Death sentences carried out by the police in Sri Lanka

"The story's aspect of organized crime is constructed so the police likely will avoid further investigations into the case. Questioning abolitions of potential terrorists has often led to accusations of anti-patriotism or traitorous business; labels used by state officials when civilian Sri Lankan's make claims of violations by governmental institutions or forces."

When extraordinary explanations justify extrajudicial killings

by Sofie Rordam

(October 23, Hong Kong, Sri Lanka Guardian) Arbitrary arrests and extrajudicial killings are an almost daily occurrence in Sri Lanka today. The police system and additional institutions expected to be the protectors of law have become so dysfunctional and politicized that illegalities predominantly are carried out in their names.

Extrajudicial killings are marked illustrations of how lawlessness reigns in the country after the rule of law system has broken down. The killings are symbols of the exceptional lack of respect for legal procedures and the rights of the citizens to such within the security agencies.

When essential mechanisms in what was supposed to be a rule of law system have ceased to function, the police do not have options or resources to conduct proper investigations. However, they are still required to clear up the cases. Killing as a solution is thereby a simple rationale.

In some cases death occurs due to the 'heat of the moment' where police officers might not have had the intention to kill, but violence and frustrations get out of hand. However, as just a quick overview of the cases the AHRC has reported in 2010 shows, most killings are clearly intended as a pattern of characteristic police procedure becomes visible.

Extrajudicial killings under the pretext of eliminating organized crimes

Legislative measures such as the Prevention of Terrorism Act (PTA) have given the security agencies much of the power, they now hold. These legislatures were introduced during the conflict with the LTTE as emergency measures under which a countless number of people disappeared and where extrajudicial killed. Despite the conflict officially ending more than a year ago, they have not been repealed. Many cases of extrajudicial killings are justified by these acts and the danger the suspect poses as a part of a bigger group of organized criminals and potential terrorists.

One of the most dreadful parts of the police use of the measures is the story presented by them to the Magistrate. The stories are coincidently enough almost always similar. Either the suspect was shot while trying to escape or the police were taking him to a location, where he was supposed to convey a weapon shelter, when he turned on them with a weapon of some description, often something as remarkable as a hand grenade. The police never provide explanations of how the suspect could disguise the weapon and why he was not guarded more carefully. The victim is presented as a hardcore criminal with weapon shelters available all over the country, but he is neither supervised properly nor handcuffed.

The story's aspect of organized crime is constructed so the police likely will avoid further investigations into the case. Questioning abolitions of potential terrorists has often led to accusations of anti-patriotism or traitorous business; labels used by state officials when civilian Sri Lankan's make claims of violations by governmental institutions or forces.

The detainee with a hand grenade in hand

An example, which illustrates the absurdity and atrociousness of the situation and reveals the pattern of the police procedure, is the case of Dhammala Arachchige Lakshman from Dematagoda, Colombo. He was arrested by a Special Unit of the Hanwella Police Station without a warrant on September 20, 2010. His time in custody was spent at the Hanwella Police Station. Lakshman was not produced before a Magistrate at any time during his detention and neither was his arrest informed to anyone.

On September 22 he was brought to a location at Diddeniya in Hanwella by the police officers under the supervision of the Officer in Charge (OIC), R. Pushpakumara. The OIC was furthermore under the supervision of Inspector General (DIG), Daya Samaraweera and the Superintendent (SP), Deshabandu Tenneko. According to the police version of the incident, they tried to uncover a weapons shelter, which Lakshman allegedly had connections to. During the journey to the shelter Lakshman tried to escape by throwing a hand grenade at the officers whereupon the officers shot him. Lakshman was rushed to the Avissawella hospital but he was dead on admission.

This case covers many of the key indicators and problems in the exertion of extrajudicial killings by the police in Sri Lanka.

First of all, according to the Criminal Procedure Code the police are supposed to produce a suspect arrested on suspicion of committing a crime before a Magistrate within 24 hours. In Lakshmans’ case, his arrest was not even reported to one. While a suspect is in police custody, the officers are legally bound to report details on all developments of the detainee including his movements and wellbeing. They do not hold the authority to take a suspect out of the police station without permission from the Magistrate.

The police have not provided any information on how Lakshman was able to get his hands on a hand grenade while supervised by three well-trained police officers and why he was not handcuffed. Furthermore, there is no explanation of how the officers could all escape without injuries from the explosion that the hand grenade must have caused.

As described, this is not an isolated case. The same explanation has been used by the police in countless other cases. If the precise same situation keeps occurring, one would think that the police had learned by now to keep the suspect under better supervision. In the case of Laksman even a high-ranking OIC, a SP and a DIG were present. If the explanations were true, it should be regarded as a huge embarrassment for the police as it shows the continuously lack of professionalism.

The simple logic behind complex killings

The prevailing mentality at the police stations accepts torture as a method of interrogation. Many times it is regarded a necessity to eliminate the crimes the detainee is suspected of. Ghastly enough, in cases of deliberate, fabricated charges, torture is in fact a necessity. It is simple logic that it might be the only means by which to obtain a confession from an innocent person.

Fabricated charges are a common practise in Sri Lanka. The police often produce a false statement and force the detainee to sign or set his fingerprint on it. While torture can get you far in confessions, killings will obviously speed up the process even more.

