The pains of two innocents may never go away

20 October 2015 06:30 pm - 0     - {{hitsCtrl.values.hits}}

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          Looking at the many sides of the Seya tragedy         


 

Ignorance of the law, ham-handed police and insensitivity to people’s rights shock the nation
 
On the 13th of September 2015, Sri Lanka was rocked with the harrowing tale of the rape and murder of a four-and- a- half year old girl. Three days later, in an attempt to solve the crime and bring justice to the victim’s family, two ‘suspects’ were arrested by the Kotadeniyawa Police. What followed would be as horrendous as the crime of arresting the suspects.
 
On the 16th of September, the two suspects, a 17- year- old boy and a man in his early 30’s, were arrested in connection with the murder of the girl . They would be released 14 days later. During the weeks that followed, Sri Lanka would be gripped by shocking allegations of police brutality on one side, calls for extreme measures of punishment on the other while all the while there was growing confusion as to who exactly committed the crime. This is and would turn
 
out to be the ideal environment for the miscarriages of justice. With the dawn of October, allegations of the Kotadeniyawa Police abusing the two suspects seeped into public discourse and there was an uproar from all sides of society, at times overshadowing the murder investigation itself. Together with the allegations came rumours of discrepancies, lack of evidence and the investigation itself seemed to be in a state of confusion with several suspects, several DNA tests and several confessions to the crime. As soon as the boy and the man were released on the 1st of October human rights activists, lawyers, and related organisations got down to work and within a day a black mark was being cast upon the police force.

While the Ceylon Teachers’ Union (CTU) filed a case on the human rights violation of the boy due to alleged abuse on the 8th of October, on the 12th of October, the boy together with the other accused  made a statement before the Human Rights Commission of Sri Lanka (HRCSL). The meeting also included officers of the Kotadeniyawa Police. 


“This was an exhibition to the papers in response to public pressure” - Udul Premaratne
According Udul Premaratne, who was present at the HRCSL inquiry as the lawyer representing the two suspects, three key points were highlighted regarding the alleged abuse of the boy and the man. The first was the grounds for the arrests. With regard to the boy, one of the reasons cited by the police was a statement made by a teacher of his at school. According to the police she had said that he was an extremely unruly boy who had even been expelled from the school for bad behaviour. However according to
 
 
Premaratne the teacher had said that she had not given such a statement to the police and had also signed an affidavit that the boy was not unruly, and that he had not been expelled from school. A second reason given for the arrest had been the boy’s laptop.
Premaratne said this piece of evidence had been acquired only after the arrest had been made and therefore couldn’t count as a reason for the arrest itself. Furthermore it had been reported that there were pictures of the victim of the crime on the device. But there were pictures of the victim that had been found on the boy’s Facebook account being shared on social media.

A reason given for arresting the 32-year old individual had been because he had cut his hair after the incident, which the police had construed as being an attempt to hide his identity. However this claim too was refuted on several grounds. Firstly, four affidavits had been obtained from people of the area saying that after the finding of the body, the suspect had been helping out with the funeral arrangements. Another affidavit had been taken from the barber who had cut his hair that he [suspects] visits his salon to have his hair cut. In these circumstances there was no credible evidence for the arrests of either one of the suspects, Premaratne said. “While the police have the authority to arrest people on suspicion there must be reasonable suspicion and this power cannot be misused.” According to him 18 people have been take in for questioning so far and one individual had been held from the 13th of September to the 18th of the same month.“This was an exhibition to the papers in response to public pressure that ‘something’ must to be done about the incident,” he added.

The second key point was the date on which the two suspects were arrested. According to the police both suspects had been arrested on the Sept, 18. However this was false said Premaratne who had obtained signed affidavits from people of the area who had seen the two suspects being arrested on  Sept. 16. There were also affidavits from people who saw the two being held at the police station before the 18th of Sept. The process which should have been limited to 24 hours took three days since the two suspects were produced before courts only on the 19th of September
The third point was that of abuse. Premaratne said that there was substantial evidence of physical abuse on both the boy and the man with wounds to the knees of the boy and pain on the man’s spine. 

