FOR IMMEDIATE RELEASE
AHRC-STM-096-2009
May 6, 2009
A Statement by the Asian Human Rights Commission
SRI LANKA: Fundamental rights upheld
Supreme Court holds that police authorities have not heeded chief justice’s recommendations against police abuse, rampant dishonesty and corruption
Making a judgement in a fundamental rights case Justice Shiranee Tilakawardane (S.N. Silva, C.J. and Justice P.A. Ratnayake agreeing) that the recommendations made by the chief justice on previous occasions to the police authorities regarding abuse of police power, rampant dishonesty and corruption has not been heeded by the Inspector General of Police and other police authorities. The court stated:
In V.I.S. Rodrigo- (see supra) it was found that the petitioner had been inappropriately stopped by several members of the Police Force at a checkpoint. Like in the .present case, the petitioner had been repeatedly harassed about genuine legal documents, unjustifiably accused of wrongdoing and ultimately arrested, kept in custody and later remanded despite having committed no cognizable offence whatsoever. In a. strong – refutation of the malfeasances committed in that case, His Lordship, the Chief Justice- Sarath N. Silva, remarked that that the tragic incident evinced “a clear instance of the abuse of power, rampant dishonesty and corruption an also misuse of the process of law that take place at ‘Check Points’ that have sprouted up. The tragedy is that a multitude of offences have been committed by Police officers whose duty it is to use their best endeavours and ability to prevent “all crime, offences and public nuisances”. Given the misbehaviour in the instant case, it appears that the Police have failed to heed the words of the Chief Justice, and’ continued to act with a level of impunity that has continued to the serious detriment of the public.
These observations were made in a fundamental rights application filed be M.D. Nandapala of No. 541, Hendrick Pieris Mawatha, Pallimulla, Panadura against Sgt. Sunil Perera and several other officers of the Homagama police. The petitioner complained that he was illegally arrested and detained and that he was tortured while in detention, thus violating the fundamental rights guaranteed to him under the Constitution. The court held that the petitioner had succeeded in proving his case before the Supreme Court, issued a declaration to that effect and ordered compensation of Rs. 100,000/=. The court delivered the judgement on the 27th April, 2009.
In a severely critical judgment against the abuse of power by the police as well as the failure of the superior officers, including the National Police Commission, to take appropriate action to punish the culprit officers, a slow breakdown of the police force has taken place. We set out below the final comments of the court in this case:
It is inexplicable to this Court, given their receipt of a copy of the Petition and the existence of this self-imposed mandate to investigate all such complaints, why the National Police Commission failed to, appoint an independent inquiring officer to investigate this case. This failure on the part of the Commission, the ultimate disciplinary authority of the Police, is an unacceptable ‘abdication of responsibility which leads us to repeat Plato’s timeless question: “Quis custodiet’ ipsos ‘custodes?” or “Who will guard the guardians?”
There are both direct and indirect consequences to the Police, to Society and, ultimately, to the Rule of Law, that result from these ‘systematic failures within the Police Service.
On a direct level, we see a staggering loss to the Government in the form of, compensation payments to those who’ve been ill-treated by police officers, with statistics revealing the payment of approximately Rs. 6,017,331/= in compensation for the years 2004-2008 to victims of Police abuse and impropriety paid as a consequence of findings by the Supreme Court against police officers in Fundamental Rights Applications We see violence like that which was apparent in the present case perpetrated with total impunity by certain police officers against civilians, to secure bribes, to exact public punishment for private dispute, or often, for seemingly no reason at all other than to taunt and harass the public with “a show” of their unchecked police powers, such power ultimately blinding them to their own corruption. Powers that were vested in them by the donning of uniforms to separate them and identify them as upholders of the Rule of Law are sadly ‘used instead to subdue and pervert it. We see the loss of their valuable service and an erosion of their standards, steering them further towards a life of privilege and favor through compromised integrity, rather than one of discipline and honor.
