If you think that accusing Sri Lanka’s justice system of being brainless and heartless is too harsh, just read these two sample stories (hundreds more like these can be added by cutting and pasting readily available material).
Case of Gerald Perera
The Supreme Court found that this person was arrested for no other reason than he had the name Gerald. Immediately after being arrested, he was blindfolded, hung from the ceiling with a coir [coconut fibre] rope, suspended in the air, was beaten by several police officers with iron bars and other implements of torture, burned with cigarette buts and finally declared innocent. The next day, having stayed in a private hospital, he went into a coma but was kept alive due to the extraordinary efforts of doctors who put him on a life-support system. The injuries suffered by him were summarised by the Supreme Court:
"The Judicial Medical officer ("JMO") of Colombo examined the Petitioner on 16.7.2002. In his report he set out the history of torture, substantially as stated in the petition. From the investigations done at the Nawaloka Hospital, he concluded that the Petitioner had "developed acute renal failure probably due to rhabdomyolysis which necessitated haemodialysis", "changes due to axonal loss in the median and ulnar nerves", and "loss of sensation over 8th cervical and 1st thoracic vertebrae". The relevant medical records had been called for from the Nawaloka Hospital. According to the JMO, systemic examination of the Petitioner revealed complete loss of power of the muscles around both shoulder joints, and inability to move both arms at the shoulder joints; while he could move his fingers he could not grasp any object at the time of examination; and there was sensory loss around both elbow areas.
"He noted certain injuries, consistent with the history given by the Petitioner: two blackish scars on the back of the right hand, consistent with the burns with lighted matchsticks; two scars, near the right and left wrists, consistent with being hung with a coir rope; a discolouration of the skin on the left shin, consistent with a blow with an iron bar; and weakness of both upper limbs, consistent with being suspended. In his opinion, such suspension could have caused neuromuscular and tendon damage and weakness of the upper limbs; and muscular contusions could cause rhabdomyolysis, which could cause acute renal failure, but there was no evidence of a considerable amount of contusions at the time of his examination. The Petitioner had completely recovered from renal failure." ((SCFR. 328/2002 - W. R. Sanjeewa AAL (for Gerald Perera) Vs. Sena Suraweera (Inspector) and eight others)."
The court found that several police officers tortured the victim, illegally arrested him and illegally detained him. As a result of its findings, the court awarded substantial compensation to the victim.
However, all of the police officers found to have violated the petitioner’s rights are still serving on the police force. The Prosecution of Torture Perpetrators Unit recorded the statement of the petitioner but did not file a criminal action. Perhaps this lack of legal action is because the petitioner, who was blindfolded and beaten inside the police station, could not identify who actually beat him. However, any average criminal investigator would have stated that there is overwhelming circumstantial evidence to prove the case against the police officers beyond a reasonable doubt. The prosecutors, however, seem to have taken the simpleton’s view that they cannot be identified. Consequently, when someone is assaulted in the future, the police will make sure that the victim is blindfolded. The prosecutors have thus connived with the very people who the Supreme Court found to have violated the human rights of the petitioner.
Case of Yogalingam Vijitha
(S.C. Application FR No. 186/2001)
The injuries found on the petitioner are recorded in the Supreme Court judgement thus:
"Upon examination, the Doctor had found the following injuries:
"Scars on the anterior aspects of the body.
- Somewhat oval shaped, hypopigmented, depressed scar, ½ x ¼ (cm?) in size, placed on the left front of the chest 3 cm above and 3. cm medially to the breast.
- Brown irregular shaped scar, 2cm x 1.5 cm in size, placed on the right lower abdomen 3 cm below and laterally to the umbilicus.
- Brown linear thin scar, 3 cm long, somewhat horizontally placed in the left lower abdomen. Its medial end was 5 cm below and 3 cm laterally to the umbilicus.
- Brown somewhat circular shaped scar, 2 cm in diameter, placed in the front of the upper forearm, 3.5 cm below the mid of the cubical fossa.
