Sri Lanka: Ganeshan Nimalaruban Case

Sri Lanka: Ganeshan Nimalaruban Case: Chief Justice Mohan Peiris Denies Petitioner's Lawyers Right to See Replies Filed By Attorney General

The Fundamental Rights case of Ganeshan Nimalaruban was taken before the Supreme Court yesterday.

The Bench consisted of: Mohan Peiris CJ, P. A Ratnayake PC J and S Hettige J.

In the course of submissions by the petitioner's lawyers, Chief Justice Mohan Peiris made the following remarks:

"When the prison is under siege do you want the prisons commissioner have to read to them the Geneva Conventions?"

The AG submitted a confidential report to the Court and Counsel Petitioner requested a copy to be issued to him. CJ Peiris said "Why do you need this? The court is not a place to get documents for the petitioners. This is the way you all procure the evidence and then circulate to the entire world to tarnish the image of the country."

"The executive submits confidential reports only for the eyes of judges particularly where national security issues are concerned."

Counsel for the Petitioner said everyone is entitled to the protection of law. Then the CJ responded, "The prisoners were engaging in a siege and they are entitled to the protection of law, provided they respect the law."

"Human rights are there to protect the majority and not the minority of criminals."

"There is an emerging human right for the right to be protected from terrorism."

"Counsel, you are not concerned about the country, you are giving a wrong signal to likeminded people."

Counsel for the petitioner referred to the injuries in the postmortem report establishing torture. The Chief Justice said, "We don't send nursery children to quell a siege. You've got to expect injuries."

The medical report says there were injuries and that Nimalruban died of heart attack. There were 32 injuries and the siege would have led to the heart attack. The CJ said that there is a theoretical possibility of the death being caused not exclusively by heart attack. This jurisprudence should only be confined to the court room and not to be discussed elsewhere.

The case to be called once again next month.

The content of the petition is as follows:

3rd day of August 2012.

1. The Petitioner is a citizen of Sri Lanka, 68 years of age, married the father of Ganeshan Nimalaruban.
2.
The Petitioner states that he is filing this fundamental rights application on behalf in respect of the death of his son the said Ganeshan Nimalaruban who died on 04/07/2012 whilst in the custody of the 8th Respondent. The Petitioner respectfully pleads for leave from Your Lordships Court to prosecute this application for and on behalf of the deceased above named who has died as a result of assaults inflicted upon him whilst under the custody of the said 6th and/or 7th and/or 8th Respondents.

The Petitioner states that the 1st Respondent (Nishantha Rathnapala) is the Officer-in-Charge of the Ragama Police Station and the 2nd Respondent is the Headquarters Inspector of Police of the Police Headquarters of Vavuniya. The 3rd Respondent is the Officer-in-Charge of the Criminal Investigation Unit of Vavuniya. The 4th Respondent (R.W.M.C. Ranawana) is the Commandant of the Special Task Force which is a special strike force of the Sri Lanka Police Service. The 5th Respondent is the Inspector General of Police who is the overall in charge of the police service. The 6th to 8th Respondents are the Superintendents of the Vavuniya, Anuradhapura and Mahara Prisons respectively. The 9th Respondent (Mr. P.W. Kodippili) is the Commissioner General of Prisons. The 10th Respondent is the Honourable Attorney General who has been made a party to this application as required by law.

The Petitioner states that his son was arrested by the Criminal Investigation Unit of the Vavuniya Police on 05/11/2009 while he was going on a motorcycle with a friend of his along Veppankulam Road, Vavuniya. The Petitioner further states that his son was 25 years of age at the time of arrest. He had been working as a Sales Representative in Vavuniya and had been taking steps to go abroad at the time of arrest.

The Petitioner states that after being detained at the Criminal Investigation Unit, Vavuniya for 2 days, his son was taken to the Vavuniya Police Station. Meanwhile a Detention Order under regulation 19(1) of the Emergency Regulations was issued by the Additional Secretary to the Ministry of Defence to detain the Petitioner's son for a period 30 days.

The Petitioner states that his son was produced before the Magistrate's Court of Vavuniya in case bearing No. B/2262/09 and the learned Magistrate ordered to remand him. The Petitioner states that his son was in remand custody until he passed away on 04/07/2012.

The Petitioner states that his son had been subjected to assaults and torture whilst in detention and was asked to sign on several sheets of papers typed in Sinhala. Therefore the Petitioner's son had signed in the places pointed out by the officers. The contents of the said documents were neither read nor explained to the Petitioner's son. The Petitioner further states that due to the torture that his son had undergone, his son had had a heart attack and was admitted to the General Hospital, Vavuniya on 26/12/2011 and was discharged on 01/01/2012.

