Focus on Rights

My last recollection of Gerald Perera at a group discussion bringing together victims of human rights violations as well as human rights defenders and lawyers in Ja-ela in 2003 is still vivid in my mind. He was a quiet if not self effacing man, measured in his talk and catapulted out of a matter-of-fact life by a string of extraordinary events that offer a superbly apt example for much that is wrong in Sri Lanka today. Despite his quiet self possession, there was a sense of jubilance about him. This was soon after his fundamental rights plea alleging brutal torture by police officers of the Wattala police station had been upheld by the Supreme Court and an unprecedented award of compensation given.

Gerald had been arrested not because he was suspected of having committed some petty crime like some others. Instead, his arrest was due to his being mistaken for another criminal known also as 'Gerrad.' Thereafter, this entirely guiltless and hard working employee at the Colombo Dockyard, preoccupied only with maintaining his family, was brutally assaulted by police officers to the extent of renal failure. Holding not only individual police officers but the inspector-in-charge responsible for 'knowing and acquiescing' in the torture, the judgment (per Justice MDH Fernando writing for the Court in Sanjeewa v Suraweera, 2003 [1] SriLR, 317), was to be a locus classicus on the responsibility of officers in charge of police stations in respect of abuses committed 'under their command.'

Despite his straightened circumstances, the money directed to be paid to Gerald by the Court meant little to him. Indeed, a major part relating to reimbursements for his medical expenses had not been paid. But what compelled his jubilance was the fact that the Court had recognised that he had been wronged. This sufficed for him. It was an example of the great sense of justice that ordinary Sri Lankans possess; unlike in other rarified fora in this country where money dominates the actions or inactions of people. In contrast, Gerald Perera knew instinctively the worth of what was really important.

A short one year later, Gerald was killed by his very torturers, incensed by the fact that a humble man had taken the case against them so far. He was shot in broad daylight some days before he was to give evidence in the trial in terms of the Convention Against Torture Act No 22 of 1994 (CAT Act) passed by the government to give effect to the United Nations Convention Against Torture and Other Cruel, Inhuman Or Degrading Treatment or Punishment. The totality of the circumstances that aided this cold blooded murder was stark. The officer in charge of the police station had been continuing to function in his office despite the adverse finding of the Court. Threats had been dealt to Gerald and members of his family, supposedly at his instigation and the other torturers, some of whom had been named in the indictment in the CAT Act. Witness protection had been asked for, from the Government but not given. And so, the context was just right for Gerald Perera to be mercilessly killed.

But the reason as to why I return to this troubling story is that this week, Gerald Perera's torturers were acquitted in the High Court trial under the CAT Act. To the uninitiated, this may seem infinitely puzzling. How is it that the Supreme Court could deliver judgment imposing responsibility on police officers for the most heinous torture and yet, these very same officers to be let off with nary a slap on the wrist by the High Court?

Reportedly, the prosecution's contention was that Gerald Perera was completely in the custody and the control of the six accused police officers during the relevant period, that the accused had to give a plausible explanation as to how the victim came about the injuries in a manner that proves their innocence and that failure to do so must operate adversely to their interest (per the Ellenborough dictum as stated in Rex v Cochrane (1814 Gurneys Report 499). The High Court of Negombo however acquitted the accused police officers on the basis that there was no direct evidence implicating the police officers named in the indictment, even though the Court accepted the fact that Gerald Perera was a hale and healthy man when brought into the police station but had suffered multiple injuries when taken out of the station. Concern was also expressed as to why the inspector-in-charge of the Wattala police station had not been named in the indictment.

The High Court's insistence that no direct evidence of witnesses regarding the torture by the accused of Gerald had been placed before the Court is in immediate contrast to the Supreme Court's finding in response to the direct involvement in the acts of torture by at least one of the accused in the criminal indictment, also named as a respondent in the fundamental rights application. On the facts themselves therefore, there appears to be a fundamental discrepancy between the evidence adduced in the High Court as contrasted to the Supreme Court.

On another level however, the reticence of the High Court to apply the Ellenborough dictum to the facts of this case was marked. This dictum has been applied in many cases in Sri Lanka where a strong prima facie case has been made out against the accused. Recently, the Supreme Court declined to uphold the convictions of the accused police officers in the Bindunuwewa rehabilitation centre massacre on the application of this dictum after consideration of all the circumstances of the case and concluding that the requisite prima facie case had not been made out. As open to criticism as this reasoning was, there is no doubt that the factual circumstances in the Gerald Perera's torture prosecution was vastly different to what prevailed in relation to the Bindunuwewa case. In the circumstances, a full examination of the doctrine would have been opportune.

The operation of the CAT Act itself has not been marked with any spectacular success since the fourteen years of its enactment. According to available statistics, only a pitiful three convictions have resulted amidst several acquittals. Indictments are held up for long years and the trials themselves take even longer. It is time that the working of the CAT Act and prosecutions thereto are subjected to rigorous review in order to actually justify the assertion of the Government that this was a law passed in order to give effect to our international obligations. This is an issue that is now very much in prominence with the GSP+ controversy. What is the point, after all, to have laws boasting of grandiose titles such as the CAT Act and the ICCPR Act if such statutes are manifestly worthless in practice? What is the point of the Supreme Court delivering judgments in respect of Article 11 (freedom from torture) violations when the relevant criminal prosecutions fail in manifold respects?

Insofar as Gerald Perera's case itself is concerned, the fact that his killers had been indicted for his murder and the case is currently pending, is merely a footnote to this story so far. Not much can be expected from this murder trial even if those indicted are convicted. The message of impunity that has gone out is far too powerful to be affected by a murder trial that can take years to finish and then, even thereafter, take several more years in the appellate courts. For Gerald Perera, the story is, of course, over. For his wife and their children - and indeed for those of us hoping to bring about a more decent society to live in, the struggle will take many more tormenting years.

A poignant story of injustice