Appendix I: Draft complaint procedure for implementation of article 155G(2) of the 17th Amendment to the Constitution of Sri Lanka

Asian Human Rights Commission

Footnote: This draft complaint procedure for the implementation of article 155G(2) of the 17th Amendment to the Constitution of Sri Lanka was duly submitted to Mr Ranjith Abeysuriya PC, Chairman of the National Police Commission, on 2 December 2003.

 

Explanatory Note

The 17th Amendment to the Constitution of Sri Lanka, insofar as it provides in Article 155G(2) for the mechanism of complaints against the police, is a unique provision compared with any other legal procedures:

a. Other complaint procedures provide only for internal inquiries;

b. Under article 155G(1), disciplinary control of the police service belongs to the Commission. Thus control of all aspects of procedures for public complaints is the responsibility of the Commission.

The creation of procedures is a constitutional obligation that has yet to be realised. Although ASPs [Assistant Superintendents of Police], DIGs [Deputy Inspector Generals] and the like have, so far, had the duty of investigation of complaints, disciplinary procedures in the police have been arbitrary and ad hoc. The following submission is a working template that seeks to fulfill the mandate of article 155G(2) of the 17th Amendment.

With reference to the scope of the submissions, the procedure is not related to all aspects of police discipline, but rather confined to complaints by aggrieved parties and public complaints. Thus issues of disobedience to superiors and other internal matters are not part of this procedure, though in other jurisdictions these are taken together. This implies that our draft can exclude these aspects.

 

Draft Complaint Procedure under article 155G(2) of the Constitution of Sri Lanka

Preamble: Principles of the Amendment

Whereas the 17th Amendment to the Constitution of Sri Lanka was passed by the Parliament of Sri Lanka in order to bring about greater transparency and accountability in public institutions and in the process of governance, in order that citizens’ rights be safeguarded, particularly in so far as restoring law and order and public confidence in the rule of law is concerned;

Whereas the Police Commission was created under the 17th Amendment as foresaid, to engage in reform of the police service by functioning as an independent inquiry body into public complaints against the service as a whole, as well as individual police officers;

Whereas the 17th Amendment, by virtue of article 155G(2) imposes a specific duty on the Police Commission to establish procedures to entertain and investigate public complaints or complaints of aggrieved persons against an individual police officer or the police service and provide redress in accordance with law;

Whereas there is tremendous public concern about the police force in general and its capacity to enforce law and order in the context of a severe deterioration of discipline, inadequate training and prevalence of practices of torture by the police resulting in public confidence in an independent police service deteriorating to an extent that threatens the very foundations of law and order in Sri Lanka;

And given therefore, that an urgent need exists for the establishing of systematic and transparent procedures under article 155G(2), in order that public complaints are entertained, investigated and redressed in the manner required by the Constitution;

These following Rules are established by the Police Commission under Article 155G(2) of the Constitution.

Chapter 1: Entertainment of complaints

1.1 Public complaints and complaints by aggrieved parties against offender(s) regarding specific incidents

1. Any person, persons or body of persons, who are personally aggrieved or who may become aware of any action or inaction on the part of any police officer or officers leading to a violation of statutory and/or constitutional and/or public duties imposed on such officer or officers or involving a violation of the rights of any person, may complain to the Commission in the manner hereinafter provided for;

2. Such action/inaction or violation of statutory and/or constitutional duties and/or public duties by police officer/s in respect of which a complaint may be lodged as aforesaid, includes particularly;

a) Death of a person in police care or custody;

b) Allegations of torture and/or cruel, inhuman or degrading treatment and/or injury to a member of the public in police care/ custody and by any action of a police official;

c) Road traffic incidents in which a police vehicle is involved;

d) Shooting incidents in which a police officer discharges a firearm in the course of a police operation;

e) Allegations of bribery or corruption involving police officers;

f) Miscarriage of justice resulting from misconduct by a police officer;

This would include:

(i) Refusal/ failure/postponement to record a statement sought to be made to the police;

(ii) Undue delay in making available certified copies of statements made to the police by any person on payment of the usual charges. Explanation: a lapse of more than 48 hours shall be regarded as an ‘undue delay’ unless the Officer-in-Charge of the relevant police station or any officer under delegation of authority by such Officer-in-Charge gives in writing the reasons for any delay beyond the stipulated period which may be brought to the notice of the Commission which shall inquire into the said alleged cause for the delay.

