From 1971 until the defeat of the LTTE there has been a continuous period of violence where both rebel groups and the state engaged in an attempt to outdo each other in brutality. One of the consequences of this period was the virtual destruction of the system of civilian policing. Now, with the end of this period the nation is faced with the serious problem of recreating a system of civilian policing which could serve the needs of the community.
The most difficult question to deal with in creating a civilian police which will meet the criterion of civilised policing is how to eliminate the endemic practice of torture that has become a part of routine policing in Sri Lanka. The purpose of this statement is not to illustrate the problem of torture as it has, in fact, been adequately exposed by the enormous amounts of written records now available. Added to the reports based on complaints of persons published by human rights organisations, there is also a body of information available by petitions to and judgements of the Supreme Court. The Human Rights Commission of Sri Lanka also has adequate information on this matter.
The question that needs to be resolved in the days to come is how to stop the police from practicing torture. Mere legislative measures cannot achieve this. Already the Convention against Torture and Cruel and Inhuman Treatment or Punishment Act, (The CAT Act) Act No 22 of 1994 exists and the prescribed punishment is rigorous imprisonment for not less than seven years and a fine of Rs. 10,000/=. To-date in four cases successfully prosecuted under this act five officers have been sentenced to seven year terms; they are IP Karthi Bandara Edrisinghe of the Kirulapana Police Station, M.J. Thilakaratne the OIC of the Wellawatta Police Station, IP Selvin Selah and Constable Warnakusuriya of the Narahenpitiya Police Station and Sergeant Major N. Wimal Chandrasiri of the Panadura Police Station. However, these random convictions have not made any impact on the endemic practice of torture at police stations.
The problem is one of consistent enforcement of the CAT Act, police discipline under the Departmental Orders and unambiguous instructions from the commanding officers. However, for this to happen there are a few other obstacles to overcome.
The most frequent cause of torture is the abuse of power by the police in order to make money by abusing the powers of arrest and detention. The actual use of torture and the potential for the use of torture, as perceived by the people, has created a lucrative business. The beneficiaries are not just those who actually use torture but those who directly or indirectly instigate torture, beginning with the officers of the rank of inspector up to the hierarchy. Among the most direct culprits are the Officers-in-Charge of police stations and their immediate local superiors, such as ASPs and SPs. The Inspector General of Police and his deputies are responsible for the practice of the abuse of police powers and the use of these powers for corrupt money making due to their failures to exercise command responsibility.
However, the higher command of the police uses the excuse that the police system is politicised, meaning that powerful politicians of the ruling regime, both at the national and local levels are virtually giving the orders, ignoring the role of the top ranking officers. This excuse also implies that the higher officers have no capacity to resist such practices as those who are more powerful than they are involved. This excuse is now made even more plausible due to the failure to continue with the National Police Commission in compliance with the 17th Amendment to the Constitution.
Throughout the country outrage is expressed in all parts by citizens who find that the police do not investigate their complaints. In a recent incident from Alpitiya, Divithurugama two young village girls were abducted and molested by some persons. The family and the villagers went to make a report and they were told by the officers of the local police station to catch the culprits and bring them to the police station. In an interview aired in a TV broadcast the villagers simply asked, what are the police for? That is the question that is being asked throughout the country over and over again.
The allegation that criminals are protected and the victims of crime are being punished is a common one. In the case of the journalist, Poddala Jayantha, who was severely injured after an abduction followed by assault, the police filed a report against the journalists who informed them of the incident. Though this incident received public attention there are literally thousands of cases around the country where innocent people are made the accused in cases and the actual criminals are not pursued at all.
Besides, the actual criminals are quite at liberty to kill or otherwise harm witnesses. The killings of Gerard Perera and Sugath Nishanta Fernando are just two incidents which represent many more incidents which are normally not brought to the notice of the public. However, the Human Rights Commission of Sri Lanka and the human rights organisations constantly receive complaints about such incidents.
While this refers to normal civilian matters, allegations of torture associated with the military and anti terrorism organisations are not investigated at all. There is almost an openly admitted policy that on matters of security, torture or even extrajudicial killings are permitted. Perhaps for a considerable time to come that policy line will remain unaltered.
However, there are very crucial problems about the very survival of the rule of law while the policing system frequently uses torture for the purpose of illegal gain by utilising the powers of arrest and detention. For the citizen this creates a nightmare and for an individual or a family, whatever the social status of this family might be it creates an unacceptable situation from which there is no escape. The possibility of becoming a victim of abuse of power by the police is today a very real threat.
Effective implementation of law for the eradication for the practice of torture by the police is now a basic political question. If the government wants to stop torture it could do so within a very short period of time by giving clear instructions to the top ranks of the police to enforce the CAT Act and police discipline strictly. The continuance of torture is therefore a result of a political policy that allows bad policing. It is up to the government as well as the opposition political parties to judge whether the present policy of keeping a bad policing system is to the advantage of the nation. If the answer is negative then the solution to ending a bad policing system is quite readily available and this is to enforce the CAT Act and the Departmental Orders of the police with simple education of the police hierarchy and the rank and file.
