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SRI LANKA: A man is shot dead while in the police custody of Hanwella Police

September 24, 2010

ASIAN HUMAN RIGHTS COMMISSION-URGENT APPEAL PROGRAMME

 

Urgent Appeal Case: AHRC-UAC-148-2010

 

 

 

24 September 2010

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SRI LANKA: A man is shot dead while in the police custody of Hanwella Police

 

ISSUES: Extrajudicial killing; impunity; rule of law

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Dear friends,

 

The Asian Human Rights Commission (AHRC) has received information that a man was shot dead by police officers while in the custody of an officer attached to the Hanwella Police Station. He was arrested on 20 September 2010, brought to a location under police protection and shot dead two days after his arrest on 22 September. The police at no time produced him before a court and his arrest was never reported prior to his death. No proper investigation has been carried out into this case resulting in the denial of justice to the victim and his family which is further evidence of the exceptional collapse of the rule of law in the country.

 

 

CASE NARRATIVE

:

 

According to the information received Dhammala Arachchige Lakshman of Gnanwimala Road, Dematagoda, Colombo 09, was arrested by the police while he was staying in a house in Hanwella by a Special Unit of the Hanwella Police Station on 20 September 2010. From that time until his death he was in the custody of the police officers of the Hanwella police.

 

According to the Criminal Procedure Code of No. 15 of 1979 the police officers are supposed to produce a suspect arrested on suspicion of committing a crime before a Magistrate within 24 hours. But Lakshman was not produced before a Magistrate at any time and neither was his arrest informed to the Magistrate prior to his death.

 

According to the law of the country and the Departmental Orders of the police it is the duty of the Officer-in-Charge (OIC) of the relevant station to provide protection to the detainees under his custody. Police officers are legally bound not only to ensure that they do not harm any detainees but are also bound to protect them from any third party that might wish to harm them. This includes the provision that they should not be in a position to harm themselves.

 

On 22 September he was brought to a location at Diddeniya in Hanwella by the police officers under the supervision of the OIC R. Pushpakumara of the Hanwella Police. During their investigation the officers shot Lakshman. Lakshman, who sustained serious injuries was rushed to the Avissawella hospital but was dead on admission.

 

According to the police version of the incident at the time of shooting, the OIC was conducting an investigation into Lakshman, under the supervision of DIG Daya Samaraweera and SP Deshabandu Tennekoon who were trying to uncover a stash of weapons. According to their official version the police officers shot him when he tried to escape from their custody by throwing a bomb.

 

Many identical cases have been reported in Sri Lanka in recent past. Ironically, every suspect who has been shot dead by the police have all tried to escape from police custody while showing them a stash of weapons by attempting to throw a bomb at them. Despite being in the presence of several police officers at some point he managed to obtain a hand grenade which he attempted to lob in their direction. Typically, no mention was made of how he was supposed to have survived the explosion.

 

This scenario, as explained by the police has been used in countless other cases so the question is, the officers must have been aware of the danger Lakshman posed. Why then did they not supervise his movements more closely? Why he was not handcuffed securely? According to Departmental Orders any suspect being taken to a destination outside the confines of a police station must be handcuffed to prevent his escape and ensure his safety and that of the officers.

 

The OIC was present at the time of the incident and shooting. Having reached the rank of OIC this officer alone should have had the experience necessary to ensure to handle the situation. It is the non-transferable duty of the police to ensure the safety of any suspect under their detention.

 

 

ADDITIONAL COMMENTS

:

 

The Asian Human Rights Commission has reported innumerable cases of arbitrary arrest, detention, torture and extra judicial killings cases of citizens at the hands of the police which is illegal under international and local law and which have taken place at different police stations in the country over the past few years. The Asian Human Rights Commission has observed that the Sri Lankan police have used torture as an instrument to terrorize innocent persons and harass the public. Further, the country's police are implementing a policy of eliminating criminals by killing them after arresting them without producing them to the court of law.

 

The Constitution of Sri Lanka has guaranteed the right freedom from torture. According to Article 11 of the Constitution 'No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'. Further Article 13(4) "No person shall be punished with death or imprisonment except by order of a competent court, made in accordance with procedure established by law. The arrest, holding in custody, detention or other deprivation of personal liberty of a person, pending investigation or trial, shall

not constitute punishment." Further article 13 (5) guarantees the right of presumption of innocence until being proven guilty.

