Basil Fernando, Director, Asian Human Rights Commission & Asian Legal Resource Centre, Hong Kong
The key events in the case of Sugath Nishanta Fernando and his family, as narrated to Julianne Porter (‘The price of fighting the state in Sri Lanka’, article 2, vol. 8, no. 1) and as known to the Asian Human Rights Commission (AHRC) can be described as follows:
1. A police inspector sells a stolen vehicle to a civilian, and on being discovered, threatens to harm the civilian if he pursues the case.
2. Other police connive with a group of thieves who rob the civilian of some cash and make him the accused in a criminal case.
3. A second inspector requests a bribe from the civilian to withdraw the charges. He obtains part of the requested amount and keeps harassing the victim for the balance. He pretends to destroy documents relevant to the case but in fact charges are still laid.
4. The first inspector switches between threatening and trying to bribe the civilian to stop the case against him; he dies before the matter goes to court.
5. The victim, after a long period of harassment, complains about the demands for money of the second inspector; the police then refuse to deal with him and abuse him and his family.
6. After requests and threats from various police officers, a senior officer and some 50 policemen come to the house of the victim and beat him, his wife and their children. They threaten to kill the parents.
7. The victim and his family file a fundamental rights application against 12 of the police officers, including a Senior Superintendent of Police, for torturing them.
8. The next day the victim and his wife are threatened to withdraw the petition filed against the 12 officers. The victim complains to the Inspector General of Police, the Deputy Inspector General of Police of the local area, the
Human Rights Commission of Sri Lanka and the National Police Commission, requesting protection for him and his family. He receives no such protection.
9. On 20 September 2008 two men kill the victim in broad daylight, while with his son. No one is arrested over the killing.
10. The wife and the two children repeatedly ask for protection. After the funeral no protection is provided for them. On their own, with the help of some friends, they go into hiding.
11. A lawyer assisting the victim and his family is threatened with death on two occasions, and his office is subjected to an arson attack. Staff at a human rights organisation assisting the victim, Right to Life, also receive death threats, and due to the absence of protection, temporarily close their office.
12. Throughout all these events, many complaints are made to senior officers of the Sri Lankan police, but no one intervenes to properly enforce the law. The case is highly publicised and known to the government, but no intervention is made to protect the family or oblige the police to do their jobs.
What is revealed through this narrative?
An inspector selling a stolen vehicle admits in a roundabout way that either he has stolen the vehicle himself, or he is working in connivance with a third party who has stolen the vehicle. Whichever is the case, how is such behaviour compatible with a law enforcement officer—particularly one holding the rank of inspector? The buyer, being a civilian, places his trust in an officer wearing a uniform. Had it been another civilian selling the vehicle, the buyer would have taken more precautions about the legality of the sale. Thus this inspector used his official position to deceive a civilian.
The deception goes further. The inspector tells the civilian that he will hand over the registration book, thereby enforcing his claim about the legality of the sale. However he does not have any such registration book for the vehicle; instead he keeps on giving false promises and gets the civilian to travel up and down. Finally the civilian makes a complaint to a higher officer, and when the complaint is investigated it is revealed that there are many complaints against the inspector. But those complaints are without signatures, indicating the fear of people to make complaints. Only this one civilian’s letter has been signed.
The inspector is interdicted and then comes to the civilian, begging him to withdraw the complaint and promising up to a million rupees. How is a police inspector able to offer a million rupees to keep his job, a sum that is about seven years of his salary? This clearly indicates that the position of inspector is extremely valuable to this officer, as he is able to make that kind of money through other means, including illegal activities.
As this was not a secret or exceptional case it demonstrates that such practices are known and undertaken throughout the entire police force in the area, and that superior officers also are aware of what is going on and engage in such activities.
After the victim is beaten and robbed he finds that the police have already prepared a case against him in connivance with the assailants. When the complainant came to the police station to file his complaint it was the duty of the police to record his complaint. If there had been a counter complaint, the complainant should have been asked to make his own statements in writing after which it is the duty of the police to investigate the matter. Instead the police make the civilian the accused. There is double culpability in this: first, in police connivance with thieves; second, in the fabricating of a charge against the real complainant. This is followed by an attempt to misinform the court. The court, on the information filed, sent the civilian to remand prison for several days. The abuse of power by making false reports to court and getting a person remanded amounts to an offence under the Penal Code. Morally it is a most despicable form of the abuse of power, which makes a mockery of the law.
As the civilian is harassed so constantly with demands for the balance of a bribe to have the charges against him dropped, he finally complains about it to the Bribery Commission. This demonstrates that there are still some limited avenues to make complaints, and the civilian here obtains some relief for the first time. But filing these charges with the Bribery Commission is to bring him more and more problems, finally leading him to his death and putting his entire family under threat.
Officers of the Negombo police station, including its senior officers, gang up to defend one another against the complaints of the family. In a law-enforcement system, when officers are accused of serious crimes others should be expected to steer clear. Instead the police in this case manifested gang behaviour, and were ready to go to any lengths to suppress the complainants, including through physical assault and death threats. They behaved like people who have total control over a certain territory, within which their power should not be challenged. The police as a body have no sympathy for the victim of crime who had come to them expecting assistance and relief; instead they side with the criminals with whom they have made deals and compromises.
