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A Publication
on The Status of
Adivasi Populations
of India




Sri Lanka : Deterioration Of The Legal Intellect: 1) Quelling Mass Protests With Extrajudicial Killings

By Basil Fernando

27 March, 2015

The discovery of the bodies of four members of the same family in Wennapuwa on 1 January 2015 is one of the gravest crimes reported in recent times. The victims of these horrific murders were a dental surgeon attached to the Lunuwila Hospital, her husband who was a businessman, their 13-year-old son, and 15-year-old daughter.

Police Spokesman Ajith Rohana stated to the media that an individual who had served as a watchman has been arrested in connection with these murders and that during investigations this person has confessed to committing the murders with the help of his illicit lover. Spokesman Rohana further said that while three Criminal Investigation Department (CID) officers were escorting the suspect to the crime site in order to recover the murder weapon—an axe used to commit the murders—the suspect committed suicide by jumping into the Ma-Oya River.

It is strange that three CID officers were unable to prevent the suspect, who was in their custody, from jumping into the river, and further still that they have not been able to successfully rescue this suspect even after he plunged into the River. The three CID officers were obliged to take all precautions necessary to prevent the suspect from escaping or attempting suicide while in their custody. It is also the usual custom to handcuff an arrested suspect when he is taken out of the police station.

Given many previous examples of serious crimes suspects being killed in custody, it is hard to believe the version given by the three CID officers regarding the death of this suspect. It is the obligation of the Inspector General of Police and other senior police officers in the area to conduct an inquiry into the death of the suspect. So far, there has been no report of any such inquiry. The Police Spokesman did not inform the public of any such inquiry into the circumstances of this custodial death.

The practice of reporting the deaths of suspects in custody, particularly in cases where the crimes are of a very serious nature, has now become frequent. This practice—of police officers claiming suspects of a serious crime, while in custody, causing their own death, either by jumping into a river or by attempting to attack the officers that were then forced to shoot—became most frequent during the second term of the Mahinda Rajapaksa government.

After the conflict with the LTTE was over people gradually became aware that law enforcement in Sri Lanka had been seriously undermined and that there were pressures on the government to take effective action to restore law and order. Such demands became more acute due to a series of very serious crimes that began to occur in various parts of the country.

Obviously, the criminals were utilising widespread instability in the country and very visible inaction on the part of law enforcement officers. This mass dissatisfaction began to be expressed by way of shock waves, particularly when a whole family was murdered. This compelled the government to demonstrate that the situation was still under their control.

The method that was adopted by the government to demonstrate their control was to announce that a special team from the Special Task Force (STF) had been sent into the area where the crime had occurred and that this team was seriously investigating the matter. The pictures of the officers in action were also often exhibited in newspapers. The next thing people would hear is that the culprits had been captured and that as they tried to escape from custody, the officers had been compelled to shoot them to death.

With this, the idea of bringing such suspects before the courts, and investigating and prosecuting them, as was the practice in the country for a long time, was replaced by the type of drama described above.

This method of trying to quell the people, after they had been shocked enough to protest, was a product of the Ministry of Defence, which was then under the control the Secretary of the Ministry, Gotabaya Rajapaksa. He would himself appear at news conferences and quite triumphantly claim that whenever serious crimes have occurred the government has intervened decisively and brought the matter to a successful end.

Thus, the successful end to a crime was no longer the enforcement of the law within the framework of due process, followed by bringing the culprits to court to face a fair trial, the outcome of which could only be determined by the judge presiding over the case.

The law and the judge were both displaced. Even the criminal investigative process was displaced. In its place, a group of paramilitary officers were assigned. And the ultimate outcome was a summary execution, disguised as a killing in self-defence or a suicide by the culprits themselves. Of course, no one would have taken the story of the attempted escape or the suicide seriously. Everybody guessed what had really taken place. Thus, with such interventions from the very top of government, the legal process, when it came to such scandalous crimes, was suspended.

The legal intellect was simply silenced. The prosecuting lawyers and the defence lawyers and the judge all became irrelevant factors when dealing with crime. In fact, the legal intellect was considered irrelevant. It was in the aftermath of the second Janatha Vimukthi Peramuna (JVP) that the then Deputy Defence Minister Ranjan Wijeratne claimed in Parliament that these things couldn’t be done following legal rules. Gradually, this was extended to crime control in general. In tracing the rapid deterioration of the legal intellect in Sri Lanka, the extrajudicial killings committed by the State should be scrutinised as one of the most significant factors for such deterioration.

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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