(iii) Discouraging complainants or witnesses from making statements;

(iv) Use of abusive words, threats or intimidation on complainants or witnesses;

(v) Chasing away complainants/witnesses who come to make complaints or statements;

(vi) Failure to maintain records, including erasing or otherwise altering records;

(vii) Making deliberate distortions in statements recorded;

(viii) Failure to read the statements over to the signatories before getting the signatures;

(ix) Exhibiting partiality towards members of political parties in the carrying out of official duties;

(x) Making false reports and statements to court;

(xi) Deliberate fabrication of cases;

(xii) Negligence in filing cases without evidence;

(xiii) Failure and/or refusal on the part of any police officer to co-operate with any Attorney-at-Law looking after the interests of his or her client and/or any attempt to deny a person his or her unfettered right to obtain legal representation.

g) Any alleged misconduct and/or breach of discipline (vide Annexure I to these Rules) on the part of a police officer or officers;

h) Racist and/or discriminatory and/or sexist conduct by police officers or conduct which offends the constitutional guarantee of equality before the law;

i) Arrestable offences allegedly committed by a police officer;

j) Any dereliction of the mandatory duties imposed on police officers by virtue of Section 56 of the Police Ordinance;

k) Any attempt to deny any individual the freedom of speech or freedom to engage in a lawful occupation, profession and business;

l) Any attempt to coerce/intimidate/subvert a medical officer or any other public officer into submitting false documents or engage in dereliction of that officer’s duties;

m) In relation to arrests:

(i) Failure to make notes on each stage of the arrest;

(ii) Failure to wear a uniform or identification items as police officers;

(iii) Failure to use official transport with identification marks as a police vehicle;

(iv) Failure to inform the reasons for arrest

Provided that where a complaint is pending investigation by a police officer, the complainant will have a right of appeal to the Police Commission if reasons are provided for in writing by the complainant as to why investigations have been unsatisfactory and such reasons are accepted by the Police Commission or an officer delegated by the Police Commission.

 

1.2. Public complaints and complaints by aggrieved parties against the police service

Individuals or organisations may submit complaints relating to general deficiencies or concerns in the police service.

These may relate to general issues of police “mis-management and abuse of power in the public sphere” pertaining to a particular locality or in general. For example, the prevalence of torture in a particular police station may be the subject of such a complaint. Similarly, misbehaviour by police officers in a particular area or acts or omissions by police officers in a specific area, absence of some services generally expected from the police, such as an immediate police response to crimes in a locality, and similar violations, such as a number of fabricated cases and delayed investigations and alike are issues of police “mis-management and abuse of power in public sphere” pertaining to a particular area that can come under this category.

Public inquiries undertaken by the Police Commission on its own initiative or by the request or order of the courts, or at the request of the state with regard to the police service in general may come under this category.

1.3 Submission and entertainment of complaints

1. Where the complaints are to be made: Complaints can be made at the head office and local offices of the Police Commission.

2. The manner in which complaints could be made: Complaints could be made (a) through the post, (b) by fax, (c) by telephone, (d) in person, (e) by electronic mail.

3. What is necessary for a complaint: The complaint should be made in the manner set out in the First Schedule to these Rules.

 

1.4 Automatic complaints system

All Officers-in-Charge of police stations, ASPs and/or DIGs and/or SPs [Superintendents of Police] shall refer to the Commission all cases specified in the following categories regardless of whether there has been a complaint or not:

a) Deaths in police care or custody;

b) Fatal road traffic incidents in which a police vehicle is involved;

c) Shooting incidents in which a police officer discharges a firearm in the course of a police operation;

d) Allegations of corruption involving police officers;

e) Miscarriages of justice resulting allegedly from misconduct by a police officer;

f) Allegations of racist and/or discriminatory and/or sexist conduct by police officers;

g) An arrestable offence allegedly committed by a police officer; and

h) Allegations of torture and injury of a person in police custody or care and by any action of a police officer.

 

1.5 Pro-active role of the Police Commission

The Police Commission may undertake suo moto investigations into all or any of the instances set out in subsection 1.4 above.

 

1.6 Registering, documenting and (archiving is separate of registration and documentation) of complaints

How to register and document a complaint: There should be guidelines as to how the complaints are registered and documented.

a) If the complaint has been made orally, it should be reduced to writing and read to the complainant who would sign himself to attest the contents of the written complaint.

b) Written complaints received directly or by post or electronic means should be stamped by the receiving officer, indicating the time and date received.

c) All complaints should be registered on a register of complaints with a unique number, which will be the case number for further follow-up. The complainant must be informed of the unique number for further follow-up.

d) The copies of complaints should also be maintained on a computerised database in which the same unique numbering system should be followed and should also include proceeding tracking information indicating current status and responsible officer.

e) Care should be taken to maintain cross-referencing with regard to complaints received, in order that similar complaints received with regard to police officer/s under subsections 1.1, 1.2 and 1.4 can be cumulatively evaluated by the Police Commission at a given time and/or referred to by a member of the public upon authorisation given to that effect by the Police Commission.

f) All steps towards the protection of records must be followed. The Police Commission should draft regulations relating to the protection of documents which would allow aggrieved parties and/or members of the public access to completed case records upon permission given by the Police Commission.

