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Opinion



Ending police brutality:a realistic goal?

A random sample of reported police torture cases include: a 26 year old man arrested on suspicion of involvement in a theft, dying five days later due to internal bleeding and shock caused by a blunt instrument; a 41 year old father of three arrested on suspicion of stealing a cow and dying allegedly after police assault; two children, 10 and 13, arrested on suspicion of stealing two buns from the school canteen, suspended from a pole and assaulted, their hair pulled out and pins inserted under their fingernails; a three-wheel driver dragged from his house at night with no reason given, assaulted and trampled by five police officers, later told that he was suspected of carrying stolen goods in his vehicle, and forced to inhale from a polythene bag containing petrol tied around his neck

By Cyrene Siriwardhana
There is long-standing recognition that police brutality exists on a large scale in Sri Lanka. A former Chairperson of the Human Rights Commission is on record as saying, “We are not talking about isolated cases of rogue policemen: we are talking about the routine use of torture as a method of investigation.”
Most of those victimized belong to the poor and marginalized sections of society, and come into contact with the police on suspicion of petty crimes. The injuries they suffer at the hands of police officers range from minor to severe physical abuse, sometimes resulting in death. A random sample of reported police torture cases include: a 26 year old man arrested on suspicion of involvement in a theft, dying five days later due to internal bleeding and shock caused by a blunt instrument; a 41 year old father of three arrested on suspicion of stealing a cow and dying allegedly after police assault; two children, 10 and 13, arrested on suspicion of stealing two buns from the school canteen, suspended from a pole and assaulted, their hair pulled out and pins inserted under their fingernails; a three-wheel driver dragged from his house at night with no reason given, assaulted and trampled by five police officers, later told that he was suspected of carrying stolen goods in his vehicle, and forced to inhale from a polythene bag containing petrol tied around his neck. These are a handful among many more documented accounts of horrendous abuse at the hands of police officers. One glaring irony is that in a functional society the police would be the frontline agency protecting the poor and the weak against such oppression.
The phenomenon of torture and harassment of arrested and detained people by police personnel has been studied and written about extensively. Many recommendations have been put forward to halt its occurrence. Yet it shows no signs of abatement. Considering its pervasiveness within our society, it is realistic to ask ourselves, can we stop police brutality? But before answering this question it is necessary to devote some attention to the causes of this problem.
Looking at the articles, reports and even books which have been written about police brutality, three main reasons emerge for its continuing existence. One is simply that the police believe torture and harassment of a detainee are a necessary investigative technique. This is demonstrated by examples such as an OIC in an Anuradhapura police station, where a high number of torture cases were reported, saying that he was successful in bringing down the crime rate in the area by the use of such measures. While a confession made to a police officer cannot be used in evidence against an accused in a court of law, confessions sometimes provide the police with leads which assist in further investigations, including information about others who may be involved in or who may be witness to criminal activity. A study by the Law and Society Trust also makes the point that, though the law prohibits torture, it does not prohibit investigations based on information obtained through torture. Practically such a prohibition would be difficult to implement, since it would require establishing that an act of torture was the sole source of a particular piece of information. What is clear, however, is that better investigative training and forensic skills, bringing with them the understanding that there are more effective ways of obtaining information from detainees, is a must for preventing police brutality.
A second reason for torture by the police is simply the lack of a perception that it is wrong. This is part of larger societal problem, where bullying those weaker than ourselves has become the norm in all areas of our lives, be it home, school, higher education or employment. The high incidence of domestic violence in Sri Lanka bears testimony to this. While the police do need continuing high quality training in human rights, unless the messages these individuals get as children and carry into adulthood unequivocally condemn the use of force by one human being on another and promote respect for the integrity and dignity of the person, human rights education will remain an isolated and inadequate measure against police brutality.
Finally, and rather obviously, the police continue to torture because it rarely carries punitive consequences. In addition to freedom from torture being a fundamental right under the Constitution, violation for which compensation may be awarded by the Supreme Court, we also have the Torture Act passed in 1994 which made torture a specific criminal offence. There is anecdotal evidence that the fear of fundamental rights litigation has somewhat lessened police officers’ confidence that they can “get away with it”, but such litigation has yet to have a significant deterrent effect. Even where fundamental rights litigation is successful, the absence of an effective system for taking disciplinary action against the police officers involved, has diluted the impact of such cases. The Torture Act has been even less effective in punishing perpetrators, with few cases being brought under it and just two convictions as at 2005, ten years after coming into operation. The majority of police brutality cases are not vindicated in the courts, due to several factors such as lack of knowledge and legal support as well as fear of repercussions. There are many reported instances of intimidation and threats to victims not to proceed against their police torturers.
Other than the courts, the National Police Commission and the Human Rights Commission both have a mandate in this regard, but both have been unable to sustain their efforts in prioritizing torture prevention. More than any other institution, the primary duty of preventing police brutality lies within the police force itself. A strong, clear and consistent message from the Inspector General of Police supported by the higher echelons of the force would go a long way in eradicating torture. But such a message needs to be backed up by equally strong, clear and consistent action against police officers who engage in torture. Sadly, our past experience has been the opposite. There has been no clear stand against torture taken by the senior levels of the police. On the contrary, we have seen implicit condonation of such behaviour by failure to take action against officers charged with torture, permitting such officers to return to work even after interdiction, official instructions restricting the Human Rights Commission’s monitoring visits to police stations, and even statements by senior police officers that disallowing torture hinders effective criminal investigation.
The prevalence of police brutality reflects dismally on us all as a society and on what we are morally prepared to tolerate. Going back to the question posed at the start of this article, can we put an end to it? This would clearly be a huge challenge, and could only be achieved incrementally. But with a co-ordinated strategy amongst law enforcement institutions, coupled with perseverance and commitment, police torture may one day become the shocking exception as opposed to the accepted practice it is now.
(The writer is an Attorney at Law)

***

Complaining against police

By S. J. Anthony Fernando
The National Police Commission has formally activated a procedural machinery to facilitate prompt and impartial investigations into complaints made by the public against police inaction, harassment, negligence and other offences.
In an interview with The Nation, Chairman of the National Police Commission Neville Piyadigama said that members of the public could now lodge their complaints with the already set up special Public Complaints Investigation Division (PCID) of the Commission.
As exclusively reported in The Nation of December 10, 2006 the Commission appointed nine Provincial Directors under this Investigation Division, covering 17 Districts. Branch offices were set up in the main provincial towns to entertain complaints from the public in those respective districts. The public could now lodge their complaints to the Commission’s Head Office or the Provincial Directors’.
These Provincial Directors, who are either senior retired SLAS officers or former DIGs selected by the Commission after calling for interviews, will function under the Director and a Deputy Director of the Public Complaints Division of the Commission based at the Commission’s Head Office at Rotunda Gardens, Colombo 3. The Commission has also gazetted rules of procedure which would be compulsorily followed in the conduct of these investigations.
J. Paranamana, a retired senior SLAS officer, has been appointed as the Director of the Investigations Division and will monitor all complaints against the police received by Provincial Directors as well.
Mr. Piyadigama said that the Commission, in consultation with the IGP, would empower the Director, Deputy Director, Provincial Director or an investigating officer detailed by the Commission to visit any police station in order to inspect any person in a police cell. They would also have the right to question and examine such persons and obtain copies of statements made by such persons. Officers in charge of police stations, District Senior SPs, DIGs are also required to give their assistance to these investigating officers to carry out their duties.
Once a complaint is received by an officer of the Commission, it would be serially numbered and registered in a record book and will be acknowledged within seven days of the receipt of the complaint. The complaints and records of any related documents will be maintained at the respective offices. The respective offices would be required to submit monthly reports on the progress of the investigations and a data base on all complaints will be maintained by the Director of the Investigations Division.
Mr. Piyadigama said that apart from complaints received by the public, the Commission will also inquire into complaints spotlighted in the media with regard to police excesses and other offences.
Public complaints once received by the relevant officials of the Commission will be categorised into three segments: Segment A relates to violation of human rights, torture, inhuman or degrading treatment, death of person in custody, fabrication of cases, fatal complaints, any allegations which attract public interest which receive wide publicity in the media, intimidation or threats to victims and witnesses, illegal arrest and detention, refusal to record complaints etc. The investigations into these complaints should be completed within 30 days.
Offences covered under segment B include intimidation, abuse and threats, refusal or failure to record a statement, making deliberate distortions to statements,, failure to maintain records or erase records, exhibiting partiality towards members of political parties, miscarriage of justice, fatal or traffic accidents involving police officers, general inefficiency and lapses.
Segment C includes following offences: undue delay in making available certified copies of complaints, discouraging complainants or witnesses from making statements use of abusive words, threats or intimidation on witnesses and complainants, inaction or partiality in taking action on a complaint.
Complaints filed under segments B and C should be investigated within 60 days.
Mr. Piyadigama said that it is imperative that the Commission has to fall back on senior police officers themselves to carry out these investigations into public complaints. However, these investigations will be closely monitored by the Commission to ensure that they are carried out impartially.
Mr. Piyadigama said that the investigations into public complaints against the police are one of the prime tasks assigned to the Police Commission under the law. Up to now, the Commission has been monitoring matters regarding the appointments, transfers, promotions and disciplinary matters of the police service. This is the first time that the Commission has taken concrete action to effectively implement matters regarding public complaints.

Provincial Directors of the NPC

= Colombo and Kalutara Districts: O. K. Hemachandra
Office – Rotunda Tower, Level 3, 109, Galle Road, Colombo 3.
Tel 2395971
= Gampaha District: S.H.M. Chandrasena. Office – No 9 3rd Floor, Gampaha Pradesheeya Sabha Building, Henarathgoda, Mudungoda Tel – 033 2226121
= Ratnapura and Kegalle Districts: H.C. Ebert Office - Opposite Seetawaka Industrial Town, Avissawella.
Tel- 4952492
= Kurunegala and Puttalam: B.M. Premaratne. Office- Ruwanbodhi Pirivena, Gatuwana Road, Kurunegala Tel – 037 2220243
= Badulla and Moneragala Districts: T.M.M. Tennekoon Office – Simon Peiris Memorial Hall, Badulla
Tel -0552225625
= Anuradhapura and Polonnaruwa Districts: H.P. Senanayaka.
Office - 1191/65, Nagasena Mawatha, Mayilgas Junction, Anuradhapura
= Matara and Hambantota: S.K. Chandrasoma Office – YMBA Building, Rahula Road, Matara
Tel -0412220715
= Galle District: M.S.R. Siri Senanayake
Office – 249B, 1st Floor, Labaduwa Road, Karapitiya, Galle
= Kandy, Matale and Nuwara Eliya Districts: S.M. Tennekoon .
Office – Kachcheri Building, Kandy Tel:081 2203596