“The man had been blindfolded with a cloth and abused sexually. The boy had been kept kneeling for 7 hours,” he said.

The police had handed in a report to the Human Rights Commission with regard to the alleged abuse charges.

Premaratne also made special mention about the Negombo Judicial Medical Officer Dr. Rahul Haq who had submitted two contradictory reports as to the abuse of the suspects.

“In 2007 a similar incident took place with Dr Haq when a boy was killed after the police responded to a strike by students residing in the hostel of the Ruhuna University. Around 40 police officers had assaulted the strikers killing one. But Dr. Haq’s report on the dead student had said that the police had not assaulted the deceased.”

 The lawyer went on to say that an existing problem was that other than the Children and Young Persons Ordinance 1939 there weren’t enough laws to protect children in Sri Lanka. He said that while our constitution protected individuals against torture [as in the boy’s case]that resulted  in the victim not being able to go to school or step out into society, constituted a was a form of mental torture as it  would ruin his future.

He quoted an incident where an investigation had been carried out according to protocol. In June 2015, Kilinochchi was disturbed by the news of the rape and murder of a 3-year- old child. And within a month the perpetrator was found; a 15 year- old boy. However up until now, especially since the investigation is ongoing, the identity of the boy had not been revealed. This was because he was still a child. 


“The police can’t act like this” - Joseph Stalin
Joseph Stalin, General Secretary     of the Ceylon Teachers’ Union pointed out how all these statements with regards to the suspects had been taken only after the arrest.“The police can’t act like that,” he said.

He also said that during the period of detention there was an allegation that  a gun had been shoved down the mouth of the man by the police in an attempt to force him to admit to the crime.

With regard to the police response to the allegations of abuse he said they couldn’t possibly say they had not abused the suspects since investigation into alleged assault was still ongoing. He also said that with regard to the contradictory reports of the JMO, the HRCSL had decided that the JMO had broken ethics he was supposed to uphold.

He also said that the HRCSL has handed over all the information to a newly appointed commission and were awaiting their findings.


“The two reports have been mixed up by the authorities, leading to the confusion” - Dr. Rahul Haq
Meanwhile, Dr. Rahul Haq explained his side of the story when contacted by the Daily Mirror. According to him the two reports that had been submitted were with regard to two different incidents hence they were different in nature. The first report submitted on the 21st of September had been with regard to sexual injuries sustained by the victim. The second report, submitted on the 30th had been with regards to any alleged abuse to the 17- year- old boy. The problem has been that the two reports have been “mixed up by the authorities”, leading to the confusion. “The report has been submitted in English; so clearly there has been a problem with those concerned in understanding the language,”Dr Haq said.

He also said he had not given any reports to the HRCSL, nor has he been asked to appear before the commission and that he had given an explanation about the reports to the police in Sinhala as well to overcome any confusion. 


“Disclosure of identity can stigmatize a child and destroy his or her dignity” – Natasha Balendra 
Mrs. Natasha Balendra, Chairperson of the National Child Protection Authority (NCPA) said that the NCPA had written to the IGP and asked him to carry out an ‘independent, effective, and expedient investigation into whether there was sufficient evidence on which to remand the boy and whether he was physically or mentally mistreated while he was in custody’. In addition she said that it was necessary to formulate comprehensive rules on the detention of children in such situations. 

“The current law does not provide detailed guidance on how children in the 16-18 age group are to be treated when suspected of and remanded for a crime and the NCPA is considering the best course of action for developing such guidelines”. She further stated that the media too bears a duty and responsibility in cases involving a child as a victim or suspect in respecting their privacy and understanding how bad publicity can ruin the entire future of the child involved. Furthermore she added that the media should “focus more on the policy aspects of cases and what kinds of changes are necessary to strengthen the system rather than the painstaking details of individual cases”

“Section 365C of the Penal Code Amendment Act No 22 of 1995 lays down a fundamental condition for child protection. According to this provision the identity of any child victim of a specified crime cannot be revealed in any manner (even after death); nor can any court proceedings be reported without the permission of that court. All persons including government officers and media personnel are bound to conform to this rule. The identity of a child – both victim and suspect – and the confidentiality of the case must be preserved because disclosure can stigmatize a child and destroy his or her dignity before society.” The NCPA has been in constant communication with the boy and his family and is working with them to ensure that the future of the boy is protected and not tarnished after this incident.


