In this morning’s edition of the Sunday Times a news item entitled “Acquitted police officer taking case to the HRC” reported that in the famous case filed by a torture victim in Sri Lanka who complained that he was severely beaten and was spat by a tuberculosis patient on the instructions of a police officer, that the Supreme Court had dismissed the victim’s application when in fact the court held in favour of the victim on the issue of torture. It also gives the impression that in the High Court case the officer has been completely exonerated when in fact the court held that the officer had used unnecessary force in causing severe injuries on the victim as mentioned in the medical report but which, in the judge’s view, did not amount to torture. The High Court held that the allegation of spitting by the TB patient has not been sufficiently proved. The victim has publicly announced that he will appeal the High Court judgment.
The AHRC immediately wrote to the editor pointing out several errors in the report and calling for a correction. The letter written on behalf of the AHRC is given below.
October 29, 2006
The Chief Editor
The Sunday Times
No. 8, Hunupitiya Cross Road
Colombo 2. P.O. Box: 1136, Colombo 2
Sri Lanka.
Dear Sir
I am writing in response to the news article entitled Acquitted police officer taking case to HRC, that appeared in the Sunday Times today (29 October 2006). The article contains factual errors which I wish to bring to your notice.
Your report states “earlier a fundamental rights case was filed against the police officer and this was dismissed.” The Fundamental Rights case filed by the victim Mr. Korala Liyanage Palitha Thissa Kumara, of Halwala, Mathugama as SCFR 211/2004 was decided by the Supreme Court of Sri Lanka on 17 February 2006. The judgment was delivered by a three judge bench consisting of Justice Shirani A. Bandaranayake, T.B. Weerasuriya and N.K. Udalagama JJ which held that this police officer has in fact tortured the victim.
While dismissing the defense adopted by the respondent police officer, Mr. Silva, and allowing the petition and the relief sought by the applicant Mr. Korala Liyanage Palitha Tissa Kumara, the Supreme Court held that Sub Inspector (SI) Silva as a police officer violated the fundamental rights of the petitioner and thus engaged in torturing the victim thereby violating the victim’s right guaranteed under Article 11 of the Constitution of Sri Lanka. To quote from the judgment, a copy of which is attached for your reference, the court decreed “… I hold that the 1st respondent [Mr. Silva] had violated the petitioner’s fundamental right guaranteed in terms of Article 11 of the Constitution. I direct the 1st respondent to pay the petitioner a sum of Rs. 5,000/- personally as compensation and costs and the State to pay a sum of Rs. 20,000/- in compensation and costs, accordingly the petitioner will be entitled to a total sum of Rs. 25,000/- as compensation and costs.”
To arrive at this conclusion, in addition to the version filed by the victim the Supreme Court depended upon the medical certificates issued in the name of the victim and held that severe injuries were caused on him by the respondent Mr. Silva. The nature of the injuries were not held to be compatible with the defense offered by S.I. Silva.
The Medical Officer who had examined the complainant mentioned different groups of injuries in which there were a total of 43 counted on the body of the victim. These injuries, the doctor has stated were compatible with the version of the events given by the victim. (The list of injuries given in the J.M.O. report is mentioned below).
The article in your paper also gives wrong information abut the decision at the Kalutara High Court. The court, while acquitting the accused of the charge of torture held that the accused police officer used unnecessary force causing severe injuries that have been mentioned in the J.M.O.s report. To quote from the judgment [translation] the High Court has held that: “However, when looking at the number of wounds on the body of the accused a doubt arises as to whether the force used by the accused is justified or not. When considering injuries although it appears that the accused has used force beyond what was necessary that does not provide reason to establish the charge against this accused”. Thus, the High Court did not exonerate the police officer but only held that his conduct does not amount to torture but to use of force beyond what was necessary. As for the distinction between torture and the use of force beyond what was necessary this will be a matter to be contested in the appeal.
