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SRI LANKA: A man is tortured by a senior police officer and the Attorney General is taking over a private plaint filed by the victim in order to protect the officer

February 16, 2012

ASIAN HUMAN RIGHTS COMMISSION-URGENT APPEAL PROGRAMME

Urgent Appeal Case: AHRC-UAC-026-2012

16 February 2012

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SRI LANKA: A man is tortured by a senior police officer and the Attorney General is taking over a private plaint filed by the victim in order to protect the officer

ISSUES: Justice; denial of justice; impunity; rule of law
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Dear friends,

M. Nishantha Fernando Jayawardena of Panadura in Kalutara district was assaulted by the Superintendent of Police (SP) for Panadura, Lesly Hamilton Gregory Cooray on 4 June, 2010 when he went to answer a query. For no reason at all the SP grabbed Nishantha's shirt collar and struck him on his chest and face. When Nishantha's wife tried to intervene the SP pushed her out of the way. The victim has now filed a private plaint at the Magistrate's Court of Panadura and this is likely to be sabotaged by the Attorney General's Department who had announced that it is taking over the prosecution.

CASE NARRATIVE:

M. Nishantha Fernando Jayawardena of Panadura in Kalutara district was assaulted by the Superintendent of Police (SP) for Panadura, Lesly Hamilton Gregory Cooray. On 3 June, 2010, the Panadura Police left a massage with Nishantha's Father-in-Law to be present in the office of the Officer-In-Charge (OIC) of the Special Crime Investigation Bureau of the Panadura police, at 9.00am the following day. This, he was told, was to answer an inquiry on a complaint made by Shiromi Devika Peiris regarding a financial transaction. The message was conveyed to Nishantha on the same day itself.

Accordingly, the following day (4 June) Nishantha went to the Panadura Police Station with his wife and met the OIC of the Special Crimes Investigations Bureau (SCIB). When Nishantha entered the OIC's office he saw that Devika was also present.

When the OIC was about to commence the inquiry, another officer came in and informed that the "SP–1" wanted to see the OIC in his office. The OIC left but returned shortly and told Nishantha and his wife that that the inquiry would be held by the SP–1 at his office. The OIC then took both parties to the said SP–1's office.

The SP–1 showed a document to Nishantha and queried as to whether he admitted that the signature contained in the said document was his. Nishantha explained as to why he signed the document and immediately the SP shouted at him using filthy language. He then proceeded to assault Nishantha. The SP grabbed Nishantha's shirt collar and struck him on his chest and face. When Nishantha's wife tried to intervene the SP pushed her out of the way.

Following this assault the SP called a policeman and ordered him to arrest Nishantha and lock him up.

Accordingly, Nishantha was placed in a cell and later a statement was recorded from him.

While the statement being recorded Nishantha informed the recording officer of the assault by the SP–1. However, the recording officer refused to include the fact that the SP-1 had assaulted Nishantha, but he issued a Medico Legal Examination Form (MLEF) and took him to the Panadura Base Hospital.

Nishantha then informed the doctor who examined him of the assault. According to the Medico Legal Report the injuries sustained by Nishantha are compatible with the history/the report of the assault given by him.

The same day the Panadura police produced Nishantha before the Magistrate of Panadura with a report bearing No.91879, accusing him of obtaining Rs. 2.5 million from Devika, thereby committed the offences of criminal misappropriation (Sec.386 PC) and criminal breach of trust, (Sec.389 PC) and cheating (Sec.400 of PC) and moved that Nishantha be remanded.

When Nishantha was produced in court he informed that the Magistrate that he had been assaulted by SP-1 Cooray and the Magistrate promptly recorded the complaint in open Court.

The Court granted Nishantha bail and further referred him to the Consultant Judicial Medical Officer of the Kalubowila Teaching Hospital and called for a Medico Legal Report.

Nishantha was subsequently discharge from this case.