- Two irregular shaped, brownish, somewhat thickened scars in varying sizes (2.5 cm –2 cm X 1.5 cm), placed in front of the left knee.
- Hypopigmented, circular somewhat depressed scar, 2 cm in diameter, placed in the front lower leg, 5 cm above the ankle.
- Two hypopigmented, rectangular shaped, somewhat depressed scars in varying sizes (2.5 cm –2 cm x 2 cm –1.5 cm) placed in the dorsum of the left foot.
- Brown, irregular shaped, somewhat depressed scar, 2 cm x 1.5 cm is size and placed on the front of the right mid thigh 6 ½ (cm?) above the knee.
- An oval shaped, hypopigmented, somewhat depressed scar, 1.5 cm x 5 cm in size, placed on the front of the right lower thigh, 3 cm above the knee.
- Two irregular shaped hypopigmented thickened scars, each measuring 1.5 cm x 1 cm and 1 cm x 5 cm in size, placed on the front of the right knee.
- About four somewhat circular brown scars, 2 cm in diameter, placed on the dorsum of the right foot.
"Scars on the posterior aspect of the body.
- A ‘Y’ shaped 0.5 cm x 0.5 cm x 1 cm in size, hypopigmented scar placed on the back of the upper arm, 3.5 cm below the shoulder tip.
- An oval shaped, hypopigmented scar, 1.5 cm x 5 cm in size, placed on the lateral aspect of the left elbow.
- An oval shaped, somewhat depressed black scar, 2 cm x 1 cm in size, placed on the back of the right upper forearm, 4.5 cm below the elbow.
- An irregular linear hypopigmented scar, with the weave margin 4.5 cm long and placed obliquely towards the mid line, just medially to the medial border of the right scapula.
"Vulvo vaginal examination.
- Sexual organs and para sexual organs developed well.
- Little whitish discharge was present in vulva.
- Labia covered the vaginal orifice and there were no scars of injuries on the labia.
- Clinically there were no signs of venereal diseases.
- Two old tears on the 6 o’clock and 3 o’clock positions on the annular deeply seated hymen with multiple folds.
- Introits (vaginal orifice) admitted the index finger with moderate resistance and painful discomfort.
- Pain on the lower abdomen (suprapubically) noted while performing the bimanual vaginal examination.
- Respiratory and central nervous systems were clinically normal.
- Lower abdominal pains (tenderness) noted on the palpation of abdomen.
"According to the report of the Assistant Judicial Medical Officer ‘P2’, the petitioner had been examined by the Consultant Psychiatrist Dr P.N.L. Fernando who had reported that she has suggestive features (symptoms) of post traumatic disorder with depressive features.
"Upon examination by the Consultant Obstetrician and Gynecologist Dr Agitha Wijesundara, he reported that there were two old tears at the 3 o’clock and 6 o’clock positions on the hymen with admission of the index finger.
"The Consultant Radiologist Dr K. G. Krishanthi Pathirana performed an ultrasound examination on the pelvis and reported as follows: ‘Bulky uterus with thickened endometrium and cyctic left adnexal mass with the moderate amount of fluid in the pouch of douglas. The cause of the thickened endometrium and pelvic sepsis may be on account of insertion of the plantain flower being introduced.’
"By way of conclusion, the Assistant Judicial Medical Officer found that:
- There is positive medical evidence of vaginal penetration.
- There is positive evidence of pelvic sepsis with endometriosis.
- She has many scars on her limbs and torso.
- She has features of post traumatic disorder.
- Vaginal penetration by the insertion of plantain flower is possible.
- Pelvic sepsis with endometriosis could have followed by the insertion of the plantain flower as conclusively suggested by the Consultant Radiologist. The frequency of urination and irregular menstrual period could have been the result of the physical, psychological and sexual violence that she underwent while in custody
- The symptoms of post traumatic disorder and depression could have resulted from physical and mental trauma that she underwent while in custody.
