead that the power balance in the country has so shifted that they are unable to exercise the kind of authority that is required for the running of an institution with required norms and standards. However, this is no excuse for their culpability. If the situation has so degenerated, then it is their duty to declare it so and to resign in protest. So long as they silently participate in this process, they too are guilty of destroying the very foundations of the rule of law and the legal profession itself.

The AHRC has reported innumerable cases that reveals the intentional inaction of criminal investigations by the Sri Lankan police. This of course is illegal under international and local law but is takes place at different police stations in the country over the past years.

Article 12 (1) of the Constitution of Sri Lanka has guaranteed the right to be treated equally before the law for all persons as stated that 'all persons are equal before the law and are entitled to the equal protection of the law'.

Furthermore, Sri Lanka has signed and ratified the International Covenant on Civil and Political Rights (ICCPR). Nevertheless the lack of protection offered to those who are willing to take cases against abusive police officers and the state authorities, means that the law is under-used continues to be employed as a tool by the police to harass people. This not only takes a long-term toll on the victim and his or her family, but on society as a whole, by undermining of civilian respect for the law and encouraging impunity.

SUGGESTED ACTION:
Please send a letter to the authorities listed below expressing your concern about this case and request an immediate investigation into the malpractice by the authorities of the Law College and the failure of the police to carry out any competent investigations. Please further request the Sri Lanka Police to provide protection for the threat to the life of Thushara and investigate and prosecute those responsible under the criminal law of the country. The officers involved must also be subjected to internal investigations for the breach of the department orders as issued by the police department. Further, please also request the IGP to carry out a special investigation into the malpractices of police officers who abuse their powers in favor of private parties.

The AHRC has also written a separate letter to the Special Rapporteur on Extra-judicial, Summary or Arbitrary Executions on this regard of United Nations on this regard.

To support this appeal please click here:

SAMPLE LETTER:

Dear ________,

SRI LANKA: Police refuse to conduct investigation into malpractice during the Sri Lanka Law College exam and threaten the life of the complainant

Name of the Victim: Mr. Dasanayaka Mudiyanselage Thushara Jayarathna of No: 4/8, Edirisinghe road, Nugegoda

Names of the alleged perpetrators: Police officers attached to the Keselwatte Police Station

Date of incident: 3 December 2010
Places of incident: Sri Lanka Law College

I have received information that on the 3 December, a final year student of the Sri Lanka Law College, Mr. Dasanayaka Mudiyanselage Thushara Jayarathna of No: 4/8, Edirisinghe Road, Nugegoda discovered that one of the papers for the final examination held recently at the Law College for which he sat had been leaked before the designated time which clearly constitutes a malpractice in the exam procedure of the Sri Lanka Law College. He immediately made a complaint to the invigilator of the exam and to the principle of the Law College but neither person accepted his complaint nor took steps to investigate the incident.

On the same day he attempted to make a complaint to the Keselwatte Police Station about the incident but his they refused to record his complaint. Upon learning of their refusal he then made a complaint to the Police Headquarters in Colombo regarding the irregularity that occurred at the Keselwatte Police Station and it was only after the intervention of this office that the officers at Keselwatte Police Station recorded his complaint under the number M.O.B. 81/39. However, to-date no inquiries have taken place on the basis of his complaint.

When Thushara realised that no action was going to be taken he attempted to record a further complaint at the Commission against Bribery and Corruption, but his request was once again turned down. One of the officers explained to him in Sinhala that it is the law of nature for big animals to eat the small ones, and that if he did not learn to live with this understanding, he might find it difficult to survive.

Despite having managed to record his complaint at Police Headquarters and by way of an affidavit to the Chief Justice of Sri Lanka and the Registrar of the Supreme Court no action has been taken to initiate any inquiry into the leakage of the paper or to declare the particular paper invalid.

Thushara then came under severe pressure when the Registrar of the Law College made threatening calls, demanding that he withdraw the complaint. He also received threats from other quarters and, for his own security, he had to stay away from sitting for two subsequent papers. He now lives in hiding for fear of his life.

It is believed that a powerful politician's son is sitting for this same exam and that this why there is reluctance on the part of the Law College authorities and all other agencies to intervene into this issue.

Thushara strongly states that inaction of an official duty by a police officer should be prosecuted in court. It also constitutes a situation of the violation of fundamental rights guaranteed to him by the Constitution of the country.

I further request your urgent intervention to ensure that the authorities listed below instigate an immediate investigation into the life of this student. I am also requesting that the police officers who ignored his complaint, obviously in favour of the suspect, should be investigated and if proven guilty punished under the law of the country.

