A Brief Colonial History Of Ceylon(SriLanka)
Sri Lanka: One Island Two Nations
A Brief Colonial History Of Ceylon(SriLanka)
Sri Lanka: One Island Two Nations
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Thiranjala Weerasinghe sj.- One Island Two Nations
?????????????????????????????????????????????????Saturday, September 24, 2016
SRI LANKA: Supreme Court Judgments on torture and the State’s failure to protect those in custody
By Basil Fernando-September 23, 2016
One
more judgement from the Supreme Court, on torture by the Sri Lankan
police, was added to a long list of such judgements, when the Supreme
Court decided in favour of a petition filed by W.N.L.K. Fernando of
Naththandiya Police against officers attached to the Wennapuwa Police
Station [S.C.F.R. Application No. 612/09].
The Supreme Court decided that three of the police officers have, in
fact, violated the rights of the petitioner guaranteed under Article 11
of the Constitution by assaulting petitioner Fernando. The Court ordered
the three police officers to pay the Petitioner Rupees 35,000 each,
i.e. Rupees 105,000 in total, out of their own pockets. The Court
rejected the version of the Respondent police officers that the injuries
on the petitioner might have been caused in the course of the
petitioner’s attempt to resist arrest. The Court instead accepted the
version of the petitioner – supported by medical evidence – that the
injuries were consistent with the petitioner’s version of the events.
The Supreme Court has pronounced similar judgements, finding police
officers having committed torture, on many occasions. However, there is
no indication of any significant improvement of police behaviour despite
these judgments.
The recent incidents of reports of deaths of persons while in police
custody also highlights that there are very serious problems relating to
the execution of duties by the police, who are obligated to protect the
suspects they arrest.
When a person is arrested, the officers act on behalf of the Sri Lankan
State. At the point of securing arrest, the officers are expected to act
as the guardians of persons who have been arrested. Many stories of
torture and ill-treatment heard from around the country indicate that
the Sri Lankan police officers have not acquired a basic understanding
of their role when they act on behalf of the State in taking a citizen
in custody.
What is seen instead is a generalised practice of treating a person
taken into police custody as a lesser human being or a non human being.
It is this perception that needs to be scrutinised carefully by the
government, by the officers of the police hierarchy, as well as those in
charge of all other institutions created for the purpose of ensuring
the proper carrying out of the duties of the state, which are, in this
regard, ensure the protection of citizens, and non-citizens, taken into
police custody for the limited purpose of facilitating inquiries into
crimes. The National Police Commission and the Human Rights Commission
of Sri Lanka are among such institutions which have special obligations
to ensure such protection.
A close examination of the way arrests are made quite often, and the way
those taken into custody are being treated in the course of many such
investigations, creates the impression that the officers often have no
appreciation of their own roles as protectors. The impression one gets
is a relationship between a predator and a prey, rather than a protector
and a person who is under such person’s protection. Of course, this is
not the case in all cases of arrest and detention. Well publicised
inquiries that are conducted by some agencies, like Financial Crimes
Investigations Department, where the suspects are powerful persons, such
as politicians and businessmen, there is a clear indication of a
different type of behaviour. None of those persons involved in high
profile cases, have yet complained of torture, ill-treatment, or even
impolite behaviour towards them.
Thus, the kind of relationship which looks like that of a predator and
prey is mostly in cases handled at the police stations, and also quite
often regarding persons who are generally referred to as the ordinary
folk. The way many police officers seem to understand the ‘ordinary
folk’, is in seeing them as ‘nobodies’. There is a kind of perception
that these nobodies should be treated roughly and with no show of
kindness. A civilised treatment of suspects seems almost regarded as
being counterproductive.
It is this mentality, exercised mainly towards the common folk, that
should receive careful examination, sociologically, psychologically, and
also from the perspective of what the proper behaviour of public
institutions towards all citizens should be. It is in that regard, that
the role of the police hierarchy in moulding the behaviour of officers
who work for their institutions need to be clearly examined. When there
is a general practice of such improper behaviour towards persons who
should in fact be treated with special consideration, due to the
obligation of protection, it is justified to conclude that there are
serious failures on the part of those in charge of such institutions.
The failure of those exercising leadership becomes even more glaring
when one considers that the issues involved relate to violations of
constitutional rights of the people. To expect protection is a
constitutional right. When there is widespread practice of violations of
constitutional rights, within a public institution, those in charge of
such an institution, cannot plead ignorance or innocence.
In some instances, such as custodial deaths, murder is involved. It is
easy to carry out a tug-of-war, whether a particular custodial death is a
murder or not; in this tug-of-war, the ordinary citizen does not have
the same power-to-pull, as the authorities and the institution have. On
occasions of custodial deaths, powerful attempts are made to create the
impression that there is no foul play involved. It is not within the
power of the average citizen to fight with such powerful forces to
ensure that proper and fair inquiries are being conducted on such
occasions. Often, the inquirers themselves are the high-ranking officers
of the same institution, for example, ASPs or SSPs. In fact, if these
officers carry out their obligations in the right manner, to ensure that
the subordinates under their charge carry out the duties of protection,
as required by the Constitution, such unfortunate incidents are
unlikely to happen.
Therefore, there is not only an obligation on the part of the
high-ranking officers for having allowed the existence of failures in
the exercise of protection functions, they also play the same role, in
prevention of proper and fair inquiries. Having a fair inquiry is the
citizen’s last resort after everything has stood against his advantage.
Under the present circumstances, it is not possible honestly to state
that even this last resort, exists for individuals who suffer such
unfortunate deaths in police custody.
Problems relating to denial of protection for citizens are a fundamental
failure in the duties of the State. The very fact that the Supreme
Court has itself, on so many occasions, pointed to this failure, in
judgements relating to violations under Article 11 of the Constitution,
is a strong enough argument to expose existing failures. Whether the
State takes the message of such judgments seriously is a matter on which
an unequivocal answer in the affirmative cannot be given in the present
context.