May 12, 2016
Dr. Deepika Udagama
Chairman,
National Human Rights Commission
Head Office,
No. 165 Kynsey Road,
Borella, Colombo 08
Sri Lanka
Dear Dr. Deepika Udagama,
Request for special action regarding Ms M K Malani, presently being held at the Dumbara-Bogambara Prison – tortured, sexually abused and incarcerated under fabricated charges by Nawalapitiya Police
The Asian Human Rights Commission is bringing this case to your notice as a case that requires, special attention given the grave violations of human rights involved and continuing imprisonment of the victim on fabricated charges.
This case may have come to your notice already. In any case we set out the basic facts of the case below;
THE CASE NARRATIVE:
According to the detailed information received by the Asian Human Rights Commission (AHRC), Ms. M K Malani, 38 years old, was a resident of a line-house (estate housing) at Dholosbage Estate in Nawalapitiya, Kandy District. She was married to Mr. R.P. Rengan Selvam and they have six children, the youngest being a son aged five years. The family is poor and destitute. The husband was a laborer, while Malani supported the family by plucking tea in the tea-estates. Mr. Selvam was addicted to liquor and as a result she suffered regular domestic violence. When she was expecting their sixth child she was severely assaulted by her husband and was treated in hospital for several months.
Due to the abuse, Malini had started a relationship with Nadaraj Thambiraj Shivakumar, and left her husband to live with him, taking her youngest son with her. She has been living with Nadaraj for the past five years. In early January 2016, Rengan extended an invitation to Malini and her new husband to visit him and expressed eagerness to see his youngest son.
On January 5, Malani, Nadaraj and her youngest son visited Rengan, and during the visit Rengan in his usual behavior started to hurl abuse at Malini. Later at around 10 p.m., he assaulted Malini and pushed her to the ground, at which both she and Nadaraj with their son left for Malini’s parents’ house.
On January 7, Malini learned that Rengan had been killed. She immediately visited the Gampola Police Station to make a complaint, but the police refused to accept her complaint since Rengan’s residence is not situated within the Gampola Police Division. Instead, the police officers informed her that some police officers from the Nawalapitiya Police Station would be arriving and she could go with them to the Nawalapitiya police station to lodge a complaint.
Several hours later several police officers attached to the Nawalapitiya Police Station arrived, and asked Malini to go along with them to the Nawalapitiya Police Station in the police jeep, to which she agreed.
At the Nawalapitiya Police Station, Malini asked some officers to record her complaint. Having waited for some time, she realized that the officers instead began to continuously question her about the incident. The officers then accused her of killing Rengan and implicated Nadaraj in the killing as well. She vehemently refused the allegations. Malini also observed that the police officers did not start any investigation regarding her complaint, nor did they ask about any details of the crime or the crime scene. The officers only continuously harassed Malini to admit to the commission of the crime.
After several hours of questioning, Malini was taken to an upper floor of the police station by Criminal Investigation Department (CID) officers, and her son was separated from her at that time. While she was being interrogated about the murder, to which she confessed not knowing anything, several police officers started kicking and assaulting her with their fists. She was then asked to keep her hands on the floor and police officers trampled on them with their shoes. She was assaulted with a plank and her clothes were torn and chili paste was rubbed on her face. Later she was hung from the ceiling with both hands tied and she was verbally abused and severely beaten. When she asked for water, she was told to urinate and drink. Her clothes were then removed and the CID officers started to sexually abuse her. Once again she was hung from the ceiling and severely beaten. In the night when she cried out in pain, she was given some balm while her son was watching her.
Several days later, on January 10, she was finally produced before the Magistrate of Nawalapitiya and remanded at the Dumbara- Bogambara remand prison in Kandy. She was once again produced before the Magistrate on April 1, and continues to be in detention.
Matters arising from the above narrated facts
1. Torture of Ms M K Malani, a woman of 38 years old, aggravated also by the fact that the torture took place in front of her 6 year old child.
