Palitha Tissa Kumara: Five Sri Lankan Cases

From the publication: Dialectics of Justice: Five Sri Lankan Cases, Published with the permission of the author and Asian Human Rights Commission. March 2008

EXCESS IS A COMMON feature of the Sri Lankan justice system. In one form or another one finds it in almost all the research one may conduct into the workings of the police, the lawyers, the judges, and the doctors. There is violence, there is abuse of a defendant's rights, there are threats and intimidation, there is false testimony, there are excessive sentences, there are unwarranted delays. Every so often we find a case that reminds us of the pathology underlying these forms of excess. At its root, the problem of injustice in Sri Lanka is a psychological problem. If we look at this carefully, there are suggestions that the contempt authority displays for ordinary citizens, are a form of self-contempt.

THE CASE OF Palitha Thissa Kumara is such a case. There is no other way to explain some of its grosser excesses but by way of a psychological analysis.

Some of the facts in Palitha's case will by now be familiar in our brief readings of other cases. The case begins on February 3rd, 2004.

Palitha was a craftsman from Matugama in the district of Kalutara. He was skilled in the arts of painting and stone carving. On the morning of February 3rd, six police officers arrived at his home and asked him to come to the station in Welipenna, a nearby town to paint the police emblem on the stationhouse in preparation for Sri Lanka's celebration of its day of independence. Palitha agreed. Any aspect of Palitha's encounter with the local police end at this point in his story.

Before the officers and Palitha reached the jeep in which they were to drive to the station, one officer turned and, out of nowhere, pistol-whipped Palitha to the point of causing an open wound on his chin. The police thereupon threw Palitha to the ground and assaulted him further before piling him into their vehicle.

On the way to the station the police stopped to arrest another man, known as Galathaga Don Shantha Kumar. Don Shanta would soon become a prominent figure in Palitha's case. He, too, was tortured; he, too, was accused of plotting robberies.

At the police station, an all too predictable round of torture began. According to Palitha's account, the police officer who had pistol-whipped Palitha beat him with a cricket pole on his neck, arms, head, spine, and knees. He then began demanding-again, out of nowhere-that Palitha surrender the bombs and weapons in his possession-bombs and weapons he had planned to use in the armed robberies he had been plotting. Don Shantha was there. The police officer made it known that the same would be coming to him.

The torture continued for approximately two hours, according to Palitha's later testimony, during which time Palitha repeatedly denied any knowledge of bombs, weapons, or robbery plots. The abuse stopped only when about eight other officers intervened, one of them taking the wicket from the violent officer's hands.

The assaulting officer then brought another detainee into the room. His name was Thummaya Hakuru Sarath, and he suffered from tuberculosis. The officer then issued what must stand as one of the most grotesque orders in the long, often-grotesque history of police abuse in Sri Lanka. Sarath was to expectorate into Palitha's mouth so as to infect him. More than a year later, when the matter was in dispute, Sarath gave a statement confirming that he had been forced to act in a manner deliberately intended to contaminate Lalith. It also emerged the Sarath, too, had been beaten-a victim himself.

Unable to stand, in and out of consciousness, Palitha remained in a jail cell for several days, during which more torture ensued. He was finally taken to hospital-or, rather, hospitals, for there were two, both of which refused to admit him (one refusing twice) despite injuries that were by this time evident.

Back at the jail cell, the assaulting officer produced a grenade. Palitha was forced to leave his thumbprint in wax, whereupon the print was transferred to the grenade. The officer had already forced Palitha to sign a confession of guilt without reading it to him.

It is now the 6th of February, three days after Palitha was taken from his home. He is taken back to one of the hospitals that had refused him admission. There "a man wearing a pair of shorts," according to court documents, signed some papers. Palitha was then returned to the police station and later that day made a brief pass through a magistrate court before being admitted at a third hospital-a prison hospital in the town of Kalutara.

Palitha remained in prison until his release on bail in July 1,2004 , after 4 months and twenty five days in jail. But during that time, he had filed two cases. One was a fundamental rights case alleging that the police had violated his rights as guaranteed in the constitution. The other, filed by the Attorney General in High Court, charged Kaluwanhandi Garwin Premalal Silva, a sub-Inspector and LPalitha's's principal assailant while in police custody, with causing torture by beating him with a pole and forcing a T.B. Patient to spit into his mouth.

Predictably enough, the threats against Palitha and his family began almost immediately. In mid-June he was offered five hundred thousand rupees, about five thousand American dollars, to withdraw his cases. In two separate incidents, he and his family received messages via third parties that his wife and child would be killed if he did not cooperate by dropping his complaints.

THE COURT PROCEEDINGS in Palitha's cases are excessive in their own right. The Supreme Court heard Palitha's fundamental rights case during several sessions in the course of 2005. The man in the shorts at the hospital, who had routinely signed police papers, turned out to be an assistant judicial medical officer, or A.J.M.O. His report on Palitha listed thirty-two separate injuries on all parts of the body, from scalp to feet. Among them were lacerations, multiple contusions, tinnitus in one ear, and a fractured anklebone. All but the fractures were judged "non-grievous." Yes, the doctor noted in his report, these injuries could have been sustained as the victim claimed they were.

The police presented an entirely different story. Palitha had been armed with a grenade when they arrived at his house, and it had been necessary to subdue him. The injuries sustained reflected the use of the minimum force required under the circumstances. There had been no torture; there had been no incident involving Sarath, the man with TB.

Palitha won a modest victory in his fundamental rights case. On February 17th, 2006, the Supreme Court ruled that, given the danger Palitha presented when he was arrested-meaning the grenade and the threat he would set it off-the violence at the time of his arrest was justified. The appearance in magistrate's court, although required by law within twenty-four hours of arrest, was lawful. However, the court accepted Palitha's account of torture at the police station and ruled that his constitutional rights had been violated. The judgment-excessive in its paucity, one might say-called for restitution in the amount of five thousand rupees from the police officer who assaulted Palitha-about fifty dollars-and twenty-five thousand rupees from the government as damages and compensation for costs.

Those supporting Palitha's case, despite its disproportionate award and the partial findings in the police officer's favor, counted the Supreme Court ruling an advance. But an unusual thing occurred some months later. On October of 2006 the High Court found in the police officer's favour. Sub-Inspector Silva was acquitted of all charges of torture-the judge ruling, in effect, that violence to the extent evident in Palitha's medical report was not excessive. The High Court judgment is, at this writing, on appeal.

WE CAN BUT SPECULATE, at this writing, as to Sub-Inspector Silva's motivations in his handling of Palitha's case. It may have been that a crime had been committed and he was desperate to find a perpetrator to demonstrate his efficiency. Such often occurs. But it is not clear in this case. What is clearer are aspects of the case that require no further evidence.

There is a pathology of disturbance in Palitha's case. The excess of violence-against three detainees, not only Palitha-is to be seen in numerous other instances. It is, indeed, not the worst case on record in this respect. The attempt to pass on a potentially lethal disease is another question. It indicates a depth of contempt that requires professional, clinical consideration.

The problem of injustice in Sri Lanka is, of course, a legal matter. There are also clear questions of a political and sociological nature. A case such as Palitha Tissa Kumara's, however, urges the prominent inclusion a psychological perspective. The problems associated with a dysfunctional police apparatus and a similarly impaired judicial system cannot be solved without reference to questions such as contempt and self-contempt, the self and the "other" in Sri Lanka, and the consciousness of hierarchy that infuses every human relationship with a dimension of "above" and "below." It is such complexities of consciousness that lead police officers to act as Sub-Inspector Silva did-and judges to defend him as they did in two separate courts.