By Niranjala Ariyawansha.
In a shocking revelation, the Committee of Inquiry into the Prison Incident (CIPI), appointed to investigate the gruesome Welikada Prison incident, finds that what occurred on 9 November 2012 was in gross violation of widely accepted basic Human Rights of the prisoners.
Thus, it recommends, based on the material that surfaced during its sittings, the necessity to conduct a fresh independent criminal investigation, forthwith, in respect of the allegations of murders, with a view to ascertaining the truth and the institution of criminal proceedings of offenders where sufficient evidence can be established.
The committee was headed by Gamini Nambuwasam, retired High Court Judge, Asoka Wijetilleke, former Senior Deputy Inspector General of Police and S.K.Liyanage, retired Ministry Additional Secretary of the Sri Lanka Administrative Service. The prosecutor was Janaka Bandara, Senior State Counsel of Attorney General’s Department.
However, the recommendations made in the completed report by the Committee which was headed by retired High Court Judge, Gamini Nambuwasam are yet to be implemented even though the report was handed over to Minister of Justice Wijeyadasa Rajapakshe in June 2015.
Meanwhile, continuous appeals by interested groups to Minister Rajapakshe to make the report public, in the same manner as the report of the Commission to Investigate Missing Persons, are yet to be meted out.
The committee had recorded evidence from inmates, prison officials, military and STF personnel and several other high profile individuals, including Defence Ministry Officials, then head of Army Intelligence Kapila
Henadawitarane, Senior DIG of State Intelligence and TID Chandra Wakishta and former Senior DIG/ Western Province Anura Senanayake.
In another shocking revelation, the report reveals that even though attempts had been made by the CID, they had failed to secure the custody of the weapons that were issued to the STF contingent and the Army troops and to forward these weapons to the Government Analyst for ballistic examinations.
“Regrettably even the Medico-Legal reports on the injured are available neither with the local police nor with the CID.It is on this premise the CIPI reiterates the value and the importance of conducting a renewed investigation, also in light of the volume of evidence placed before it.
“Moreover, the CIPI emphasizes the importance of such an independent investigation, that will facilitate witnesses to testify freely enabling the perpetrators to be brought to ,” the report stated.
The commission strongly recommends that during a fresh criminal investigation, the investigators identify the public servants who have disobeyed the law to cause injury to the inmates, which constitutes an offence under Section 162 of the Penal Code.
Drawing attention to Section 162 of the Penal Code that envisages an offence where a “public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause or knowing it to be likely that he will, by such disobedience, cause injury to any person or to the government” and for which the punishment shall include “simple imprisonment for a term which may extend to one year, or with fine, or with both”.
“The foregoing recommendation is considered important by the CIPI as there is strong evidence disclosed by witnesses relevant to the actions of the under-noted officials to wit that:
A) The instructions to deploy the STF for the conduct of the search in Welikada Prison on 9 November 2012 was on a directive made by the Defence Ministry.
B) The coordination, advanced preparation and planning with the STF, Rehabilitation and Prison Reform Ministry and the then Prisons Commissioner General and Prisons Intelligence Unit Jailor Indika Sampath was solely handled by Chandra Wakishta, then Senior DIG of State Intelligence and TID, and in doing so, he has failed to obtain a search warrant from a competent Court of Law for the conduct of this search.
C) The authorization for the conduct of the search and granting approval for the entry of armed STF personnel into Welikada Prison on 9 November 2012 was made by P.W. Kodippili, the then Commissioner General of Prisons.
D) The entry into Welikada Prison on that day by the armed STF personnel, in spite of objections raised by the prison staff, contravening the provisions of the Prisons Ordinance, was facilitated by Prisons Intelligence Unit Jailor Indika Sampath.
E) The arrangements in advance for the deployment of Army troops in a close location near the Welikada Prison well ahead of the STF search, around 2:00 p.m. on the day of the incident, suggesting that this was a pre-planned arrangement; and planning and decision of the entry of the Army into Welikada Prisons towards midnight on 9-11-2012, without an official request either by the then Prisons Commissioner General or the then former Senior DIG/Western Province, Anura Senanayake, was made by Brigadier Shantha Dissanayake of Sri Lanka Army.
F) The unauthorized removal of four T56 automatic rifles, from the custody of Jailor Nanayakkara, in the wee hours of 10-11-2012, that later surfaced near the bodies of some deceased inmates, was an act done by P.W. Kodippili, the then Commissioner General of Prisons, together with Emil Ranjan, the then Superintendent of Magazine Prison, the committee observes.
Sri Lanka is a signatory to the UN Standard Minimum Rules on the Treatment of Prisoners and as such has an obligation to adhere to the standards incorporated therein. Article 27 of the UN Standard Minimum Rules denotes:
“Discipline and order shall be maintained with firmness, but with no more restriction than is necessary for safe custody and well-ordered community life.”
