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UPDATE (SRI LANKA): Complications develop in the prosecution of perpetrators

August 18, 2002

UPDATE ON URGENT APPEAL UPDATE ON URGENT APPEAL UPDATE ON URGENT APPEAL <br>
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ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAM <br>
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19 August 2002 <br>
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UP-53-2002 (RE: UA/18 and 19/2002 - Torture by police, impunity, denial of proper rehabilitation) <br>
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UPDATE (SRI LANKA): Complications develop in the prosecution of perpetrators <br>
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In AHRC's last communication on this matter, AHRC informed of a letter it had received from the Attorney General's Department of Sri Lanka, stating that the case had been referred the Prosecution of Perpetrators of Torture Unit, functioning under the Attorney General's Department, for investigation. After investigation by this unit, the Attorney General will study the file for the purpose of filing charges. The charges are under the Convention against torture and other cruel, inhuman, degrading punishment and treatment Act (Act No.22 of 1994). The offences defined under this Act carry a mandatory sentence of 7 years and a fine of not less than Rs.10,000 (104 USD). <br>
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However, complications have now arisen as the Deputy Inspector General of Police for Wayaba has filed criminal charges against five police officers, including the Officer In Charge (OIC) of the Wariapola police station, under the Penal Code of Sri Lanka, for causing simple and grievous hurt to Nandini Sriyatha Herat. These are comparatively less serious offences. What is more, the gravity of state officers inflicting torture on a civilian has been brought down to merely physical hurt caused by one civilian to another. <br>
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When the case came up before the Wariapola Magistrate on 16th August, 2002, the police officers were formally charged for causing simple and grievous hurt to Nadini Sriyalatha Herat and the police officers pleaded not guilty to the charges. When a bail application was made on behalf of the police officers, Priyantha Gamage, the Attorney At Law who appeared for Ms. Herat, objected to the bail on the grounds that these police officers were still working in their official capacity, and also that they were very likely to interfere with the witnesses and to harass them. Mr. Gamage also stated that the police officers should have been charged for torture under Act No.22 of 1994, and offences under that Act were unbailable. The Magistrate granted Rs.10,000 bail for each of the accused. She also ordered that their passports be impounded and the immigration and airport authorities be informed of this order. The Magistrate severely warned the accused not to harass the witnesses. She also stated that it was embarrassing to have the same officers who prosecute others to appear in court as the accused. Therefore she requested that the Judicial Service Commission assign a different court to hear this case. The next hearing has been fixed for 1st October. <br>
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A huge crowd of villagers came to court to witness the case. Many expressed frustration at the accused police officers continuing to be in service after being charged with a criminal offence. The country's law requires that any government officer charged with a criminal offence should be interdicted from service till the end of the case. <br>
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In another dramatic development, the accused police officers were reported in the press to be engaged in a campaign to oust their Deputy Inspector General of police who filed the charges against them, with the help of some powerful local politicians. The Minister of Women's Affairs, who lives very close to the police station where Ms. Heart was tortured and sexually harassed, has throughout tried to defend the police officers. When asked by BBCSinhala service whether she talked to the victim to find out her side of the story, she admitted she had promised to talk to the victim. However, the Women's Minister has not yet spoken to the victim. Instead, it is widely believed that she is trying to protect the police officers. <br>
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AHRC has sent below letter to the Prime Minster, the Attorney General and DIG at Wayaba, requesting the filing of charges against the police officers for committing the offence of torture as defined under Act No. 22 of 1994. <br>
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Dear Sir, <br>
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Re: Investigations into the torture case of H. P. Nandini Sriyatha Heart - The complaint against Wariapola Police <br>
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I refer to this case that has really shocked me. I was happy to learn later that this complaint has been referred to the investigation by the Prosecution of Torture Perpetrators Unit, functioning under the Attorney General Department of Sri Lanka. <br>
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A recent development in the case indicates that perhaps without consultation with this unit, charges have been filed against 5 police officers on the basis of the same complaint. The charges are under the Penal Code of Sri Lanka, for simple and grievous hurt. Besides being a much less serious offences than offences under Act No. 22 of 1994, such filing of charges reduces criminal acts done by state officers to those who are in their custody, to the similar status as offences done by one civilian to another. <br>
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I have also learned that Ms. Heart's Attorney pointed out to the Magistrate at Wariapola on 16th August when this case was taken up that the police officers are likely to interfere with the witnesses. This is because, despite being charged before court on criminal charges, these officers have not been interdicted from service and their function as law enforcement officers. The magistrate who was aware of this contradiction, that is people charged with criminal offences prosecuting others on criminal charges, commented on the ridiculousness of the situation and transferred the case to another court. <br>
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I am kindly requesting your attention to this matter, so that torture perpetrators may be prosecuted under the appropriate law. <br>
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Thank you. <br>
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Document Type :
Urgent Appeal Update
Document ID :
UP-53-2002
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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.