 

Code of Criminal Procedure Act (No. 15 of 1979)

 

According to the section 37 persons arrested are not to be detained more than twenty-four hours.

"Any peace officer shall not detain in custody or otherwise confine a person arrested without a warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate

."

 

Further according to the section 38 police should report the arrests to the courts.

"Officers in charge of police stations shall report to the Magistrates' Courts of their respective districts the cases of all persons arrested without warrant by any police officer attached to their stations or brought before them and whether such persons have been admitted to bail or otherwise

."

 

Court of Appeal of Sri Lanka

 

In the case of Leeda Violet and Others v. Vidanapathirana, OIC, Police Station, Dikwella and others (3 SLR 1994 377), in a Habeas Corpus application in the Court of Appeal of Sri Lanka observed that when there is an established fact that a person was arrested, then it is the duty of the Officer-in-Charge (OIC) to explain the fate of the detainee and what happen to him while in the custody with the relevant entries from the books maintained at the Police Station.

As per the Silva J,

 

"In other words, there is no basis whatever for their arrest and custody. The 1st Respondent who admits having visited the place of arrest at the alleged time denies the act of arrest as alleged by the Petitioners. His denial has been disbelieved by the learned Magistrate. Learned Magistrate has correctly observed that if the 1st Respondent visited the place for any official act in connection with any investigation or peace keeping operation, he could have produced the relevant entries from the books maintained at the Police Station. The suggestion of the 1st Respondent appears to be that whatever operation that was carried out by the authorities at the time in question, at Neelwella, was the responsibility of the Army and not of the Police. The shifting of responsibility from the Police to the Army and vice versa, is of little solace or comfort to the Petitioners. Their evidence discloses a harrowing tale where they have seen their sons taken to the Police Station and kept there for several days. For all intents and purposes their sons have disappeared from the face of the earth after 4 days. The denial of arrest and custody, by the 1st Respondent, who is well identified by the witnesses, as a person known to them, has not commended itself to the learned Chief Magistrate. Certainly, that denial does not commend itself, as being worthy of any credit, to this Court. It was in these circumstances that a rule nisi was issued on the 1st Respondent and the Inspector General of Police to disclose any material in their control as to the whereabouts of the corpora. The rule has been answered only by a repetition of the denial which has already been rejected by the learned Chief Magistrate

."

 

 

The alarming policy of Sri Lankan police of killing the suspects after arrest instead of allowing the court to try them in accordance with the law.

 

 

The AHRC has recorded hundreds of cases where people were tortured and killed after they were arrested by the police. The Presidential commissions of investigation of cases of disappearances by the Sri Lankan governments have officially recorded more than thirty six thousand cases from throughout the country only between 1988 -1991 which exposed the practice of the Sri Lanka Police of arresting innocent persons, detaining, torturing them and then finally killing them. The AHRC has classified this practice of extrajudicial killing by the state authorities as one of the endemic problems in Sri Lanka.

 

In the recent past the Sri Lankan police have adopted a policy of killing suspects in the name of eliminating organised crime. However, few if any of these cases are investigated by the police. Even the judiciary of the country has not shown an interest in bringing justice in these incidents.

 

The reported cases clearly show all the necessary legal elements of the systematic and widespread practice of killing innocents after arrest by police officers.

 

This whole practice happens despite the Departmental Orders of the Sri Lanka police which expressly rules that OICs of the police stations are responsible to protect the detainees after their arrest. The officers are supposed to maintain public records on the health, foods, all the movements and behaviors of detainees.

 

The Constitution of the country expressly only allow the judiciary to make punishments to those who have found guilty after fair trial. But this practice of killing detainees shows how the police officers torture detainees as punitive action sometime before going to the extent of killing them.

