ASIAN HUMAN RIGHTS COMMISSION – URGENT APPEALS PROGRAMME

Dear friends,

The Asian Human Rights Commission received information that police officers attached to the Nawalapitiya Police have illegally arrested and severely tortured Ms. M K Malani, a resident of Dholosbage Estate, and later produced her before the Nawalapitiya Magistrate. She was detained when she tried to lodge a complaint at the Nawalapitiya police station regarding the death of her husband. She was hung from the ceiling in full view of her child, and forced to admit to killing her own husband. She is at present being held in detention at the Dumbara-Bogambara Prison, and her case remains pending at the Magistrate’s Court. This is yet another indication of the complete collapse of Sri Lanka’s policing service, the prime law enforcement mechanism in the country.

CASE NARRATIVE:

According to the detailed information received by the Asian Human Rights Commission (AHRC), Ms. M K Malani, 38 years old, was a resident of a line-house (estate housing) at Dholosbage Estate in Nawalapitiya, Kandy District. She was married to Mr. R.P. Rengan Selvam and they have six children, the youngest being a son aged five years. The family is poor and destitute. The husband was a laborer, while Malani supported the family by plucking tea in the tea-estates. Mr. Selvam was addicted to liquor and as a result she suffered regular domestic violence. When she was expecting their sixth child she was severely assaulted by her husband and was treated in hospital for several months.

Due to the abuse, Malini had started a relationship with Nadaraj Thambiraj Shivakumar, and left her husband to live with him, taking her youngest son with her. She has been living with Nadaraj for the past five years. In early January 2016, Rengan extended an invitation to Malini and her new husband to visit him and expressed eagerness to see his youngest son.

On January 5, Malani, Nadaraj and her youngest son visited Rengan, and during the visit Rengan in his usual behavior started to hurl abuse at Malini. Later at around 10 p.m., he assaulted Malini and pushed her to the ground, at which both she and Nadaraj with their son left for Malini’s parents’ house.

On January 7, Malini learned that Rengan had been killed. She immediately visited the Gampola Police Station to make a complaint, but the police refused to accept her complaint since Rengan’s residence is not situated within the Gampola Police Division. Instead, the police officers informed her that some police officers from the Nawalapitiya Police Station would be arriving and she could go with them to the Nawalapitiya police station to lodge a complaint.

Several hours later several police officers attached to the Nawalapitiya Police Station arrived, and asked Malini to go along with them to the Nawalapitiya Police Station in the police jeep, to which she agreed.

At the Nawalapitiya Police Station, Malini asked some officers to record her complaint. Having waited for some time, she realized that the officers instead began to continuously question her about the incident. The officers then accused her of killing Rengan and implicated Nadaraj in the killing as well. She vehemently refused the allegations. Malini also observed that the police officers did not start any investigation regarding her complaint, nor did they ask about any details of the crime or the crime scene. The officers only continuously harassed Malini to admit to the commission of the crime.

After several hours of questioning, Malini was taken to an upper floor of the police station by Criminal Investigation Department (CID) officers, and her son was separated from her at that time. While she was being interrogated about the murder, to which she confessed not knowing anything, several police officers started kicking and assaulting her with their fists. She was then asked to keep her hands on the floor and police officers trampled on them with their shoes. She was assaulted with a plank and her clothes were torn and chili paste was rubbed on her face. Later she was hung from the ceiling with both hands tied and she was verbally abused and severely beaten. When she asked for water, she was told to urinate and drink. Her clothes were then removed and the CID officers started to sexually abuse her. Once again she was hung from the ceiling and severely beaten. In the night when she cried out in pain, she was given some balm while her son was watching her.

Several days later, on January 10, she was finally produced before the Magistrate of Nawalapitiya and remanded at the Dumbara- Bogambara remand prison in Kandy. She was once again produced before the Magistrate on April 1, and continues to be in detention.

Malini’s unlawful arrest without any evidence, torture in custody, the inhuman and degrading treatment meted out to her by officers attached to the Nawalapitiya Police station, and filing fabricated charges against her have grossly and blatantly violated all the fundamental rights guaranteed to Malini under Sri Lanka’s Constitution. Malini and her family are seeking justice, protection for their lives and their rights as enshrined in the Constitution of Sri Lanka.

The AHRC notes that a basic principle established in common law, reported by one of the greatest authorities on British law, A.V. Dicey, is that arrest can be justified only if there is an investigation on the basis of reasonable grounds that a person may have engaged in the commission of crime. Only then, could he or she be arrested, for the purpose of such investigation. As an exception to the general rule, a person can be arrested to carry out a sentence meted by the judiciary. Dicey goes further to state that established law in Britain in the mid-19th century, held that it is the duty of the magistrate to punish those who have carried out the arrest of anyone outside those two grounds.

Therefore, it is the duty of the magistrate to see that the victim who has been illegally arrested is compensated. That is the basis of the law introduced to Sri Lanka through our penal codes, criminal procedure code, and our constitutional law.

In this instance, the officers of the Nawalapitiya Police and thereby the state, have violated all the above principles of arrest, and acted in violation of the provisions of the penal code, the criminal procedure code and the constitution itself. This demonstrates the total collapse of all law enforcement agencies in the country, including most importantly, the judiciary itself.

SUGGESTED ACTION:

In view of the above blatant human rights violations, please send a letter to the authorities expressing your concern and requesting an immediate investigation into the allegations of illegal arrest, detention, torture and fabrication of charges against an innocent woman. The police officers of the Nawalapitiya Police have denied her the right to justice and an independent inquiry. Kindly request the authorities to prosecute those officers responsible under the criminal law of the country for abusing and misusing the powers of the State. All officers involved need to be subjected to internal investigations for breach of Police departmental orders. Please also urge the National Police Commission (NPC) and the Inspector General of Police (IGP), to initiate a special investigation into the malpractices of police officers who abuse State powers.

Please note that the AHRC will write a separate letter to the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment to immediately intervene in this matter.