Asian Human Rights Commission, Hong Kong
An x-ray of the Sri Lankan policing system & torture of the poor is the third report produced on police torture and other abuses in Sri Lanka by the Asian Human Rights Commission (AHRC) and its sister organization, the Asian Legal Resource Centre (ALRC). The first report was ‘Torture committed by the police in Sri Lanka’ (article 2, vol. 1, no. 4, August 2002) and the second was ‘Torture and the collapse of policing in Sri Lanka’ (article 2, vol. 3, no. 1 February 2004). Together, these three reports present a significant number of cases that establish a pattern of systematic torture taking place at police stations and during routine criminal investigations throughout Sri Lanka.
The factual material and analyses presented in these reports can give rise to serious studies in many fields such as political science, constitutional studies and sociological studies. The reports may even help to initiate new approaches to the study of Sri Lanka’s political, social and cultural problems. Such studies are very much needed, if only to prevent the current shallow discussions that take place. The insights gained from the study of one of the primary institutions in the country-the police-can shed light on most other problems in Sri Lanka.
In presenting this material for research, a simple fact about theory that is often forgotten in theoretical discussions on human rights must be stressed. In the words of Carl G. Jung,
Since self-knowledge is a matter of getting to know the individual facts, theories help very little in this respect. For the more a theory lays claim to universal validity, the less capable it is of doing justice to the individual facts. Any theory based on experience is necessarily statistical; that is to say, it formulates an ideal average which abolishes all exceptions at either end of the scale and replaces them by an abstract mean. This mean is quite valid, though it need not necessarily occur in reality. Despite this it figures in the theory as an unassailable fundamental fact. The exceptions at either extreme, though equally factual, do not appear in the final result at all, since they cancel each other out. If, for instance, I determine the weight of each stone in a bed of pebbles and get an average weight of 145 grams, this tells me very little about the real nature of the pebbles. Anyone who thought, on the basis of these findings, that he could pick up a pebble of 145 grams at the first try would be in for a serious disappointment. Indeed, it might well happen that however long he searched he would not find a single pebble weighing exactly 145 grams. The statistical method shows the facts in the light of the ideal average but does not give us a picture of their empirical reality. While reflecting an indisputable aspect of reality, it can falsify the actual truth in a most misleading way. This is particularly true of theories which are based on statistics. The distinctive thing about real facts, however, is their individuality. Not to put too fine a point on it, one could say that the real picture consists of nothing but exceptions to the rule, and that, in consequence, absolute reality has predominantly the character of irregularity. (In The undiscovered self, Routledge & Kegan Paul Ltd, 1958)
Within global human rights discourse the ‘ideal average’ that is often used is the experience of economically and politically more developed countries. However, these experiences cannot facilitate an understanding of harsh realities in other countries. For instance, how do the ‘ideal average’ policeman, prosecutor, judge or government compare with their counterparts described in these three reports on Sri Lanka? Should this material be dismissed because the experiences described are different to the theoretical ideal average? Or, should the reality described here be taken as a challenge, indicating the need for greater global understanding and cooperation?
The purpose of these reports is to generate discussions on policy development, which is greatly needed to address the social instability and insecurity prevalent in Sri Lanka. At present such discussions are largely based on political doctrines without being supported by any serious studies. This merely serves to confuse the issues and contributes to the encouragement of various forms of violence. The dominant discussion within the country during the last few years has in fact legitimised the use of violence by the state, particularly the extrajudicial killing of alleged ‘criminals’ or ‘anti-social’ elements.
It is also important to bring a more rational discourse on Sri Lankan problems into the international discourse regarding development theories and conflict resolution studies. All three of these reports make clear that Sri Lanka cannot make headway towards economic and social development without resolving the colossal crisis faced by its law enforcement agencies. This is also true of conflict resolution, including ethnic conflict. It should be noted that in the development of insurgencies both in the south and in the north, the nature and practices of the Sri Lankan policing system played a key role. For this reason, the problem of policing cannot be ignored in resolving the many political and economical issues plaguing the country.
