| by Basil Fernando
( 02 March 2012, Hong Kong, Sri Lanka Guardian) The assassination of Anthony Fernando of Chilaw, who shot dead while engaged in a peaceful demonstration against the rise in the prices of oil, as it affects the livelihood of the fisherfolk reveals the changes of law, policy and attitudes relating to murder in Sri Lanka. The government has made no attempt at all to investigate and bring the responsible persons to justice and prosecute them. Instead, a witch hunt accompanied by a ferocious propaganda campaign was initiated against those who might have been the organisers of the protest.
Two ministers, Rajitha Senarathne, the Minister for Fisheries and Aquatic Resources and Wimal Weerawansa, the Minister of Construction, Engineering Services, Housing and Common Amenities, both named Herman Kumara, the Secretary General of the World Forum of Fisher People (WFFP) and head of the National Fisheries Solidarity Movement (NFSM) of Sri Lanka, a widely known human rights organization as being responsible for the protest.
An attempt to abduct Herman Kumara
This vilification has gone to the extent of an attempt to abduct Herman Kumara. On Saturday, February 18, when he was returning from an overseas trip, he noticed that the immigration officer who processed his papers noted him and informed some other officers of his arrival and these officers instructed the immigration officer concerned to deal with the passport urgently. Thereafter, he was followed when he was collecting his luggage. When he arrived at the vehicle arranged by his relatives his friends noticed several persons busily observing his movements and making calls on their mobile phones.
When Herman Kumara and his relatives started their journey they noticed that they were being followed and had to change their route home and instead travelled by some other routes to a different location. Later they learned that several officers had visited his home and inquired as to his whereabouts, pretending to be officers of a bank. All these matters have been reported by way of a complaint to the police but as is common in Sri Lanka no action has been taken. For details please: SRI LANKA: A plot to kill or otherwise harm the human rights defender Herman Kumara
What concerns us here is the peculiar approach to an investigation into a murder. The investigation is not directed towards finding out who shot a person who was engaged in a peaceful demonstration for a legitimate cause. The legitimacy of the cause was acknowledged by the government itself which agreed to provide to all fishermen oil at subsidized rates following the demonstration.
However, quite clearly the authorities are not bent on an inquiry to identify those who caused the murder. The identification would not have been difficult as there was a DIG who would have been aware of all the steps leading to the shooting. Either the shooting was done on his orders and if not the situation is even worse because the person who fired did so without any orders. An examination of the weapons issued to the police officers prior to the demonstration would have easily identified which weapons were used to fire upon the demonstrators. For further information please see: SRI LANKA: The DIGP Ravi Wijegunawardena should be held responsible for the shooting of a fisherman engaged in a peaceful demonstration
Similar identifications have been done in the past but that kind of serious investigation is no longer the practice followed. The police Departmental Orders and other police regulations clearly indicate the kind of investigation that needs to be done to find out the use of weapons by the officers. What we note here as well as on several other occasions is a clear departure from the earlier practice.
Looking for the organisers of demonstrations
There is no reason to initiate investigations or worse, to have some ‘unofficial’ way of attempting to deal with the organisers of a peaceful demonstration. The organisers have not violated any law. The basis for an investigation is when there is the commission of a crime. Neither Anthony Fernando who was murdered, not anyone else is being accused of the commission of a crime.
If there is an investigation into the organising of the demonstration and if there is any suspicion that Herman Kumara is involved in the commission of any offense, what should have been done was to arrest him first on the basis of a charge. When he arrived at the airport he was identified which indicates that there was some note in the file against his name registered in the compute. Such registration of a name in an immigration file would imply that a number of senior officers are involved and that it was on their instructions that the name was included. If there is no allegation of any offense being committed what justification could there be in the inclusion of his name in the immigration file?
Inquiries at the airport
What this indicates is that the officers who made these notes in the immigration file and those who pursued him were not following any procedure on the basis of the Criminal Procedure Code for the investigation of a crime. As has become usual now they are involved in some politically directed activity. Sri Lankan law does not allow any state officer to pursue any citizen for arrest, let alone for abduction for political reasons.
What concerns us here is that Sri Lanka’s criminal investigation process has virtually been made ineffective in terms of investigation into crimes, even serious crimes such as murder. Instead the investigation process is now directed towards political objectives. The transformation of a criminal process into a political activity is a serious change and it affects the personal liberties of the Sri Lankan citizens in a most fundamental manner.
A.V. Dicey, the foremost authority on the rule of law when writing in 1881 devoted a whole chapter of his book, The Law of the Constitution to explain the meaning of personal liberties in the common law. It meant that everyone had a right to be protected from arrest. Arrest could be done only in two instances: that is if there is an investigation into a crime so as to bring the person before a court or by way of carrying out a sentence after conviction. If any officer were to arrest a person outside these two occasions Dicey explains that the courts should subject such an officer to be charged with a crime and also compensate the victim. Such was the seriousness given to the protection of persons from arrest. This protection which is also included in the Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights is also enshrined in the Sri Lankan Constitution under article 13 (1).
Thus, the abandoning of the obligation to investigate crime and the involvement of the police and other state authorities in the use of the investigation process for political purposes should be noted as one of the fundamental transformations relating to the abuse of law taking place in Sri Lanka.
