State Accepts It Can't Prosecute Rights Violations

A Statement by the Asian Human Rights Commission

SRI LANKA: State Accepts That It Is Unwilling And Unable To Prosecute The Perpetrators Of Gross Human Rights Violations In Closing The Abduction Case Of Poddala Jayantha

The police spokesman announced that the Magistrate's Court of Gangodavila has halted the proceedings of the case of abduction of Poddala Jayantha, the senior journalist, the General Secretary of the Sri Lanka Working Journalists Association (SLWJA) and a key activist of the Free media movement (FMM) of Sri Lanka, due to lack of evidence. It is a profound expression of the unwillingness and inability of the state to conduct criminal investigations in sensitive cases of gross human rights violations where it may be possible that state agencies are involved. This was not an isolated abduction but one of many in the recent times. It occurred in broad daylight in front of a huge crowd. In its nature it was the most horrendous abduction in the recent past. The case earned local and international attention and opened a wider discourse on the gross human rights violations occurring in Sri Lanka, including the existing interference and suppressions to the media freedom, endangered life of the journalist and the situations of citizens’ human rights and democratic liberties.

The Abduction of Poddala Jayantha

At the time of his abduction Poddala Jayantha, was a senior Journalist and prominent media rights activist. He was a senior journalist at Dinamina, the Sinhala daily run by Lake House, and was also the General Secretary of Sri Lanka Working Journalists Association (SLWJA) and a key activist of the Free Media Movement (FMM) in Sri Lanka. Jayantha was abducted on June 1st 2009 at about 4.30pm near the Embuldeniya junction in Nugegoda. He was abducted while walking out of a pharmacy when a group of six men manhandled him into a white Toyota Ace van. A large number of people witnessed the shocking incident.

Among the witnesses was veteran journalist Bennet Rupasinghe, the editor of Lanka-e-News. He informed Jayantha's wife of the incident and advised her to rush to the Police station and make a formal complaint. She went with a lawyer-cum-journalist KW Janaranjana and another journalist Jayasiri Jayasekera to the Mirihana Police station and lodged a complaint.

Because of these interventions the incident received wide publicity. As there was a meeting at Temple Trees headed by the President with the leading journalists of the country the matter was brought to his attention as well. The journalist unions and the rights activists and the organizations made continuous protests for the sake of his life.

Meanwhile a badly beaten Poddala Jayantha was dumped into a muddy pit by the roadside near the IDH hospital. Latter, bleeding from several wounds and coated with mud on his rumpled, torn clothes, Jayantha hobbled onto the road and finally hailed a three-wheeler to take him to the hospital. He was warded at the Intensive care unit at the National Hospital in Colombo where he subsequently underwent surgery for multiple fractures.

According to the information that Jayantha revealed to his friends in the media the abductors blindfolded him and beat him with iron rods and wooden poles, accusing him of being a traitor to the country. At one point the abductors crushed three of his fingers with a wooden block saying he would not be allowed to write with this hand again. At one stage he fainted due to the pain. As a result of the torture his leg and ankle were broken. In addition he suffered many injuries to face, head, arms, legs and chest. In a further bid to humiliate Jayantha the cowardly abductors had shaved off parts of his beard and some of the hair on his head.

The crimes committed by the perpetrators

According to the Penal Code of Sri Lanka the facts so far revealed clearly established coherent legal base to constitute many crimes under the criminal law of the country. According to Section 353 of the Penal Code criminal abduction is a crime and the facts of the case suit with the law. Section 330 of the Penal Code deals with wrongful restrain and the facts revealed are enough to prosecute. Section 331 deals with wrongful confinement. Sections 300 of the Penal Code deals with the attempt to murder a human being and the facts revealed by the witness established the basis for drafting an indictment in that regard. Section 342 of the Penal Code defines criminal assault and during the whole process there is clear evidence that this happened. The injuries examined by the Judicial Medical Officers and the surgery that Jayantha underwent were due to fractures that legally constitute the crime of grievous hurt under the Sections 314 of the Penal Code of Sri Lanka. There were many other crimes that could easily be brought to an indictment or charge sheet against the perpetrators.

