The AHRC today to the editor of the Daily Mirror newspaper protesting against an unfair and biased report written by Sushita R. Fernando on a well known torture case. The writer quotes the police officer who attacks human rights organisations for supporting torture victims claiming that it is an obstruction to police officers inquiring into crimes. The letter is produced below.
The Editor
The Daily Mirror
Wijeya Newspapers Ltd.
#8, Hunupitiya Cross Road, Colombo 2.
Sri Lanka
Fax:+94-011- 5330811, +94-011-2423258.
E-mail : mirror@dailymirror.wnl.lk
Dear Sir,
I am writing to protest an unfair and biased article published in today’s Daily Mirror (November 8) written by Susitha R. Fernando who, in reporting of the acquittal of a case knowingly omitted the fact that it has in fact been appealed.
The news item is entitled ‘Officers suffer from NGO-backed offenders’ false accusations.’ The appeal regarding the case mentioned in this matter appeared in the Sunday Times under the title ‘Victim appeals against police officer’s acquittal.’ The Daily Mirror reporter has not got his facts correct even after such a report was published in a sister paper. The reporter has given parts of the judgment at the Kalutara court and omitted the fact that the High Court judge held that the accused police officer, Sub Inspector Kaluhandi Gervin Premalal Silva, had used unnecessary force on the complainant, Palitha Thissa Kumara and has caused serious injuries as mentioned in the medical report. The medical report mentioned 32 different injuries which included 43 tramline injuries. The words in the verdict of the court are as follows:
‘The position of the defence in this case is that the accused when he went to arrest the complainant for the self defence and the life protection of themselves have assaulted the complainant. However, when examining the number of injuries that is in the body of this accused [should have been the complainant] a big doubt arises as to the justifiability of the force the accused has used. Even though it appears that when considering the number of injuries the accused has used some force beyond that which was necessary.’
(Translation from Sinhala)
Since the reporter has given some details of the judgment t is also only fair that your paper publishes the grounds of appeal of the complainant torture victim. These are as follows:
1. The said acquittal was grossly against the facts of the case and the weight of evidence. 2. The learned judge has failed to assess the credibility of the prosecution witnesses on the basis of merits and demerits of individual witnesses. 3. The learned judge has rejected the evidence of witnesses on a comparison of evidence of two or more witnesses. 4. The learned judge has failed to assess the evidence of the Prosecution in terms of the ingredients of the two charges of the Indictment against the Accused-Respondent under Act No. 22 of 1994. The ingredients of the charges being (a) the causing of severe physical and/or mental pain (b) for the purpose of obtaining information or confession or causing intimidation or punishment, by a public officer. 5. The learned judge has erred in law in not considering the evidence on each of the charges of the indictment separately and arriving at conclusions on each charge separately. 6. The learned judge who did not have an occasion to hear or to watch the demeanor and the deportment of witnesses has based his judgment entirely on the recorded evidence sans any observation on the demeanor of the witnesses for the prosecution. 7. The learned judge has failed to logically explain any grounds for any reasonable doubt relating to the Prosecution’s case. 8. The learned judge who made the order had not had the opportunity to hear the evidence lead in this case and misdirected himself regarding facts and law on issues vital to this trial. 9. It is submitted with respect that the Learned appears to have acted on a preconceived notion. 10. The learned judge has erred in law in failing to give weight to the corroboration between the witnesses for the Prosecution, particularly of witnesses PW1, PW2, PW5 and PW11 and PW12. 11. The learned judge has erred in law by not giving adequate weight to the medical evidence placed and has not evaluated the fact that the medical evidence was completely compatible with the version given by the Prosecution. The learned Judge has not considered the failure of the Defence to in any way cast doubts on the veracity of the facts and conclusions of the expert evidence. This is all the more relevant and important when the Accused had taken up a Defence of Self Defence. 12. The learned judge has not assessed the evidence given by the medical expert PW11 excluding the possibility of the injuries on the Complainant/Appellant being caused by a fall or any other manner suggested by the Defence. 13. The learned judge has failed to address the issue of the physical impossibility of the Complainant/Appellant and the witness, PW5 meeting at any time during the trial as the Complainant/Appellant was in remand prison and PW5 was a convicted prisoner living in prison. 14. The learned judge has given undue weight to an affidavit filed by PW2 while the Complainant/Appellant was in remand prison. 15. The learned judge erred in law in giving undue evidentiary value to the dock statement of the Accused-Respondent. The learned judge has further erred in law in failing to consider that the Accused-Respondent, even in his dock statement failed to explain many of the matters lead by the prosecution. The learned Judge has further erred in fact and law by failing to consider the incompatibility of the version of the Accused-Respondent with the medical evidence lead in court about the manner in which the Complainant/Appellant came about the injuries he suffered. The learned judge has not addressed his mind to the matters that the defense should have put to the prosecution witnesses if they were to rely on the version that the accused/respondent tried to make out through his dock statement. 16. The learned judge has erred in law and misdirected himself regarding the burden of proof on the part of the accused-respondent if he relied on self defense as the justification for the assault which caused the injuries on the Complainant/Appellant. 17. The learned judge erred in law and fact in attaching evidentiary value to questions posed to the prosecution witnesses by the defense which were denied by the witnesses, and through which no matters of any evidentiary value to the defense was elicited. 18. The learned judge has not evaluated the evidence for the Prosecution in a logical manner but has based the judgment on bits and pieces of evidence selected from out of the entire body of evidence placed before him. 19. The learned judge has erred in law in considering that persons with criminal records are completely unworthy of credit and that their evidence should be excluded purely on that basis. 20. The learned judge has placed undue evidentiary value to the record of service of the Accused-Respondent which is not a relevant consideration in the assessment of guilt relating to the charges before the court. 21. The learned judge has given undue evidentiary value to the record of service of the Accused-Respondent given through his dock statement which could not have been subjected to cross examination. 22. The learned judge erred in law in giving importance to the possible punishment in the case as an element in judging the guilt or innocence of the Accused-Respondent.
Torture is a heinous and uncivilized practice which is forbidden by the Sri Lankan Constitution. Sri Lankan law makes torture a crime punishable with seven years rigorous imprisonment. The title of this news item blames NGOs for supporting torture victims. It tries to portray the accused police officers as heroes whose investigations are obstructed by complaints of torture and by the interference of human rights organisations who support the victims. The Asian Human Rights Commission has openly supported this case and will continue to do so in courts as well as in public.
The proceedings of this case as well as the Supreme Court case in the same matter where the Supreme Court held that the police officer had violated article 11 of the Constitution which forbids torture will be made available to the public. What harms society is not the attempt to make civil servants liable for the wrongs they do but the failure of courageous civil society organisations and the media to fight these issues.
Basil Fernando
Executive Director
Asian Human Rights Commission