On an indirect level we see the growing loss of faith by the public in a force that has come to be seen as an organization to be feared due to the aberrant behavior of a small minority of police officers – rather than a supportive service for which they can look for protection and help. We see the growing feeling of impunity inculcated by those officers, such as the 1st Respondent in this case, that repeatedly get away with inappropriate behavior, recognizing that their actions will be protected due to political patronage and favour and are likely to receive no disciplinary repercussions at all.
Perhaps the most affected by the slow breakdown of the Police force, are the officers and rankers the distinct majority of the Police Force, it is to be proudly stated – who operate with integrity and honesty and who easily stand among the best officers of any nation. Some of these loyal officers inevitably find themselves perturbed and discouraged at a system that marginalizes their legitimate successes and dismisses their attempts at honoring their professionalism and character in favor of crafted and nurtured political affiliations. They undoubtedly watch with apprehension, discouragement and frustration as more and more of their peers begin to deviate from the standards once held, feeling that there are no other paths to advancement beside the crooked ones used by some who rise to the top or at the least get away with behavior that should result in their removal or imprisonment It is no surprise when some of them eventually follow the same fate This slow erosion leads to nothing other than a decline of the standards of the Police Force, creating an unhappy and disgruntled lot of officers which will eventually destroy itself by compromising its own integrity and thereby eroding the confidence reposed in them by the public Total breakdown of law and order is the end result with irreparable and irremediable consequences to society and economy. This cannot be allowed to happen.
Those who have undertaken the commitment to become enforcers of the law must come to recognize, if they haven’t already, that such enforcement is crucial to the maintenance and attainment of domestic peace and harmony and, ultimately, it is these traits that are the bedrocks of a sustainable economy that assures prosperity for all. Only through the enforcement of law and order can a nation ultimately come to respect the rule of its laws. Without law and order anarchy or at least a slow devolution towards it is the inevitable and fatal result.
On the basis of the aforesaid findings I declare that the 1st Respondent committed an unlawful arrest and unlawful assault of the Petitioner and grant to the Petitioners the declaration prayed for, that their fundamental right to equality before the law and freedom from arrest by undue process as guaranteed under Article 11, Article 12(1) and Article 13(1) of the Constitution has been infringed. Given this finding and the evidence that has come to light of the several instances of negligence regarding the oversight of the 1st Respondent by the Superior Officers charged with such responsibilities, this Court makes the following further orders and declarations:
1 An inquiry is to be held by an independent inquiring officer of the National Police Commission as to why both Mr K Udayapala and Mr Deshabandu Tennakoon failed to take any action regarding the recommendations of the SP of Homagama in accordance with the Departmental Police Orders binding upon them. This Court notes that such an inquiry is as important in establishing the culpability of the offenders as it is in exonerating superior officers who may currently be clouded by perceptions of impropriety regarding this matter.
2. The 2nd Respondent who filed a copy of the Inquiry report from which the findings of the SP Homagama had been deliberately removed, is to report to Court within two months of the delivery of this Judgment to explain why ‘he chose to submit a fraudulent document and why he should not be dealt with for Contempt of this Court. The case is to be mentioned for hearing one month, from the delivery of this Judgment and the 2nd Respondent is to be noticed accordingly.
3. The Attorney General will consider pursuing an indictment of the 3rd Respondent for knowingly and voluntarily recording a fabricated statement of the Petitioner regarding his driver’s license.
4. In recognition of ‘the lack of effective self-governance with respect to superior offices as evidenced’ by the’ present case, the National Police Commission is to “publicly set forth effective, practical procedures that provide’ for supervision of police officers of all ranks. Attention should be sought to enlist retired officers or other persons who have no personal benefit to gain through’ patronage of those with financial and political power ‘to enforce such procedures.’ Further,, the National Police Commission is to amend the existing scheme for promotions to explicitly counter political and financial influence, through the issuance of a set of specific, determined, pre-specified rules which specifically disallow the consideration of recommendations given by those not within the police force, or which have not been earned through specific duties of excellence as assessed by their superiors, in the police force and with a provision to appeal against any partiality of superior officers. The issuance of such objective criteria and the resulting transparency in the promotion process, this Court believes, will legitimise the process in the eyes of Police Officers and will no doubt reduce the desire to deviate from a path of integrity and honour
5. The National Police Commission is to create awareness, and training programs, that will sensitize officers to the importance of their duties. In light of the currently centralized nature of Police training, special focus is to be made to conduct such training programs in outstation posts.
