Prevention of Human Rights Violations - Are the Police Sincere?
Published in the Law & Society Trust Review, November 2001
PREVENTION OF HUMAN RIGHTS VIOLATIONS –
ARE THE POLICE SINCERE?
Anarchy has been defined as a condition in a country where there is political and social confusion and an absence of law and order. It follows that the maintenance of law and order is one of the principal functions of a State. While the security forces have the responsibility of ensuring the security of the State from internal or external threats to it the police are primarily responsible to maintain law and order within the State. This calls for the necessary mechanisms to be put in place to ensure that swift and effective action is taken against violators of the law to prevent the proliferation of violence. The testing time for the efficiency of the systems is when extensive violations of the law take place as during elections. Experience shows that pre and post election periods are just the time when such situations invariably occur. With the sudden dissolution of Parliament country is now going through what one could describe as one of the bitterly contested elections Sri Lanka has ever seen. However, one notes with dismay the daily escalation of election violence including abductions and killings of candidates` taking place while the Police are pathetically ineffective in stemming the trend. The newspapers are keeping track of these violations and giving the number of complaints like giving the scores in a thrilling, keenly fought cricket match! However, reports of effective action being taken on these complaints are rare and few.
It would be interesting to check in how many of the nearly 1000 complaints of election violence made so far, that the police have taken prompt action according to the law and taken the suspects to courts where necessary and moved for remand if known criminals are involved to prevent further breaches of the peace. The impotence of the police in situations of this nature is well illustrated in the recent case of a candidate for the elections in the Puttalam District waylaying the opposing candidate and his supporters ho were on the way for an election rally. The incident is reported to have taken place not very far from where three police officers were on duty and they are said to have been passive witnesses to the affray. Perhaps the police did not want to intervene because the assailants were said to be from the party in power and they would have had to encounter undesirable consequences if they had intervened.
Be that as it may, if one takes a look at the past record of the police it would be clear that they themselves were in some way or other responsible for the disintegration of the image and effectiveness of the police force. Leaving political interference aside, in the recent past has any IGP shown a genuine interest in cleansing the police force of undisciplined and corrupt officers? Was any sustained effort made in all earnest to improve the respect people having for the police force? Even most of the recommendations made by the Hema Basnayake Police Commission to reform the Police have yet to be implemented. Consequently, the undesirable elements in the Police force continue to tarnish its image and earn more and more disrepute. Take, for instance, the practice of torture.
Even though torture has been declared a crime following the ratification of the UN Convention on Torture in 1994, hardly any person taken into custody by the police escapes some kind of torture or other. This is in spite of the provision in the 1978 Constitution which states that, no person shall be subjected to torture or cruel, inhuman or degrading treatment or punishment.1 In fact, at a seminar on ‘Torture in Sri Lanka’ conducted by a well known NGO sometime ago, a senior police officer who was a participant, had the audacity to get up and say to a shocked audience “without torturing, how else does anybody expect evidence needed to convict a person in a court of law to be unearthed`?” This statement only helped to expose the ineffectiveness of the police investigation techniques and the scant regard the police have for the laws of the land. It is to be worked that the Constitution also specifically states that, “every person shall be presumed innocent until he is proved guilty.”2 The police deliberately ignore these provisions of the Constitution when dealing with persons taken into custody.
This brings us to the question of the violation of the rights of individuals taken into custody, which was at its peak in the early 90’s. Those were the days when disappearances of persons both in the North and the South of the country were at its highest and violations of the rights of people were at optimum levels. During that time persons had been taken into custody from their homes, at checkpoints or round-ups and often confined incommunicado and tortured. Sadly many of them are no more. Several Presidential Commissions were appointed to inquire into these disappearances. Consequent to the findings of these Commissions, the Attorney General had framed charges against more than 450 police and security force personnel against whom there is adequate evidence to prosecute them in courts. Ordinarily any officer of State, be it police or otherwise, against whom a criminal case has been instituted has to be interdicted from service until the conclusion of the case and dismissed if he is convicted. This is done in terms of provisions in the Establishment Code,3 which, inter alia, deals with disciplinary procedures against state officers. Some, and only some, of the police officers against which cases were filed had been interdicted. To the consternation of human rights activists, a circular had been issued to all DIGG and SSPP by the DIG Personnel and Training of the Police Headquarters bearing letter No: DIG/PS/71/2001 of 5th January, 2001 directing among other things, as follows:
“Inspector General of Police has approved the re-instatement of all officers who have been interdicted following the inquiries conducted by the Disappearances Investigation Unit and charged in courts but subsequently bailed out in connection with cases of disappearances of persons.
