We write to you in reference to the recent judgment delivered by the High Court judge of Negombo on 9th October 2008 acquitting the accused in the abovementioned case under the Convention Against Torture and other Inhuman and Degrading Punishment Act No 22 of 1994, (hereafter the CAT Act).
On a perusal of the said acquittal decision, the trial proceedings and other court documentation, we are of the considered view that the said acquittal is wrong, contrary to law and contrary to the evidence on the case and therefore should be appealed against by the Attorney General.
Rigorous scrutiny of the decision indicates inter alia, the following errors in the judicial assessment of the evidence in the case. For example, the High Court had come to the conclusion that the medical record did not bear out the allegation by the accused that he had been mercilessly assaulted on the soles of his feet. However, this judicial finding is refuted by the fact that injury numbers 8 and 9 on the medical report were relevant to injuries that were, in fact, attested to by the Assistant Medical Judicial Officer as having been caused by assault with a blunt instrument. Moreover injury No 10 related to a brain injury, regarding which again, the medical explanation was bypassed by the said High Court judge in her assessment.
Further, the judicial assessment of the evidence in arriving at an acquittal is clearly problematic when evaluated against the evidence in particular, relating to the clear testimony that the virtual complainant was fit and healthy before being arrested by the police officers, that he sustained grievous injuries while inside and indeed, the evidence of the accused himself that the virtual complainant was taken in a virtually unconscious state to the hospital from the police station, that he had used minimum force in hitting the virtual complainant with a pole purportedly in order to prevent the virtual complainant from assaulting another policeman. It is also evident that the said High Court disregarded and/or omitted inaccuracies in the evidence of the accused that went to the root of the credibility of the accused.
In the circumstances, we urge the Office of the Attorney General to appeal against the said acquittal. The calamitous consequences of acquittals of this nature handed down by the High Courts in respect of a law that was passed by Parliament in 1994 with the specific legislative intent of deterring practices of torture in Sri Lanka cannot be more strongly emphasized.
We refer in this respect to the letter dated 10th April 2008 sent by the Civil and Political Rights Programme of the Law & Society Trust to the Attorney General in respect of the responsibility of the Attorney General to appeal against a similar acquittal by the High Court of Negombo in Republic of Sri Lanka vs Suresh Gunasena and Others (High Court Minutes 02.04.2008).
In that said letter, it was urged that the Attorney General appeal 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.
It was further affirmed in that letter that a favourable decision to appeal against the said acquittal is 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.
We reiterate these observations in respect of the instant acquittal and submit our concerns for your kind consideration and speedy action,
Thanking you,
——————————-
Chandralal Majuwana
Advocacy Officer, Civil and Political Rights Programme,
Law and Society Trust
See also the AHRC appeal to the Attorney General at: http://www.ahrchk.net/statements/mainfile.php/2008statements/1729/
# # #
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
