Kishallie Pinto Jayawardena writing on behalf of the Law Society and Trust, (LST) a reputed Sri Lankan organisation has requested the Attorney General to file appeal against the judgement of the High Court judge of Negombo dated April 2nd acquitting all the accused in Gerald Pereras torture case. The LST argues that there are strong legal grounds for appeal. The letter is addressed to the Hon. Mr. C.R de Silva, Attorney General, Attorney General’s Department, Colombo 12, Sri Lanka.
Dear Mr de Silva,
Re: Appeal by the Office of the Attorney General Against the Acquittal of the Accused in Republic of Sri Lanka vs Suresh Gunasena and Others
I bring the following to your anxious consideration and kind response.
By judgment dated 02.04.2008, the High Court of Negombo acquitted all accused in the above case on the basis that no direct evidence had been found to lie against the accused police officers in the perpetration of acts of torture on now deceased Gerald Mervyn Perera on 3rd June 2002. The prosecution was conducted in terms of and under the Convention Against Torture and other Inhuman and Degrading Punishment Act No 22 of 1994 (hereafter the CAT Act).
It is pertinent that the High Court finds the fact that the deceased was subjected to torture inside the Wattala Police Station to be established on the evidence but bases the decision to acquit solely on the ground that there was no direct eye witness of the fact that the accused police officers were responsible for the acts of torture.
It is to be observed that the said judgment of the High Court is singularly bereft of reasoning dealing with manifold aspects of the prosecution case as well as in its evaluation of the legal principles applicable therein. In particular, the High Court has failed to direct itself to the applicability of what is commonly referred to as the Ellenborough dictum to the facts of the instant case despite the same having formed a substantial part of the prosecution case. For purposes of convenience, the said dictum is as follows;
‘No person accused of crime is bound to offer any explanation of his conduct or of circumstances of suspicion which attach to him, but nevertheless, if he refused to do so where a strong prima facie case has been made out and when it is in his power to offer evidence, if such exist in explanation of such suspicious appearances, which would show them to be fallacious and explicable consistently with his innocence, it is a reasonable and justifiable conclusion that he refrains from doing so only from the conviction that the evidence so suppressed or not adduced would operate adversely to his interest.”
Lord Ellenborough, in Rex V Cochrane (1814 Gurneys Report 499)
It is urged that the Attorney General appeals against this decision as provided for by law in order that the primary purpose and objective of the CAT Act is not defeated, given that its enactment on 25 November 1994 was a specific measure to give effect to Sri Lankas obligations in terms of the Convention. In the alternative, the negative impact of this judgment on pending prosecutions under the said CAT Act will be, it is submitted with respect, incalculable.
A favourable decision to appeal against the said acquittal is further buttressed by the fact that the Attorney General is vested with a special duty to balance the interests of the State and the public interest. As judicially observed in Victor Ivan Vs Sarath Silva, Attorney General, [1998] 1 Sri LR, 340), the decision of the Attorney General in regard to the exercise of powers conferred under law has to be guided by statutory criteria and cannot be arbitrary. These are discretionary powers that are neither absolute nor unfettered but are similar to other powers vested in law in public functionaries and are held in trust for the public, to be exercised for the purpose for which they are conferred and not otherwise.
I would also wish to bring to your attention, judicial concerns that have been expressed regarding the withdrawal from the indictment of the name of the officer-in-charge of the police station in page 23 of the said judgment of the High Court. This self same officer had been found culpable of having consented and acquiesced in the torture perpetrated upon the deceased Gerald Perera by the Supreme Court in an earlier judgment delivered in terms of its fundamental rights jurisdiction under Article 126 of the Constitution (in Sanjeewa v Suraweera, 2003 [1] SriLR, 317).
In this regard, it is relevant that the CAT Act includes torture as being an act which is done interalia with the consent or acquiesence of a public officer or other person acting in an official capacity (Vide Section 12). Read together with Section 2 of this Act which states that any person who tortures any other person shall be guilty of an offence under this Act, there is no doubt that the definition catches up in its ambit, an officer-in-charge of a police station who consents and acquieseces in torture perpetrated by his subordinate officers.
This interpretation is, indeed, supported by the fact that the definition of torture contained in the Act, insofar as the element of mens rea (criminal intention is considered) is broader than the Convention as the Convention refers to acts “intentionally inflicted” in Article 1 whereas Act No. 22 does not include this term in its definition of torture in Section 12. The argument that the CAT Act stipulates a broader definition of torture is indeed an argument that the Government of Sri Lanka has itself advanced befire the CAT Committee in its Periodic Reports and discussions thereto.
I write in appreciation of a favourable answer to this appeal,
Sincerely,
Kishali Pinto-Jayawardena
Deputy Director and Head, Civil and Political Rights Unit
CC: Deputy Solicitor General Shavindra Fernando
For further information please see: UPDATE (Sri Lanka): Police accused of Gerald Perera’s torture are acquitted at: http://www.ahrchk.net/ua/mainfile.php/2008/2812/ and for further details of the case please also refer to http://geraldperera.blog.humanrights.asia/
# # #
About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.
To support this case, please click here: SEND APPEAL LETTER
SAMPLE LETTER