Why An x-ray of the Sri Lankan policing system & torture of the poor? The title suggests that its role is akin to a medical report indicating the extent and nature of a person’s illness. A medical report also suggests the type of cure needed. In this way, details of an organisation’s behavior patterns can also indicate the weaknesses and flaws of that organisation. This report is not an attempt to apportion blame or cause shame. It is also not an attempt to condemn. Like a medical report, it is only a disclosure of the major causes affecting Sri Lankan society through the spread of illness within one major organ of society, the police force.
To think that the illness is about the policing system alone would be to think of a heart disease only as a problem of the heart. But if the heart fails, the whole body dies. Similarly, illnesses that affect vital organs of a society affect the society in its entirety. This report is thus based on the assumption that the defects of the policing system affect the entire society. In looking for solutions to other problems within society, it is therefore essential that the problems of the policing system be addressed. Beliefs that other problems, such as the issue of ethnicity, are more pressing and that the problems of the policing system can wait are not rooted in reality.
That this report is launched at the time of a presidential campaign in Sri Lanka is purely coincidental. However, value may be added to the report if public discussion on fundamental problems affecting justice, the rule of law and stability in Sri Lanka is generated at this time. It is our contention that future political leadership in the country will not make even an inch of progress, unless serious consideration is given to the problem of law enforcement and radical reforms are undertaken. While most presidential candidates are probably unaware of the problems facing law enforcement, political insight and a determination to put things right will be the test of success for anyone elected to power in the future. History will remember all post-1978 presidents as having contributed to the destructive political and social instability of the country. Therefore, the challenge of future leaders is either to undo such destruction or to be undone by the forces unleashed by such destruction. This is not a prediction, but simply a statement of fact.
Established patterns of torture by the police in Sri Lanka
These cases of torture in Sri Lanka that have been documented by the AHRC and its partners over some years clearly establish certain patterns: one is that police investigations begin with the use of severe torture in order to “obtain the truth” and another is that torture is practiced merely as an abuse of power. Both of these often conclude with the fabrication of court cases.
In cases where persons are tortured allegedly for the purposes of interrogation we see the following pattern-individuals are arrested without sufficient grounds, often on insubstantial information, without a warrant and without being given the reasons for arrest. For instance, as revealed in the Supreme Court in Gerald Perera’s case, the insubstantial information relied upon by the police was that a person named ‘Gerald’ was involved in a crime. Hence, the first ‘Gerald’ the police came across they arrested and mercilessly assaulted-to such an extent that he suffered renal failure and was unconscious on a life support system for two weeks. Other cases are worse, such as the case of 17-year-old Chamila Bandara, where the police had no other evidence than that some young boys were involved in stealing bunches of bananas. In pursuance of their ‘information’, the police arrested several young boys living in the area and severely beat them, all the while questioning them about their involvement in any thefts. The aim of the police in these instances seems to be to seek any information at all that could somehow be used in solving crimes. Even if they are unable to extract any information, most victims are willing to confess to any crime and sign any statements after their brutal torture. The police then proudly produce them before courts as suspects of unresolved crimes in the vicinity. Sometimes these tactics result in tragedy. A 52-year-old man, Hettiarachchige Abeysiri, died on 14 July 2005 as a consequence of being tortured during an inquiry into the alleged theft of a cordless telephone.
In these cases, the police officers are producing substitutes for suspects of crimes that they have not solved. In some instances they may be aware of the identity of the real culprits, whom they have allowed to ‘escape’. Producing substitutes creates the impression-among the department as well as the public-that the police are efficient and crimes are being solved. This paves the way to financial rewards and promotions.
The second pattern of torture involves people being beaten up purely as a result of abuse of power: a three-wheel cab driver, D W Munasinghe, who was slow in stopping his vehicle after being asked to do so by police officers was kicked and tortured to death; Rohitha Upali Liyanage, the owner of a motorcycle that was mistakenly taken by two police officers, was assaulted with an iron rod and suffered a leg fracture after asking for its return. R A Hemasiri, a former illicit liquor seller trying to lead a normal life, was beaten up because he refused to cooperate, as in the past, and admit to new charges. S C P Fernando was beaten up in an attempt to get him to withdraw a complaint of torture. J V Saman Priyankara had hot water poured on his thighs by a police officer acting on the instigation of a neighbour. A police officer beat up H H Priyadarshana Fernando over a family dispute in which the officer took the side of the wife. A cashier who demanded that police officers pay for their food was severely assaulted, while H Quintus Perera, the manager of a restaurant who refused to sell liquor to some policemen on a religious holiday-during which the selling of liquor is prohibited by law-was beaten so severely that he died of his injuries.