The Petitioner states that his son instituted a fundamental rights application bearing No. SC FR 115/2011 against the violation of his fundamental rights and the said application is still pending before Your Lordships Court.

The Petitioner states that his wife visited their son on 28/06/2012 at Remand Prisons, Vavuniya which was the last visit of a family member. At that time their son was in good health. On the next day i.e. 29/06/2012 the Petitioner's wife again went to the Remand Prisons, Vavuniya to visit their son. However the Prison officers had informed the Petitioner's wife that they had transferred all the prisoners to Anuradhapura prison. Thereafter the Petitioner's wife went to the Anuradhapura prison and the officers of the Anuradhapura prison had informed her that they do not aware of the place of the detention of the Petitioner's son.

The Petitioner states that early in the morning on 05/07/2012 four Police officers of the Vavuniya police station came to the Petitioner's residence by a jeep and informed the Petitioner that his son was unable to breathe and asked the Petitioner and his wife to come with them to Ragama Hospital.

The Petitioner states that on the way from Vavuniya one police officer got the medical report regarding heart ailment of their som from the Petitioner's wife.

The Petitioner states that while they were told by the police officers that they were going to Ragama hospital the police officers took them to the Mahara police Station and afterwards kept them under their custody in a lodge at Mahara. While staying at the lodge some police officers tried to give alcohol to the Petitioner.

The Petitioner states that on the same day the Petitioner and his wife were taken to the mortuary of the Ragama Hospital (Colombo North Teaching Hospital) and the Petitioner's son's dead body was showed to him. The Petitioner state that at that time he observed injuries on his son's head and legs. The Petitioner's wife was not allowed to see the body at that time.

Thereafter the Petitioner was asked to sign some documents by the police before a Sinhala speaking doctor whose name is unknown to the Petitioner. The Petitioner states that he refused to sign the documents despite the insistence of the doctor and the police.

The Petitioner states that his wife told the police that she would do any further acts after making complains to the Human Rights Commission,Home for Human Rights and their lawyers. But the Police officers informed them falsely that they were about to take them to the Commission but instead they were taken to registrar of Birth and Death at Mahara hospital. But the Petitioner's wife when she became aware that she was deceived and taken to the registrar was distraught and shouted at the police whereupon the police shouted at them and when she wanted to come out they prevented her from coming out and forcibly detained her at the premises until she signed.

The Petitioner states that at the Ragama Hospital he was taken before a Tamil speaking doctor who mentioned that his son died because of the heart disease and further informed that he was present while the post-mortem examination was taking place. The doctor also asked to sign some documents which the Petitioner and his wife refused to do. The Petitioner states that when his wife refused to sign the documents one of the police officer whose uniform bore number 664 tried to assault her by raising his hand. The Petitioner states that while this incident was taking place, the Attorneys-at-Law appearing for the Petitioner's son, arrived at the hospital.

The Petitioner states that thereafter he and his wife were taken to another doctor by the police in their jeep who also asked to sign a document regarding burial of the body. The Petitioner states that he and his wife refused to sign any document. The Petitioner states that subsequently he and his wife were taken to Magistrate's Court of Mahara.

The Petitioner states that the 1st Respondent had filed information on 05/07/2012 in Magistrate's Court of Mahara in case bearing No : B 4218/12 and according to the said information:

a)      The Petitioner's son was arrested in 2009 in connection with possession of a claymore bomb.

b)      He was produced to the Magistrate's Court of Vavuniya in case bearing No. B:2262/2009 and remanded.

c)      The Petitioner's son and several other LTTE suspects who detained in the Vavuniya Prison started a fast-unto-death campaign over the transfer of a LTTE suspect, namely Saravana Bavan to the Boossa Camp following a court order.

d)     These suspects took three officers of the Vavuniya Prison into their custody on 28/06/2012.

e)      On 29/06/2012 the Special Task Force rescued the three officers and other 172 detainees who were held captive by these LTTE suspects.

f)       33 LTTE suspects who behaved violently were transferred to Anuradhapura Prison at the same time.

g)      Thereafter 28 LTTE suspects were transferred to the Mahara Prison and others were transferred to the Welikada Prison from the Anuradhapura Prison.

h)      The Petitioner's son was among the 28 LTTE suspects and he was detained under Suspect No.: 279.

