Police brutality:awareness key issue

By Kishali Pinto Jayawardena

Rights protection by the Sri Lankan Supreme Court has been most marked in the area of unlawful arrest and detention and the prohibition against torture and cruel, inhuman and degrading treatment.

The law has, in fact developed to a point where medical evidence of injuries has not been looked upon as essential in all cases, the Court declaring that in appropriate circumstances an allegation of violation of Article 11 ( torture and cruel inhuman and degrading treatment) could be proved even in the absence of medical evidence. Again, a specific police officer need not be identified as being responsible for the brutality and liability is established once it is proved that custodial violence had taken place inside the police station.

Despite such pronouncements by the Court however, police brutality in normal reportage of crimes, quite apart from action taken under the emergency laws of the country, continues unchecked. Directions given by the Court to the IGP to take action against particular police officers named as being responsible for violations are not heeded and the frustration of the Court with this non-compliance has now become virtually legendary.

India has had similar and perhaps more pervasive problems than Sri Lanka where custodial violence and police brutality is concerned. Indian advocate Biju Verghese, a public interest lawyer in the Karnataka High Court who has specialised in this area of the law spoke to me recently regarding the problems that Indian judges and lawyers face when dealing with these questions. Following are extracts from his interview:

Q. Custodial death and violence is a recurrent phenomenon related to patterns of abuse by the police. This is a matter of grave concern in the region. How serious is this problem in your country?

A. Many provisions of the Universal Declaration of Human Rights ( 1948 ) which marked the emergence of an international trend in the protection and guarantee of certain basic human rights have found pride of place in the Indian Constitution and have been enumerated in Part III. Article 21 provides that "no person shall be deprived of his life or personal liberty except according to procedure established by law".

Despite the values proclaimed by international human rights instruments, safe-guards provided in the Constitution and other legislation, custodial violence and violation of basic human rights in my country continue unabated.

National and international media has increasingly focussed public attention on blatant human rights violations committed by persons who are supposed to be protectors of the citizen. The perpetrators of these inhuman violations have found ways and means of circumventing the law and in many instances the judicial officers at the lowest level have turned a blind eye or have become insensitive to such violations and arrest and torture of a person on the instructions of influential persons in the society or for extortion of money has become a common phenomenon.

Q. What contribution has the Indian judiciary made towards checking this trend?

A. Some recent decisions of the Supreme Court of India attempt to effectively address some of these pressing issues. The courts have attempted to do this by bringing about transparency of action and accountability in matters of exercise of State power. A recent case, (D K Basu v. State of W.B. [(1997)1 SCC), laid down certain mandatory requirements to be adopted by authorities in all cases of arrest or detention. These requirements can be briefly summarized as follows: All personnel carrying out the arrest and interrogation must bear clear identification with name and designation; An arrest memo is to be prepared at the time of arrest containing the time and date of arrest, which is to be signed by a witness and countersigned by the arrestee; a friend or relative of the arrestee shall be informed of the arrest and the place of detention; the arrestee shall be informed of this aforesaid right as soon as he is arrested; an entry should be made in a diary at the place of detention regarding the arrest and also the name of the friend or relative of the arrestee who has been informed should be entered in this diary; the arrestee should be examined at the time of arrest and any injuries present on the person should be recorded in an inspection memo to be signed by the arrestee and the officer effecting the arrest; the arrestee should be subjected to medical examination every 48 hours during his detention by a doctor from the approved panel of doctors; copies of all the aforesaid documents should be sent to the concerned magistrates; the arrestee may be permitted to meet his lawyer during interrogation.

Q. Have these directions been complied with by police officers? What happens in the case of non-compliance?

A.In the Basu case, the Court took note of the fact that the earlier decision of a similar nature had not had effect at the ground level. It was therefore expressly stated that failure on the part of any police officer to comply with these requirements shall, apart from rendering the official concerned liable for departmental action, also render him liable for contempt of court. The Court further directed that these requirements laid down are to be forwarded to the Home Secretary of every State. The Secretaries are obliged to circulate this to all police stations under their charge. All State Governments were moreover directed to file affidavits to ascertain the extent of compliance of the directions issued in the aforesaid decision of the D.K.Basu case.

Q. What was the relief given by the Court to the victim concerned?

A. Compensatory relief was given. The Supreme Court has declared that where the infringement of the fundamental right is established, it cannot stop by giving a mere declaration. It must proceed further and give compensatory relief, not by way of damages as in a civil action but by way of compensation under the public law jurisdiction for the wrong done due to the breach of public duty by the State in not protecting the fundamental right of the citizen. This is a progressive approach as civil action for damages is a long drawn and cumbersome judicial process and most often the victim or the family of the victim is not in a position to undertake such a venture.