Further to the committing crimes under criminal law there were many emerging fundamental rights violations that can clearly identified. Jayantha was a journalist who necessarily used his right to expression, not only for himself but also in representing many others. He was the source and the fighter for peoples' right to information. When it comes to democracy he fought for peoples' rights to association, accountability of states, transparency of the state, necessary of anti corruption mechanism and due diligence and many sensitive state procedures.

Prior to his abduction and torture he was summoned by the Secretary of the Ministry of Defense and warned about his activism in the media works. It clearly shows that this was not a simple case but rather a high profile case which reflects the suppression suffered by many Sri Lankans and the country as a whole.

What happened to Jayantha is not an isolated incident but one among many which has happened to journalists. This includes the mysterious killings of law makers. It is a systematic practice that occurs in a widespread manner. It has all the criminal elements to constitute crimes against the humanity under the international criminal law.

What happened in reality?

Turning the complainant into the accused in the same case

Bennet Rupasinghe with his sound 'Bona Fides' mind informed the incident to Jayantha's wife as a friend and a fellow journalist. Then he informed his chief editor, Senadheera, as the incident happen to one around them.

Instead of arresting the culprits or perpetrators the police arrested these two well-known veteran journalists. Rupasinghe was arrested at 8.pm on June 1st and detained at the Police station for 18 hours till 2.pm on June 2nd. As Bennet Rupasinghe said during the interrogation that he had informed Mr. Senadheera he was also arrested on June 2nd. This investigation was conducted by the Police Special Investigation Unit.

After the arrest the police produce both of them before the Magistrate of Gangodavila. Then the police informed the magistrate that both journalists were key suspects in the case as they had been the first to inform Poddala Jayantha’s wife of the incident.

It is important here to notice that two veteran journalists were arrested for informing the incident to the Inspector General of Police on an abduction of a veteran journalist and their union president. In the court police also said that Rupasinghe and Senadheera had informed the Inspector General of Police, Jayantha Wickremaratne, Media minister Lakshman Yapa Abeywardena, the Director of Information Anusha Pelpita and Presidential adviser on Public Affairs Kumarasiri Hettige about the incident.

Assisting the police--Is it a crime?

According to the Criminal Procedure Code and the law of the country, all citizens are bound to tell the truth they know about a crime. All the citizens are supposed to assist the police in criminal investigations.

At the same time the citizens have the right to go and make a complaint with the police on a crime committed against him or another. That is a right that was accepted in law. The Constitution guarantees the right that every citizen is treated equally before the law.

These two citizens did that simple duty enjoying their fundamental rights. For very same act they were arrested, detained and finally brought before the law for prosecute by the police.

After harassments and public humiliation they were released. They were not compensated nor were the perpetrators punished. No action was taken by the authorities to prevent a repetition of this debacle.

It raises serious question of the police of the state on criminal investigations. It exhibits the state policy of discouraging the citizens in seeking the justice by making complaints to the police. It heralds the state necessity of silence of its citizen of what is happening around them in broad daylight.

Case 'lay down'

In legal terms, laying down a case is what happens when the prosecution decides there is insufficient evidence to proceed. Police filed a case number B/1738/2009 in the Magistrate court of Gangodavila following the complaint on abduction of Poddala Jayantha. The case went more than a year and the Special Investigation Unite of the police station of Mirihana was not able to arrest or report on identification of any culprit. Finally they made a request to the Magistrate to lay down the case due to lack of evidence. The Magistrate has accepted the request and it was so ordered.

Police in criminal investigations

The Criminal Procedure Code Act No: 15 of 1979, deals with the criminal investigations in Sri Lanka. Judicature Acts and its amendments also deal in some steps.

