ISSN: 1391 - 0531
Sunday May 4, 2008
Vol. 42 - No 49
Columns - Focus on Rights  

A question of brutal law enforcement

By Kishali Pinto Jayawardena

One of the more improbable yarns heard in Sri Lanka concerns an unfortunate suspect being killed while in police custody; often the explanation is that he was attempting to escape and had attacked the custodial officers thus necessitating a return attack during the course of which he dies. In his country Report after a mission visit to Sri Lanka in 2005, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, observes that it has been documented that the police shot at least 22 criminal suspects after taking them into custody. He points out that these reports remained unchallenged and observes that in none of these cases was a police officer injured while the shootings of the suspects were all fatal. Worryingly, no internal inquiry had been held into any of these cases on the purported basis that no complaint had been received.

It is this ridiculing of the law which should concern us all. In the Special Rapportuer's Report (which also, by the way, specifically castigates the Liberation Tigers of Tamil Eelam for their very considerable human rights violations), it is remarked that the other main cause of death is torture in police custody. for example, between 1 January and October 30, 2003, the National Police Commission had received 221 complaints concerning assault and torture by the police, six of which resulted in deaths. The Special Rapportuer on Torture had, in another illustrative example, recorded 52 allegations in 2003.

Resorting to torture for the purpose of arrest and detention infringes the ordinary criminal law, special statutes such as the 1994 Convention Against Torture (CAT) Act as well as the Constitution. Section 3 of the CAT Act states that the existence of a state of war, threat of war, internal political instability or public emergency are not an adequate defence to acts of torture constituting an offence under the Act. The justification of superior orders is also not an acceptable defence. These cautions have been stressed time and time again by the Supreme Court in its upholding of fundamental rights in terms of the Constitution. In addition, the police Departmental Orders are infringed. For example, Police Departmental Order No A. 20 directs in Section 2 that arrests will be made as far as possible without violence and that only that amount of absolutely essential force should be used in order to bring a violent person under control. By Departmental Order No A.3, an officer-in-charge is expected to daily inspect the station lock-up barracks and other places and make an entry to that purpose and also to provide facilities for members of the public who are desirous of lodging any complaint. Such complaints must be attended to as expeditiously as possible. None of these Orders are, of course, being followed.

The Public Complaints Procedures being implemented by the National Police Commission also appear to have borne no perceptible fruit. According to recent press reports, almost half of the complaints against the police relate to misuse of powers. It is asserted that some police officers found guilty in the course of investigations have been charge-sheeted, transferred or reprimanded but specific details are not forthcoming.

These bare statistics are extremely unsatisfactory. Some years back, when the members to the National Police Commission was constitutionally appointed with the approval of the Constitutional Council (lacking in the current membership), the NPC which is vested with the constitutional duty of enforcing discipline within the police force made a direction some years back that police officers indicted under the CAT Act should be interdicted forthwith. However, this decision was greeted with blatant scorn by the police hierarchy including the then Inspector General of Police and the NPC was engulfed in a storm of controversy. Adverse statements were made by frontline ministers that the 'independence of the NPC' was not needed and that the Inspector General of Police (IGP) should be involved in the decision-making processes of the NPC. Inflammatory remarks by other political figures of the ruling coalition also added fuel to the fire. Public hostility was evidenced between the IGP and the NPC where the former considered that the creation of the NPC had imposed an unwarranted fetter on his powers.

Similarly, when cases against police officers in respect of their involvement in enforced disappearances and other human rights abuses under the general penal law were pending in courts and these police officers were interdicted as required by the Establishments Code, the Police Department issued a circular reversing the interdictions. This action was taken to court on a public interest basis and the Court of Appeal upheld the interdictions. Pathirana vs DIG(Personnel & Training) and others, (C.A. Writ Application No 1123/2002, CA Minutes 09.10.2006). The Court quashed the relevant police circular on the basis that it was ultra vires the Establishments Code which stipulated that where legal proceedings are taken against a public officer for a criminal offence or bribery or corruption the relevant officer should be forthwith interdicted by the appropriate authority

We have therefore seen even the minute attempts to discipline the police force being met with stiff resistance by the political establishment as well as by the police department. This needs to change. While public pressure to effectively address the high rate of crime is manifested, the response on the part of the police department is not to engage in systematic and sustained law enforcement efforts but rather, to allow police officers to penalize marginalized individuals who cannot defend themselves or persons accused of nothing more than petty theft.

Ironically, many actual major criminals escape without sanctions; the linkages between the police and the underworld, including drug barons are reported commonly in the newspapers. In several cases documented by activists, individuals were commonly beaten up for refusing to give money to police officers by way of bribes for carrying on illicit liquor sales; when these sales were stopped and the bribes ceased, they were subjected to abuse.

Overall, the violence that has seeped into Sri Lankan society frames the failure and subversion of law enforcement; in a country that continues to experience unending conflict through many decades, torture, death and disappearances have become everyday occurrences. Human society, along with its ostensible law enforcers has itself become brutalized. In the result, bringing order and sanity back to the law enforcement process will undoubtedly be an agonizingly uphill task.

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