How the complaints will be archived: The Police Commission should also issue guidelines as to how these complaints will be maintained and protected, either through protection of written records or use of electronic recording.

Chapter 2: Procedure relating to the investigation of complaints and disciplinary inquiries thereto

2.1 Procedure relating to investigations against particular police officers under Section 1.1 and/or the automatic complaints procedure under Section 1.4

STAGE ONE

a) Immediate inquiries (Quick Response) to intervene and stop an ongoing violation against a person to ensure his/her protection and to record the initial statements and observation.

b) Inquiries to determine whether there is a prima facie case to proceed with,

c) Comprehensive fact-finding inquiries to collect all the evidence relating to the complaint.

 

STAGE TWO

a) Recommendations made to appropriate prosecutorial authority for the purpose of instituting criminal action against the perpetrators;

b) Where findings of such investigation indicate a breach of statutory and/or constitutional and/or public duty on the part of any police officer, the provisions of subsection 2.2 shall apply mutatis mutandis.

 

STAGE ONE

Immediate inquiries (Quick Response) to intervene on an ongoing violation against a person to ensure his or her protection and to record the initial statements and observation.

Duties of the First Response Officer

– On reception of the complaint, he will visit the premises where the alleged violation has taken place or continues to take place

– He will record the statements of the victims and the alleged perpetrators and make observations on the condition of the victim/s and record such observations.

He/she will issue such instructions as required for the protection of the victim such as immediate medical attention when required, or relocation of the victim to stop re-victimisation by the perpetrators, and recommend such other measures as to ensure protection of the victim, family and witnesses.

a) Inquiries to determine whether there is a prima facie case to proceed with,

Duties of a Police Commission authorized officer

An authorized officer(s) will go through the available evidence and make a determination as to whether there is a prima facie case to proceed with. Where the determination is not to proceed with further investigation, the reason for such determination should be recorded by the authorized officer. Any such recommendation must be conveyed to the complainant.

b) Comprehensive fact-finding inquiries to collect all the evidence relating to the complaint.

An authorized Special Investigation Unit should conduct a comprehensive investigation,

Duties of investigators

– Recording all the statements of witnesses available;

– Viewing/examining and copying necessary records;

– Making photographs and causing forensic examination as required by the circumstances

– Referring the case for an expert opinion as and when required;

– Taking all other necessary steps to ensure that all the available evidence has been collected.

– At the end of the investigations, to review the evidence and make recommendations and submit the file for subsequent action by the Police Commission.

 

STAGE TWO

Recommendations made to appropriate prosecutorial authority for the purpose of instituting criminal action against the perpetrators.

– Where the Police Commission is satisfied that evidence of a criminal offense or offences exist under the prevalent law the Police Commission will refer the matter for investigation to the relevant authorities with the observation of the Police Commission that a prima facie case exists against the alleged perpetrators. An information note should be conveyed to the complainant.

– The Police Commission should follow up such reference and obtain reports on the progress of such investigations and subsequent prosecutions.

– Such reports should be made available for public scrutiny at the offices of the Police Commission unless the said reports are excluded from public scrutiny on express orders of the Police Commission.

 

2.2. Procedure relating to complaints that constitute breaches of public and/or statutory and/or constitutional duties

Explanation: Breach of public and/or statutory and/or constitutional duties shall include actions of police officers prohibited in terms of sub-sections (f), (g), (i), (j), (k), (l) and (m) of Section (02) of Section 1.1 above and shall also include adverse findings against any police officer by the Supreme Court in the exercise of its fundamental rights jurisdiction under Article 126 of the Constitution and willful refusal and/or failure of any police officer to comply with a request made by the Police Commission (or an officer delegated by the Police Commission) in pursuance of investigations carried out under these Rules read with the duties imposed upon such police officer under Section 3.1 of these Rules.

Upon a complaint being received to this effect or upon such breach being disclosed during investigations conducted under the preceding sub-section of these Rules, an officer of the Police Commission will record all the relevant statements and collect all evidence of acts of police officer/s that are categorised as breaches of Public and/or Statutory and/or Constitutional Duties, as defined above, within two months of the said complaint being received or disclosed, and will refer the report therein to a Committee of the Police Commission for inquiry.