 

This practice is imposed against the poorest of the poor in the country. It is used to harass and terrorize the public to make them silent while many of the fundamental and democratic rights guaranteed even by the Constitution of the country were curtailed vehemently. One the other hand this shows how the state of Sri Lanka failed to fulfill its responsibility to international human rights conventions with the UN from being domestically implemented. Adopting of the policy of killing citizens in the name of combating crime clearly shows the state's unwillingness of respecting internationally accepted human rights and norms. The cases in question show the inability of the state law enforcement agencies that they are no longer willing and able to implement the rule of law in the country. The policy imposed by the Sri Lankan police of killing suspects after arrest clearly shows the sad state of the law enforcement agencies to prosecute the criminals within a rule of law system. Innocent victims who get arrested are in more danger in the hand of police officers than the ordinary citizen might be in the hands of the criminals.

 

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 the undermining of civilian respect for the law and encouraging impunity.

 

Furthermore, the Asian Human Rights Commission has continuously exposed the way the witness and the victims are getting harassed and on some occasions even killed to suppress the justice. Furthermore we have urged the State of Sri Lanka to adopt a law for the protection of witness protection.

 

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 extra judicial killings by the police perpetrators, and the prosecution of those proven to be 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.

 

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

 

To support this appeal please click here:

 

 

SAMPLE LETTER

:

 

Dear ________,

 

SRI LANKA: A man is shot dead while in the police custody of Hanwella Police

 

 

Name of Victim

: Dhammala Arachchige Lakshman of Gnanwimala Road, Dematagoda, Colombo 09

Name of alleged perpetrators

: Officer-in-Charge R. Pushpakumara of Hanwella Police Station and officers of the said police station

Date of incident

: 22 September 2010

Place of incident

: Hanwella Police Division

 

According to the information I have received Dhammala Arachchige Lakshman of Gnanwimala Road, Dematagoda, Colombo 09, was arrested by the police while he was staying in a house in Hanwella by a Special Unit of the Hanwella Police Station on 20 September 2010. From that time until his death he was in the custody of the police officers of the Hanwella police.

 

According to the Criminal Procedure Code of No. 15 of 1979 the police officers are supposed to produce a suspect arrested on suspicion of committing a crime before a Magistrate within 24 hours. But Lakshman was not produced before a Magistrate at any time and neither was his arrest informed to the Magistrate prior to his death.

 

According to the law of the country and the Departmental Orders of the police it is the duty of the Officer-in-Charge (OIC) of the relevant station to provide protection to the detainees under his custody. Police officers are legally bound not only to ensure that they do not harm any detainees but are also bound to protect them from any third party that might wish to harm them. This includes the provision that they should not be in a position to harm themselves.

 

On 22 September he was brought to a location at Diddeniya in Hanwella by the police officers under the supervision of the OIC R. Pushpakumara of the Hanwella Police. During their investigation the officers shot Lakshman. Lakshman, who sustained serious injuries was rushed to the Avissawella hospital but was dead on admission.

 

According to the police version of the incident at the time of shooting, the OIC was conducting an investigation into Lakshman, under the supervision of DIG Daya Samaraweera and SP Deshabandu Tennekoon who were trying to uncover a stash of weapons. According to their official version the police officers shot him when he tried to escape from their custody by throwing a bomb.

 

Many identical cases have been reported in Sri Lanka in recent past. Ironically, every suspect who has been shot dead by the police have all tried to escape from police custody while showing them a stash of weapons by attempting to throw a bomb at them. Despite being in the presence of several police officers at some point he managed to obtain a hand grenade which he attempted to lob in their direction. Typically, no mention was made of how he was supposed to have survived the explosion.

 

This scenario, as explained by the police has been used in countless other cases so the question is, the officers must have been aware of the danger Lakshman posed. Why then did they not supervise his movements more closely? Why he was not handcuffed securely? According to Departmental Orders any suspect being taken to a destination outside the confines of a police station must be handcuffed to prevent his escape and ensure his safety and that of the officers.

 

The OIC was present at the time of the incident and shooting. Having reached the rank of OIC this officer alone should have had the experience necessary to ensure to handle the situation. It is the non-transferable duty of the police to ensure the safety of any suspect under their detention.

 

I request your urgent intervention to ensure that the authorities listed below instigate an immediate investigation into the allegations of the extrajudicial killing of the victim. The 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. 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-148-2010
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.