2. Sexual abuse by policemen
3. Incarceration under fabricated charges
A short comment on each of these violations;
1. As pointed out by the UN Special Rapporteur on torture and other cruel inhuman and degrading treatment or punishment, Mr Juan E Mendez, torture and ill-treatment remains common practice in Sri Lanka and there are cases involving brutal forms of torture taking place. If the facts narrated by the victim in this case is correct, then this is one such case.
The Special Rapporteur has also pointed out how torture remains the means by which information is collected in criminal investigations. This again is a case in point. According to the narrative by the victim no questions were asked nor were there any credible investigation conducted before arresting her for the murder of her husband whom she had left five years ago. She went to the police station on hearing of the death of her husband to make a complaint and instead, she was arrested and questioned on allegation that she has murdered her husband. What was the basis of this allegation?
It is not difficult to figure out whether there was any credible basis to baseany allegations against her by examining the relevant books which should be in the possession of Nawalapitiya Police. It is possible for the Human Rights Commission, either directly or through Superior Officers to examine these documents. In any event, the victim alleges that she was tortured. It is possible to verify her allegations on this matter through forensic examination. Though sometime has lapsed it is possible by forensic means to verify whether she has been subjected to torture.
In a situation such as this, we very respectfully submit that the Human Rights Commission of Sri Lanka, has the power and the duty to have the victim examined forensically, and thereby be in a position of verifying her allegations. We are sure that the Commission will share the concern that if the allegations are prima facie credible, allowing her to suffer further incarceration itself would constitute violations of her basic human rights. A torture victim in her position deserves to be examined as fast as possible and if any relief is to be genuine it should begin with intervention to end her incarceration.
Therefore, we would first of all, respectfully request the Commission to cause her to be examined by a forensic pathologist and thereby commence investigation into the allegation of torture at the earliest.
In this case the allegation of torture and incarceration are linked. If the police had independent evidence of her being involved in the murder then why was there a need to torture her in the first place? The torture suggests that the police were attempting to extract information forcibly. Why was there such a need? Thus, if the allegations of torture is prima facie correct, then it also points to the fact of an illegal incarceration, and a falsified case. If the case is falsified, then the issue is, as to why the police needed to falsify a case. This again takes us to a serious matter relating to human rights in the present context of Sri Lanka. It is a well-established fact that a large section of police officers in Sri Lanka are incompetent and are not qualified to carry out criminal investigations , particularly into serious cases such as murder. It is a publicised fact that about 29,000 police officers were recruited as reserve officers in 2006 and this was done without any reference to any criteria or verification of any qualifications. This means almost one third of the police force in Sri Lanka can be said to be disqualified for any serious investigations into crimes by the very nature of their appointments. These reserve officers have now graduated into various higher ranks in the service, despite of their lack of qualifications. It is a matter of concern for all those who are concerned with human rights to take up this matter seriously and in particular when the cases like the present case arise, where there is a clear indication that the process of arrest, detention and incarceration have all been done, without following any legal or procedural rules.
2. The victim alleges sexual abuse. The Human Rights Commission is aware that sexual abuse while in custody, ranks among the gravest crimes and also amounts to torture. An allegation of sexual abuse while in custody requires, immediate reaction on the part of everyone who owes legal obligation for investigation. We therefore, urge that the Human Rights Commission would cause an inquiry into the matter immediately. If the allegations are found to be prima facie correct, then would take the necessary actions on the one hand to assist the victim of such sexual abuse and on the other to take action against the perpetrators. Again, the issue of incarceration on fabricated charges and the sexual abuse if correct, is deeply linked. Can the accusers against individuals be also the perpetrators of her sexual abuse? There is an enormous incongruity between those who are prosecuting a person when they also are alleged to have been involved in sexual abuse of the suspect. We believe that the Human Rights Commission will appreciate the grave miscarriage of justice involved in such a situation.
Therefore, instead of letting the victim suffer incarceration further, it would be the duty of all those who are involved in the protection of her rights to raise this matter of a grave injustice involved in those accused of sexual abuse be also the persons involved in pursuing criminal charges against the victim.