Q. Is there not a corresponding need to create awareness of fundamental human rights among police officers themselves? Has the Indian judiciary responded to this need in any way?

A.The need of the hour is undoubtedly to train and re-orient police officers in this respect. The Court has frequently made reference to this fact. Interestingly enough, there has also been reference to the fact that it is crucial that training be given in this respect not only to police officers but to members of the lower judiciary as well who deal with these issues on a day-to-day basis.

In a recent decision ( In re M. P. Diwedi, [(1996 )4 SCC), the Supreme Court took serious view of a Magistrate not taking action for removal of handcuffs of under-trial prisoners brought before him. The Court noted the complete insensitivity of the Magistrate to this serious violation of human rights of under-trial prisoners and recorded strong disapproval of his conduct and directed that this disapproval of the court be placed in the personal file of the Magistrate.

Q. Sri Lanka and India face similar problems in the area of custodial violence. What would you see as the most pressing need to address these problems right now?

A. Unless the directions and requirements laid down by apex courts trickle down to the lowest levels of judiciary and enforcement authorities, the protection of the human rights of citizens will remain a dead letter of law. As far as India is concerned, it is imperative that the Central and State Governments, National Human Rights Commissions, the Judiciary, Media and the Non-Governmental Organisations should make a sincere and concerted effort to create mass awareness of basic human rights. Awareness is thus the key to this whole issue. Creation of that awareness together with provision of the necessary support for a victim to go before the courts and highlight the wrongs done to him or her remains a priority.

Sermons won't make this wrong right

By K.M.B.B. Kulatunge, President's Counsel, Retd. Judge of the Supreme Court.

The observance of human rights rather than its theory is vital to the well being of the people. Over emphasizing theory as against practice of human rights can create contempt for the concept itself, even if fundamental rights are entrenched in the Constitution.

It is my impression that in Sri Lanka,we have been inclined to make human rights education elitist by engaging in endless "sermons without giving sufficient consideration to the ground situation at grassroots level."

I am writing this article to bring about a change of attitude in those who are interested in the advancement of fundamental rights and freedoms. There are two significant features that characterise 50 years of independence in Sri Lanka.

First, for about 40 years, the country has been under Emergency Rule, second, fundamental rights have been entrenched in the 1972 and 1978 Constitutions for 26 years during which period also there has been extensive rule by Emergency Regulations.

From 1989 to April 1996 during my tenure as a Judge of the Supreme Court, I handed down 210 judgements of which 110 related to fundamental rights complaints in which relief was granted. Thirty of them were infringements of the rights to freedom from torture and the freedom from unlawful detention and/or arrest. The other cases involved mostly violation of the right to equal protection of the law. I presume that my brother judges also handed down a large number of such judgements. It would appear however that even after the change of administration in 1994, the incidents of violations of fundamental rights have not ceased. Judgements of the Supreme Court have found police officers guilty of torture and unlawful detention. The above observations are made purely on the basis of decided cases. Moreover, it has to be noted that all such violations are not brought before the Supreme Court in view of the fact that there are many victims who have neither the means nor the resources to do so.

Consequently, the incidents of violations of fundamental rights may well be much more than what the decided cases indicate. The most basic and important human rights contained in the Human Rights Covenants acceded to by Sri Lanka were entrenched in the 1972 Constitution.

There was no express provision in that Constitution vesting jurisdiction in any particular court to adjudicate on complaints of infringement of fundamental rights. However, it is my view that the fundamental rights entrenched in the 1972 Constitution were enforceable in the sense that a violation of such a right could be made the legal basis for seeking appropriate relief from the original or appellate courts.

The 1978 Constitution also entrenched fundamental rights (except the right to life) and vested exclusive jurisdiction in the Supreme Court to hear and determine complaints of infringements of those rights by executive administrative action. Violations purely attributable to private persons, corporate or incorporate, have to be adjudicated upon in the first instance presumably by the original courts.The questions that have to be asked now are whether there is any material difference between the present situation where upon the proof of an infringement of a fundamental right, specific relief is available and the period when no such relief was available?

Were human rights safeguarded by common law and by statutes even during that period? Was the evidence of violations of human rights prior to 1972 as high as it is in modern times? If not, what is the cause of regular and persistent violations of human rights which is the current experience, despite the entrenchment of human rights in the Constitution? Some observations made by Sir Ivor Jennings who drafted many of the provisions of the Soulbury Constitution are pertinent here.