Sri Lankan as a state, in its original convention with the citizen is responsible to investigate this case. They are responsible to bring the perpetrators before the law. It is the police department under the present set up which is responsible to conduct the investigations. They have to identify the perpetrators involved. They have to collect evidence in that regard. They have to collect credible evidence direct, indirect, eye witness reports and documentary evidence. Considering the necessity scientific and expert evidence and the medical reports are suppose to be called for by the police. The collection of the criminal productions and the directing them for the examinations by the government analyst is supposed to done by the police. Conducting parades and in difficulty calling for public assistance to get the information on culprits is also suppose to be done by the police. They also have the facility to call for assistance from Interpol. Something that President Rajapakse has promised to do on several occasions but never actually done.

What is the role of IGP?

What is the reason for holding the position of Inspector General of Police if this officer cannot conduct investigations? Here we are not engage in a discussion on a trans-boundary crime conducted by organized foreign mafia. Nothing has revealed that any foreigner or other country or any secret service of other country was engage in the abduction of Jayantha. It happened in the very heart of the capital city of Colombo. Can the IGP be in such a blind and deaf position with all the technical and human recourses available to him in such a case?

Magistrate

In Sri Lanka when the first information regarding the committing of a crime is reported to a police station it is the duty of the Officer in Charge (OIC) of the station to report the case to the relevant Magistrate's Court promptly. The whole step of the criminal proceedings has been well articulated in the Criminal Procedure Code of Sri Lanka No: 15 of 1979. According to the law the very necessary further direction for the investigation comes from the Magistrate. Then the Magistrate holds the utmost responsibility to guide, supervise and finally adjudicate to get the culprit before the law and prosecute him within the system of rule of law confirming the conviction of the criminal. It is well documented and established.

On some occasions it the duty of the Magistrate to make visits to the scene of the crime. Then following the investigation it is the Magistrate duty to seek the Attorney General’s assistance for the correct court to file the indictments against the perpetrators.

Considering the gravity of the case it is the Magistrate who directs the AG to cope with the case for non summary proceedings. This case was rich enough from its very beginning to get that attention of the Magistrate in its nature.

Role of the Attorney General

Under the legal system of Sri Lanka the whole prosecution is vested with Attorney General. In the case of minor crimes the police handle the prosecution in the Magistrate's Court, even in those cases still the whole supervision is with the AG. A case like this is highly sensitive and earned local and international attention. Further it happened in a systematic manner that prevails in many cases of abductions with white vans. It is one among the hundreds of crimes that are widespread in Sri Lanka. These crimes considered to be one of hundreds that happen in Sri Lanka may be considered as crimes against humanity. In that situation the role of the AG cannot be ignored. Any responsible nation would not allow the AG to be blind folded so that he does not see the prosecution. However in this case the AG was silent during the whole process. the most powerful prosecutor of the state must be called before parliament on this regard.

In accordance with the law of the country the AG is entitle to call any criminal case and can be directly involved in every step of the prosecution. He is empowered to inform the Magistrate that he is not interested in proceeding in any criminal case by terminating the criminal prosecutions even in criminal cases filed by individual parties. This is referred to as in no prosecutions or 'nolle prosequi', which is a prerogative of the Attorney General. The AG can direct the IGP for new investigations and further investigations if necessary. In a case like that of Jayantha's, most horrendous in nature, what steps did the AG take in fulfilling his accountability to the public?

It is the responsibility of the state to prosecute those who are responsible for these crimes. Further they are bound to execute its prosecuting and judicial duties in order to be more efficient, prompt and accountable. They are responsible to establish trust among the citizens that this land is safe to live in. The state of Sri Lanka has sign many international conventions announcing that they are obliged to the international body that they will protect, promote and fulfil the aforesaid rights to the citizens.

Chief Justice and the Judicial Service Commission

The highest duty holder of adjudication in Sri Lankan legal system is the Chief Justice and the Judicial Service Commission of Sri Lanka. The Chief Justice’s supervision in all the judicial courts and tribunals has been well allowed in all the relevant legal provisions.