– On the basis of the comprehensive investigation contemplated in the preceding sub-section, the Police Commission will conduct a disciplinary inquiry into whether disciplinary action should be taken against the alleged perpetrators, during which inquiry, the alleged perpetrators will be charge sheeted and interdicted from service.

– The inquiry will be conducted within two months of the preliminary report being submitted to the Police Commission and will be conducted by a three-member panel of the Police Commission presided over by the Chairman or by a member of the Police Commission with authority delegated thereto by the Chairman of the Police Commission.

– The complainant and/or affected persons thereto will be notified by the Police Commission of the said inquiry. The alleged perpetrators will be given the right to defend themselves as required by law.

– After the inquiry, the Committee of the Police Commission shall make their findings in writing to the Police Commission.

– On the basis of such findings, the Police Commission will take appropriate disciplinary action as provided by law. Such a decision must be conveyed in writing to the complainants, the perpetrators and the IGP [Inspector General of Police].

– A right of appeal from such a decision of the Police Commission will exist to the Administrative Appeals Tribunal established under article 59 of the Constitution.

2.3 Procedure relating to investigation of complaints against the police service under Section 1.2

Procedure relating to complaints against the police service

a) Upon the receipt of complaints against the police service, the Police Commission shall delegate the complaint to an officer of the Special Investigation Unit of the Police Commission for follow up action.

b) Such officers shall record all the statements of witnesses available, view/examine and copy necessary records, make photographs and cause forensic examination as required by the circumstances, refer the case for an expert opinion as and when required, and take all other necessary steps to ensure that all the available evidence has been collected.

c) At the end of the investigations, which shall not be longer than a period of three months, the officer shall submit the report to the Police Commission.

d) Provided that, if a written request is made to the Police Commission for an extension of this time period for explainable reasons, such extensions may be granted for one month at a time, provided that the entire time period shall not extend for more than six months.

e) Upon the receipt of the report, a three member Committee of the Police Commission shall deliberate upon the report and shall cause the same to be notified to the complainant. Written representations may be called for by the public under the hand of the Secretary to the Police Commission if such is considered to be necessary. Such views may be furnished in writing or the committee of the Police Commission may also make available time for oral representations.

f) Such deliberations shall be in public unless the Police Commission sets down in writing, the reasons why it should be held in camera.

g) The report of such sub-committee of the Police Commission shall be submitted to the Police Commission sitting as a body within three months of the complaint being made along with the findings and/or recommendations of the said committee and the Police Commission shall, within two months of the report being submitted, authorise the implementation of the same with suitable modifications.

h) The findings of the Police Commission shall, along with the investigative report, be filed in the offices of the Police Commission to enable public scrutiny unless reasons are given in writing by the Police Commission as to why the report and/or the findings cannot be made public.

 

Chapter 3: The powers of the Police Commission, its public accountability and matters incidental thereto

3.1. The accessibility of information for an effective completion of investigations

For investigations to be thorough, the Police Commission will need open access to all relevant information.

In terms of the power given to the Police Commission under article 155G(2) to investigate complaints against any police officer or the police service, which has been given effect to in these Rules read together with the MOU [Memorandum of Understanding] entered into between the IGP (or the acting IGP) and the Police Commission, all police officers are under a legal obligation to

a) Produce and/or give access to the Police Commission documents or other material as called for;

b) Allow members of the Police Commission to take away the actual or copies of the documents or other material; and

c) Allow entry to police premises.

Explanatory Note: Breach of these duties will result in disciplinary sanctions being visited on the errant police officer by the Police Commission acting under Section 2.2 of these Rules

1. The Police Commission should have full access, when appropriate, to all necessary information from both the public and private sector.

2. Simultaneously, the Police Commission should abide by the following guidelines when handling the information.

3. The Police Commission in its dealings with the complainant should have the discretion to disclose information from the investigation of complaints subject only to a harm test.

4. The Police Commission should have the freedom to use information received from reports and other documents from the police force, after excluding sensitive or demonstrably confidential material, to compile guidance, promotional and other material for the purpose of continuous improvement in the complaints procedure and in raising the public awareness and understanding of the complaints procedure.

 

3.2 The Police Commission and its response to the complainant/s

1. Once the investigatory process mandated with regard to all complaints against a police officer is complete, the complainant/s should be sent a full written account of the investigation, setting out the way the investigation had been conducted, a summary of the evidence, the conclusions, which include the proposed action to be taken against the officer concerned, reasons for those conclusions and any action taken to prevent a recurrence.