The relationship between police torture and Sri Lanka’s national instability
An x-ray of the Sri Lankan policing system & torture of the poor establishes that the defective policing system is fundamentally linked to Sri Lanka’s persistent national instability.
The dominant historical tradition in Sri Lanka has been that terror has been used as a mode of social control. Like many other territories in earlier times, the use of severe punishment was a central feature in the management of crime and reinforcement of structural hierarchies. However, whereas in many other territories this practice has come to an end or been significantly reduced in modern times, in Sri Lanka it has continued, and is today seen most clearly in the type of policing prevalent in the country. The society has not evolved towards rational modes of social control through the rule of law and due respect to the rights of citizens. While rational laws were introduced on the one hand, barbaric practices of dealing with the population have continued on the other. In times of crisis, unmitigated powers have been given to the armed forces and police to terrorize the people with large-scale killings and other forms of cruelty. The enormous fear that such acts have instilled in the population has made people so afraid that they have even been willing to hand over their children to armed forces personnel, well aware that their children might be inhumanly tortured or even caused to disappear (see ‘Tales of two Sri Lankan massacres: The relevance of Embilipitiya to Bindunuwewa’ by Basil Fernando, article 2, vol. 4, no. 3, June 2005, pp. 47-52). Additionally, in recent times, particularly since 1978, even the limited development of public authorities collapsed with absolute power being handed over to the executive president. The model of authority introduced through the 1978 Constitution resulted in a state of anarchy in the country, inevitably affecting the policing institution as well.
Sri Lanka’s prosecution system, under the attorney general’s department, is extremely backward and ill-staffed, and in the years following 1978 it has gone from bad to worse. The system has not substantially changed from the time of its establishment during British rule, while vast changes have taken place in prosecution systems worldwide. A major weakness of the system is that the prosecution depends entirely on police inquiries. Thus if the police do not investigate or are negligent in investigating crime, there is hardly anything the prosecutors can do to remedy the situation. And given the type of crisis that exists in the policing system today, the prosecution system is bound to suffer severe setbacks. An attempt that was made to create an independent prosecutor’s branch in the early 1970s was scrapped after 1978. The present attorney general himself has publicly admitted that he does not have a sufficient number of staff to successfully deal with the department’s workload. As a result, there are enormous delays before the department is able to file cases in court.
Another serious setback that occurred after 1978 was during the operation of emergency and anti-terrorism laws, when the country was beset with tens of thousands of disappearances. During these times, some officers of the attorney general’s department actually engaged in assisting those police and armed forces officials named as respondents in habeas corpus applications. These officers advised the police and military to file false affidavits before the courts. This undermined the respect that the law enforcement agencies had earlier held for the department, which is essential in maintaining its independence and integrity. Furthermore, following the 1978 Constitution all public institutions were in some way politicised, and the attorney general’s department was no exception.
Delays in Sri Lanka’s justice system are also well known and widely discussed. However, less widely discussed are how such delays are a major contributor to the country’s social insecurity and violence. Delays in adjudication put parties who go before court in great danger of reprisals. They allow enormous space for corruption and encourage people to seek alternate methods of settling disputes-more often than not, by violent methods.
The complete absence of witness protection is another reason that torture victims and victims of other human rights abuses are mortally scared to complain about their grievances or to pursue their complaints. No justice system can function when complainants and witnesses do not want to pursue their complaints.
Internal discipline within the police force has all but collapsed, as top-ranking officers have failed to take firm positions on its proper maintenance. So-called inter-departmental disciplinary inquiries are looked upon with cynicism by both the people as well as the police officers themselves. By and large, the morale of the top-ranking officers is low. And while since the enactment of the 17th Amendment to the constitution disciplinary control of the police force has been a function of the National Police Commission, this body has proved woefully inadequate. While the commission states that the inspector general of police and other high-ranking officers resist attempts to take disciplinary action against errant policemen, the justification given for this resistance is that such action would ‘demoralize’ the police. This argument is ludicrous. The resistance to discipline leads to the conclusion that perhaps the behaviour of the police is acceptable.
