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UPDATE (Sri Lanka): Torture victim Tissa Kumara wins fundamental rights application at the Supreme Court

February 20, 2006

UPDATE ON URGENT APPEAL UPDATE ON URGENT APPEAL UPDATE ON URGENT APPEAL

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Update on Urgent Appeal

20 February 2006

[RE: UP-023-2006: SRI LANKA: Threats made against Koraleliyanage Palitha Thissa Kumara must be dealt with immediately, UP-84-2005: The tuberculosis patient confirms Tissa Kumara's allegation; The Sri Lankan state's unwilling to address nasty policing, UP-32-2004: Tissa Kumara receives further death threats; UP-28-2004: Police pressure the torture victim to withdraw case by threatening his family; UP-22-2004: Tuberculosis patient kept in solitary cell due to fabricated charges by police; UP-21-2004: The torture victim acquires tuberculosis by the direct action of the police; UA-18-2004: Severely injured torture victim need urgent medical treatment issued]
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UP-032-2006: SRI LANKA: Torture victim Tissa Kumara wins fundamental rights application at the Supreme Court

SRI LANKA: Torture; Un-rule of law
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Dear friends,

The Asian Human Rights Commission (AHRC) is happy to inform you that the Fundamental Rights Application filed to the Supreme Court in 2004 was given a final determination on 17 February 2006 which was in favor of the torture victim Koralaliyanage Palitha Tissa Kumara. He was inhumanly tortured by the officers of the Welipenna police station who forced a tuberculosis patient to spit into his mouth in February 2004. A criminal case against the torture perpetrators filed by Tissa Kumara is pending in the High Court. While pursuing his two cases in Supreme Court and High Court, he has received numerous death threats and harassment from the perpetrators. (See further: UP-023-2006, UP-84-2005; UA-18-2004, UP-21-2004, UP-22-2004, UP-28-2004, UP-32-2004) We reproduce the AHRC statement below which includes details of the Court’s decisions. The AHRC welcomes this success and would like to thank you for your support for Tissa Kumara.
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February 17, 2006
AS-026-2006

A Statement by the Asian Human Rights Commission (AHRC)

SRI LANKA: Torture victim subjected to a TB patient spitting in his mouth wins fundamental rights application at the Supreme Court

The Supreme Court of Sri Lanka held on February 17, 2006 that officers of the Welipenna police station severely tortured Koralaliyanage Palitha Tissa Kumara by forcing a tuberculosis patient to spit into his mouth and by beating him critically with cricket stumps, causing over 32 injuries.  This judgment by the Supreme Court is a condemnation of one of the most heinous acts of torture committed by a Sri Lankan police officer, and exposes shameful aspects of policing within the country. The Inspector General of Police (IGP) together with other senior police officials should examine how the policing system has degenerated to this extent.  

Tissa Kumara, a talented artisan, was beaten and arrested without reason at his house on February 3, 2004 by Sub Inspector (SI) Premalal Silva and some other officers of the Welipenna police station. At the station, SI Silva attempted to force a confession from Tissa Kumara of possessing a bomb and being involved in theft. When he refused to confess, Tissa Kumara was beaten with a cricket stump over 40 times. Thereafter, a tuberculosis patient also being held at the police station was forced to spit into Tissa Kumara’s mouth while SI Silva said, ‘you too will die of TB’. Tissa Kumara was kept at the police station for five days after this, without being given any medical treatment. Thereafter, SI Silva brought a grenade and forced Tissa Kumara to put his thumb-print on it. He was then produced in court on the charges of bomb possession.  

At this time Tissa Kumara’s wife sought the assistance of the Asian Human Rights Commission (AHRC), who sent an attorney-at-law to meet Tissa Kumara in prison. After the details of the case were recorded, a fundamental rights application was filed at the Supreme Court. The medical evidence provided by the Judicial Medial Officer in Colombo provided extensive details of the injuries suffered by Tissa Kumara.  

From the time his fundamental rights application was filed, there were numerous attempts to harass and intimidate Tissa Kumara into accepting a settlement and withdrawing his application.  These attempts forced Tissa Kumara to abandon his home and employment and live in hiding for almost two years while pursuing his case legally. The success of this case at the Supreme Court therefore comes as a great compliment to the courage of a torture victim who steadfastly sought justice. It is also a compliment to the human rights activists who supported him in his struggle in many ways, including providing free legal assistance and protection.  

However, the AHRC is concerned by the paltry sum of compensation awarded to the victim--5000 rupees to be paid by SI Silva personally and 20,000 rupees to be paid by the state--for such gross torture and inhuman treatment. In recent years, the compensation awarded by the Supreme Court in torture cases does not reflect the gravity of the crime of torture. International law clearly postulates that torture is among the most heinous of crimes and that torture victims are entitled to adequate compensation. The award by the Supreme Court in Tissa Kumara’s case does not reflect such international standards.  

