Sandun Malinga FR Judgment; A silver lining in a very dark cloud

No one has to live in fear of those who are sworn to protect them.
-Amnesty International 

In a country where tens of thousands of youth have been killed on the streets after being abducted and  tortured, where political leaders, lawyers and even artists have been extra judicially killed in the custody of the police or the security forces, where assault, threats, intimidation,  verbal abuse by authorities in uniform are a very common occurrence, where suspects in remand  die in incomprehensible ways even after the authorities being forewarned of threats to their lives, the life of one single youth, a 17 year old boy, namely Sandun Malinga of Meegaskiwula in the Badulla District might sound insignificant. 

In fact, the value of his life seemed to have been insignificant to the five police officers and the civil defence officer who beat him till he received fatal injuries in a dark night in May 2014. In a rare show of justice being done, the six officers attached to the Kandeketiya Police station who assaulted Sandun and four other persons were brought to justice and sentenced to death by the High court of Badulla in the year 2017. Last month, on May 21, 2021, the Supreme Court decided that the Fundamental rights of Sandun, on whose behalf, his mother sought vindication, and the four others had been violated by the Police Officers and granted compensation to Sandun’s mother as well as the other four individuals who were assaulted by the Kandeketiya Police in May 2014.

"The same old fairy tale story of a suspect trying to escape or to throw a bomb at the police is publicized over media. Even a kindergarten child does not believe in such fantasies. They are and will remain extra judicial and cold blooded murders of persons in state custody"

To cut a long story short, Sandun and four other persons were taken in to police custody on May 7, 2014 in the Katawatte area where they had visited with the intention of buying a three wheeler. The policemen from the Kandekatiya Police station along with a Civil Defence Force personnel had assaulted them, taken them into custody on charges of treasure mining, inhumanly and brutally assaulted them and after being produced before the Passara Magistrate, they were remanded. While all five individuals have been attacked mercilessly, Sandun was singled out and beaten intensely, developed chest pains and upon being admitted to hospital succumbed to his injuries received as a result of the brutal assault. 

Fundamental Rights violation 

Although it was a rarity, Sandun’s mother was able to sue the police officers as well as other state officials such as the JMO, Prison Authorities etc. on grounds of violation of fundamental rights of her son. Other petitioners too, filed action invoking the jurisdiction of the Supreme court on violation of their rights guaranteed by the constitution against Torture, Cruelty, inhuman and degrading treatment (Article 11), Right for equal protection before the law ( Article 12-1), and the right not to be arrested other than through the due procedure established by the law ( Article 13-1).

In arriving at the decision that the fundamental rights guaranteed by the Constitution of the Deceased Sandun Malinga and others have been violated, the Supreme Court goes on to appropriate blame on the other individuals representing the state such as the Passara Magistrate, The DMO and the Prison authorities for neglecting their duty and not exercising the mandate to perform official duty with due diligence. While the police officers who led and participated in the brutal and inhuman attack has been sentenced to death and now find themselves liable to pay compensation personally, the other officials who were under duty to safeguard the right to life of the unfortunate victim of that brutality, are going to escape only with a reprimand. There is no legal action taken against them for criminal negligence in performing their duty. 

A legacy of brutality

Lawyers and human rights activists have lost count, figuratively speaking, of suspicious deaths in police custody. It was barely a month ago and incidentally only days before this significant judgment of the Supreme Court on May 17, that Uru Juwa and Kosgoda Tharaka were murdered in cold blood while in police custody in two separate incidents within a few days apart. Despite the notoriety of the suspect apprehended, there is no right for the law enforcement to take upon itself the role of the prosecutor, Judge and executioner all in one. More so, in a context where the BASL has written to the IGP forewarning of a threat to the lives  of these individuals; where lawyers have written to the IGP and the Prisons Commissioner to ensure their right to life in the face of imminent threat to their lives. Despite all that forewarning; and even the social media suggesting the possible assassination of these suspects, their deaths took place and hardly anybody is being held accountable. The same old fairy tale story of a suspect trying to escape or to throw a bomb at the police is publicized over media. Even a kindergarten child does not believe in such fantasies. They are and will remain extra judicial and cold blooded murders of persons in state custody. Yet the aura of impunity that hovers around those in uniform, do give confidence to the perpetrators of these heinous crimes who do them for political patronage or filthy lucre. 

In addition to notorious underworld figures and drug peddlers, about whose suspicious deaths there is divided opinion in the broad society, police brutality against those who are not perpetrators of organized crime do take place unchecked. It was on May 17, that 49-year-old Sunil Indrajith, a father of three children, was murdered when he went out to get food for the family after informing the police and health officers of his going out. It is now public knowledge that two policeman had asked another man to beat Indrajith, and after he fell on the road, a bus ran over him. The entire incident was caught on camera and went viral on social media. Yet the two policeman, were reportedly arrested for neglecting duties.

On June 3, a youth by the name of Chandran Vidushan died in the custody of the Eravur Police, where despite official claims that he died of ICE intoxication, the reports did indicate physical injuries. On June 6, 42-year-old Mohamed Ali, died in the custody of the Panadura North Police where officials claim of him jumping off the police jeep when taken in for quarantine violation, has been refuted by his wife who claims he was assaulted. Two policemen were arrested and the present state of the proceedings is unknown. 

Prisoners too, are Humans?

The brutality and utter callousness shown towards prisoners is also shocking and continues in violation of their universally accepted rights. 16 prisoners who protested against appalling conditions they were subjected to, specially, with the COVID virus rapidly spreading in prisons, died in an out – of - proportion and excessive response of the officers in four prisons last year.

Despite reprimands by the Human Rights Commission of Sri Lanka, requests by the Bar Association as well as national and international rights groups, the atmosphere of impunity that surrounds everything done in official uniform, continues. A blanket immunity given to the security forces and law enforcement during civil war and insurgencies in the South seem to have taken roots in this land. The Supreme Court Judgment in the Kandaketiya murder of an innocent young man is the only one streak of silver lining in a very large and interminably dark cloud of official brutality and impunity.
 Yet, it is something to look up to and pick on.