Incompetence in handling criminal investigations is a commonly admitted reason for police failure. Higher-ranking police officers themselves have claimed that they do not have forensic equipment or training. In fact, the overall approach to the introduction of forensic science into the country remains poor; forensic pathologists are available only in city hospitals.
Proposals for reforms & obstacles to achieving them
What must be done? The following are some suggestions in view of the above:
1. Suspects in criminal cases must be produced only before courts and not at the residences of magistrates or acting magistrates. In this way the possibility of producing an impersonator can be avoided and legal representation for the suspect can be ensured. If due to exceptional circumstances someone is to be produced outside the court, the reasons for such must be given by the police in writing and included among the documents produced in court. On such occasions the magistrate should order that the person be produced in open court on the very next day of its sitting.
2. A request for a medical examination for suspected torture should be able to be made to a magistrate orally, in writing, or through a lawyer at any time once a person is under arrest. The magistrate must then make appropriate orders for the conduct of such an examination, preferably by a judicial medical officer.
3. Where a magistrate has reason to suspect that torture has been inflicted, the magistrate should inform the deputy inspector general of police in the area and request an independent inquiry. The findings of such an inquiry should be submitted to the court.
4. At least two hours before anyone is produced in court for the first time, a report pertaining to relevant investigations should be faxed by the officer-in-charge of the police station concerned to the magistrate, giving the nature of the charges and other information as required by the Criminal Procedure Code of Sri Lanka.
5. Where there are sufficient grounds to believe that any suspect charged with an offence has been tortured, the magistrate should order an independent investigation through the concerned superintendent of police, to ascertain whether the charges are fabricated and merely an attempt to cover up the torture.
6. When any concerned government agent or agency receives a complaint of torture, an immediate preliminary inquiry to ascertain the validity of the complaint should be ordered. If the complaint is found to be valid, a complete inquiry into the matter should be conducted within two weeks or in the maximum, one month. For this purpose, the Special Investigation Unit should be allocated sufficient staff to deal with torture complaints.
7. Indictments under the Convention against Torture Act, No. 22 of 1994, should be filed by the attorney general within the shortest possible time on the completion of inquiries and in no instance should there be any delay beyond three months. On the filing of indictments the attorney general’s department should also inform the complainants so that they can take measures to protect themselves. Copies of intimation of filing of indictments should be sent to the National Police Commission and the Human Rights Commission of Sri Lanka. When intimating the filing of an indictment, the attorney general’s department should also inform the complainants that they are entitled to witness protection and that they could contact the state counsel of the relevant high court regarding appropriate legal measures to protect them. Furthermore, the Human Rights Commission of Sri Lanka should improve its 24-hour hotline so as to be able to intervene urgently and effectively on occasions where torture victims are being threatened or attacked.
8. Community organisations must be set up in every locality for the protection of witnesses. A nationwide volunteer group should be formed to intervene when people are being tortured or witnesses are being attacked. Such volunteer groups have proven effective in other countries. The community groups must also be trained to use telephones, fax machines and email facilities to communicate information regarding rights violations and to seek assistance from local and international organisations. A major effort must be made by local human rights organisations regarding victims of human rights abuses who have to flee their villages and homes due to death threats and other dangers from police perpetrators. The sheer inhumanity of law enforcement officers pursuing persons who have made complaints against them needs to be addressed if any meaningful action is to be taken for legal redress against human rights abuse by police officers. All recommendations, whether pertaining to the National Police Commission, the attorney general, or even the Human Rights Commission of Sri Lanka will remain of academic value until some basic scheme for affording protection is developed for the victims of torture and other human rights abuses. For the near future, the defense of people’s basic rights will not come from the institutions of justice: the main initiatives must come from the people themselves. There is little choice in this matter: either people can continue to suffer under the yoke of a failed police system or they can take an active role in reforming the system.
It would be naive to talk about easy solutions to these problems. It may be more useful to briefly outline the obstacles that exist in bringing about solutions.
1. There is a manifest lack of decision-makers and problem-solvers in Sri Lanka today. In proposing solutions, citizens no longer know to whom such proposals should be addressed. Who is willing to listen? This is a major question not only for the average citizen but also for any person or group with some specialised knowledge on an issue. Enough has been said and published on the issue of policing that a difference should have been made by now. Instead, in the absence of any authority available to listen and make decisions, the lamentations become louder by the day, while the lack of expectation for change grows larger.