i)        The Petitioner's son was not well and therefore the prison officers admitted the Petitioner's son to the Ragama Teaching Hospital on 04/07/2012 morning.

j)        The Petitioner's son was pronounced dead by the doctor who examined him at the Out Patients Department at 6.15 a.m.

k)      Since the Ragama Hospital is located in the Judicial Zone of Negombo, information was filed in the Magistrate's Court of Negombo in case bearing No. B:3140/12. The Hon. Magistrate conducted the magisterial inquiry and ordered the Judicial Medical Officer of the Ragama Hospital to conduct the postmortem.

l)        Subsequent to the magisterial inquiry and the postmortem, the body of the Petitioner's son is being kept at the mortuary of the Ragama Hospital.

The Petitioner states that the 1st Respondent in his report further stated that;

a)      The Petitioner's son is a permanent resident of Vavuniya and a hardcore member of the LTTE.

b)      There are LTTE members in Vavuniya, who were rehabilitated and who were not rehabilitated.

c)      The peaceful environment of the area is likely to be affected, if the relatives were allowed to have the burial of the Petitioner's son at Vavuniya.

d)     Therefore, under Section 106 (1) of the Code of Criminal Procedure Act, the relatives may be ordered to have the burial of a body within the jurisdiction of the Magistrate's Court of Mahara.

The Petitioner further states that the learned Magistrate had conducted a scene visit on the same day.

A certified copy of the proceedings of the scene visit dated 05/07/2012 which is contained in X is marked as X-2 and is pleaded as part and parcel of the Petition.

The Petitioner states that subsequent to the scene visit the learned Magistrate made an order to bury the body of the Petitioner's son within the jurisdiction of the Mahara Magistrate's Court and if not taken over by the relatives that the body be buried at state expense.

A certified copy of the journal entry dated 05/07/2012 which is contained in X is marked as X-3 and is pleaded as part and parcel of the Petition.

The Petitioner states that in the evening of the same day, the Petitioner, the Petitioner's wife and their Attorneys-at-Law made an application in the judge's chambers seeking to take the body to Vavuniya for burial. The police officers vehemently objected to that application stating it may risk the national security of the country and submitted a further report.

A certified copy of a report signed by the 3rd Respondent dated 05/07/2012 which is contained in X is marked as X-4 and is pleaded as part and parcel of the Petition.

The Petitioner states that after hearing the submissions of the parties the learned Magistrate ordered to have the burial of the Petitioner's son within the jurisdiction of the Magistrate's Court of Mahara holding not doing so will risk the national security.

The Petitioner states that on the same day the learned Magistrate directed the Coroner of the Colombo North Government Hospital (Ragama Teaching Hospital) to deliver the body of Ganeshan Nimalaruban to the Petitioner after conducting a postmortem and to have the burial at the Eldeniya Public Cemetery which is situated within the jurisdiction of Mahara.

The Petitioner states that on 09/07/2012 the Petitioner made an application to stay the burial of the body for 2 weeks until an order is obtained from Your Lordships Court in the fundamental rights application. The learned Magistrate allowed the application of the Petitioner and stayed the burial of the body at the expense of the government for 2 weeks from 09/07/2012.

The Petitioner states that a motion was supported before Your Lordships' Court on 18/7/2012 and on 20/07/2012 the Petitioner's Counsel and the Hon. Attorney General filed a settlement motion with regard to the burial of the body of the Petitioner's son and Your Lordships directed that the terms and the contents of the motion be communicated to the learned Magistrate of Mahara on the same day.

The Petitioner states that on 23/07/2012 the learned Magistrate of Mahara permitted to have the burial at Vavuniya as per the order of Your Lordships Court.

The Petitioner states that the funeral of his son Ganeshan Nimalaruban took place in the Nerakkulam in Vavuniya on 24/07/2012.

The Petitioner states that:

a)      When the Petitioner's wife visited their son on 28/06/2012 at Remand Prisons, Vavuniya their son was in good health.

b)      According to the B report marked X-1,

i.      The Petitioner's son and several other LTTE suspects who detained in the Vavuniya Prison started a fast-unto-death campaign and allegedly took three officers of the Vavuniya Prison into their custody on 28/06/2012.
1.
ii.      The Police Special Task Force entered into the Prison on 29/06/2012 and rescued the three officers and other 172 detainees who were allegedly held captive by these LTTE suspects.
1.
iii.      The Petitioner's son was transferred from Vavuniya prison to Anuradhapura Prison and from there he was transferred to Mahara Prison and was detained under Suspect No.: 279
1.
c)      Therefore, at any time relevant to this application, the Petitioner's son was in the custody of the prison officers.