***

Strong Bar essential

Given below are excerpts of the address given by Justice Anil Gooneratne at the ceremonial sitting held recently at the Superior Courts Complex in Hulftsdorp to welcome him as a judge of the Court of Appeal.
Whilst acknowledging the warm welcome accorded to me I think it is appropriate on an occasion such as this to reflect on the golden thread that has always engaged our attention-namely independence of the judiciary. I must express the view that this laudable concept cannot be advanced and nourished without the active participation and assistance of a strong bar and only when the bar becomes a strong component of the legal system this concept can be fortified and translated into reality.
The manner in which the day to day functions of the bench and the bar are discharged would be of paramount importance in realizing the reality in today’s context. In this process the public perception that prevails about both the bench and the bar needs to be addressed constantly since it is one of the acid tests that are used to assess the quality of our functions. At this point I would like to quote the perceptive statements made by Justice Dorab Patel , a former judge of the Supreme Court of Pakistan at a seminar held in Kathmandu in September 1987 on the theme-”The Independence of Judges and Lawyers in South Asia’. This seminar was attended by no less a person than His Lordship the Chief Justice Sarath N. Silva who was a Deputy Solicitor General at that time along with Justice R.S. Wanasundera and three other legal luminaries.
The statement of Justice Patel is as relevant in today’s context as it was then. I quote
... This is an enormous task which cannot be discharged by judges and lawyers alone. It is the problem of society itself But we should not forget that the image of the judiciary is damaged more by the laws’ delays, the expenses of litigation and the corruption which is creeping into the subordinate judiciary, than by the appointment of unsuitable persons as judges. Therefore, in the long run, the manner in which judges and lawyers discharge their duties can build up public opinion for the courts, and public opinion is a better safeguard for the independence of judges than laws and constitutional guarantees”
The three important factors highlighted in the above passage have always remained the perennial problems of the legal systems in South Asia and it is our unpalatable experience that remedial measures taken from time to time to eradicate the above problems yielded no results. One such remedial step to redress laws’ delays came in the form of 18th Amendment to the Constitution and it became a missed opportunity when the attempt to enact this constructive piece of legislation proved abortive in the wake of objections that were raised without any appreciation of the curative effect of the legislation.
In the face of this failure we now have on the statute book a redeeming legislation that saw the light of day recently namely High Court of the Provinces (Special Provisions) Amendment Act which vests certain civil appellate jurisdiction in the High Courts. It is a timely opportunity that is never to be missed and it has to be utilized for advancing the cause of the litigation needs of the public.
As for the second factor namely expenses of litigation, in the light of the criticism it has attracted, I must say steps in litigation should not become so prohibitive enough to put a poor litigant beyond the reach of legal remedies and I venture to state that this criticism against costly litigation could be addressed by the profession paying attention to the social standing of a poor litigant.
The cancer of corruption is also destructive of the system and this cannot be eliminated without the bar playing a constructive role and becoming public spirited. Unless corruption is eradicated at the lowest levels of the legal system our statutes are bound to become a dead letter and would serve no useful purpose. On the path to achieve these ideals the bench cannot function independently and the bar is a necessary constituent of this process.
On an occasion such as this when I humbly assume this judicial role, it is nothing but fair to be nostalgic about my beginnings. My late father A.W.Gooneratne was a towering influence on me in my formative years and I observed at close range what an exemplary life he led as a career judicial officer. He lived in an era when judges of his time did not enjoy the perks and privileges that we do today. But the standards set by them would I hope guide me in the discharge of my duties. I remember both my late father and mother with gratitude.
It was my late father who motivated me to join the Attorney General’s Department which was to serve as my nursery and where I cut my teeth. It is almost 28 years now since I joined that hallowed institution and I remember with gratitude the confidence and the training the department gave me in no small measure. I gratefully acknowledge the constant support and assistance given by a long line of supervising officers. Prior to my entry into the Attorney General’s department, it was late Mr. G. F. Sethukavaler, President’s Counsel who moulded me in his chambers. My nostalgic remembrance would not be complete without my old school Royal College. The great teachers who instilled ever lasting values in me need my special mention on this occasion. The heavy rigors of my work in the department were lessened by my constant guide —my wife Ruwani who provided me with a wholesome atmosphere and a peaceful home along with my two children Niluri and Rajin. My thanks go out to them as well.
Prior to taking up office as a judge of the Court of Appeal, Justice Anil Gooneratne was Additional Solicitor General of the Attorney General’s Department.