Mr. Suhada K. Gamalath – Secretary
Judicial Service Commission
Superior Court Complex
Colombo 12
Sri Lanka
Fax: + Fax: 94 11 2320785
Dear Mr. Gamalath:
SRI LANKA: An Open Letter to the JSC regarding the Gampaha Magistrates order of justifiable homicide regarding the killing of two suspects in
Re: The verdict of justifiable homicide in the killing of two suspects in
The newspapers reported that the Magistrate of Gampaha has pronounced that the killing of two suspects, E.A. Amaradasa and E.A. Upasena, who were allegedly involved in the massacre of the family at Delgoda on May 26, 2007 as justifiable homicide in the act of self defense. (The Sunday Times, May 27, 2007 Cops and Killers: Who reigns).
I am writing this on behalf of the Asian Human Rights Commission as we are concerned that serious problems of the administration of justice could arise from hastily pronounced judgements by Magistrates based purely on the police version of the events and before a thorough inquiry is carried out by the criminal investigating authorities, before the matter is scrutinized by the Attorney General’s Department and before a trial court has the opportunity to examine all evidence judicially. An early pronouncement by the Magistrate results in ending all enquiries and impliedly declaring those who have done the killing as being innocent of any crime.
In this particular case the verdict is even more problematic.
Already media reports have cast doubts as to whether the two persons killed were even involved in this crime at all. There is a possibility that the killings of the two alleged suspects may have been a cover up protecting the real killers. According to reports, even some police investigators have complained of the erasing of evidence due to the burning of some houses in the neighbourhood.
What is more important here is the role of a magistrate at an early stage of a preliminary inquiry when someone takes up the position of a killing due to self defense. The very nature of a defense against a criminal charge is that it should be made against all the evidence available. The availability of evidence depends on a criminal inquiry into the alleged crimes in terms of the provisions of the Criminal Procedure Code. It is not the function of a magistrate to decide on a defense as having been proved even before a criminal investigation into the killing has taken place.
If a civilian was to take up the same defense in an alleged killing would the magistrate have the power to make the pronouncement at such an early stage before the investigations are completed, or before the Attorney General’s Department and the High Court inquiry into the matter?
This issue of pronouncing justifiable homicides also raises issues regarding the responsibilities of the police before they finally shoot people dead. Criminal suspects in custody are completely at the disposal of the police. These officers are responsible to see that the suspects are disarmed and that they are also in no position to have any access to arms while in their custody. The police officers also have the capacity to ensure a sufficient number of personnel when taking suspects outside for purposes such as the discovery arising from the confessions of the suspects. It is the duty of the officers to take all precautions to ensure that they can be kept under their control. Besides, if by some chance there is some threat it is also the duty of the officers to use minimum force to the extent of being able to subdue them. What this means is that when self defense is taken up by police officers who admit to having shot two suspects dead, they have a heavy burden to prove if they rely on self defense as the cause of the shooting. Such proof can only be measured after a criminal trial at an appropriate court, which in Sri Lanka is the High Court.
This killing of two suspects needs further inquiry and therefore the early verdict of the magistrate needs to be withdrawn and inquiries in terms of the Criminal Procedure Code need to be ordered.
We urge that you place these circumstances before the Judicial Service Commission (JSC) so that it can exercise its judgement on this matter and to take appropriate the measures the JSC thinks fit.
Our concern is that similar verdicts are being given regularly by many magistrates throughout the country according to reports that constantly appear in the newspapers. In the Asian Human Rights Commissions annual report we made our observations on this issue.
In several instances magistrates after initial inquests make orders stating that several such deaths amount to a justifiable homicide. This is clearly outside the powers of the magistrates when conducting inquests.
The following sections of the Criminal Procedure Code of Sri Lanka are relevant to the issue of the conduct of inquests by magistrates.
Sec.369 – An inquest of death shall not be made except under the provisions of the Code; Sec 370 (1) – Every inquirer on receiving information that a person; Sec.370 (1) (c) has died suddenly or from a cause which is not known, shall proceed to the place where the body of such deceased person is and there shall make an inquiry and draw up a report of the apparent cause of death; Sec 370 (3) – If the report (which is forwarded to the magistrate) discloses a reasonable suspicion that a crime has been committed the magistrate shall take the proceedings under ch. XIV and XV of the code.
Deaths in custody of police are dealt separately in Sec. 371 of the code: Sec 371 (1) When a person dies in the custody of the police or in a mental or leprosy hospital or prison
. Forthwith give information to the magistrate
.. Forthwith hold an inquiry into the cause of death. (2) For the purpose of an inquiry under this section a magistrate shall have all the powers which he would have in holding an inquiry into an offence.
Section 9(b) (iii) deals with the Magistrates jurisdiction to inquire into cases of death by violence, accident or sudden; sections 114 and 115 of the Code deals with situations where evidence against a suspect is deficient and well founded. Under section 114 if evidence is insufficient or no reasonable ground to justify suspicions, the inquirer (or the magistrate) may release the suspect on bail on the conditions the person may appear before the magistrate.
None of these provisions authorize the magistrate to discharge a suspect at the stage of an inquest.
We hope that the Judicial Service Commission will take appropriate action to deal with this issue.
Thank you.
Yours sincerely,
Basil Fernando
Executive Director
Asian Human Rights Commission
