Sri Lanka : Deterioration Of The Legal Intellect: Part II
By Basil Fernando
02 April, 2015
Father, Mother, And Son Killed In retaliation for filing a fundamental rights petition against five police officers
Geekiyanage Premalal De Silva filed a Petition in the Supreme Court of Sri Lanka in 1989 alleging that some officers of the Panadura Police arrested him in May 1989, without a warrant, on a false charge of robbery and that he was tortured and subjected to cruel, inhuman, and degrading treatment while in custody.
In September 1990, the Court delivered a judgment confirming the arrest of De Silva as alleged by him. The judgment held that no cogent evidence had been produced by the respondent police officers to justify suspicion against De Silva and that his detention following arrest, without producing him before a Magistrate as required by Section 36 and 37 of the Criminal Procedure Code, was unlawful. It also confirmed that while in police custody De Silva was subjected to torture and inhumane treatment and that the 2nd and 3rd Respondents had been adequately identified as police officers involved in De Silva’s arrest and the subsequent violation of his rights and that by such acts the officers had violated Article 13(1), Article 13(2), Article 13(4), and Article 11 of the Constitution [Premalal De Silva v. Inspector Rodrigo and others, SC Application No 24 /89].
The Court held that the two police officers, named as 2nd and 3rd Respondents, and the State are jointly and severally liable to compensate the Petitioner. However, then the Court made the following unusual order: “…if the Petitioner has disappeared the compensation is payable to his legal representative….”
While the Supreme Court was considering the Petition, the police officers arrested De Silva. They arrested him when he went to sign the Police Book, as required by the Order of the Magistrate. Thereafter, De Silva disappeared. When De Silva did not return home after several hours of his visit to the Panadura Police Station his father went to the Police Station to look for him. Thereafter, De Silva’s father also disappeared. A short time after the father’s visit to the Police Station, the mother of De Silva went to look for both of them. She too disappeared.
Thus, as revenge against a complaint being lodged by De Silva, De Silva himself, his father, and his mother were made to disappear, and they remain disappeared to this day. In other words, they were illegally arrested, killed, and their bodies disposed of in secret
The very same day, when the three members of the family had been subjected to this treatment, a group of police officers also came looking for De Silva’s younger brother. The younger brother managed to escape by giving a false identity and thereafter went into hiding. Today, De Silva’s younger brother is the sole survivor of the family.
This triple disappearance in revenge of a complaint made by a citizen against illegal arrests and torture by police officers showcases the absence of redress for human rights abuses suffered at the hands of security officers in Sri Lanka. By way of severe reprisals, the complainants are intimidated and thus discouraged from making complaints against security officers.
The name of the petitioner in the fundamental rights case was Premalal De Silva; the name of his father was Jinson De Silva, the name of his mother was Greta De Soyza. While Premalal had filed the fundamental rights petition, his father and mother had submitted affidavits affirming that they have visited the Petitioner while he was in the custody at the Panadura Police Station.
In his Petition, Premalal complained, among other things, of being taken into a room by five police officers and treated in the following way:
“… he was taken tied up in a crouched position with his hands over his knees and suspended on a pole passed through his hands and knees. The two ends of the pole were placed on two tables. The 3rd respondent then rotated him and the 2nd respondent struck his soles with an iron rod. The 4th respondent too assaulted him with the iron rod. The 3rd respondent walked on his body and kicked him. At the same time, they questioned him about a robbery said to have been committed with one Sisira at a cigarette agency. One Sisira was brought in and the police questioned him as to whether the petitioner is the other person who joined in the robbery to which Sisira answered in the negative. As a result of the assault, he sustained injuries on his hands and legs….”
The Judicial Medical Officer’s Report indicated 11 injuries and the Officer reported that the injuries were consistent with the history given by the Petitioner. It was after the examination of all evidence in the case that three judges of the Supreme Court – Kulatunge J, H.A.G. De Silva J, and Dheeraratne J, concurred that the arrest of the Petitioner was violative of his rights under Article 13(1), that his detention was violative of Article 13(2) and 13(4), and that the Petitioner had been subjected to torture and inhumane treatment in breach of Article 11 of the Constitution. Furthermore, they held that the 2nd and 3rd Respondent police officers and the State are jointly and severally liable to compensate the Petitioner.
However, what the police officers did in order to cover up their wrongdoing against the Petitioner was to have the Petitioner and his two witnesses, his father and mother, killed. It was sheer luck that his younger brother was able to escape the same fate by falsifying his identity. The intention of the police officers was to kill the entire family, with the expectation that, thereby, there would be no one to pursue the case being heard against them in the Supreme Court.
Despite the Supreme Court finding two officers to have violated the fundamental rights of the Petitioner, both officers continued to work and continued to receive promotions in their capacities as officers. One of them retired at the end of his term; the other still continues to work in the police service as an officer in charge of a police station.
In any country cold-blooded and planned murders of a father, a mother, and a son would have shocked the entire society and the State would have been prevented from ignoring such a heinous crime. But in Sri Lanka, even such a crime committed by those meant to enforce the law does not disturb anyone’s conscience. The extent to which the legal intellect of Sri Lanka has been paralysed is bewildering. However, today there is hardly anyone left whom such terrible spectacles may bewilder.
One fundamental element of a civilised legal system is that the state will do everything it can, and put all its resources in order, to take legal notice of every murder, and to have the perpetrators of such murders brought to justice. This norm is no longer operative in Sri Lanka.
The state has demonstrably failed to act in the face of murder and other serious crimes. People who hold office as law enforcement officers, prosecutors, and judges do not feel a sense of obligation to ensure the implementation of law, even in the face of gruesome murders and other serious crimes.
Discussions on the impact of the 1978 Constitution and its so-called system of power of executive presidency remain superficial even as measures are being discussed to amend the obnoxious clauses of this Constitution. What no one wants to consider is the 1978 Constitution was made with the view to completely derail the rule of law system in Sri Lanka. The success of that derailing project is so complete that today even the failure to prosecute a murder has become an insignificant matter.
To anyone who is left with an iota of legal sensitivity, this triple murder of a father, a mother, and a son, carried out solely with the view of subverting the law, should become a challenge.
If there is a will, even now, it is not too late to investigate this ugly and horrible affair.
W. J. Basil Fernando is a Sri Lankan jurist, author, poet and human rights activist. Having been a lawyer engaged with human rights issues, he had to flee Sri Lanka decades ago. After that he became a legal adviser to Vietnamese refugees in a UNHCR-sponsored project in Hong Kong before joining the United Nations Transitional Authority (UNTAC) in 1992 as a senior human rights officer for Cambodia. He also served, later, as the Chief of Legal Assistance to Cambodia of the UN Centre of Human Rights (now the UN High Commissioner of Human Rights office). He is associated with Asian Human Rights Commission and Asian Legal Resource centre, based in Hong Kong since 1994. He was executive director of the organization for almost two decades.
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