2. The loss of expectation for change regarding serious problems is itself a grave problem. It gives rise to violence and other negative behaviour, including exploitation. When the absence of authority is felt widely, criminality flourishes. Everywhere in the country there are cries about the increase in crime, but the media, while giving expression to these, have not seriously asked whether there is any authority available to produce rational solutions. The absence of expectation for a reasonable solution to a problem spreads public resignation and reluctant willingness to accept unreasonable solutions. One such unreasonable solution that has been promoted in Sri Lanka in recent times is to encourage extrajudicial killings of alleged criminals. This type of response only aggravates, rather than solves, the situation.
3. The political leadership of the country has deteriorated greatly since the promulgation of the 1978 Constitution. This constitution stands as a testament to the obvious: that no single person can be left to run a modern nation. An effective leader represents a system, not just him or herself. Rebuilding a system based on political authority is an inescapable task if the problems in the country, including those of policing, are to be resolved.
4. At the institutional level, higher-ranking police officers and the National Police Commission should try to address the problems of policing in a serious manner and forward their proposals to the political authorities and people at large. Political chaos does not absolve them of their duties to address these problems seriously and tell the government and the people the truth. No one can help an institution that does not want to help itself. In this regard the tussle between the police commission and top-ranking police officers, particularly on matters of discipline within the police force, amounts to a betrayal of the constitutional trust placed on both parties. It is childish to continue this state of tension. The constitution should prevail and both parties should put effort into developing common ground and utilize the provisions of the 17th Amendment to resolve their differences.
5. The statements of the top-ranking police officers show that their responses to the policing institution’s problems are contradictory. On the one hand, almost everyone openly admits that there are very serious difficulties affecting the institution. At a private level they go to great lengths to describe not only what ails their institution but also the country as a whole. On the other hand, when it comes to day-to-day administration they engage in exercises of denial. They use one case or another where culprit policemen have been arrested to illustrate that they are doing enough to resolve the problems. The lack of frankness in analyzing the problems and the lack of willingness to take serious action have diminished the authority of these high-ranking officers in the eyes of others. Regaining their authority will depend on their capacity to stop living in a state of denial. If they put forward their problems genuinely before the people, they will generate more sympathy and respect. But if they instead decide to carry on as usual, perhaps even exploiting the situation, then the low esteem that prevails among the public will continue.
6. Opinion makers-whether intellectuals, media persons or leaders of social organisations in Sri Lanka-have not yet made a serious effort to understand and articulate the problems of the policing system in Sri Lanka. Somehow the subject is not treated as worthy of their serious consideration. Earlier there were the Justice J. Soertsz Commission, which published its report in 1947; the Basnayake Commission Report, published in 1970; and the 1955 Sri Lanka Police Service: Suggestions for improving its efficiency and effectiveness report. However, all these reports are now mostly outdated, and nor did any of them receive much consideration or lead to real change. Perhaps the only significant development since has been the 17th Amendment to the Constitution, which gave birth to the National Police Commission and guaranteed it wide powers with which to depoliticise and strengthen the police. However, even the thinking around this development remains qualitatively poor. Who can create the debate? Obviously, debates on policing do not begin from the top: that is to say, from the state or senior officers in the system itself. The only place where the debate can start is among the public. In other words, what is required is a popular movement for the reform and improvement of policing and other branches of justice. If such a movement will not build up and bring the problem of policing to the wider attention of the society, it is very unlikely that much change will occur for the better in the near future.
The Asian Human Rights Commission and its partners have tried in their small way to bring this message to the Sri Lankan people. Through constant reporting on torture and police abuse, by supporting victims to pursue their cases, and by attempting to create public opinion as well as by the regular publication of statements and constant engagement with government agencies on the issue, some work has been done and some space created for the needed debate. A recent move to launch a street movement for justice has also been motivated by the same desire to achieve this objective. If people begin to articulate their immense frustrations and demand solutions, some form of response is bound to materialise. And the sooner this can be made a reality, the better it will be for everyone.
This article consists of the edited text of the preamble and introduction to a new book released by the Asian Human Rights Commission, An x-ray of the Sri Lankan policing system & torture of the poor, edited by Basil Fernando & Shyamali Puvimanasinghe (September 2005).