Custodial Deaths : Who will watch the watchmen? | Sunday Observer

Custodial Deaths : Who will watch the watchmen?

A Magisterial inquiry has been launched into the recent death of a suspect in Police custody in Matara but concerns are rife that it will go the way of dozens of other similar cases since police must investigate itself in these incidents, as lawyers and rights activists continue their call for independent investigators to look into custodial deaths

On June 23, underworld figure Chamara Indrajith, one of the main suspects of the Matara Nileka Jewellery store heist met his end in the Kirala Kele area when he was shot and killed by the Police. According to the Police, Indrajith was taken to retrieve a clothing bag belonging to him when he hurled a grenade at the group of Policemen accompanying him. But the story seemed all too familiar. Sri Lanka Police, in fact, has a chequered past linking them to a large number of serious cases of torture and custodial deaths, even noted by the United Nations in recent times. Following this incident, activists claimed the incident clearly showed signs of an extrajudicial death and demanded an independent inquiry. While previously the Human Rights Commission of Sri Lanka had proposed the introduction of an independent investigation team to look into such cases, legal experts point out that amendment of the existing laws to facilitate such a group remains a main obstacle for its formation.

Currently, according to the existing due process, once a custodial death is suspected, a Magisterial inquiry commences where the Magistrate calls for investigative reports from all relevant authorities, including, the Police. A superior officer in charge of the division where the incident occurred is often tasked with heading the Police investigation into the issue.

According to Police Spokesman SP Ruwan Gunasekara, the Magisterial inquiry into the death of Chamara Indrajith is currently ongoing. “The Police have submitted the information of initial investigations conducted by them,” he said.

But many activists have taken issue with the practice which they feel is giving the opportunity to the Police to conduct an investigation against themselves, which goes against basic conflict of interests. According to them, the investigations could often be biased. A fact that the Police denies. “Everyone is given a fair chance to give their statements,” SP Gunasekara said. Nevertheless, some activists feel an independent body apart from the Police needs to be introduced to investigate into issues such as custodial deaths in a bid to ensure fairness and avoid a conflict of interest.

Following the death of a 17-year-old in Police custody earlier this year, the Human Rights Commission of Sri Lanka (HRCSL) called for a supplementary judicial mechanism dedicated to deal with the continued problem of deaths in custody.

The Human Rights Commission of Sri Lanka has also commenced an investigation into the recent custodial death in Matara, with teams dispatched to inquire into the incident and witnesses summoned to give statements before the Commission. According to an investigator attached to the Commission, a second inquiry has now been called for. “Statements and information from the Police and officers involved were recorded in the first inquiry,” she said, adding that other witnesses will be given the opportunity next. But, as both investigations lumber on, activists wonder if this would be yet another forgotten case where the Police will be able to get away scot free.

Janasansadaya is an organisation that has been working over the years towards gaining justice for those tortured or killed by the Police. Secretary of the Organisation, Chitral Perera says, the public and victims have no confidence that the Police will conduct a free and fair investigation into such incidents. According to his experience, he says, often the tortures or deaths are swept under the carpet only to be forgotten. “There have been instances where they have been investigated and the officers involved dealt with,” he says adding that however, this only happened when there was no political influence or pressures and third parties also exerted pressure requesting a thorough investigation. He says, trust can be better placed in the Police Criminal Investigations Departments Special Investigation Units to do a fair investigation.

The landmark case of Lasantha Jagath Kumara, an Army deserter, in 2000 is a prime example of this. “He was tortured and killed by the Payagala Police, but the investigation was conducted by the SIU of the CID instead of the regular Police”, Perera says. Following the probe, the Police found the officer involved as being guilty, and is going on to charge him with murder. According to Perera, around 90 cases are now being heard where the Police has filed legal cases against its own officers for torture and custodial deaths. “So action is being taken”. However, Perera says, it is not satisfactory. He believes, the issues of independence of Police investigations can be resolved if the investigations are not interfered with by political forces with due attention paid to the cases by the media.

Apart from the Police investigation, Perera says, the main fault is in the country’s judicial system. “Why can’t they assure that a proper investigation is done?” he questions.

“Most of the time it appears the courts are biased towards the Police and appear to only listen to them,” he says, pointing out that only in a handful of instances have they expressed doubts regarding the Police version of events and ordered them to conduct a more thorough investigation. “More often than not, judgement is given that it was a fair killing due to self-protection,” he says.