“A lack of due process was seen in relation to the arrest of the 17- year- old boy” - Dr. Prathiba Mahanamahewa
Human rights lawyer and former Commissioner of the Human Rights Council of Sri Lanka, Dr. Prathiba Mahanamahewa highlighted the fact that not only has Sri Lanka signed and ratified the 1993 Convention of the Rights of the Child but it has also amended the 1995 Penal Code to protect children and introduced new offences such as incest and child trafficking. Sri Lanka has also established a system of child care with 43 branches of the Women and Children’s Bureau being set up at police divisions and a unit at every police station to investigate related incidents. Every divisional secretariat also has a child protection officer. Therefore it is evident that the system is in place together with the requisite laws. However, according to him problems surface in their implementation.
According to Dr. Mahanamahewa the police are unaware of laws such as the Children and Young Persons Ordinance 1939, which are in place to protect them, as well as international laws which have been incorporated into the local legal framework.

 He also said however that the police cannot be blamed to the fullest extent since they were responding to the emotional clamour of people especially in the Kotadeniyawa area, for an arrest to be made in the light of the brutality of the crime. However he said,” But [police] in doing so cannot neglect the due process and must have sufficient evidence and make the necessary inquiries [ before making arrests].

“A lack of due process was seen in the arrest of the boy. Eventhough the mother of the boy had stated that her son was with her during the time in question he had nevertheless been arrested. The only substantive evidence that had been entered to link him to the crime had been his laptop. This piece of evidence had resulted in the “inquiry going another way”. While the charge had been rape and killing of the victim the only cause for concern had been the obscene images uncovered on his laptop. According to Dr. Mahanamahewa, as per the Obscene Publications Ordinance of 1927 as amended in 2005, an arrest cannot be made for merely keeping obscene material or objects. The offence is sharing them. Furthermore if an arrest is to be made the charges need to be informed to the suspect. For the  boy to be arrested or prosecuted for an offence of obscene images a separate charge needed to have been made using another procedure with the use of a search warrant. This had not been done. Dr. Mahanamahewa also said that not following this procedure was a “violation of the 1993 Convention of the Rights of the Child in terms of his dignity, education and privacy”. Furthermore the allegations of abuse that had been inflicted on the boy, if proved, were clear violations of his right to be free from torture. The fact that his DNA did not link him to the crime meant that he could not be connected to the case. Dr. Mahanamahewa further mentioned that publishing the boy’s name and his picture had been further violations of his rights. If such was the case, the doctor went on to comment that people who posted obscene media on social media sites needed to be arrested as well for causing greater harm to a wider group of people.

The boy who had passed his scholarship examination, has been cleared by  the magistrate’s court but Dr. Mahanamahewa said that he should go to courts regarding the violation of his rights. He added that the public should refrain from making derogatory statements with regards to the boy and that both “society and religious groups should get together and promote his education” together with counselling services. Not only was it unfair by the boy who was a victim of injustice, it was also “unfair by little Seya to arrest the wrong people.”

The doctor further advised that the man who had also been wrongly suspected should claim for compensation since there was nothing to prove his link to the crime.

Looking back at the last month several things are clear. The first, is the dire need for policy enactments and laws with regard to the protection of children. Enactment is only half the solution. Implementation is as, if not more important. The second is the effective meting out of justice. This involves a balance of the principles of due process and crime control. More often than not, when it is a crime that touches  the heart of society than any other crime,  public pressure for swift justice pushes more emphasis on arrests than due process since society would prefer to see the law in operation than valuing the rights of the accused. A prime example of this was the call for the death penalty to be implemented. Unfortunately the equal importance of the due process came at the expense of two people this time. 

The Dailymirro attempts to get in touch with the Sri Lanka Police to record their response to these allegations were of no avail.
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