Your article mentions the main witness in the High Court case as Mr. Thummaya Hakuru Sarath alias Banja. However, this is also not correct. The main witnesses in this case were the victim of assault Mr. Palitha Tissa Kumara and the Assistant Judicial Medical Officer of the General Hospital of Colombo, Dr. Ajith Samantha Jayasekara who confirmed the nature of the injuries and stated that these could have been caused by hitting with a cricket pole as told by the victim.
In your report there is a photograph with the caption ‘Inspector Silva’ which is inaccurate as the police officer in this case, Mr. Silva, was a reserve Sub-Inspector and not an Inspector of police and he remains under interdiction.
Your article is also incorrect in mentioning the name of Mr. Dulinda Weerasuriya as a defense lawyer when in fact he represented the aggrieved party in this case.
Furthermore, the article mentions that the police officer “
has decided to take his case to the UN Human Rights Commission…”. You may wish to know that the United Nations Human Rights Commission ceased to function in early 2006.
For your information the victim in this case Mr. Palitha Tissa Kumara has publicly announced that he is appealing against the findings of the High Court. The Asian Human Rights Commission (AHRC) has also stated that even based on the findings of the High Court that ‘unnecessary force was used by the police officer’ causing injuries as mentioned in the medical report disqualifies SI Silva from working as a law enforcement officer.
The AHRC which has throughout supported this case will continue to support the victim and similar victims of police brutality in order that the despicable practice of custodial torture and unnecessary use of force upon suspects is brought to an end.
Both the Supreme Court and the High Court have come to the finding that the following injuries were caused by SI Silva on the torture victim.
From the J.M.O.’s report:
“2. Examination:
2.1 General examination:
He is conscious and rational, but looks anxious. He walked in to the examination room limping. His respiratory, cardiovascular and nervous systems are clinically normal.
2.2 Injuries:
2.2.1 Head and neck:
1. Healing laceration, liner, 2cm long, is situated in left ear lobe in its upper 1/3, involving the margin.
2. Resolving contusion, dark bluish purple in colour, 4×5.5cm, is situated in left side of the scalp, just behind the posterior attachment of ear lobe.
3. Tram line contusion, dark bluish purple in colour, 6x2cm size, is situated in the right side of the neck, in its lower 1/3 posterolaterally and obliquely.
4. Two healing split lacerations, each 2cm long, linear, are situated in right side of the jaw over its bony edge, in its front 1/3.
2,2.2 Chest and abdomen:
5. Resolving contusion, irregular shaped, 15xl0cm, is situated in left side of the shoulder.
6. Resolving contusion, irregular shaped, 12xl0cm, is situated in right side of the shoulder.
7. Tram line contusion, dark bluish purple in colour, 10x2cm size, is situated in the left side of the back, over the shoulder in its upper ? obliquely.
8. Tram line contusion, dark bluish purple in colour, 8x2cm size, is situated in the left side of the back, over the shoulder blade in its lower ? obliquely.
9. Tram line contusion, dark bluish purple in colour, 22×2.5cm size, is situated in the left side of the back, over the shoulder blade extending up to the midline obliquely.
10. Tram line contusion, dark bluish purple in colour, 15×2.5cm size, is situated in the left side of the back, over the shoulder blade extending up to the midline above the injury No. 09 obliquely.
11. Tram line contusion, dark bluish purple in colour, 15×2.5cm size is situated in the left side of the back, lateral to the shoulder blade extending downwards obliquely.
12, Tram line contusion, dark bluish purple in colour, 8×2.5cm size, is situated in the right side of the back, above the shoulder blade extending up to the midline, obliquely.
13. Two tram line contusions, dark bluish purple in colour, 10×2.5cm size, are situated in the right side of the back, on the shoulder blade extending parallel to each other, obliquely.
14. Two tramline contusions, dark bluish purple in colour, 8×2.5cm size, are situated in the right side of the~ back, on the shoulder blade crossing injuries No. 1 3, obliquely.
15. Tram line contusion, dark bluish purple in colour, i8x2cm size, i8 situated in the right side of the back, below the shoulder blade extending downwards from the lower ends of injuries No, 13, obliquely.