Yet another example in the Magistrate visiting the site of the incident, it is commonly the acting Magistrate that is sent. “Often, the person is a senior criminal lawyer in the area and most of them work with the Police and have a close relationship with them,” he says. According to Perera without addressing these issues he doesn’t believe problems surrounding unsatisfactory investigations into custodial deaths can be resolved.

A currently sitting magistrate agrees. “Magistrates can push the Police to ensure they present proper facts and do a thorough investigation,” he says. But according to him, they do not do so for reasons unknown. “Police often use delaying tactics in presenting facts, and while Magistrates have the power to take action against such issues they seem to hold back,” he said. Former Commissioner of the HRC and Senior Lecturer, Faculty of Law, University of Colombo Dr Prathiba Mahanamahewa points out that under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment Act of 1994 indictments for cases of torture and possible extrajudicial killings can be directly filed in the High Court, foregoing the process of a Magisterial inquiry. “We must use this law in relevant cases,” he says, adding that at the moment it is being ill utilised. With new High Courts being introduced to exclusively hear cases of Bribery and Corruption, Mahanamahewa suggests that cases of Police torture and custodial deaths should also be taken up by these courts.

As for introducing a special judicial mechanism and an independent body to conduct the investigations, the problem lies with the country’s Criminal Procedure Code which only allows the Police to conduct Criminal Investigations. “To allow such an independent mechanism the law must be amended or brought into effect through a special gazette,” he says.

As for forming an independent body to investigate custodial deaths Perera too questions its practicality. “If such a body is to be introduced without amending the laws it will have to be a Presidential Commission with powers to take action against wrongdoers,” he says.

“Even then the public has not seen any legal cases being filed after their findings. So what is their point?” he questions. According to him appointing such a Commission for every such case is a silly move and cannot be done.

Therefore, Mahanamahewa says, till the necessary changes are hopefully made the responsibility of ensuring the independence of Police investigations lies solely with the National Police Commission (NPC).

However, the NPC says, with its introduction there is better control of the conduct of the officers now. While the Commission has powers to investigate public complaints of possible custodial deaths, Chairman of the Police Commission P.H Manatunga says, if there is a sign that there is criminal activity, then they do not have the mandate to investigate further making their scope limited, as investigations then would have to be conducted under the Criminal Procedure Code. “We have no authority to record statements which can be admissible in courts,” he says.

Manatunga says, however, he understands that the public are not in favour of the Police itself investigating issues such as torture and custodial deaths. With international focus also narrowing on the actions of the Police, the Commission has now introduced a Public Complaints Investigations Bureau with independent investigations officers to look into public complaints.

But Mahanamahewa says, he feels the NPC does not have full control of the situation yet. “Three days ago a woman caught selling heroin was tortured at the Dickwella Police, where was the NPC then?” he questions. With the NPC not even being able to visit Police Stations without informing them prior to the visit, Mahanamahewa expresses doubts about the NPC’s claims of control. Calling the Public Complaints Investigations Bureau a good move, however, Mahanamahewa says, their process and action taken must be publicised to gain public confidence.

However, the Commissioner says, the NPC can investigate to find out whether the Police has done their duty. “If they conduct investigations in a biased manner we can investigate to check whether they have violated the Police Disciplinary Code and take action against offending officers” he assures. But Manatunga doubts the effectiveness of a possible independent body, as without powers to act under the Criminal Procedure Code he says, either way, such a body will once again have to depend on the Police to investigate the issue.

Political interference had led to police officials overstepping from time to time, but Manatunga claims that after the independent Police Commission was reintroduced there was more control, since the Commission was empowered to take strict action against cops pronounced guilty of extra-judicial killing. According to the NPC ordering the OIC of the Ingiriya Police to be interdicted over a recent case of assault of two arrested persons is an example of their quick action.

While prior to 2015 custodial deaths were common, with its recent reductions Janasansadaya says handing over the investigations into the SIU is sufficient while Mahanamahewa suggests a team comprising a CID officer to take the lead and officers of the Police Special Task Force should be formed instead.

“The STF is independent,” he said adding that however, they will need to be trained by the Police to handle such cases, especially, in courts. “Other than giving powers to an independent body to handle these investigations, these corrective steps must be taken immediately” he stressed.