Nishathan subsequently filed a Private Plaint bearing No, 92368 filed in the Magistrate's Court of Panadura and the Asian Human Rights Commission has now learned of the decision of the Attorney General's Department to take over the prosecution upon an application and representations made by and on behalf of the accused SP.

The decision of the Attorney General was communicated to court by the Senior State Counsel, who appeared in court on 15 December, 2011. The complainant's counsel objected to the Attorney General's decision on the grounds that if the Magistrate permits the Attorney General to take over the prosecution, the illegal act of assault committed by the SP would be interpreted as a matter connected with or related to the discharge of the official duties of the SP. The greatest fear however, was that after taking over the prosecution the Attorney General could arrive at the decision of nolle proseque in respect of this case. And finally, that if the decision of the Attorney General is implemented it would open the flood gates for any police officer to freely use force, assault and even to torture not only a person who attends a police station for an inquiry but also a person taken into custody.

The Asian Human Rights Commission condemns the use of the Attorney General's Department for the sabotage of justice. In recent times the Attorney General's Department has been used to help criminals by withdrawing criminal charges against some of them and even withdrawing charges after indictments have been filed in the High Courts. This has come under public criticism. However, the AG's ignores such public criticism when acting to help corrupt politicians or powerful police officers who are charges with serious offenses. Besides this the Attorney General's Department has now acquired a reputation for filing fabricated charges under the direction of the executive and the ruling party.

ADDITIONAL COMMENTS:

The Asian Human Rights Commission has reported innumerable cases of crimes where the perpetrators of those crimes continuously enjoyed impunity which are illegal under international and local law which have taken place at different Police Station in the country over the past few years.

The State of Sri Lanka sign and ratified the ICCPR and its first Protocol. Following state obligations state of Sri Lanka is obliged to implement the rights enshrined in ICCPR by implementing the measures of legislative, administrative and judicial means. The Inspector General of Police and his department is obliged to investigate all the crimes without any delay and bring the suspects before the court of law. The Attorney General of Sri Lanka is suppose to file indictments in the case where credible evidence were found on serious crimes people by state officers.

SUGGESTED ACTION:

Please send a letter to the authorities listed below expressing your concern about this case and requesting an immediate investigation into the allegations of torture and interfere of court works to protect the perpetrator by state officers and police officers and the prosecution of those proven to be responsible under the criminal law of the country. The police 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 NPC and the IGP to have a special investigation into the malpractices of the police officers for abusing the state officers' powers.

Please note that the AHRC has also written a separate letter to the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment and Special Rapporteur on independence of judges and lawyers asking for their intervention on this regard.

To support this appeal, please click here:

SAMPLE LETTER:

Dear ________,

SRI LANKA: A man is tortured by a senior police officer and the Attorney General is taking over a private plaint filed by the victim in order to protect the officer

Name of the victim: Nishantha Fernando Jayawardana
Alleged perpetrator: Superintendent of Police (SP) for Panadura, Lesly Hamilton Gregory Cooray
Date of incident: 3 June 2010
Place of incident: Special Crimes Investigations Bureau (SCIB) of Panadura Police Station

I am writing to express my serious concern over the case of Mr. M. Nishantha Fernando Jayawardena of Panadura in Kalutara district. Nishantha was assaulted by the Superintendent of Police (SP) for Panadura, Lesly Hamilton Gregory Cooray. On 3 June, 2010, the Panadura Police left a massage with Nishantha's Father-in-Law to be present in the office of the Officer-In-Charge (OIC) of the Special Crime Investigation Bureau of the Panadura police, at 9.00am the following day. This, he was told, was to answer an inquiry on a complaint made by Shiromi Devika Peiris regarding a financial transaction. The message was conveyed to Nishantha on the same day itself.

Accordingly, the following day (4 June) Nishantha went to the Panadura Police Station with his wife and met the OIC of the Special Crimes Investigations Bureau (SCIB). When Nishantha entered the OIC's office he saw that Devika was also present.