Yours sincerely,

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PLEASE SEND YOUR LETTERS TO:

1. Mr. Mahinda Balasuriya
Inspector General of Police
New Secretariat
Colombo 1
SRI LANKA
Fax: +94 11 2 440440 / 327877
E-mail: igp@police.lk

2. Mr. Mohan Peiris
Attorney General
Attorney General's Department
Colombo 12
SRI LANKA
Fax: +94 11 2 436421
E-mail: ag@attorneygeneral.gov.lk

3. Secretary
National Police Commission
3rd Floor, Rotunda Towers
109 Galle Road
Colombo 03
SRI LANKA
Tel: +94 11 2 395310
Fax: +94 11 2 395867
E-mail: npcgen@sltnet.lk or polcom@sltnet.lk

4. Secretary
Human Rights Commission
No. 36, Kynsey Road
Colombo 8
SRI LANKA
Tel: +94 11 2 694 925 / 673 806
Fax: +94 11 2 694 924 / 696 470
E-mail: sechrc@sltnet.lk


Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)

Document Type :
Urgent Appeal Case
Document ID :
AHRC-UAC-002-2011
Countries :
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Extended Introduction: Urgent Appeals, theory and practice

A need for dialogue

Many people across Asia are frustrated by the widespread lack of respect for human rights in their countries.  Some may be unhappy about the limitations on the freedom of expression or restrictions on privacy, while some are affected by police brutality and military killings.  Many others are frustrated with the absence of rights on labour issues, the environment, gender and the like. 

Yet the expression of this frustration tends to stay firmly in the private sphere.  People complain among friends and family and within their social circles, but often on a low profile basis. This kind of public discourse is not usually an effective measure of the situation in a country because it is so hard to monitor. 

Though the media may cover the issues in a broad manner they rarely broadcast the private fears and anxieties of the average person.  And along with censorship – a common blight in Asia – there is also often a conscious attempt in the media to reflect a positive or at least sober mood at home, where expressions of domestic malcontent are discouraged as unfashionably unpatriotic. Talking about issues like torture is rarely encouraged in the public realm.

There may also be unwritten, possibly unconscious social taboos that stop the public reflection of private grievances.  Where authoritarian control is tight, sophisticated strategies are put into play by equally sophisticated media practices to keep complaints out of the public space, sometimes very subtly.  In other places an inner consensus is influenced by the privileged section of a society, which can control social expression of those less fortunate.  Moral and ethical qualms can also be an obstacle.

In this way, causes for complaint go unaddressed, un-discussed and unresolved and oppression in its many forms, self perpetuates.  For any action to arise out of private frustration, people need ways to get these issues into the public sphere.

Changing society

In the past bridging this gap was a formidable task; it relied on channels of public expression that required money and were therefore controlled by investors.  Printing presses were expensive, which blocked the gate to expression to anyone without money.  Except in times of revolution the media in Asia has tended to serve the well-off and sideline or misrepresent the poor.

Still, thanks to the IT revolution it is now possible to communicate with large audiences at little cost.  In this situation there is a real avenue for taking issues from private to public, regardless of the class or caste of the individual.

Practical action

The AHRC Urgent Appeals system was created to give a voice to those affected by human rights violations, and by doing so, to create a network of support and open avenues for action.  If X’s freedom of expression is denied, if Y is tortured by someone in power or if Z finds his or her labour rights abused, the incident can be swiftly and effectively broadcast and dealt with. The resulting solidarity can lead to action, resolution and change. And as more people understand their rights and follow suit, as the human rights consciousness grows, change happens faster. The Internet has become one of the human rights community’s most powerful tools.   

At the core of the Urgent Appeals Program is the recording of human rights violations at a grass roots level with objectivity, sympathy and competence. Our information is firstly gathered on the ground, close to the victim of the violation, and is then broadcast by a team of advocates, who can apply decades of experience in the field and a working knowledge of the international human rights arena. The flow of information – due to domestic restrictions – often goes from the source and out to the international community via our program, which then builds a pressure for action that steadily makes its way back to the source through his or her own government.   However these cases in bulk create a narrative – and this is most important aspect of our program. As noted by Sri Lankan human rights lawyer and director of the Asian Human Rights Commission, Basil Fernando:

"The urgent appeal introduces narrative as the driving force for social change. This idea was well expressed in the film Amistad, regarding the issue of slavery. The old man in the film, former president and lawyer, states that to resolve this historical problem it is very essential to know the narrative of the people. It was on this basis that a court case is conducted later. The AHRC establishes the narrative of human rights violations through the urgent appeals. If the narrative is right, the organisation will be doing all right."

Patterns start to emerge as violations are documented across the continent, allowing us to take a more authoritative, systemic response, and to pinpoint the systems within each country that are breaking down. This way we are able to discover and explain why and how violations take place, and how they can most effectively be addressed. On this path, larger audiences have opened up to us and become involved: international NGOs and think tanks, national human rights commissions and United Nations bodies.  The program and its coordinators have become a well-used tool for the international media and for human rights education programs. All this helps pave the way for radical reforms to improve, protect and to promote human rights in the region.