Many times the Sri Lankan police might know the identity of the culprit, but are not interested in identifying them. It regularly results in arrests of utterly random people, although it may also come in handy for the police or other parties involved to get rid of someone they planned to eliminate anyway as an act of revenge or out of political interest. Killing is convenient as further investigation into the case is unlikely to happen after the death of the accused. Basically you kill two birds with one stone; the case will have a culprit plus the wanted person gets eliminated.

Furthermore extrajudicial killings set an example and function as clear warnings to people likely to follow in the killed person's footsteps. It is a common tool for security agencies and politicians to silence opposition politicians or journalists.

It is important to note, that the police not only practise arbitrary arrests of innocent persons, but obviously also detain persons guilty of murder, rape and other serious crimes. However the problem is that these atrocities are used by the police as justifications for torture and even killings.

As the degree of the crime increases, the vindication of torture or killings does not. According to the law of evidence any statement taken by the use of torture cannot be used in court. The use of torture and extrajudicial killings can never be compromised. They are nothing more than symbols of a dysfunctional and corrupted police system with no checks and balances available.

The killings happen because the security agencies have a fear of the case being taken to court and receiving an impartial trial, that neither the police nor other parties involved hold the power to influence. The killings happen because a degree of judicial power still exists in Sri Lanka. Even though it is declining, the memory of it is strong. In a country where it is commonly acknowledged that the courts hold no power at all, but only function as a part of the administrative system, the security agencies will not have to kill continuously to cover up their crimes. The amount of extrajudicial killings in Sri Lanka today is a symbol of the conceptual trust in the marginal judicial power, which is now in the state of transforming to no judicial power.

A constitution with room for extrajudicial acts

The last attempt for a reform of the police system to de-politicize it was taken with the 17th Amendment in 2001. It provided checks on the powers of the President, providing for high-level appointments like the Chief Justice, the National Police Commission, Public Service Commission and the National Human Rights Commission under the supervision of the Constitutional Council. The Constitutional Council was also expected to deal with promotions and dismissals of police officers to secure independence between the governing institutions.

However, President Rajapakse blocked the implementation of the Amendment as he refused to appoint the Council's successors, when their first term lapsed in 2005 although the members had already been selected by various parties constitutionally empowered to make the nominations. Despite Rajapakse's constitutional obligations to appoint the nominees, his immunity made it impossible to challenge the negligence in court and the Council has been in abeyance ever since.

Even the limited inquiries that were conducted by the Human Rights Commission of Sri Lanka have almost ended. With a stop to the Commission's funding and the power to appoint the members given to Rajapakse himself, the Commission still exist in name, but its content and intended function are gone. The only purpose it holds today is symbolizing the function, which it should have had.

Rajapakse saw the Constitutional Council as an obstacle to his absolute power as an executive president. The passing of the 18th Amendment on September 8, 2010 has only exceeded the Presidential power by removing the Presidential term limits and given the President the power to regularly attend and address Parliament. Consequently, any hope of a revival of the Constitutional Council or any such monitoring bodies has died.

Sri Lanka is a Constitutional state, which for many people is identical with a rule of law system. But in Sri Lanka today it is the Constitution itself that has eroded the rule of law and left room for the police and politicians' extraordinary practise of torture and extrajudicial killings.

Undermining judicial reservations

When security agencies carry out executions as a part of their practice, they have taken on the power reserved for the Judiciary. The police hand out death sentences without any legal process and take authorization to judge on the detained person's right to life. The killings are mostly carried out in secrecy and information of the circumstances of the killings is deliberately hidden and the detainee and the relative's right to truth through a legal process is denied. The security agencies have hereby sat themselves above the judicial sector including the Chief Justice and the High Court and made judgments on capital punishments a political and regulatory matter and not a legal reservation.

The matter is further taken to civilian grounds as lawlessness gets canalised to the Sri Lankan civil society. When there is no legal defence to serious crimes, many people take the law into their own hands. It is cheaper, faster and more "efficient" than the struggle of starting legal procedures; the lack of accountability and impartibility within the police and the possible prospects of proceedings running for years or even decades. This has resulted in underground groups taking over certain parts of law enforcement in public life and a so-called judicial mafia is slowly emerging offering quick gateways to justice.

It is a fundamental concept in all civilized societies that deprivation of life can be effected only by a competent judicial body, and through due process of law. Death sentences are still handed out by the courts in Sri Lanka and as the abolition of capital punishment in Sri Lanka of course should be pursued by all means, no legal execution has actually taken place since the 1970's as the sentences always are commuted to life imprisonment. This has been an official policy by the state.

However by not pursuing enquiries or official investigations into the frequent custodial deaths and suspicious killings by the police or other state agencies, the state has declared its approval of these illegal executions. It is extremely unsettling that this has become an accepted, common practice denying the victim the right to a fair trial, which is the basic norm of justice, on which all others norms depend on.

One of the basic ideas in a rule of law system is the separation of powers. When the separation is not respected, the system breaks down. The practice of extrajudicial killings is an exceptional threat to the fundamental beliefs of justice, equality and human responsibility whereupon a civilized society is built. It influences the understanding and perception of the Sri Lankan society and the Sri Lankan identity.

To understand the profound impact this development will have, the issue has to be closely analyzed, exposed and debated widely.