The relatives present tried to get the attention of the police to get medical care for the boy, immediately. However, the police ignored all such requests.
Next day, the parents of the boy came to the police station and saw his condition, and again tried to get the attention of the police and also senior police officers, in order to get their son medical attention. The police refused, and instead produced the five so arrested before a lady Magistrate.
When they were produced, a lawyer, as well as the victim himself, tried to get the attention of the Magistrate. They tried to get her to make an order to refer him for medical assistance. The Magistrate also ignored these requests and did not take any trouble to consider the condition of the young boy. She instead ordered all five of them to be remanded at the request of the police.
The next morning Sandun Malinga in his brother’s arms suffering terribly from his medical complications and even then prison authorities failed to provide immediate medical attention to the boy. That morning the boy died in his brother’s arms inside the police station.
It was for this that the High Court has sentenced the officers to death.
The death sentence for the police officers did not receive much media attention. Sentencing of six persons connected with the police station should have been a news that should have received serious attention of the Sri Lankan society as a whole, and for that purpose the media should have highlighted this issue and created opportunity for discussion of the case, so that the meaning of this sentence would have been brought to the homes of people and also to all police officers throughout the country. This was needed for beneficial effects towards the prevention of similar deaths in the future.
Arrests Without Justifiable Grounds
Among the matters that should have been discussed are first of all the issue of arrest without any justifiable ground. It has become a common feature throughout police stations in Sri Lanka to arrest without any substantial grounds justifying this arrest. There are many instances in which serious injustices have happened and some in which even very major injuries have resulted for innocent persons, simply because the police take this liberty to arrest anybody they wish. For most persons arrested by the police there is not even the slightest evidence to connect them to any crime.
One of the glaring examples was the case of Jerad Mervin Perera, who, in 1992, was arrested without any reason by a number of policemen acting under the instructions of a Superintendent of the Police. He was assaulted severely at the Wattala Police Station with the hope that he may be able to divulge some information regarding a triple murder. The injuries caused were such that they ultimately caused a kidney failure. His life was saved only by the intervention of his wife and some local politicians who facilitated for him to go to a private hospital, in which he remained in a comma for nearly two weeks.
The matter later came before the Supreme Court of Sri Lanka headed by late Justice Mark Fernando who delivered a landmark judgment in this case. The Supreme Court found that there were no grounds to arrest Jerad Perera and even if they had arrested him, he could have easily been released after the first few questions had been asked, as the police would have discovered that this man knew nothing about any crime. The court went on to observe that even after injuring him the police failed to provide immediate medical care to Jerad Perera.
The Court came to the conclusion that the failure to provide medical care in such circumstances amounts to a violation of a fundamental right to life. And the Court found that all the police officers have violated the basic right of the accused. In that case the Court awarded exemplary compensation ordering the State to pay the full amount of medical costs, which was over 900,000 Rupees, to the private hospital, and also to pay a similar amount to Jerad Perera as compensation.
The matters that have not received adequate attention of the National Police Commission, the IGP, and the other high ranking police officers in the police service of Sri Lanka, the Ministries of Justice and Law and Order, and also of the Judiciary and the Attorney General’s Department, are first of all the matter of arrest without substantial grounds for arresting a person.
It is quite well known that in high profile involving politicians known to the country, the Criminal Investigation Division (CID) takes a lot of precaution in order to have a thorough inquiry to satisfy itself of the evidence available on an accused before taking the steps of arresting such an accused. However, this is not the case at the police station level, where almost every police station goes about arresting persons purely without any warrant or any justifiable grounds for arresting the person. This matter needs very careful considered and instructions need to be issued either by way of legislation or by regulations in order to stop this practice immediately.
Need for Legislation on Warrants
Legislation needs to be brought about so that no arrest except in exceptional cases recognised by law can be carried out without a warrant issued by a Magistrate. This has been recommended also by the UN Rapporteur against Torture an Ill-treatment, and the UN Special Rapporteur for Independence of Lawyers and Judges, who visited Sri Lanka last year and observed this practice of arrest without grounds for such arrest. However there is no move on the part of the government to bring about a legislation to introduce arrest only after a warrant issued by the Magistrate, except in exceptional circumstances recognised under the law. The National Police Commission has not initiated any type of discussion in order to facilitate such legislation and we hope that in the future it takes steps to do so. The Human Rights Commission of Sri Lanka has been doing some remarkably good work in the recent past but also needs to take up this issue of getting legislation on the requirement of a warrant before arrest of any person except in those circumstances which law recognises to justify arrest without a warrant.
In hundreds of cases the courts have made it clear that torture is a grave violation of human rights. However, this has made no difference to the practice of torture that is taking place at police stations throughout the country. The reason is that the police take the liberty to arrest persons without substantial grounds for arrest, and try to find out whether there is anything that the person may know about a crime by assaulting the person. It has been a trademark of the Sri Lankan police to beat up persons without knowing anything about such a person, simply with the hope that by beating them up they may speak up and some information may come out which can then be used against them. All the police hierarchy are fully aware of this practice. So it is with the connivance of police hierarchy that the practice of illegal arrest is taking place in Sri Lanka, followed by the severe torture of innocent persons.