European Prison Rules
As enshrined in the European Prison Rules, that are an expansion of the UN Standard Minimum Rules on the Treatment of Prisoners, Rule No. 64.1, which has been formulated meeting international standards depict that, “Prison Staff shall not use force against prisoners except in self-defence or in cases of attempted escape or active or passive physical resistance to a lawful order and always as a last resort.” Furthermore, it goes on to say that “the amount of force used shall be the minimum necessary and shall be imposed for the shortest necessary time”. These rules also expressly enumerate the types of force, the circumstances in which they can be used, the members of staff entitled to use the different types of force, the level of authority required before any force is used and the report that are required to be completed once force has been used.
“The CIPI, taking into consideration the aforementioned International Standards and Rules, is of the view that, being a signatory to the UN Convention on the Standard Minimum Rules on the Treatment of prisoners, it is obligatory upon the Sri Lankan authorities to have observed and adhered to these rules, though unfortunately in the Welikada Prison incident, it had been grossly violated. The CIPI also notes that ignorance of these rules cannot be considered an excuse by the violators to exculpate themselves,” the report stated.
The CIPI, in dealing with recommendations, also views the presence of certain salient factors such as instituting criminal proceedings against a selected group of inmates for causing mischief to prisons property in its entirety, though they could be partly responsible, but not fully, as the intervention of the Army had also resulted in causing damages to a certain extent; subsequent transfer of a large segment of inmates to Prisons facilities elsewhere; the continued presence of the Prisons Officials against whom accusations are made; and threats broughtforth by certain officials to inmates to prevent them from divulging the truth.
A careful assessment of the Welikada incident demonstrates the existence of several of the aforementioned key ingredients that constitute ‘torture’, specifically in the firing of tear gas into closed prisons inmate wards, the Committee observes.
“The CIPI acknowledges the Section of the Act that prohibits the use of torture as a defence when committed:
(a) At a time when there was a state of war, threat of war, internal political instability or any public emergency;
(b) On an order of a superior officer or a public authority shall not be a defence to such offence.”
The Committee also recommends, that during the conduct of the proposed fresh criminal investigation, a need to focus on the alleged violations corresponding to torture, there being the presence of an incident due to the firing of tear gas into the ‘A3’ and ‘B3’ closed wards and to identify those involved in the firing of the same. These acts, if proven to be true, constitute offences under Section 2 of the Act No. 22 of 1994, to give effect to the Convention against torture and other cruel, inhuman or degrading treatment or punishment, and therefore, subsequent criminal proceedings can be instituted against the officers responsible.
Having listened to a number of inmates who were detained at the Welikada Prison on the day in question, it has come to the knowledge of the CIPI that, they along with a few other inmates have been indiscriminately prosecuted and sentenced to jail terms, for causing mischief to prison property at the Welikada Prison. The CIPI recommends, in urging the relevant authorities to consider the possibility of reviewing these sentences which are still in operation, adopt possible legal options with a view to granting them redress, as the inmates alone cannot be held responsible for the commission of mischief to prison property.
It is the considered view of the CIPI that some element of flexibility should be given, bearing in mind that inmates were identified, in this instance, with no appropriate and transparent domestic investigation by the Prison Authorities before the institution of criminal proceedings against them.
The Committee has also highlighted the stance taken by a number of inmate witnesses who appeared before it, where they feared action of reprisal from the Prisons management, if their testimonies go against the Prison staff.
A similar stance was also adopted by the prison staff who indicated the continuing environment of potential threats and harassment within which they carry out their official duties today.
The CIPI in its report has expressed strong belief that there would have been very many inmates who were eye witnesses to the incident, but were reluctant to come forward to give evidence due to this reason.
On the other hand, there were several prisons officers who appeared before the CIPI and testified that there exists a possibility of framing serious allegations against them, if their superior officers came to know the disclosures adversely made against them.
“In light of this revelation, the CIPI recommends that due consideration be given to this request in order to prevent an environment of fear or mistrust,” it stated.
It is in such an environment, these prison staff and inmates need to be protected by the concerned authorities and nurture their confidence to speak out the truth, with a view to eliciting factual material in the proposed criminal investigation.
Noting that the fear and apprehension, both conveyed and displayed by a number of witnesses and many others who may have not testified, due to similar reasons, the Committee takes cognizance of the newly enacted assistance and protection of victims of crime and witnesses Act that would provide necessary safeguards for the inmates and prisons staff, who appeared before the CIPI and would testify during the fresh criminal investigation as proposed by the CIPI, thereby instilling confidence in the criminal justice system.
Read the full report below: