FOR IMMEDIATE RELEASE
AHRC-STM-086-2008
April 05, 2008

A Statement by the Asian Human Rights Commission

SRI LANKA: A comment on the Negombo High Court judgment on Gerald Perera’s torture case: When two and two equals five

What if some one says that two and two equals five and asks you to disprove it?  Or, if a whole society or even a large part of it begins to believe in fact that two and two is five.  This may be dismissed by some as pure fantasy.  However, in many matters regarding society, particularly in matters relating to justice, such a situation can happen.  In fact, we believe, it is happening now in Sri Lanka. 

Let us take this equation in terms of arrest.  A group of policemen kidnap a man and keep him in their custody for several hours.  At the time that the police officers take him into custody, he is a healthy man.  When he comes out of it, he is a seriously injured person.  Then, this man wants to tell his story to a court.  Before he tells the story, the same group of policemen, or some of them kill this man.  Then they demand that an eye witness should come forward to state that this is how this man was tortured by this group of people.  This is as good as saying that two and two is five, and if you don’t want to accept that, proves otherwise.

For legal systems, this is not a new situation.  In order not to be fooled by such ‘logic’, law has developed some principles where viable legal systems exist.  The principle is that these police officers who arrested him and kept him under their charge have the burden of showing that they were not guilty of causing the injuries the man had suffered.  The law expects them to demonstrate that they are innocent.

Now the way the law operates is through the courts.  The prosecutor goes to court and tells the court that ‘X’ was arrested by some police officers and names them.  The prosecutor proves by evidence that that was the case.  The prosecutor goes further to establish that during all the relevant time when the injuries could have been caused, he was in the custody and the control of the same police officers.  On that basis, the prosecutor calls upon the court to draw the necessary legal inference against them if the police officers are unable to give an explanation which demonstrates that they were innocent about these charges.

Suppose this legal principle on which the prosecution bases his case is not the one that a court is willing to accept.  Suppose the court tells the prosecutor, “Give me some direct evidence, or very strong circumstantial evidence, that could lead to no other conclusion but that these police officers tortured this person.”  The prosecutor is unable to do this because the police have taken the precaution to cause the injuries in a place where no one else except police officers can be present. 

In that case, suppose the court says, “Well, there may be other police officers who may be able to come forward and say who actually caused the injuries.  This once again is an impossibility since under the normal circumstances police officers do not give evidence against their own officers when they are charged on criminal charges. Under the normal circumstances, in the conditions prevailing in Sri Lanka now, this is not a rational expectation to hope that a police officer attached to a police station would come forward to give evidence against their own fellow officers. 

If the burden that is placed on a torture victim is an impossible one for them to fulfill, that amounts to making an absurd demand from those who want to seek justice. However, the law, like all other rational discourses has developed principles to deal with such situations as shown above. The law, in developing this situation, has taken into consideration the state responsibilities to protect its citizens. A torture that takes place at a police station is not the same as a brawl that may take place among some civilians in some place. The police station is a state institution and the police officers are state officers.  There are rules, norms and standards to be observed for the protection of the people.

It is the duty of the state to consider the state responsibility of protection when considering torture cases and similar cases when dealing with the situation of helpless citizens and the state officers. If that does not happen, the problems of justice will fall to the same position as society of people who will say two and two is five, or whatever other number.  Under such circumstances, discourse on justice will lose meaning.  If the discourse on justice loses meaning why go through the process of law at all?  Why not just allow the state officers to do whatever they wish and say that is all right.  That is at least clear way of denying justice.  Why add the mockery of seeming justice and trials. 

It is now in the court of the prosecutor in Sri Lanka who is the Attorney General to sort out that issue.  

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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.