Both the accusations of torture by assault and also sexual abuse in custody which also amounts to torture would place the victim in a position to deserve psychological assistance at this stage. As the UN Rapporteur against torture and ill treatment has raised this issue of psychological assistance, and treatment we would respectfully request the Human Rights Commission to take this case up as one of the first instances in which the Commission takes an active stance to provide such assistance to this victim and thereby recognise her right to receive such assistance.
3. Continued incarceration
If the victim’s version is true, then she has suffered torture, sexual abuse and is being incarcerated on the basis of request by the same persons who cause the above mentioned violations of human rights. We strongly recommend the Human Rights Commission to begin to establish the principle that arrest is prima facie illegal as is the most fundamental position in the common law stated very clearly already in 1861 by A V Dicey. (The full quote for your easy reference is as follows)
“The right to personal liberty as understood in England means in substance a person’s right not to be subjected to imprisonment, arrest, or other physical coercion in any manner that does not admit of legal justification. That anybody should suffer physical restrain is in England prima facie illegal and can be justified (speaking in very general terms) on two grounds only, that is to say, either because the prisoner or person suffering restraint is accused of some offence and must be brought before the Courts to stand his trial or because he has been duly convinced of some office and must suffer punishment for it. Now personal freedom in this sense of the term is secured in England by the strict maintenance of the principle that no man can be arrested or imprisoned except in due course of law i.e. (speaking again in very general terms indeed) under some legal warrant or authority and, what is of far more consequence, it is secured by the provisions of adequate legal means for the enforcement of this principle. These methods are twofold; namely, redress for unlawful arrest or imprisonment by means of a prosecution or an action, and deliverance from unlawful imprisonment by means of the writ of habeas corpus”.
It should be the duty of all who are concerned with law and human rights to resist the easy manner in which, people are being sent to remand prisons in Sri Lanka merely on the allegations by the police. Particularly in instances like the present one where the conduct of the police is highly questionable there is ample justification to question the police version of the events in this case. It is not difficult to find out at all whether there was independent evidence which would justify a reasonable suspicion that this victim is in fact involved in this crime. If it is not so, it is the duty of all concerned to see that she be released. It is within the power of the Human Rights Commission to point out to an illegal detention when there are strong grounds to do so.
In raising the following issues what we are attempting to do is to take up the issues raised and recommendations made by the UN Special Rapporteur on torture, Juan E Mendez, preliminary observations following his visit to Sri Lanka in May 2016. We believe that the Human Rights Commission as consisting of today is competent and quite capable of providing a credible leadership in dealing with serious abuses of human rights as those alleged by the victim in this case.
We would also like to assist the Human Rights Commission by making the following suggestions in order that it may discharge its duties diligently and also without delay.
We would like to suggest that the Human Rights Commission request the professional assistance of forensic doctors, and psychologists, on a voluntary basis to assist them in their inquiries. We are aware that there are many conscientious pathologists and forensic experts as well as persons qualified in the field of psychology are available in Sri Lanka and are willing to assist in inquiries of this nature if they are requested to do so. Perhaps the Human Rights Commission should form groups of such persons whose assistance could be called upon whenever the Commission requires such assistance. Given the peculiar circumstances of Sri Lanka and the constraints on budgets and others such matter which are unfortunately impediments standing on the path or protection of human rights the Commission can develop suitable methodologies to enhance its work which are contextually justifiable.
We take this opportunity to also state that the Asian Human Rights Commission will be willing to assist in any manner possible, if the Commission requires any such assistance. What we are concerned about is of raising the levels of protection of persons with the efforts of the Human Rights Commission as well as community resources, so that debacles caused by particular political circumstances in the country could in some way be overcome in the area of the protection of the rights of persons.
Thank you,
Yours Sincerely,
Bijo Francis BasilFernando
Executive Director Director of Policy and Programmes
P.S. For the purpose of public education we will publish this letter
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