16. Tram line contusion, dark bluish purple in colour, 9×2.5cm size, is situated in the right side of the back, extending from the midline, obliquely. Its upper end is abraded and shows healing with pale scar.
17. Three healing abrasions, with dark scab formation and peripheral white margins, measuring 2x~.5cm, 2x1cm and lx1.5cm are situated in left side of the shoulder in its back.
18. Tram line contusion, dark bluish purple in colour, 5×2.5cm size, is situated in the left side of the chest, over the lower margin of rib cage, extending obliquely.
2.2.3 Upper limbs:
19. Resolving contusion, dark bluish purple in colour, i8x6cm, is situated in right forearm laterally in its upper 1/3.
20. Tram line contusion, dark bluish purple in colour, 4x2cm size, is situated in the right forearm, in its upper 1/3 posteromedialy and obliquely.
21. Seven tram line contusions, dark bluish purple in colour, each measuring 6×2.5cm size, are situated in left upper arm laterally, some of them are directed obliquely and some are horizontal.
22. Resolving contusion, dark bluish purple in colour, 18x6cm, is situated in right forearm laterally in its upper 1/3.
23. Resolving contusion, dark bluish purple in colour, 10x5cm is situated in right upper arm medially in its upper 1/3.
24. Tram line contusion, dark bluish purple in colour, 4x2cm size, is situated in the right upper arm, in its lower 1/3 medially and obliquely.
25. Resolving contusion, dark bluish purple in colour, 15x7cm, is situated in left forearm posteriorly in its lower 1/3.
26, Tram line contusion, dark bluish purple in colour, 1.5x2cm size, is situated in the right hand, in its back, obliquely.
27. Abraded contusion, 2x1cm, irregular shaped, is situated in right forearm, posteriorly, just above the wrist joint.
2.2.4 Lower limbs:
28. Tram line contusions, dark bluish purple in colour, 7×2.5cm size, is situated in the right thigh, laterally, in its middle 1/3, obliquely.
29. Tram line contusion, dark bluish purple in colour, 6.5×2.5cm size, is situated in the left thigh, laterally, in its middle 1/3, obliquely.
30. Tram line contusion, dark bluish purple in colour, 7.5×2.5cm size, is situated in the left leg, laterally, in its upper 1/3, obliquely.
31. Tram line contusion, dark bluish purple in colour, 8×2.5cm size, is situated in the left leg, laterally, in its middle 1/3, obliquely.
32. Split laceration, 1.5×0.5cm, irregular shaped, is situated in left ankle joint laterally, just above the outermost bony prominence. Underlying bone is fractured.
3. Investigations and referrals:
1. X-ray of the skull, chest and left ankle joint were taken and were referred to the Consultant Radiologist, National Hospital, Sri Lanka, Colombo (No. 4892).
Report revealed fracture in the lower end of the fibula bone. (Leg bone).
2. He was referred to the Consultant ENT Surgeon, National Hospital, Colombo to get his opinion regarding the tinnitus of his left ear.
Report revealed normal ear drum in left ear.
3. Further, he was referred to the Consultant Psychiatrist, .National Hospital, Colombo, to get his opinion regarding his mental state subsequent to the assault. Reports revealed that his mental state at the time of examination was normal.
4. Conclusions and opinions:
1. Injuries No. O1-31 are non grievous.
2. Injury No. 32 is grievous under limb g of Section 311 of the Penal Code.
3. All injuries have been caused by a blunt weapon/weapons.
4. They could have been sustained in the manner as described by the examinee in the history.
5. Since I have to review this patient to examine whether he has been infected with tuberculosis, due to the forceful ingestion of sputum of a person believed to be infected with tuberculosis, please send this victim to the Office of the J:M.A, Colombo.”
I am requesting that you publish this letter as a correction and suggest that your paper owes an apology for making an incorrect report on many matters including a Supreme Court judgment.
Yours sincerely,
Bijo Francis
South Asia Desk
The Asian Human Rights Commission
