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Custodial deaths: Fundamentals of criminal law being violated: BASL

04 Dec 2021

 
  • Citizens’ trust in public institutions undermined
  • Long-term issue; requires significant changes: Activist
  • Shift in mindset and culture needed
By Skandha Gunasekara Last month, a suspect, H.L. Lasantha alias Tinker Lasantha, was killed in police custody despite warnings to the authorities, from his family and lawyers, that his life was in danger. Following the custodial death, the Police issued an all too familiar statement that the suspect was shot when he allegedly attempted to hurl a hand grenade at the officers as he was being taken to identify a hidden cache of weapons. Sri Lanka is no stranger to such incidents. Custodial deaths occur frequently. However, little, if at all anything, has been done to address the issue. Lasantha’s death, the latest in a long list of custodial deaths, came in the wake of a recent report by the United Nations Human Rights Council that highlighted several such incidents and questioned Sri Lanka’s resolve to uphold the rights of its citizens by providing due process in the pursuit of justice. Last month, the Scottish Police Service Chief Constable indicated that they would be withdrawing from training their Sri Lankan counterparts, citing allegations of human rights violations. In the last few years, there has been a string of custodial deaths relating to suspects that the Police allege were involved in organised crimes such as drug trafficking, extortion, and murder. This is a drug dealer who was shot dead: Minister Weerasekera Minister of Public Security Rear Admiral (Retd.) Sarath Weerasekera, commenting on Lasantha’s death, emphasised that the Police had the right to open fire in self-defence if they believed a suspect was a threat.  However, he noted that an investigation into the murder of Lasantha had been ordered. “I have already asked the IGP to conduct an investigation. It’ll be in the courts now, I think. So, it is up to the judiciary to take action. I don’t know what happened. It happened on the 25th, and the report hasn’t come to me. I’m not going to get involved. I’m a politician, so I’m not going to get involved in police work. I have already told the Police to do the correct thing,” Weerasekera said. “Also, this is a drug dealer who was shot dead. They are a menace to society,” the Minister said, and then complained that the media was only reporting on the faults of the Police. “You all write and talk only about the bad things the Police do. There are some 89,000 police officers in the country, and they have all done good, especially during the pandemic. You should write about that too.” Minister Weerasekera then stated that a few bad incidents shouldn’t tarnish the reputation of the entire police force. “These are only a few incidents of the Police doing the wrong. But there are so many instances the Police have done good, but the media never talks about that (sic).” Police disregarding duty of care Meanwhile, Police Media Spokesman Senior Superintendent of Police (SSP) Nihal Thalduwa confirmed that the IGP had ordered an investigation into the murder of H.L. Lasantha while in police custody. “The IGP has instructed the Western Province Senior DIG to conduct an investigation into the incident.” The victim’s lawyers had warned the authorities that he would be killed by the Police. However, the Police failed to ensure the safety of a suspect in their custody. “On the night of 25 November 2021, Attorney-at-Law Sanjaya Ariyadasa contacted the Bar Association of Sri Lanka (BASL) President to inform him that he had been told that a client by the name of H.L. Lasantha alias Tinkering Lasantha had been apprehended by the officers of the Kalutara Divisional Criminal Investigation Bureau, and that he had information that his client would be killed in custody by the Police under the pretext of it happening during a shootout whilst being taken to show weapons. “Immediately thereafter, the BASL President informed the Inspector General of Police (IGP) via email and text message. He further informed the Commissioner of the Human Rights Commission (of Sri Lanka) (HRCSL) in charge of Inquiries and Investigations as well as the Director – Inquiries and Investigations of the Commission. As an additional measure, the BASL President also informed Northern Province Governor Jeewan Thiyagarajah, who also heads the Consortium of Humanitarian Agencies (CHA), of this information. “The HRCSL and Thiyagarajah confirmed that they had contacted the authorities and informed them of the complaint and requested them to intervene to ensure the safety of the suspect. “However, this morning (26 November), the media has reported that the suspect had been shot dead while being taken to recover hidden weapons,” the BASL said in a statement following the incident. The inaction over the warnings issued and failure to prevent or reduce the risk of a threat during the alleged visit with the suspect to recover weapons, point to a culture of impunity within the Police Department and a disregard for duty of care, experts said. BASL Secretary Attorney-at-Law Rajeeva Amarasuriya told The Sunday Morning that the BASL would be taking prompt measures with regard to the incident. “The basic fundamentals of criminal law are being violated. The BASL has decided that it will take measures on the most recent incident (Lasantha). There are three areas: one is the inquest where the BASL will have a presentation. We will also be looking at the possibility of filing applications at the Supreme Court and the Court of Appeal to address what took place and also to put an end to this happening in the future. This is something that has been happening from time to time in Sri Lanka starting from as far as back as the late 80s.” He said that