This raises the question whether the IGP can issue a directive contravening the provisions of the Establishment Code. The other question is, can the IGP direct the reinstating of a gazetted officer interdicted by the Public Service Commission, which is the disciplinary authority of officers of that category. Be that as it may, the issue of this circular goes to prove the degree of concern the Police have to clean up the police service by ridding itself of perpetrators of human rights violations. Is it not indicative of the fact that the Police Department condones violations of the right of individuals and is not happy to see their brother officers being dealt with for misconducts of this nature.
The Reports of the Disappearances Commissions also revealed the existence of several torture chambers some of which were maintained by the Police during the early 1990. However, the mandate of these Commissions did not authorise further investigations into those torture chambers. Mention is only made of the location of such chambers and the Police Officers who are alleged to have been in charge of them. The names of some such places are given hereunder 4
1. St. Sylvester’s College, Kandy
2. Y.M.C.A. at Welimada
3. Hali Ela Motors at Badulla
4. Paddy Marketing Stores at Walapane.
Referring to these torture chambers it is stated in the report5 states as follows
The terms of the reference of this Commission do not warrant investigations into matters pertaining to such “torture chambers.” Several persons are alleged to have been done to death in such places and the bodies had been disposed of.
It is recommended that separate investigations be conducted through an appropriate authority…… to bring to book those responsible for the incidents…..
Yet no action has been taken on this recommendation and the perpetrators continue to get their promotions and hold responsible positions in the police service. It is true that initiating Court proceedings against those responsible is laborious and time consuming. But initiating disciplinary inquiry against them need not wait for legal proceedings to be concluded. The degree of proof necessary in a disciplinary proceeding is not as stringent as in a court of law. Action not being taken against these violators in their midst sets a bad example to the others in the service.
The Final Report of the Commission of Inquiry into Disappearances in the Western, Southern and Sabaragamuwa Provinces speaks of mass graves.6
All these Mass Graves ….. are matters of knowledge shared by the people of the area where the Mass Graves are located, even though unknown nationally and unacknowledged by the authorities.
The Police either do not record or record the report (of the Mass Graves) as merely that of a disappearance.
I did so on superiors orders, admitted a recording officer of the CID, which was investigating the Hokandara Mass Grave – Colombo South.7
The Report gives a list of twenty such graves that had been reported to the Commission.
All those incidents have taken place because the Police either connived with the rights violators or they themselves violated the rights of individuals. But no disciplinary action has been taken against these violators in spite of the Report bringing them to light. Those involved continue to be in service with impunity.
The consequences of the circular issued on 5th January 2001 is going to have far reaching effects. These re-instated officers, some of whom may be posted to the districts in which the complainants and the witnesses reside and are most likely to use their positions to intimidate or otherwise harass them. They would take every effort possible to make the cases against them fail. Perhaps this circular was intended to facilitate these accused officers to abort their cases and escape conviction. Besides it would not be possible for the IGP in the future to interdict any police officer charged with a criminal offence because such officer could cite this circular and file a fundamental rights application for unequal treatment.
This also reduces to naught all the efforts taken by the Presidential Commissions of Inquiry to unearth evidence indicative of the person responsible for the disappearances and the efforts of the Disappearances Investigation Unit of the CID and the Missing Persons Unit of the Attorney General’s Department which had labored to put the evidence together to enable a conviction to be obtained in courts of law. Since court procedures are long and time consuming it is imperative that disciplinary action be taken against them for the violation of departmental rules and procedures which paved the way for the criminal offence to be committed. The re-instatement of these officers indicates that they may not have to face even a disciplinary inquiry.
Human Rights activists are concerned that this trend does not augur well for the human rights situation in Sri Lanka. It may even enable the climate of impunity to gather more vigor. One wonders what the aftermath of the elections holds for the cause of the rule of law and the human rights situation in Sri Lanka as the past performance of the leading contenders at the elections do not speak well of their concern for human rights.
* Consultant, Law & Society Trust.
1The Constitution of Sri Lanka (1978), Chapter III, Article11.
2 Ibid, Article 13(5).
3 Establishment Code of the Government of Sri Lanka, Vol. II Cap.XLVIII, Section 21.
4 This excludes the torture chambers said, to have been maintained by the military.
5 Final Report of the Presidential Commission on Disappearances, Sessional Paper No.III of 1997, p.20.
6 .Sessional Paper No. V of 1997, p.117
7 Ibid at p. 118