Advising against the inclusion of a Bill of Rights in the Constitution, he said that " In Britain, we have no Bill of Rights: we merely have liberty according to law, and we think - truly, I believe - that we do a job better than any country which has a Bill of Rights or a Declaration of the Rights of Man" ( Approach to Self Government ( 1958 ) pg 20 )

The Soulbury Commissioners themselves believed that fairness in the administration specially as regards minority rights could best be left to the good sense of the majority community as a matter of trust, subject however to the Constitutional safeguards specified under Sec. 29 (2) of the Soulbury Constitution.

This approach clearly emphasised the importance of the observance of human rights as against mere entrenchment. It is significant also that the provisions guaranteeing rights in relation to religion and equality and equal protection of the law (Sections 29 (1), (2), and (3) ) were made before the Universal Declaration of Human Rights ( 1948) and the International Covenants on Human Rights (1966).

The said provisions were directed to safeguard the minorities. Jennings explains that "......a minority is not necessarily a racial minority. It may be based on race, caste, religion, economic interest or pure politics which were in Ceylon important for election purposes" (" Constitution of Ceylon" Jennings Pg 44) While Section 29 of the Soulbury Constitution thus safeguarded the rights which were apprehended by the minorities as threatened rights, there were also many statutes which protect all the core rights which have been since then entrenched in human rights treaties. Some examples would be the Abolition of Slavery by Ordinance No 20 of 1844, the Police Ordinance of 1865 which required a suspect to be produced before a Magistrate within 24 hours of his arrest, the Penal Code No 2 of 1883, the Criminal Procedure Code of 1898, the Trade Unions Ordinance of 1935 and the Prevention of Social Disabilities Act of 1957.

Several judicial decisions of that era also articulated these same core rights as in King Vs Thajudeen where it was opined that violence by a police officer ought to be severely punished, the Bracegridle case where the Rule of Law was upheld when it was held that the Governor's order for deporting Bracegridle was invalid as the precondition for such an order, namely a state of emergency did not exist, Muthusamy Vs Kannangara and Corea Vs the Queen where it was held that a suspect is entitled to be informed of the reason for his arrest and that the failure to do so renders the arrest unlawful. In re Wickremesinghe where it was held that judges and courts are open to criticism provided that nothing is said that scandalises the courts by acts calculated to impair the administration of justice, Queen Vs Tennekoon Appuhamy where it was held upon finding that the accused had been subjected to torture and cruel and inhuman treatment by a police officer, that the latter's conduct called for " a full dress inquiry by an independent tribunal" and Sunthralingam Vs Inspector of Police, Kankesanthurai where it was held that the prevention of a low caste Hindu from entering a place of religious worship was an offence under the Prevention of Social Disablities Act.

In the background that I have described above, the Soulbury Constitution, with the separation of powers between the legislature, the executive and the judiciary and with the safeguards in Section 29, provided an ideal foundation for the establishment of a secular state and a democratic system of government. This was however, not achieved because the Westminster system of government based on one party rule is singularly unsuited in a multi ethnic, multi religious third world country. From the inception, the government was predominantly Sinhala and the participation of Tamils or Muslims was possible only if they joined a Sinhala Party or by the grace of the party in power. Jennings drafted the 1946 Constitution according to the British traditions. So, he cannot be blamed for failing to provide power sharing in the executive government at the centre.

On the contrary, we must blame our leaders for their parochial attitudes. What is more, two further measures paved the way for the current disorder, including human rights violation in Sri Lanka. Firstly, it was the Citizenship Act which disenfranchised a large number of persons of Indian origin who had exercised franchise since 1931 leading to future governments having to take legislative action to correct the injustices so inflicted. Secondly, it was the language problem. If Sinhala and Tamil were compulsorily taught in schools after Independence, any citizen of whatever race would have been competent and eligible to assume any office in any part of the country on the basis of equality. Instead, the UNP and the SLFP both hastened to make Sinhala the official language in their rivalry to gain votes.

This gave rise to a counter campaign by the Tamils, communal riots , disorder and Emergency Rule. While there is no objection on my part to the entrenchment of fundamental rights in the Constitution, I feel that such entrenchment in the 1972 and 1978 Constitutions as well as the accessions to the 1996 International Human Rights Covenants and the First Optional Protocol to the ICCPR were political gestures wittingly or unwittingly designed to act as a palliative to the injustices committed by successive administrations. We have failed to understand the true issues affecting Sri Lanka. The two main Sinhala parties, on the other hand, have had the monopoly of government power and each party when in power would discriminate against its opponents, setting the wrong example to the administrative services.