While the officers are transforming themselves to undertake political functions the crime investigation has been reduced to a casual activity. The absence of investigation into serious crimes is quite visible. We give below a number of crimes which have been reported in the press since the assassination of Bharatha Lakshman Premachandra and several others to date. In almost these instances there is hardly any serious compliance with the legal provisions for investigations into crime. What is even more shocking is that in some instances where there is public scandal there is an attempt to arrest some persons and with that the criminal justice process virtually comes to an end. Trials for serious crimes are becoming less and less and even in the few crimes that are prosecuted the success rate as admitted by the government authorities is only four percent.
What should be noted is that the law is more and more abandoned in favour of policy. And the policy is directed towards the needs of the ruling regime. The pursuit of law on its own right and the protection of the citizens through law enforcement has become a thing of the past. Law enforcement has been transformed into policy enforcement. The policy enforcement is done purely for political grounds.
Kindly see below a list of recent cases.
Some of major crimes List of Sri Lanka since 8 October 2011
October 08, 2011 — Mr. Bharatha Lakshman Premachandra of Mulleriyawa, Colombo — Murdered — He was a former Parliamentarian and Presidential Adviser.
October 10, 2011 — Miss. Sadaham Nirosha ( 23 ) of Mirishena, Bulathsinhala — Murdered — She was a minor sever at the Animal Farm , Embaragala.
October 13, 2011 — Mr. M.A. Lalith (38), Mrs. Indrani Gnanalatha (33), Mr. Dilan Chathuranga (14), Miss. Nadeesha Sewwandi (8) — Udawalawa — Murdered — Lalith was a businessman in the area and others were his family members.
October 27, 2011 — Mr. Mohomad Salee Niyaz aka Loku Seeya, of Wattala, Colombo — Murdered — He was the care taker of a Temple.
November 10, 2011 — Mr. Subramanium Dayabaran (45) of Jaffna — Murdered — He was the Principle of the Karanakuri School, Kodikamam, Jaffna
November 14, 2011 — Mrs. Reeta Indrani (46) of Boralla, Colombo — Murdered — She was a mother of two.
December 3, 2011 — Mr. Ruwan Chnadimal a.k.a. Navy Ruwan — Abducted — He was a former soldier attached with the Sri Lankan Navy, later believed to be a member of the underworld group led by Karate Dammika.
December 5, 2011 — Mr. Christoper Fernando of Kotahena of Colombo — Abducted — He was a businessman.
December 7, 2011 — S.A. Leelarathna (54), S.K. Malini (45), Erandi Udeshika (24) of Kotaweheramankada, Hambegamuwa — Murdered — The killer was a policeman, named N. Danushka Ruwan who had with Harshani Norosha, the daughter of Mr. Leelarathna. She was in critical situation after the shooting while her all family members died.
December 9, 2011 — Miss. R.M. Dilshani (17), Ganga Nisanka (15) of Kadigawa,Â Eppawala — Murdered — The killer, was a military man named Ruwan Premajayantha and according to the police investigation Dilshani was abducted and raped once by Ruwan.
December 17, 2011 — Mr. Madusanka Perera (23), Mrs. Dissanayek Niluka Chandani Pathirana (23), Mrs. Seetha Hemalatha (55), Malani Swarnalatha (53) of Yaya 1, Katiyawa, Eppawala — Murdered — Madusanka Perera was a disabled soldier attached to the Sri Lankan army. The main suspect surrendered to the police.
December 25, 2011 — Kuram Shaikah Zaman, (32), from Manchester, a physiotherapist working for the International Red Cross in the Middle East — Murdered — The main suspect, Tangalle Pradeshiya Sabha Chairman Sampath Chandrapushpa,( 24), tourist was arrested however, during the identification parade the witnesses were unable to identify one single suspect.
December 30, 2011 — P.G. Emline (61), A.G. Nandawathi (59) of Malwaththa, Udahorombuwa, Rideegama — Murdered while collecting banana flowers
December 30, 2011 — Miss. D.M. Ganga Sanjeewani (21) of Kiula, Puttalam — Murdered — H.M. Mahesh Kumara Heenkenda, a police constable was arrested.
January 2, 2012 — Mr. Mahura Sayum Mohomad Nisthar (37) of Puttalam — Abducted and killed — He was a businessman, abducted by a unknown armed group in a white van
January 5, 2012 — Horwala Withanage Anula Mangalika (42) of Uragasmanhandiya — Murdered — She was a mother of one.
January 9, 2012 — An 80 year-old woman — Murdered — She lived alone in Piliyandala.
January 21, 2012 — Mr. Anura Bandara of Ginihiriya , Kandy — Murdered — The victim was attached to the minor Offence Unit at the Kandy Police Station.
January 28, 2012 — Miss. Iridiyanar Sineshika (16) of Alwari North, Point Pedro, Jaffna — Murdered — She was a school student.
January 28, 2012 — An unidentified burnt body was found in Wellampitiya.
February 2, 2012 — A person was abducted from Meethotamulla.
February 11, 2012 — Ramasamy Prabakaran (42) of Canal Bank Road, Wellawatte — Abducted — He is a Tamil businessman who filed a Fundamental Rights application against the police. He was abducted at Wellawatte by armed group in a white van.
February 15, 2012 — Mr. Antony Fernando of Thalavi, Chilaw — Murdered — He was a fisherman who attended a peaceful demonstration held in the Area.
February 20, 2012 — Mr. Sunil Jayaratna (65) of Kimbualawilawatte, Dompe — Murdered — He was a businessman/hotelier and was hacked to death in Dompe.
February 29, 2012 — Kanagaseabe Sudharshini (48) of Kollupiyata — Murdered — She was hacled to death in the Hotel Renuka, Kollupitiya.