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On June 3, 2002, Gerald Perera was brought as a healthy person without any injuries to the Wattala Police Station. When he left, he was seriously injured. The court, when it heard the criminal trial against six police officers, agreed with the prosecution that the injuries had happened inside the Wattala Police Station.
However, as there were no eyewitnesses as to who tortured Perera, the court acquitted the officers. Even though the crime took place inside a police station, the state of Sri Lanka was unable to prove who was responsible for the torture.
Inside the police station, when people are tortured police officers do not do so in front of others. Therefore, the only possible eye witness who could give direct evidence about the actual perpetrators is the victim himself. However, in this case the victim was later killed to prevent him giving evidence. The state has filed a separate murder charge against the first accused in the torture case, who was acquitted on Wednesday.
If a lesson is to be learned from this case by perpetrators of torture, it is that if they wish to avoid liability for torturing people the best method is to kill the only eyewitness, the victim himself. Therefore in Sri Lanka torture victims face two perils: one is to be tortured in the first place and the second is, if the state takes any action against the torture, to be killed before the trial.
There is another lesson the perpetrators may learn: that it's best to kill the victim during torture rather than allow him to survive. Once a victim is dead there is no eyewitness evidence. This is the terrible lesson that the law enforcement officers may put to their advantage due to the final result of this case.
The attorney general who prosecuted this case, Deputy Solicitor General Shaweendra Fernando, tried to make use of a well-established legal principle that once it was established that the injuries had been caused in police custody, if the accused police officers were unable to give a plausible explanation of their innocence they should be held guilty. This principle based on a legal norm established in 1814, known as the Ellenborough principle, and has been adopted in many cases in Sri Lanka in determining criminal liability after a prima facie case is established in which the accused officers cannot give a plausible explanation.
In India this principle has also been well established. In the case of Nilabati Behera alias Lalit Behera vs State of Orissa and others the Supreme Court of India held:
"Unless a plausible explanation is given by the respondents which is consistent with their innocence, the obvious inference is that the fatal injuries were inflicted to Suman Behera in police custody resulting in his death, for which the respondents are responsible and liable."
The deputy solicitor general presented evidence to establish that throughout the whole period when Gerald Perera was in police custody these six police officers, who worked as a team, had sole custody and control of the victim. On that basis he invoked the Ellenborough principle.
However, the trial judge wanted direct evidence of torture -- which is an impossible condition to fulfill in many torture cases, and particularly in this case when the victim had been killed to prevent him giving evidence. On the other hand the Supreme Court of Sri Lanka, in a judgment delivered by Justice Mark Fernando and two others in the same allegation of torture, held several of the police officers to be guilty of torture.
This judgment could have an impact which could cause a great threat not only to victims of torture but to all witnesses. In criminal cases there may be a greater resort to the killing of witnesses as a way to defeat the prosecution. This is a matter that the state must now address.
From a moral point of view, helpless citizens in the country who are tortured inside police stations will find that this case creates a precedent about a burden of proof which they cannot fulfill. Therefore, the very purpose of laws which are there to protect people from torture may prove futile in the future.
In fact, this matter was pointed out earlier by the former chairman of the Human Rights Commission of Sri Lanka, Dr. Radhika Coomaraswamy. The attorney general should study this case and take appropriate action before the appeals court to reassert the correct position of law in this matter.
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(Basil Fernando is director of the Asian Human Rights Commission based in Hong Kong. He is a Sri Lankan lawyer who has also been a senior U.N. human rights officer in Cambodia. He has published several books and written extensively on human rights issues in Asia. His blog can be read at http://srilankalawlessness.blogspot.com.)
