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SRI LANKA: Balagolla police mislead a magistrate and prepare charges against the wrong person

February 9, 2010

ASIAN HUMAN RIGHTS COMMISSION – URGENT APPEALS PROGRAMME

Urgent Appeal Case: AHRC-UAC-010-2010



9 February 2010
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SRI LANKA: Balagolla police mislead a magistrate and prepare charges against the wrong person

ISSUES: Police negligence; administration of justice; right to redress
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Dear friends,

The Asian Human Rights Commission (AHRC) has learned that police in Balagolla have deprived a woman of her right to redress and grossly misled a magistrate by presenting the wrong person in court. The woman was run over and severely, permanently injured by a negligent motorcyclist, but because she refused to settle or to accuse the wrong person, her case has been closed.

CASE DETAILS:

Pathiranage Malani Serasinghe (45) was badly injured and knocked unconscious on 15 September 2009 when she was run over by a motorbike. The rider was identified to be a Promod Perera, with Sameera Pathirana as his passenger. All three were taken to Kandy General Hospital, where the accused were released after a day.

Malani was first admitted to the emergency ward and then to ward no 73 until the 20 October, when she was transferred to the rehabilitation hospital in Digana until the 22 December. Though she can now walk with difficulty, at one point doctors told her that she could be permanently paralysed; her ribs were broken, her spine was dislocated and she has lost hearing in her right ear and has trouble using her right hand.

At the Digana hospital on the 15 December the victim was visited by constable No. 57738 from Balagolla police station, who told her that the case had been called that morning, and who served her with summons to appear in court on the 15 January 2010. He then allegedly called Malani into the corridor and instructed her to accept everything that was proposed in court in return for a sum of money. He admitted that he had not arrested or officially questioned the motorcyclist who hit her.

When her case was called at Kandy Primary Court on the 15 January (case No. 22482 of Balagolla) Malani found an unknown person in the accused dock instead of Promod Perera; she told the judge about the mistake and the case was put aside. In the judge's chambers later that day Malani and her lawyer Gamini Samatunga were allegedly offered a Rs25,000 settlement by the accused and his lawyer, which she and her lawyer rejected. According to Malani, when they appealed to the judge regarding the identity of the perpetrator, the judge became angry and insisted that she accept the settlement. She refused and left the chambers with her lawyer, after which the case was closed.

Malani remembers that a statement was recorded by the police while she was in hospital, and that she was also examined by a Judicial Medical Officer. Neither report has been made available to her or was arranged for the prosecution by police, as is legally mandated. We are also told that the falsely accused person, called Asanka, stood in for Promod because the perpetrator did not have a legally issued driving license or a registered motorcycle, which would leave the culprit open to much stronger penalties along with the charge of grievous harm.

SUGGESTED ACTION:

Please write to the authorities listed below to ensure that the officers who willfully perverted the course of justice are held to account and that the victim's right to redress is protected.

To support this appeal please click here:

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SAMPLE LETTER:

Dear __________,

SRI LANKA: Balagolla police mislead a magistrate and prepare charges against the wrong person

Name of victim: Pathiranage Malani Serasinghe (45) of 17/1 Arangala Naththaranpotha
Name of alleged perpetrators: Constable No. 57738 and other officers at Balagolla police station, Kandy Division, Central Range (West)

Date of incident: 15 September 2009
Place of incident: Kandy

I am writing to voice my concern regarding the actions of police officers in Balagolla, who I hear have deprived an injured woman of her right to redress and grossly misled a magistrate by presenting the wrong person in court. The woman was run over and severely, permanently injured by a negligent motorcyclist, but because she refused to settle or to accuse the wrong person, the woman's case has now been closed.

Mrs. Serasinghe was told by doctors that she could be permanently paralysed, after being badly injured and knocked unconscious by a motorbike driven by Promod Perera, with Sameera Pathirana as his passenger. Though she can now walk with difficulty, her ribs were broken, her spine was dislocated, and she has lost hearing in her right ear and has trouble using her right hand. She was hospitalized from 15 September to 22 December.

At Digana Rehabilitation Hospital on the 15 December I am told that the victim was visited by constable no. 57738 from Balagolla police station, who served her with summons to appear in court on the 15 January 2010. He then allegedly instructed Mrs. Serasinghe to accept everything that was proposed in court in return for a sum of money, and admitted that he had not arrested or officially questioned the motorcyclist who hit her.

When her case was called at Kandy Primary Court on the 15 January (case no. 22482 of Balagolla) Mrs. Serasinghe found an unknown person in the accused dock instead of Promod Perera and told the judge of the mistake. In the judge's chambers later that day Mrs. Serasinghe and her lawyer Gamini Samatunga were allegedly offered a Rs25,000 settlement by the accused and his lawyer. However according to Mrs. Serasinghe, when she and her lawyer rejected the money and appealed to the judge regarding the identity of the perpetrator, the judge became angry and insisted that she accept the settlement. She refused and left the chambers with her lawyer, after which the case was closed.

Mrs. Serasinghe remembers that a statement was recorded by the police while she was originally in Kandy hospital, and that she was also examined by a Judicial Medical Officer. Neither report has been made available to her or was requested and arranged by the police in court, which has not allowed for her injuries to be adequately addressed during the prosecution. Furthermore I am told that the falsely accused person, called Asanka, stood in for Promod because the perpetrator did not have a legally issued driving license or a registered motorcycle, which would leave him open to much stronger penalties. The officers involved have clearly intentionally arranged a misprosecution to reduce the case to a series of minor offences.

I appeal to the Inspector General of Police to take urgent disciplinary action and legal charges against the officers who willfully subverted the judicial process, and for the real perpetrator of Mrs. Serasinghe's injuries to be held accountable so that her right to redress is protected according to the Sri Lankan constitution and penal code.

Yours sincerely,


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PLEASE SEND YOUR LETTERS TO:

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

Mr. Mohan Peiris
Attorney General
Attorney General's Department,
Colombo 12,
SRI LANKA
Fax: +94 11 2 436421

Secretary, National Police Commission,
3rd Floor Rotunda Towers,
109 Galle Road,
Colombo 03,
SRI LANKA
Tel/Fax: +94 11 2 395960
E-mail: polcom@sltnet.lk

Secretary, Human Rights Commission of Sri Lanka,
No 108 Barnes Place,
Colombo 07
SRI LANKA
Tel: +94 11 2 694 925 / 673 806
Fax: +94 11 2 694 924 / 696 470
E-mail: sechrc@sltnet.lk

5.Senior Superintendent of Police (SSP)
Office of the Senior Superintendant of Police
Kandy
SRI LANKA
Fax: +94 81 2233004
Tel: +94 81 2222228

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Please be aware that although we regularly update our contact databases, emails to local authorities do sometimes bounce back due to domestic technical issues. If this happens consistently please do inform us at the email address below.

Thank you.

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

Document Type :
Urgent Appeal Case
Document ID :
AHRC-UAC-010-2010
Countries :
Issues :
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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.