2. If necessary, a member of the Police Commission should meet the complainant or the family of the complainant, and explain the results of the investigation and findings.

 

3.3.Duty of fairness on the part of Police Commission officers and prohibition on collusion with the police in any form or manner whatsover

1. All officers of the Police Commission shall be under a duty to act fairly in entertaining, acting upon or investigating complaints as mandated under Sections 1 and 2 of these Rules.

2. Any officer of the Police Commission found colluding with any police officer or officers in any form or manner whatsoever in the carrying out of their duties as contemplated by these Rules will be immediately suspended from work and upon inquiry being held, will be forthwith dismissed from the service of the Police Commission.

 

3.4. Police Commission and public accountability

The Police Commission should not only be unbiased, but must be perceived by the public to be unbiased. To ensure transparency and maintain the public confidence the Police Commission

1. The Police Commission should present an annual report of its activities through means that will be accessible to the public.

2. Police Commission finances should generally be produced and made available.

3. The Police Commission should provide an opportunity to assess the public confidence in it, through public debates and surveys.

 

ANNEXURES

ANNEXURE I

Breaches of discipline would include:

Violation of duties imposed by the Establishment Code of the Government of the Democratic Socialist Republic of Sri Lanka

Volume II

Issued by the Secretary to the Ministry in charge of the subject of Public Administers

1999

The First Schedule of Offences Committed by Public Officers

1. Non-allegiance to the Constitution of the Democratic Socialist Republic of Sri Lanka.

2. Act or cause to act in such manner as to bring the Democratic Socialist Republic of Sri Lanka into disrepute.

3. Anti-government or terrorist or criminal offences.

4. Bribery or Corruption.

5. Being drunk or smelling of liquor within duty hours or within Government premises.

6. Use or be in possession of narcotic drugs within hours or within Government premises.

7. Misappropriate or cause another to misappropriate public funds.

8. Misappropriate government resources or cause such misappropriation or causes destruction or depreciation of government resources willfully or negligently.

9. Act or cause to act negligently or inadvertently or willfully in such manner as to harm government interests.

10. Act in such manner as to bring the public service into disrepute.

11. Divulge information that may harm the State, the State Service or other State Institution or make available or cause to make available State documents or copies thereof of outside parties without the permission of an appropriate authority.

12. Alter, distort, destroy or fudge State documents.

13. Conduct oneself or act in such manner as to obstruct a public officer in the discharge of his duties, or insult, or cause or threaten to cause bodily harm to a public officer.

14. Refuse to carry out lawful orders given by a senior officer or insubordination.

15. Any violation of provisions of the Establishments Cord, Financial Regulations, Public Service Commission Circulars, Public Administration Circulars, Treasury Circulars, Departmental handbooks or Manuals or wilfully, inadvertently or negligently act in act in circumvention of such provisions.

16. Aid and abet, or cause to commit the above offences.

 

The Second Schedule of Offences Committed by Public Officers

Offences, though not falling within the First Schedule above, are caused owing to the inefficiency, incompetence, inadvertence, lack of integrity, improper negligence and indiscipline of an officer.

Explanatory Note

Disciplinary control: What does this involve?

It involves a clear understanding of what are the breaches of discipline. Thus,

1. The Police Commission, as well as all members of the police service, should know what constitute breaches of discipline in the police force and what are the consequences of each type of discipline that is breached.

2. For this to happen it is necessary to write it down; acts which will lead to disciplinary actions and possible punishments must be written down to avoid uncertainty and confusion. This is not difficult and the list needs not be too long; however, breaches of discipline common to Sri Lankan police must be included in such a listing.

3. The procedure of entering complaints, inquiring and redress must also be written down.

 

ANNEXURE II

Rules relating to arrest laid down by the Indian Supreme Court in case of D K Basu vs State of West Bengal

We, therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures:

1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee insist be recorded in a register.

2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter-signed by the arrestee and shall contain the time and date of arrest.

3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.

7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/herbed, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory. Director, Health Services should prepare such a panel for all Tehsils and Districts as well.

9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Magistrate for his record.

10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

11) A police control room should be provided at all District and State Headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should bc displayed on conspicuous notice board.

37) Failure to comply with the requirements herein above mentioned shall apart form rendering the concerned official liable for departmental action also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the Country, having territorial jurisdiction over the matter.

38) The requirements, referred to above flow from Articles 21 and 22(1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier,

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