My conclusion is that the government at the centre has been politicised by the enthronement of one party rule, the public service has been politicised since 1972 by the conferment of wide political rights on the public officers and local government has been nullified by political interference on the basis of party, depending on which party is in power.

Until this system is replaced by a system where all communities become sovereign partners in a sovereign government and cultural integration is established by abolishing the language barrier, the present disorder will continue and violations of human rights will increase despite constitutional provisions safeguarding such rights. Mere discussions and political deliberations will not bring about any improvement in the current situation.

JUDGMENTS

FUNDAMENTAL RIGHTS

Edward Oswald Bennet Rathnayake Vs The Sri Lanka Rupavahini Corporation and Others

SC Application 867/96
Before Fernando J.
Wadugodapitiya
J.Gunewardene J.
Decided on 11th June 1998

Article 12(1)/ powers conferred on statutory bodies in respect of telecasting on the airwaves so conferred in trust for the public and should be exercised for the benefit of the public/ a fair and objective procedure should govern the selection process of telefilms for telecast during primetime.

Facts

The Petitioner who was an established telefilm producer complained that the refusal of the Sri Lanka Rupavahini Corporation ( SLRC ) to telecast a Sinhala telefilm titled "Makara Vijithaya", produced by him at a cost of 2.3 million during "prime time" was a violation of his fundamental rights under the Constitution.

He went on to ask for a declaration that the procedure leading up to the refusal of prime time was in violation of Article 12(1) for want of a fair and objective selection procedure, including criteria announced in advance, for compensation and for direction to the SLRC to prescribe and publish the criteria for selection of teledramas for telecast during prime time and to set up an independent and competent review panel to determine whether telefilms ( including "Makara Vijithaya") met those criteria.

Held by Mark Fernando J. ( with Wadugodapitiya J. and Gunewardene J. agreeing )

That the Respondents have failed to show that the members of the preview board, the appeal board and the "supreme appeal board" that viewed " Makara Vijithaya" and rejected it as unsuitable for prime time viewing had been duly appointed. The 8th Respondent Chairman and the 5th 7th 9th and 12th Respondents were held not only to have acquiesced in the violation of their own established procedure but to have purported to review the film themselves, thereby usurping the functions of the independent "supreme appeal board"

It was further held that the powers which a statutory body like the SLRC has in respect of television and broadcasting are much greater than in the case of other media like the print media, because the frequencies available for television and broadcasting are so limited that only a handful of persons can be allowed the privilege of operating on them and those who have that privilege are subject to a correspondingly greater obligation to be sensitive to the rights and interests of the public.

The airwaves are public property and the State is under an obligation to ensure that they are used for the benefit of the public.

The powers conferred on the 1st Respondent ( and its directors and officials) in respect of telecasting on the airwaves were held to be so conferred in trust for the public and had to be exercised for the benefit of the public, for which purpose it was obliged to establish and implement a fair and objective procedure to determine whether a telefilm submitted to it was suitable for screening, and if so the time of screening.

That obligation was held to have been seriously violated in the instant case.

Court granted the Petitioner a declaration that his fundamental rights under Article 12(1) had been violated.

The decision of the Board of the 1st Respondent in respect of the film "Makara Vijithaya" was quashed and the 1st Respondent was directed to submit the telefilm for final review- after specifying the applicable criteria- by the "supreme appeal board" within a month of the deliverance of the judgement. Having taken into consideration the considerable financial loss suffered by the Petitioner which was aggravated by the delay of the Respondents to deal expeditiously with his appeals together with their evasive responses to Court, the denial of the opportunity to the Petitioner to telecast his film outside prime time by the Respondents not replying his query as to the available time belt and the manner in which the Respondents had acted in deliberate and cavalier disregard of their own rules, the Court went on to award the Petitioner a sum of Rs 1,000,000/= as compensation payable by the 1st Respondent on or before 30/06/98 with further interest calculated at a rate of 24% p.a. in the event of delay.

The 2nd and the 8th Respondents were ordered to personally pay a sum of Rs 7,500/= each as costs and a similar order with regard to costs was made in respect of the 5th, 7th 9th and 12th respondents in the sum of Rs 2,500/=

The SLRC was also directed to give publicity in all three languages on its own television channel to the procedure and criteria for the selection of telefilms for telecast during primetime and outside, distinguishing as necessary between different types of telefilms.

The telecast was directed to be made between 7.00 p.m. and 8.00 p.m. at least once every month from July to December 1998 and thereafter whenever the procedure or criteria are amended.

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