Responsibility to protect

A spate of custodial deaths recorded in recent weeks should send shockwaves across a nation that is three weeks into a coronavirus lockdown. Within the span of a few days, two citizens were killed while in Police custody at two ends of the island. One of the cases, a young Tamil man arrested by the Batticaloa Police, was found dead in detention the next morning.

The family of 22-year-old Chandran Vithusan claims he was assaulted by the Police while in detention and returned to them in a body bag the next day. The Police claimed the individual died of a drug overdose and a post-mortem found crystal methamphetamines in his system. However, Police found no trace of the drug on his person at the time of his arrest and no drugs were found in a search of his home, according to family members.  

On Monday (7), a 48-year-old man in Panadura died while being transported to a COVID-19 quarantine centre by the Police. The Police claimed he jumped out of a moving vehicle, while his family insists he was beaten by Police officers at the time of his arrest.

The two shocking events follow the heart-rending death of Susil Indrajith, the man who went out to look for food for his family after several days of isolation because a family member tested positive. Indrajith (49) was accosted by the Police, who were caught on close circuit television urging bystanders to assault the man for breaking quarantine. The footage shows Police riding away on a bike, as the assaulted victim lay flat on the main road. Moments later, a passenger bus ploughed over Indrajith, killing him.

Rights activists and lawyers have long argued that Police brutality is a systemic issue, embedded into Sri Lanka’s criminal justice system. Routinely, engagements with Police officers lead to the death of suspects in custody. After the death, the story trotted out to the media by the Police Spokesman is always eerily similar. 

When notorious underworld characters are killed in altercations with Police while in custody, there is tacit acceptance from the public at large. Victims are dehumanised to make their deaths more palatable to the masses. Even Vithusan from Batticaloa is being portrayed as a hardened drug addict to rob the public of sympathy with his death. When hardened criminals die by the sword, no one will shed a tear for them.

The rule of law and due process, guaranteed even to society’s worst elements by the Constitution of Sri Lanka, are laid by in these cases, with victims portrayed as miscreants and social outcasts who deserve their fate. In part, this is a result of deep public mistrust of the justice system, and the certainty that the formal justice system will never hold these criminals responsible.

The most recent example is Sri Lanka’s drug overlord of the underworld, Makandure Madush who died under highly-suspicious circumstances in Police custody, after the Government waged a battle royale for years to have him extradited from the United Arab Emirates, to face trial in Sri Lanka.

The recent custodial deaths are not anomalies, but the result of a culture of impunity prevailing for years within the Sri Lankan law enforcement system including the Police, Department of Prisons and other detaining authorities including the military, during times of emergency. On the rare occasions when investigations are launched into deaths in custody, they never result in the prosecution of those responsible for the perversion of the course of justice.

In 2002, the Supreme Court in Deshapriya v Captain Weerakoon found a commanding officer liable for torture inflicted upon a detainee by his subordinate officers. While this decision, and a subsequent 2019 Supreme Court determination that extra-judicial killing in police custody amounted to an infringement of the right to life, signified a progressive step towards the judicial recognition of the principles underpinning command responsibility in fundamental rights cases, it has not been applied in cases involving criminal liability nor has any government taken the necessary statutory steps towards establishing a legal regime to address this growing menace. Such a legal remedy should hold everyone from the Minister, IGP, Commissioner General of Persons to the officer in charge of the detainee responsible for the death of an individual in the custody of the State. Instead, heinous incidents of Police brutality and extra-judicial killing in custody generate no more than institutional inquiries that never hold anyone responsible.

Sri Lanka’s Constitution dictates only a court can decide on the execution of a person, that too according to the provisions of the law. Ironically, while a 45-year moratorium on judicial executions has remained in place in the country, extra-judicial and custodial killings continue unabated and at alarming frequency, spanning successive governments.   

By allowing this culture of impunity to continue unabated, the Government does itself no favours, as it faces international scrutiny over a terrible human rights record. Instead, it is proving its critics right, by showing scant and callous disregard for its most sacred duty to its citizens: to guarantee their right to life.