An open letter to the Bar Association President on professional negligence of some magistrates

Thursday, 12 June 2014 00:20 -     - {{hitsCtrl.values.hits}}

Upul Jayasuriya President Sri Lanka Bar Association (BASL) No. 153, Mihindu Mawatha Colombo 12 Sri Lanka Fax (+94) 11 244 80 90 Dear Mr. Upul Jayasuriya, The Asian Human Rights Commission (AHRC) has closely monitored the situation of the rule of law in Sri Lanka, with particular emphasis on the way the criminal justice system functions. The AHRC wishes to draw your attention to some glaring acts of negligence on the part of certain magistrates that have resulted in serious consequences, including death, for persons who appeared before them. We are writing to you, the President of the Bar Association, because such serious neglect on the part of the magistrates also reflects that members of the Bar have failed to fulfil their duties as required by their profession, i.e. to ensure objections are raised against such acts of neglect in order to prevent miscarriage of justice and to legitimise their role as lawyers representing clients. The Bar Association also has a duty to ensure that it will intervene when reports of such negligence come to light. In any case, protecting the interests of lawyers, and ensuring proper professional conduct on their behalf, is an obligation of the Bar Association as a professional organisation. We wish to bring to your notice the following recent acts of negligence:   a.Death in custody of 17-year-old P.H. Sadun Malinga: The details of this case have been publicised and it is likely that you are already aware of it. In summary, this boy, together with a few other family members, was arrested without reason by a group of policemen from Kandaketiya police station. They were severely beaten. Later, they were produced before the Passara magistrate’s court. Two lawyers appearing for the boy and the boy himself complained of severe assault by the police. The magistrate was told that the boy was suffering from severe chest pains. The magistrate did not take any notice of these submissions and ordered that the boy and the other suspects should be remanded. The boy later died in remand prison. The judicial medical officer who conducted the post-mortem concluded that the reason for the boy’s death was internal bleeding caused by the assault. While the liability of the police and the prison authorities is obvious, the role of the magistrate in this death raises serious concerns about judicial neglect. Had the magistrate taken normal precautions, when such information regarding torture is brought to their notice and ordered immediate medical attention, this death could have been prevented. From a criminal law point of view, would this conduct of the magistrate amount to criminal negligence? If it does amount to criminal negligence, should the magistrate not be subjected to investigation for homicide? Besides the issues relating to professional failures, which should lead to appropriate inquiries, this issue of criminal neglect must be raised.   b.Deportation of British nurse Naomi Coleman: The details of this case are also well known. The issue that we wish to raise is the order made by the magistrate for the deportation of this lady who had a tattoo of Lord Buddha on her arm. As has already been pointed out by some senior lawyers in letters published in newspapers, the magistrate had no authority to issue a deportation order on an immigration matter. In any case, what the magistrate had before him was only a B report and the magistrate was not authorised to make any judgment on the basis of such a report. What is demonstrated in this instance is also negligence: the magistrate did not examine the papers that were before him before making orders as demanded by the police. The magistrate also failed to follow the proper procedure of allowing the suspect to make a proper presentation of her position before the court. c.Magistrate negligence in not inquiring into the circumstances of certain deaths where the police claimed the deaths were caused by actions taken in self-defence: Recently, there have been six cases of deaths in police custody where the police claim that the suspects were shot in self-defence when they tried to attack the police as they were taken for the recovery of arms. Besides these six deaths, a large number of such deaths have been reported in recent years. Such deaths have become the subject of public ridicule. However, the magistrates, in recent years, have accepted such police reports and come to the finding of justifiable homicide. The failures of magistrates to conduct proper inquiries and to ensure that all the evidence that could lead to a proper judgment is brought to their notice has become a serious problem for the security of persons in police custody. This practice of magistrates has gone unchallenged. We are bringing these few matters, which are part of a larger problem involving how magistrates carry out their duties, for the purpose of seeking your intervention as the premier association of lawyers in Sri Lanka, in order to challenge such neglect, for the purpose of ensuring the rule of law and the respect for law in the country. We would like to request that you proceed with a study into these matters by your association and take appropriate measures to bring these priority matters to the attention of the judiciary. We reiterate that the proper practice of the legal profession requires the correction of such neglect and failures in the magistrates’ execution of duties. Thank you. Yours Sincerely, (Signed) Bijo Francis Executive Director