The AHRC urges the IGP to review the approach of his department regarding the implementation of the law on torture prevention and punishment, thereby respecting the fundamental rights guaranteed to all Sri Lankan citizens by their constitution. The ultimate responsibility for such cruel and inhuman acts committed by police officers lies with the policing system itself, which must therefore be changed. Drastic reform of the entire policing system is the only way by which the IGP and the police hierarchy can positively respond to the Supreme Court judgment in this case.

SUGGESTED ACTION:

Please urge the Inspector General of Police (IGP) to positively respond to the Supreme Court judgment in this case and review the approach of his department regarding the implementation of the law on torture prevention and punishment. Please also request the Supreme Court to award adequate compensation in torture considering the gravity of the crime of torture as well as the international standards. The Suggested letter is attached below.

Sample letter:

[LETTER 1: To IGP]

Mr. Chandra Fernando.
Inspector General of Police (IGP)
New Secretariat
Colombo 1
SRI LANKA
Fax: +94 11 2 440440/327877

Dear Mr. Fernando,

SRI LANKA: Policing system reform is required to make positive response to the Supreme Court judgment of Tissa Kumara’s case

I am happy to learn that on 16 February 2006 the Supreme Court of Sri Lanka gave its final decision in favor of the torture victim Koralaliyanage Palitha Tissa Kumara, who was inhumanly tortured by the officers of the Welipenna police station who forced to tuberculosis patient to spit into his mouth and beat him critically with cricket stumps, causing over 32 injuries in February 2004. I believe that this judgment by the Supreme Court illustrates shameful aspects of policing within the country and urgency for the policing system reform.

However, compensation without criminal liability is no solution to torture deeply rooted in police stations in Sri Lanka. I therefore urge you together with the Attorney General to take firm stand against perpetrators regarding Tissa Kumara’s case pending in high court and punish them according to Sri Lankan CAT Act No. 22 of 1994, which states minimum 7 year sentence for the torture conviction. Also, judicial justice cannot be fulfilled without an effective witness protection. I therefore urge you to take strong action against the alleged intimidations against Tissa Kumara which has been reported several times by him.    

I also urge you to review the approach of your department regarding the implementation of the law on torture prevention and punishment, thereby respecting the fundamental rights guaranteed to all Sri Lankan citizens by their constitution. The ultimate responsibility for such cruel and inhuman acts committed by police officers lies with the policing system itself, which must therefore be changed. I therefore urge you to take all your effort to establish a strict discipline within the police force and further take criminal action against the police officers who committed serious human rights violations such as torture. Only this way will be a positive response to the Supreme Court judgment in this case.

Yours truly,


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[LETTER 2: To Chief Justice of Sri Lanka]

Hon. Sarath Nanda Silva
Chairman
Chief Justice
Judicial Service Commission
No. 573, Hulftsdorp Steet
Colombo 12
SRI LANKA
Tel: +94 11 2 436308/451159
Tel/fax: +94 11 2 432854

Dear Hon. Justice Silva,

SRI LANKA: Please consist compensation for torture victims with international standards

I am happy to learn that on 16 February 2006 the Supreme Court of Sri Lanka gave its final decision in favor of the torture victim Koralaliyanage Palitha Tissa Kumara, who was inhumanly tortured by the officers of the Welipenna police station who forced to tuberculosis patient to spit into his mouth and beat him critically with cricket stumps, causing over 32 injuries in February 2004. This judgment by the Supreme Court is a condemnation of one of the most heinous acts of torture committed by a Sri Lankan police officer, and exposes shameful aspects of policing within the country.

However, I am somewhat disappointed that the victim was awarded the paltry sum of compensation—5,000 rupees (USD 49.3) to be paid by SI Silva personally and 20,000 rupees (USD 197.2) by the state--for such gross torture and inhuman treatment. Even though international law clearly postulates that torture is among the most heinous of crimes and that torture victims are entitled to adequate compensation, the compensation awarded by the Supreme Court of Sri Lanka in torture cases in recent years does not reflect such international standards. The award by the Supreme Court in Tissa Kumara’s case does not reflect such international standards.  

I therefore request you to make your sincere effort into this matter so that the Supreme Court consists compensation with international standards when they review the fundamental rights application in torture cases in the future.  

Yours sincerely,


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Thank you.

Urgent Appeals Programme (ua@ahrchk.org)
Asian Human Rights Commission (ahrchk@ahrchk.org)
Document Type :
Urgent Appeal Update
Document ID :
UP-032-2006
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.