The Right to Medical Care
The third matter that comes up is regarding medical care for injured persons. This exposes the sheer inhumanity of people who can injure others and thereafter prevent them from taking medical care because through the medical care their misdemeanours may get exposed. The reason why the police do not get medical care for their victims is because, then there will be medical reports and other observations of injuries which may be used later against them and they may become accused in cases. The way to prevent liability is to hide the fact of such torture and the consequence of such hiding of facts could result in death as in the case of Sandun Malinga.
The Liability of the Magistrate
The Magistrate in this case also should have been held liable because it the matter was brought to her notice and she should have taken the trouble to examine and to write about the condition of the boy in the case records and thereafter make an order to enable the boy to take medical treatment immediately. Had the Magistrate done this, the boy would not have died the next day. Therefore, the instances in which the Magistrates can become liable for death of those brought under their custody should also be seriously examined. Despite many recommendations that have come over many years, for Magistrates to examine whether the persons who come before them are or have been injured, by and large, the Magistrates throughout the country are ignoring this requirement. Neglect when it leads to death is a matter that should not be ignored. When the neglect of a Magistrate could lead to the death of a person, the liability of the Magistrate for that death should not be ignored.
The Liability of the OIC
Basic issues that can be discussed are the liability of the officers in charge (OIC) of the police stations, to prevent illegal arrest, to prevent torture, and to get medical attention as soon as possible in any case when there is an injured person. Further liability of an OIC is to ensure that no fabricated charges are filed against any persons. Had not fabricated charges been filed against these five persons, they would have themselves taken the trouble to go to the hospital and to have the treatment required for the young boy. That was prevented by a fabricated charge and by keeping him in the custody so that they could not really move to get medical care. Again the motive is clearly to prevent the people going for medical care so that the police officers would not get exposed as a result of the injuries they have caused to the accused. The extent of playing with the lives of the people for the purpose of escaping liability goes to this extent in Sri Lanka and nobody takes any notice about the matter.
The Liability of the ASP
Next most important officer that should be held liable in such instances is the Assistant Superintendent of police (ASP) who is in charge of that particular police station. An ASP supervises every police, and the law lays down the obligation of a senior officer, who is responsible for the proper conduct of all activities within a police station. And, it is the duty of the ASP to make regular visits to police stations, to take action when he gets to know about things such as torture or illegal arrest, and to take steps to prevent the same. The ASO needs to be alert in instances where injuries have been caused to persons so that he can intervene in order to ensure that the persons receive proper medical care. However, illegal arrests, torture, and also preventing victims obtaining immediate medical care, is done with the connivance of most of the ASPs’ of police. Illegal arrest is a practice which is indirectly allowed. Torture is also a practice which is indirectly allowed. And also keeping these things secret is a law that prevails among police officers. So there is this conspiracy on the basis that without such illegal arrests, illegal detentions, and torture it is not possible to conduct proper investigations into crime, which is a kind of a belief entrenched among the police in Sri Lanka.
What we are dealing with is high criminality within the policing system. If nothing can be done by the police the least that could be done is to prevent crimes from being conducted by the police officers themselves. That is the duty of the higher-ranking police officers, including the IGP, as well as the Ministry of Justice and the Ministry of Law and Order, and the government itself. In the midst of so many complaints about this type of behaviour, and observations by such bodies as the United Nations Human Rights Committee, about the widespread practice of torture and illegal arrests and detentions in Sri Lanka, everyone keeps silent on this issue and thereby shares the criminal liability for allowing such crime to take place.
The Need for Social Discourse
It is time that there be a social discourse, on these
terrible practices that prevail in the premier law
enforcement agency in Sri Lanka. Without such a huge
discourse and bringing pressure to stop these practices,
nobody’s life is safe. Sandun Malinga, a bright
student, who had no reason at all to come into contact with
the police, is now dead. The death sentence is of course
something that we do not celebrate, and fortunately death
sentences are not carried out in Sri Lanka – it will
be usually reduced to a life sentence. Our concern is not
about tooth for a tooth, but for the purpose of bringing to
an end this kind of criminal behaviour that is a threat to
the liberty of the people of Sri Lanka. Not only does it
cause the death of some, and injuries to others, but also it
creates fear in everyone. Everyone has a reason to be afraid
that he or she may be arrested for no reason at all, and the
information would be sought by assaulting a person, and then
if injuries happen, the police will do everything possible
to hide such injuries. Such a place will not be considered
by anybody as a safe place to live.
It is time for civil society organisations and all professional bodies, such as the Bar Association of Sri Lanka, to take a more prominent position on steps needed to prevent crimes done by police and thereby ensuring protection of the people of Sri Lanka.
By Basil Fernando
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The Asian Human Rights Commission (AHRC) works towards the radical rethinking and fundamental redesigning of justice institutions in order to protect and promote human rights in Asia. Established in 1984, the Hong Kong based organisation is a Laureate of the Right Livelihood Award, 2014.