- The causation of the original injuries and resultant scars could have been sustained in the manner described in the history given by the prisoner.
"The medical opinion, in my view, amply corroborates the petitioner’s version in regard to the injuries caused and their causation."
To make it worse, the police officers also tried to implicate the petitioner as a terrorist while the true reason that the police arrested the victim was that they were doing a favour for someone who the petitioner refused to marry as he had deceived her. The police were using their powers to kidnap and torture the petitioner. It was completely criminal behaviour.
Obviously, for such behaviour to take place, it is not only the officers who actually did the acts that are responsible. Such acts are possible only because the supervising officers directly or indirectly encourage such acts. Therefore, you have a law enforcement agency in which low-ranking and high-ranking officers gang up and engage in or cover up blatantly cruel and illegal acts.
In such a system, what is the scope of a lawyer to intervene as a legal advocate? It is a common perception that lawyers have very little influence in such matters. To struggle a long time to get an order for a fundamental rights application is just a minor consolation to the victims. Moreover, despite such orders, no criminal actions or disciplinary actions are taken. No honest lawyer will have much to contribute to bring about justice or to be proud of.
Meanwhile, as in all professions, not-so-honest lawyers can do much more. By acting as intermediaries exchanging bribes between the police and the victims, they can bring about settlements. There are many lawyers willing to provide these legal "services." The activities of such lawyers may not contribute to justice and, in fact, perpetuate crude injustices. However, they are seen as people helping to keep "social peace."
The whole process of suppressing justice in thousands of ways that force aggrieved parties to compromise is what goes on in the name of justice in Sri Lanka most of the time. The system bullies justice-minded lawyers and rewards those who are cynical of justice.
However, if one is asked where is the heart of darkness, it is not difficult to answer. The core of the problem is the country’s faulty prosecution system. With the type of prosecution system that exists now, nothing better than the present situation of injustice can result.
The current system of prosecutions originated in colonial times, and therefore, at its origins, it was given no role to challenge the injustices of the system. By and large, the prosecution of common crimes, such as the theft of cattle, murder and similar offences, was its function. In a mostly rural country, the complications that had to be faced were few.
With independence, the country entered a different phase. Moreover, with global changes, the old rural world gave way to a more complicated one. With time came graver political troubles. However, the old system did not change much.
Since 1978, even whatever good that was in the old system was challenged. The legal base of liberal democracy was removed by the new Constitution that year. The prosecutor cum legal adviser to the government, the Dept. of the Attorney General, was made to defend the illegalities, such as the removal of Supreme Court judges, by the Constitution. Many emergency laws that were deliberately designed to make mass murder possible had to be defended and protected by the chief law enforcement agency of the country. The prosecuting agency had to participate in executing the plans of the government against many of its opponents. Thus, prosecutors could not claim their hands were not smeared with blood.
Later, when criticism by other governments of human rights abuses became so widespread, it was the same agency that had to engage in whitewashing exercises. Making correct statements at international forums and making new gestures for external consumption became common while, subtly and determinably, all real attempts to prosecute culprits were prevented. Thus, the agency chiefly responsible for protecting law and order began to mock, not only local people, but also the international community.
There is one more chance left to lawyers to assert their professionalism and regain their position in society. This last opportunity at redeeming itself lies in doing all it can to transform the existing prosecution system, creating in its place a real one. On this willingness to address the system’s deficiencies, everything relating to the rule of law and justice in Sri Lanka hangs in the balance. So long as this does not happen, lawyers and litigants both will lie neck deep in injustice as they do now.
If the flaws of the prosecutors are corrected, police abuses can easily be managed. All it takes it to put a few police officers behind bars under the Prevention of Torture Act, Act No. 22 of 1994. As for the judiciary, once it realises that there is actual room in the country for justice, it will surely respond. This area is the least worrying sector of the justice system. If the judiciary perceives that there is not much space allowed them, only a few will try to expand it.