d)     According to the B report marked X-1, the Petitioner's son was admitted to the Ragama Teaching Hospital by the officers of the Mahara Prison only on 04/07/2012 morning i.e. after 5 days from the "rescue" mission.

e)      The Petitioner's son was pronounced dead by the doctor who examined him at the Out Patients Department at 6.15 A.M.

f)       According to the information filed by the police at X-1, the Petitioner's son w

g)      However according to the report signed by the 3rd Respondent dated 05/07/2012 marked X-4, the Petitioner's son passed away on 04/07/2012 as an inpatient at the Ragama Hospital.

h)      The Petitioner observed injuries in his son's body.

In the aforesaid circumstances and in view of the suspicious and secretive conduct of the police as described aforesaid , the Petitioner pleads that he has reasons to believe that the death of his son was not due to natural causes but due to him having been subject to assault by the prison officers and/or by the police officers whilst he was in the custody of 6th and/or 7th and/or 8th Respondents, which led to his death.

The Petitioner states that he has every reason to doubt the impartiality of the police investigations into the death of his son and he apprehends that the prison authorities and the police would not conduct an unbiased and comprehensive investigation into the death of his son. The Petitioner further states that it is necessary for the evidence of other prisoners who were detained with the Petitioner's son in Vavuniya, Anuradhapura and Mahara to be recorded at the Inquest and that such evidence be recorded without them being intimidated by prison officials and the police, since the Petitioner verily believes that his son's death resulted from the assaults on him by the prison officers and/or police.

The Petitioner has information that other suspects who were detained with the Petitioner's son at Vavuniya had also sustained injuries during the incident at Vavuniya on the 28th of June 2012.

The Petitioner states that in the aforesaid circumstances one or more or all of the Respondents and/or the State have infringed the fundamental rights of his son the deceased Ganeshan Nimalaruban as guaranteed to him by :

(a)       Article 11 of the Constitution guaranteeing to him freedom from torture and cruel, inhuman or degrading treatment or punishment.

(b)      Article 12(1) of the Constitution guaranteeing to him equality before the law and the equal protection of the law;

(c)       Article 13(4) of the Constitution guaranteeing to him the right not to be punished with death or imprisonment except by order of a competent court, made in accordance with procedure established by law;

(d)      Article 17 of the Constitution guaranteeing to him the right to apply to Supreme Court, as provided by Article 126, in respect of the infringement of his fundamental rights;

The Petitioner states that he verily believes that there is an attempt to show that his son's death was caused by "heart attack" and the Petitioner states that he seeks that a second post mortem be also conducted on his son by the Judicial Medical Officer, Colombo.

The Petitioner states that the report of the postmortem is still not produced to Court and he is still in a position only to give limited instructions to his Attorney-at-Law to file this application due to the past incidents and since the funeral ceremony of his son was finally held in Vavuniya only on 24/07/2012. Therefore the Petitioner respectfully seek permission of Your Lordships Court to submit further material to Your Lordships Court if and when they made available to him and to amend the pleadings and to add Respondents, if necessary.

The Petitioner has not previously invoked the jurisdiction of Your Lordships' Court in this matter.

The petitioner requested that Her Ladyship's Court:

Grant leave to proceed in the first instance;
Direct the Director of the Colombo  North Teaching Hospital, Ragama to submit the Post Mortem Report of the deceased Ganeshan Nimalaruban who died on 4th July 2012, to Your Lordships' Court forthwith;
Direct the Director of the Colombo North Teaching Hospital and the Medical Officer in Charge of the Prison Hospital Mahara to submit to submit all Bed Head Tickets, treatment sheets and documents pertaining to the deceased Ganeshan Nimalaruban, to Your Lordships' Court;
Declare that the fundamental rights of the Petitioner's son Ganeshan Nimalaruban as guaranteed by Articles 11, 12(1) , 13(4) and 17 of the Constitution have been infringed by one or more or all of the Respondents and/or the State;
Direct the Inspector General of Police to cause an impartial investigation be held in relation to the death of Ganeshan Nimalaruban;
Direct the learned Magistrate of Mahara to direct the Judicial Medical Officer, Colombo to cause  Grant the Petitioner compensation in the sum of Rupees Ten Million (Rs. 10,000,000/=);
Grant Costs; Grant such other and further relief that Your Ladyships Court shall deem meet.

About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.

ENDS

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