It is the question as to how the Magistrate of Gangodavila allowed the request of the police officer of Mirihana police station. If the Mirihana police is unable to assist the court with the prosecution then it is the duty of the Magistrate to summon the senior police officer, even the Inspector General of Police to get the investigation done in the name of justice. The Magistrate cannot ignore the rights of the victims and the citizens of the county to see that the justice is getting implemented against the perpetrators of these crimes. He is accountable to the system and finally to the citizens of the country. Finally the Chief Justice should be responsible for all what happen in courts. He should intervene with what happened in a court situated not less than 10 kilometers from the Supreme Court of Sri Lanka where he is.

Finally all the Magistrates, the Inspector General Police and the police as a whole, the Attorney General and the Judiciary are responsible for this break down in law. It is blatantly apparent that they are not interested in bringing justice to these unjust. They hold the mandate and accountability to participate in different steps to the process of delivering justice to the people. When all the people get is silence from these state officers and institutions there is no one else that can help them to overcome the inherent impunity that runs rampant throughout the country.

Prosecuting the perpetrators of cases of gross human rights violations and protecting the state sovereignty

The legality of prosecuting perpetrators of cases of gross human rights violations under the universal jurisdictions in international tribunals is an issue before the international human rights tribunals. This is particularly so when the sovereign countries claim to have robust legal systems within the country. This was the same issue which was discussed in the 11th Human Rights Council Special Session that was held in Geneva in July 2009 on the human rights violations that allegedly happened in the final stages of the armed conflict in Sri Lanka. The whole argument is in respect of the sovereignty of the state that neglects the comprehensive study of the ability of the domestic legal systems and the willingness of the individual stake holders to combat criminals in their countries.

The argument of many western countries was that the gross human rights violations, including war crimes committed by both sides to the conflict need to be investigated in Sri Lanka. In return the argument of the Sri Lankan government was that as there is robust legal system within the country that is capable of bringing the perpetrators before the law and delivering justice.

It is correct to note that the adjudication process is included in the whole concept of sovereignty. When sovereignty is vested with the citizen then they have a right to enjoy justice as a result of the procedures established by their choice. This should be a benefit of the independence that they enjoyed as a country.

Even in all the United Nations organisation’s fundamental documents, the drafters have upheld this basic concept. But they have never reviewed the veracity of the existing legal system in different countries in detail regarding the capability to deliver justice to the citizens.

After half a century of the establishment of the UN they are now questioning the impunity that exists in these states to the extent that no one can accept. This speaks to the inability that exists in these countries to try criminals and redress human rights violations. Now many countries are experiencing the fact that criminals accused of the most heinous crimes against their fellow citizens enjoy impunity. Right to justice

Democracy is a dream for many of these so-called democratic countries. The very basic necessities for the establishment of democratic systems and frameworks are still a dream. Supremacy of the law remains the fundamental basis for any democracy. The rule of law is the governing principle in a democracy. It necessarily includes respect to the individual liberties and protection of the life and equality among the citizen and the rulers.

Equality in a democracy is not only limited to economic, social and cultural rights. It has a much broader meaning in civil and political rights. On the other hand the whole concept of equality in a democracy means that everybody is equal before the law. It is not limited to the equality of rights in politics or the participation in the election process or universal franchise and participation in the administration process.

Equality necessarily means that every citizen of the country has the rights to seeks justice. It provides the rights to the citizens to have equal access in the judicial process. It is not a wish of any one individual. At the same time equality has the meaning that every citizen has the right to hold the legitimate expectation that the supreme law and the rule of law will be implemented by the courts and all the other organs of the state on each and every single occasion.

This needs to be understood profoundly. Here the right to access to justice is not a right that is enjoyed only by the victims. Citizens as a collective have right to seek justice against any unjust that occurs against any individual. An injustice that happens to an individual is an injustice that affects everybody in the country. The state is responsible to execute its duties and implement its policies respecting the equal rights of the citizens.