When the OIC was about to commence the inquiry, another officer came in and informed that the "SP–1" wanted to see the OIC in his office. The OIC left but returned shortly and told Nishantha and his wife that that the inquiry would be held by the SP–1 at his office. The OIC then took both parties to the said SP–1's office.

The SP–1 showed a document to Nishantha and queried as to whether he admitted that the signature contained in the said document was his. Nishantha explained as to why he signed the document and immediately the SP shouted at him using filthy language. He then proceeded to assault Nishantha. The SP grabbed Nishantha's shirt collar and struck him on his chest and face. When Nishantha's wife tried to intervene the SP pushed her out of the way.

Following this assault the SP called a policeman and ordered him to arrest Nishantha and lock him up.

Accordingly, Nishantha was placed in a cell and later a statement was recorded from him.

While the statement being recorded Nishantha informed the recording officer of the assault by the SP–1. However, the recording officer refused to include the fact that the SP-1 had assaulted Nishantha, but he issued a Medico Legal Examination Form (MLEF) and took him to the Panadura Base Hospital.

Nishantha then informed the doctor who examined him of the assault. According to the Medico Legal Report the injuries sustained by Nishantha are compatible with the history/the report of the assault given by him.

The same day the Panadura police produced Nishantha before the Magistrate of Panadura with a report bearing No.91879, accusing him of obtaining Rs. 2.5 million from Devika, thereby committed the offences of criminal misappropriation (Sec.386 PC) and criminal breach of trust, (Sec.389 PC) and cheating (Sec.400 of PC) and moved that Nishantha be remanded.

When Nishantha was produced in court he informed that the Magistrate that he had been assaulted by SP-1 Cooray and the Magistrate promptly recorded the complaint in open Court.

The Court granted Nishantha bail and further referred him to the Consultant Judicial Medical Officer of the Kalubowila Teaching Hospital and called for a Medico Legal Report.

Nishantha was subsequently discharge from this case.

Nishathan subsequently filed a Private Plaint bearing No, 92368 filed in the Magistrate's Court of Panadura and the Asian Human Rights Commission has now learned of the decision of the Attorney General's Department to take over the prosecution upon an application and representations made by and on behalf of the accused SP.

The decision of the Attorney General was communicated to court by the Senior State Counsel, who appeared in court on 15 December, 2011. The complainant's counsel objected to the Attorney General's decision on the grounds that if the Magistrate permits the Attorney General to take over the prosecution, the illegal act of assault committed by the SP would be interpreted as a matter connected with or related to the discharge of the official duties of the SP. The greatest fear however, was that after taking over the prosecution the Attorney General could arrive at the decision of nolle proseque in respect of this case. And finally, that if the decision of the Attorney General is implemented it would open the flood gates for any police officer to freely use force, assault and even to torture not only a person who attends a police station for an inquiry but also a person taken into custody.

The Asian Human Rights Commission condemns the use of the Attorney General's Department for the sabotage of justice. In recent times the Attorney General's Department has been used to help criminals by withdrawing criminal charges against some of them and even withdrawing charges after indictments have been filed in the High Courts. This has come under public criticism. However, the AG's ignores such public criticism when acting to help corrupt politicians or powerful police officers who are charges with serious offenses. Besides this the Attorney General's Department has now acquired a reputation for filing fabricated charges under the direction of the executive and the ruling party.

I request your urgent intervention to ensure that the authorities listed below instigate an immediate investigation into the allegations of torture and interfering in the judicial process to protect the perpetrators and the prosecution of those proven to be responsible under the criminal law of the country. The police officers involved must also be subjected to internal investigations for the breach of the department orders as issued by the police department.

Yours sincerely,

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PLEASE SEND YOUR LETTERS TO:

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

2. Ms. Eva Wanasundara
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
Sri Lanka Human Rights Commission
No. 108
Barnes Place
Colombo 07
SRI LANKA
Tel: +9411 2694925, +9411 2685980, +9411 2685981
Fax: +9411 2694924 (General) +94112696470 (Chairman)
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-026-2012
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.