By Se. Piyawardena.
The Sri Lankan police which are being led by a convicted torturer has once again shown it is not a protector of the rule of law but a blatant violator of even the Supreme Court directives on right to life.
The latest extrajudicial killing by Sri Lanka police took place in the darkness of 11th March 20424
The deceased, Kalahara Dilshan was an ex-commando soldier of the Sri Lankan Army.
Media reported that an alleged shooter of the chief incumbent of a temple in Malvatuhiripitiya area of Gampaha who was arrested a day before was killed by police fire.
Every mainstream media outlet that reported the killing, justified it as an encounter death. The usual story of the suspect who was taken out to find a firearm in the night tried to shoot back at the police and died in the ensuing encounter.
This will not be the first or the last to be killed by the police in Sri Lanka in a fake encounter.
Based on the complaints received and inquiries held by it, the Human Rights Commission of Sri Lanka (HRCSL) observed a total of twenty-four cases of custodial deaths and thirteen cases of encounter deaths involving Sri Lanka Police during the period between January 2020 and August 2023.
Six custodial deaths and two encounter deaths took place during the first six months of 2023. During this period, the recorded incidents of custodial death were associated with police stations or divisions within three districts of the western province: Colombo, Gampaha and Kalutara.
Present IGP Deshabandu Thennakoon was in charge of the western province at that time.
All victims, except three, succumbed to their injuries within less than 24 hours from the time of arrest by Sri Lanka Police.
HRCSL also observed that all reported deaths were caused during the process of locating weapons or narcotics, due to cruel, inhuman, degrading treatment, or due to the negligence or omission of the officers on duty.
A copycat killing
Kalhara Dilshan’s death exactly fits into the observations of the HRCSL. He was taken out to locate weapons, within 24 hours of his arrest and in Gampaha district.
The 24-hour period is crucial for extrajudicial killings because there will be no time for the kith and kin to go to the courts to stop the police action planned to kill the suspect. Nighttime is also crucial so that there will be no eyewitnesses.
In its ‘[draft] General Guidelines and Recommendations to Sri Lanka Police on Preventing Custodial and Encounter Deaths’ HRCSL (10.12.2023) defines ‘Police Custody’ of the state of being kept in custody by the police, usually prior to being produced before a court of law. A person is said to be in the custody of the police from the time of arrest until the time of lawful release from police detention according to the procedure set out in the law.
An ‘encounter death’ refers to the extra-judicial, deliberate killing of a person, outside of any legal framework, by a police officer(s).
Kalhara Dilshan’s murder is an encounter death during the police custody.
It is no surprise that this murder took place within the first month of the torture convict SDIG Deshabandu Thennakoon appointed as the IGP. One of his first promises to the police force was that he would take care of all defence expenses of officers who are charged for actions taken during their duty.
On 02 February 2023, the Supreme Court in its judgment of Mohammed Rashid Fathima Sharmila’s fundamental Rights petition (FR Application No. 398/2008) ordered the IGP to submit guidelines to prevent extrajudicial killings in police custody within one month.
In the context of continuing custodial and extrajudicial killings in Sri Lanka it is important to quote the judgment, written by SC Judge Buwaneka Aulwihare at length.
SC Judge Buwaneka Aulwihare on police brutality
“Police brutality should in no terms be allowed to become a fact of normal life and such trends can only be arrested by the broad application of Fundamental Rights which should not merely be excellent in theory. Arbitrary executions in violation of the judicial procedure, by officers of the State should be condemned. The Police Force cannot, at any instance, undermine the criminal justice mechanism of the country.
Therefore, the prevention of extra-judicial killings or custodial deaths invites raising the domestic standards to meet international obligations in upholding the inviolability of life, supplementing the fundamental rights protections of the domestic law.
Sri Lanka Police established in 1806, has a history of over two centuries and one would expect it to develop into a body that comprises of professional law enforcement personnel. I am at a loss to understand, in the present day and time as to why such an established law enforcement entity is incapable of affording due protection to a citizen who is in their custody. Unfortunately, it is not rare to hear instances of suspects dying in the hands of the police. It only highlights the utterly unprofessional approach to duty by the personnel who man it and as a consequence, people are increasingly losing trust in the police. It had lost the credibility it ought to enjoy as a law enforcement agency. The incident relevant to this application had taken place in 2008, however, this court observes that instances of death of suspects in police custody are continuing to happen, even today. It appears that the hierarchy of the administration had paid scant attention to arrest this trend which does not augur well for the law enforcement and the rule of law.”
That was the background of the Supreme Court order to IGP. After failing to come guidelines within one month then IGP C. Wickramaratne issued a circular, giving guidelines for police to avoid so-called “encounter deaths” of suspects while in police custody.
Among the new guidelines is a requirement that a police officer be assigned to video record any instance where a suspect in custody is taken out of a police station for investigation. The IGP’s circular has noted that such video recordings can also be used as evidence against the suspects in court and will also help to ensure transparency regarding police investigations.
IGPs Guide Lines
As part of the new guidelines, unless it is of vital importance, no suspect should be taken out of a police station for further investigations. Even if a suspect is taken to another location, he must be accompanied by a sufficient number of police officers to ensure safety. (Sunday Times, 02 April 2023)
Sri Lanka police have completely neglected the SC and well as HRCSL directives were issued to prevent extrajudicial killings.
Based on the decision of the Supreme Court re the Fathima Sharmila case, the Human Rights Commission of Sri Lanka released a series of detailed [draft] guidelines on Human Rights Day 2023.
“A police officer in charge of an investigation or inquiry in relation to an arrested person or detainee shall keep an accurate record in writing of all details relating to that inquiry or investigation.”
‘When in custody or in making any statement regarding a conflict death, the Police Spokesperson must at all times protect the privacy and dignity of the deceased.
Other personal information such as the reason for arrest, the deceased’s past criminal record and the ethnicity, religion, or place of residence of the deceased or the deceased’s family should not be released to the media.
When releasing information to the media immediately after death, concerned police officers must respect the deceased’s right to be presumed innocent until proven guilty.
If only a suspect or accused of a crime, such a person should not be portrayed as a ‘criminal’ or ‘offender’.
Police Media Spokesperson has put these directives into the garbage bin. He provided unproven facts about the Kalahara Dilshan to the media. The media published the police version of the extrajudicial killing of Kalhara Dilshan without questioning them.
In Sri Lanka, mainstream media is a clear justifier of extrajudicial killings.
According to the HRCSL guidelines, if someone is taken into police custody for any offense, his or her life security rests with the police officer who gave the order. But there will be no accountability, and no one will be charged for the cold-blooded killing of a suspect in police custody.
As United Nations High Commissioner for Human Rights stressed impunity for crimes is the core issue of absence of the rule of law in Sri Lanka.