6 It is strongly suggested to the National Police Commission that a division within the Police Force known in other jurisdictions as a division of “internal affairs”‘- be created to solely investigate and speedily review suspicions of professional misconduct by members of any rank of the Police Force.
‘Compensation in a total sum of Rs. 100,000/= is to be paid by the 1st, 2nd and .3rd Respondents to the Petitioner. The 1st Respondent the primary wrongdoer in this incident is ordered to personally pay a sum of Rs 75,000/= and the balance is to be paid by the 2nd and 3rd Respondents in equal amounts.
The application is allowed. Costs to be paid to the Petitioner by Respondents in a sum of Rs. 10,000/= each.
A comment by the AHRC
This judgement is quite laudable in that it makes a clear statement of law and also minutely examines the violations of rights by the police through abuse of power, rampant dishonesty and widespread corruption. The detailed recommendations given are also a useful reference to the recognition and the concern of the Supreme Court on the extremely unacceptable situation that has arisen within the country’s premier law enforcement agency, the Sri Lanka Police Service.
However, the positive nature of this judgement will not by itself alter the well-entrenched attitudes within the Sri Lanka police service which has been accustomed to ignoring the recommendations of the Supreme Court for many decades now. If the stone wall of indifference is to be broken and the recommendations of the Supreme Court are to have something more than archival value, the Supreme Court itself should do more than mere delivery of judgement. Had a system of the rule of law operated in Sri Lanka to a satisfactory degree the making of a judgement by the court would be followed by other measures guaranteed by the state which would ensure the implementation of the judgement. It is not a matter of controversy that no such situation prevails in Sri Lanka.
Therefore based on experiences of other traditions the Supreme Court may look into further steps to ensure the implementation of this judgement.
- Fix a time period in the judgement itself for the implementation of recommendations and the reporting of the matter back to the court. This method has been adopted successfully in many cases in India. In such a situation the respondents were supposed to take action, for example, by way of filing criminal charges against specified officers, like for example under the CAT Act, No. 22 of 1994 or those who are expected to take disciplinary action such as SSPs, DIGs, the IGP and even the National Police Commission would have to report to court within a specified time as to what actions have been taken in terms of the judgement. The court should finally rest the file only when it is satisfied that it has not allowed the relevant officers to stifle the court.
- Judiciously use contempt of court proceedings against officers who fail to comply with court orders. Though the contempt of court law has been used rather generously by the Sri Lankan Supreme Court, even to the extent of being accused of abusing its own authority by the United Nations Human Rights Committee, contempt of court has not been used against state officers who refuse to comply with court orders, particularly in fundamental rights cases. In fact, the origin and the evolution of the contempt of court law would demonstrate that one of the primary objectives of this law was to ensure the independence of the judiciary by punishing the branches of the executive that do not comply with or respect the authority of the courts. Where the courts use this authority judiciously against errant officers this creates a deterrent among officers who defy the authority of the courts. Such judicious use of contempt of court against abusive state officers may contribute a great deal to strengthen the rule of law within the country.
The AHRC hopes that the legal fraternity in the country and the judiciary itself will address these issues seriously and that civil society and the media will support such developments by critically engaging in the issue of how to make court judgements on fundamental rights issues respected by the police authorities and other state agencies in Sri Lanka. This fundamental rights application was supported by Janasansadaya, a human rights organisation based in Panadura.
For a full copy of the judgement please see: http://www.alrc.net/doc/mainfile.php/supremecourtcases/553/