The civilian, still having faith in the system, goes to the Supreme Court and files a fundamental rights application against 12 of the police officers for violating article 11 of the Constitution of Sri Lanka, which prohibits torture. The Supreme Court accepts the petition and issues leave to proceed. Again it shows a positive element within the system, that there is still something available for the victim to hold onto. However at that point too, what the victim receives is not justice but an increase in threats and intimidation. A group of persons threaten him and his wife that unless they withdraw the petition to the Supreme Court within 24 hours their whole family will be killed. These persons claim to have come on behalf of the 12 police officers, and even declare that they have the permission of the police to execute their threat. They come in broad daylight, two of them known to the civilian by name. They have no fear of being identified because they are sure of being protected by their patrons, the policemen.
Intimidating a person to withdraw a case filed before any court is interfering with justice. When this is done regarding a Supreme Court case it is even worse. However neither the police officers nor their agents think it a matter of consequence to make such a threat; once again they believe that there will be no consequences for this behaviour. The civilian immediately makes complaints. He goes to the office of the Deputy Inspector General of Police at Peliyagoda and makes a written complaint. He also complains by way of a letter attached with an affidavit to the Inspector General of Police, Human Rights Commission of Sri Lanka and the National Police Commission. On the basis of his complaint the Asian Human Rights Commission makes an appeal to the same authorities as well as the Ministry of Disaster Management and Human Rights. No action follows. For about three months the civilian remains in hiding in different places, unable to pursue his usual business affairs.
Witness protection is a primary requirement of any criminal justice system. One should not need to seek witness protection; once a case is before court witnesses should have a right to it if required; however, in this case the witness made serious attempts to get the attention of the police and to get protection, but no one moved and nothing happened.
Perhaps the question is: how can a civilian living in a particular territory be protected from the police who behave as a gang against him? Will that gang take orders from their superiors? Obviously this is a situation in which so-called superior officers do not really matter. The gang can ignore them or even sabotage their efforts. This raises further questions about the nature of this type of policing. Is this police station disjointed from the body of the policing system? Or is the system so bottom-heavy that it can pull down the top? What kind of command structure exists here? Is it a case of the tail wagging the dog?
At time of writing, over months have passed since the killing, but no suspect has been arrested. The deceased himself provided two names of persons who delivered death threats to him and his family. If these persons were to be interrogated they could have given information about the persons who gave them the orders. Surely this is not the type of mystery that a competent and impartial police team could not resolve? But if there is no proper investigation into a crime, it cannot be solved. The absence of investigations is the best means of guaranteeing impunity, as this case amply demonstrates. In this respect, a joint statement issued by ten United Nations human rights experts on 9 February 2009 is of special relevance (see contents of box).
As the UN experts note, the extent of impunity covers not only the persons involved in the original case but also extends to the making of new threats, and where necessary, carrying them out, against people assisting victims and their families. The lawyer and human rights organisation helping the civilian, his widow and children are also threatened with death on more than
one occasion. On 27 September 2008 the Bar Association of Sri Lanka complains to the Inspector General of Police about the death threats to the lawyer and asks for investigations and protection. Nothing is done. On 28 January 2009, after the lawyer has been threatened three times and assaulted inside the Negombo police station, his office is burned down and he and his wife have a lucky escape, having been there only moments before the attack. When a lawyer and the premier lawyers’ organisation themselves cannot get a complaint investigated, is there any chance that anyone else might succeed?
What does Negombo tell us about Sri Lanka?
In Negombo we see a police station that is a law unto itself. Its officers are engaged in making money and for that purpose they engage in crimes and collaborate with those who also engage in crimes. They manipulate their powers of arrest, detention and the filing of charges in courts in order to enhance their capacity to make money. Everybody in the police in this area is fully aware of this situation. The superior officers are either unwilling or incapable of dealing with it; the situation prevails within their full knowledge and with their connivance. The superior officers are very much part of the same game, as their complete inaction in the face of complaints reveals. Even after the Inspector General of Police has been fully informed, through the complaints of the civilian and his family, as well as the lawyer and the human rights organisation, the Bar Association, and international human rights organisations, there has been no action of any significance.
The government has also been made fully aware of everything that has been stated above yet there is no indication of any action taken. If the government has taken action and still nobody in the police has paid any heed to it, then this is even worse. If that is so, it means that the government has no control over the policing system. But perhaps the government does not want to interfere because overall it benefits from a system of policing such as this; a policing system in which the arbitrary orders of government or local politicians are followed in exchange for favours. The officers within such a system are willing also to engage in the manipulation of the electoral process, and the intimidation of political opponents of the regime or local politicians. And as interfering with free and fair elections has been an entrenched part of the local and political culture, perhaps the government would prefer to have this kind of policing, rather than a law abiding police force which upholds the rule of law for everyone.
If the way to rule a population and to have social control is by terrorizing people, then this kind of policing can do that task. The extent of cruelty that Sugath Fernando and his family have suffered shows how much a civilian has to pay to fight a system based upon terror. Unfortunately, compounded by abuse of power and corruption this type of policing can only get worse, not better.