Justice in criminal law

In criminal law justice is a much wider concept. In human civilization people have fought for many centuries to get the right of liberty. There has been victorious triumphalism in different parts of the world; the French Revolution, the American Revolution and the acceptance of the Magna Carta in the United Kingdom. But the human struggle for liberty never ends. It will remain an ongoing struggle until someone wins over the mens rea, the guilty mind of the human being as whole.

The fundamental liberty that man needed at the very beginning was only the right to life against the arbitrarily killings, deprivations of liberty by arbitrary detentions and freedom from cruel or inhuman treatment and torture. But the very necessity of the establishment of the state also had the necessity of allowing people to live without fear.

Living without fear

This is considered the utmost requirement for all human beings. Today in many sovereign nations individuals are unable to fight for the safety of their own and the protection of their families. That was the reason to seek for the stronger establishment for protection. That was the basis for the establishment of the state. Therefore the very obligations of the state were to protect its citizen from the internal and external threats to their lives. That should be a peremptory norm for any state in the world. Here the peremptory norm is essentially applicable to the state of Sri Lanka.

Poddhala Jayantha also has the right to justice

Poddala Jayantha also a citizen of Sri Lanka. He has the same rights that all the other citizens should enjoy. He should have the legitimate expectation to enjoy his fundamental human rights. He has the right to life and liberty without these rights being curtailed by any of the state agencies. At the same time he has the right to seek justice in the event of any injustice. He is equal before the law.

So Jayantha has to the right to know the identities of the perpetrators of his abduction and furthermore, under whose orders they were acting.

Jayantha fights for justice not only in his case but also that of others. This justice was not delivered and instead he is subjected to continue intimidation. Ultimately he had to leave the country. He and his family no longer felt safe in the country of their birth. His and their right to life while having been violated already is liable to be violated again possibly within the very near future. Though he left the country his right to have justice cannot be curtailed by the state authorities. Whether he lives in Sri Lanka or abroad it is his right to see that the perpetrators of his case are tried before the law and finally receive their just punishment in accordance with the law. It is not only his right but the right of all the citizen of the country.

Justice for cases of gross human rights violations

We have repeatedly emphasised that a culture of impunity has existed in Sri Lanka for many decades. Defects in the criminal investigations are not due to neglect, they are intentional. The prolonged delays in criminal investigations and the prosecution process and adjudications are also the same. The governments of Sri Lanka, irrespective of their politics do not represent the legitimate aspirations of the people. Nor do they respect the international human rights norms and standards. They have no intention of proceeding with the implementation of international human rights conventions that they sign before many forums. They are no longer in a position, nor have they any intention to fulfill the pledges that they have given in many international human rights committees.

Then it becomes a question as to how they can bring the perpetrators in the cases of assassinations of Journalist such as Lasantha Wickramatunga, parliamentarians Joseph Pararajasinghem, Nadaraja Raviraj, K Maheshwarana, the killing of the 17 aid workers in Muttur, the killing of the five students in Trincomalee before justice. This is the bitter truth that we have to accept.

Peoples' hope for justice

Finally we have the question that we have to ask every citizen of Sri Lanka. Are you still awaiting justice? How, when, where and what kind of justice do you hope for? It is the very same question that we have to ask from the international community as whole. We will never stop asking that question. There will never be a full stop. We positively hope that the average citizen of Sri Lanka very much understands the reality of their day today experience. They are necessarily knowledgeable on what justice, liberty, equality and democracy is. In fact, they are very much ahead of many nations in that regard. We wish to awake the consciousness of every citizen and ask each and every one to work towards making their land free from fear and a place to live with human dignity.

And finally we have to raise a question to the state of Sri Lanka. Are they waiting for Poddala Jayantha to instigate his own, private investigation on the crimes that happened to him? Or is it waiting for the people of Sri Lanka to start their own criminal investigations on the incidents they have suffered and carry out the arrest and prosecution of the culprits in their own fashion? It is up to the state to prevent such mockery from taking place. It is the duty of the state of Sri Lanka to intervene in this situation or lawlessness that they have created.

ENDS

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