it was crucial to establish a deterrent so as to prevent future crimes of this nature in addition to penalising the culprits. “Applications will be twofold. We haven’t referred those yet, as we are in the process of working it out. One is, of course, that those responsible must always be held accountable. Secondly, we need to also ensure that this type of perpetration does not recur, because these things happen not only in Sri Lanka but in other countries also, but we need to have effective mechanisms that are deterrents, so that those who engage in these activities know that the consequences are serious.” Amarasuriya noted that while people were quick to dismiss a criminal’s death while in custody owing to their criminal background, the real issue was the flouting of the rule of law by the law enforcement authorities. “The authorities must work according to the rule of law, which cannot be flouted. You cannot take extrajudicial action. Due process must be followed. If there are offenses, it must be proved in a court of law and dealt with through the court system. No one can bypass the court system. This has to come to a stop,” he said, adding that the BASL had established a unit to help those who have been tortured or abused while in custody. “We have now set up a unit on anti-torture for those who want to make complaints about custodial torture. The Legal Aid Unit will assist them to exercise their rights through the court mechanisms. That was set up last week and will be operational in the next couple of days. We will also issue relevant notices to the public so that they will have a number they can call to receive legal representation through the BASL,” he told The Sunday Morning. ‘Police find a way of rationalising killings’ Speaking to The Sunday Morning, the Law and Society Trust of Sri Lanka condemned the custodial death at the hands of the Police. Law and Society Trust Executive Director Sakuntala Kadirgamar said: “I see the custodial killings and these extra judicial killings that are taking place almost as a continuum of what is a very bloody and dark side of our society. “We have been extremely violent, especially since the 70s when political violence was a way of addressing issues. I think in the course of time, citizens have also been involved in acts of violence and the Police and military have also become a part of the problem. “Although there was a break to some extent and some recognition that Sri Lanka had to change track, it seems we have gone back into this system. It's extremely worrying.”  She said that categorising people as criminals portrays them as individuals without rights and resulted in the justification of such killings within law enforcement and some parts of society. “In recent times, the Police have claimed that those who were killed in custody were underworld figures or drug dealers. So, when you categorise people like this, they are dehumanised and thereby stop being viewed as human beings who are being killed. “In the past, they were JVP (Janatha Vimukthi Peramuna) or LTTE (Liberation Tigers of Tamil Eelam) or terrorist. So, when you label these people, you strip them of their humanity and find a way of rationalising why they should be killed. “So, I think when the Police function, they discredit any understanding of the rule of law and undermine a lot of these institutions. We don’t need to be another Philippines,” Kadirgamar opined, adding that the killings of alleged drug dealers could be motivated by a need to bury information that could lead to the persecution of those with power and influence.  “They obviously don't want to let these people go through the judicial process. This is a swift way of eliminating them rather than going through a judicial process where more information on their activities will come out. “With drug trafficking and drug use, there must be a wide network. Now, who's in that network, I wouldn’t know, but obviously they have some kind of patronage. In some of the cases, lawyers and family members had warned that their lives were threatened. So why weren’t special measures taken to protect them if they (authorities) wanted to make sure they (suspects) go through the judicial process? I think there is a network that supports underworld figures and I’m sure they have their tentacles and reach in different parts of our society,” Kadirgamar stated. Kadirgamar also said that this issue had brought embarrassment to the country before the eyes of the international community, and that Sri Lankans were migrating for safety and security reasons in addition to economic factors. Centre for Policy Alternatives Executive Director Paikiasothy Saravanamuttu said that a failure to implement laws contributed to these illegal activities by law enforcement.  “We have special rapporteurs and international organisations also drawing attention to these kinds of things. I think it is long past the time when we should have dispensed with all of this. This is really quite shocking, terrible, and absurd. We need to do something fast with regard to it. There are a number of laws that we have which suffer from a lack of implementation; we need to look at those laws and make sure that they’re implemented without fear of favour.” He said that people had lost faith in the law enforcement authorities, resulting in such institutions being less effective in carrying out their mandated duties, and that CPA would be looking at taking legal action as well. “The Police, who are supposed to be protecting the citizens of this country, are really the perpetrators of some of the worst crimes. A key institution of the country which really can only function through the trust of the citizens, is being considerably undermined. The CPA will look into taking steps through the court system,” he said.


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