(The following is a reply to the Daily Mirror Newspaper in response to an article entitled Whose human rights are we talking about? These articles may be found at the following links: http://www.dailymirror.lk/2007/08/09/opinion/2.asp and http://www.dailymirror.lk/2007/08/10/opinion/03.asp)
The reply
Who are humans?
Basil Fernando
a reply to Whose human rights are we talking about? by Gamini Gunawardane, Rtd. Snr. DIG, published in the Daily Mirror on 9th and 10th August, 2007-
“When American Vice-President Dick Cheney said that the war on terrorism could last for fifty years or more, his words evoked George Orwells great prophetic work, Nineteen Eighty-Four. We are to live with the threat and illusion of endless war, it seems, in order to justify increased social control and state repression, while great power pursues its goal of global supremacy. Washington is transformed into chief city of Airstrip One and every problem is blamed on the enemy, the evil Goldstein, as Orwell called him. He could be Osama bin Laden, or his successors, the axis of evil.”
The opening paragraph from John Pilgers The New Rules of the World
The article by Mr. Guanawardane invites an in depth discussion by human rights activists and others on the issues he raises. This is a response to that invitation.
It appears that Mr. Gunawardanes objection is against police officers who are accused of human rights abuses being brought before courts for that reason. He works on the assumption that these officers have done something that they could not have avoided in the carrying out of their official duties. If this assumption is correct then much of what he says is also correct. However, is this assumption correct?
If one were to go through the hundreds of judgements already given by the Supreme Court in fundamental rights applications and also the three judgements made by various High Courts under the Convention against Torture Act (CAT Act No. 22 of 1994), is it possible to state that what the officers were guilty of were acts which they could not have avoided doing? Under the fundamental rights applications and the CAT Act if a genuine plea is proved before the courts the officers would have been exonerated. If at least one case was cited by the writer where self defense was not allowed to be taken up then it would be easier to discuss the matters. Mr. Gunawardane fails to discuss actual cases. His propositions are purely hypothetical. A constant reference in his article is about suicide bombers. Has there been a single case in the Supreme Court or the High Court of such an instance where police or military officers were blamed for actions taken against a suicide bomber? As long as things are discussed in the abstract it is possible to come to any conclusion to justify ones view. There are those who can, on pure abstraction prove that the world is flat. There was in the early years of the Peradeniya University an academic who in fact argued this very case.
Cases before courts
What were the cases in the Supreme Court and the High Court about? They were mostly about brutal assaults on ordinary folk, almost always very poor, on charges such as theft, robbery and the like and in many instances the charges were also made without any evidence. Let us take the case of Amal Sudat de Silva, which is one of the more famous cases, decided quite early after the introduction of the fundamental rights jurisdiction. He was an alleged criminal who was brought to a police station and brutally beaten. Was that an act of self defense? Let us take another well known case, that of Gerald Perera. The police were investigating a triple murder. They were unsuccessful in finding any information on anyone on which to ground reasonable suspicion. Someone mentioned that the possible suspect was called Gerald and the police arrested the first Gerald they came across. The beating inside the police station was so brutal that he suffered renal failure. Within a few hours of the beating they discovered that they had arrested the wrong Gerald. There are so many cases before the Supreme Court of people being beaten to death for stealing such things as a bunch of bananas or even under the suspicion of stealing a telephone and the like. There are even several cases of people being severely tortured for asking questions of the police.
If you take the three cases where the High Courts have sentenced police officers in three separate instances for seven years of rigorous imprisonment and fines of Rs. 10,000/= under the CAT Act, the facts are as follows: in one case a person was beaten because another person requested the police to beat him up; in another case on a question of some fraud relating to a gem, a person who had nothing to do with the theft was severely beaten. The most recent case of a conviction on this score is of young girl who was a domestic helper of an affluent family, who the mistress of the house suspected as having robbed her of a gold watch. There was nothing to substantiate this claim and she was not even charged in a court for this offense.
In all these cases and many others the relevant officers had the opportunity to take up self defense and to prove it in court. Self defense is a defense that can be taken up by anybody. However, the burden is to prove it with adequate evidence so that the court can accept the plea as credible. The mere claim of a defense is not sufficient: there is the need for proof.
The responsibility for protecting people
The author tries to contemplate the following issue and gives his own answer.
Whose responsibility is it to ensure the peoples Right to life and their property? The answer was: the government, of course. And how does government discharge it? Through the police, assisted by the armed services; subject to judicial review of course.
This is a very oversimplified view. The responsibility of providing security to people is with the state. The state does so through very complex processes. First and foremost the duty of the state is to provide for laws for all areas of life, including the security of people. Thus, the security of persons is protected by the state within the framework of the law. Besides this the state is under obligation to provide all the material resources for the implementation of the law. Such material resources include the entire bureaucracy of the state, not just the police and the military. It is through multiple authorities created at many levels of society that the state protects the security of the people.
It is only in police states that the issue of security is directly handed over to the police and the military. In a democracy the police and the military are a minute part of a vast apparatus of multiple authorities that work at the same time on all issues among which is included the issue of security. If this apparatus does not work, or has great impediments within itself obstructing its proper functioning, there is very little that the police, or under exceptional circumstances military, can do. The cooperation between these multiple authorities and the control exercised by the state monitoring mechanisms on each of these authorities is an inseparable part of the way security is protected by the state.
Departmental Orders
Besides this, each of these authorities themselves, have a complex organisational apparatus of its own. Let us take the police. It is a monolithic organisation organised from top to bottom and operates within a framework of strict commands. In Sri Lanka this framework is spelled out in detail in the Ceylon Police – Department Orders. These Departmental Orders provide for a sophisticated system of supervision. Mr. Gunawardanes article constantly talks about a grass root officer having to make quick decisions. However, the Departmental Orders require that all these decisions are taken in consultation with and wherever possible, the approval of superior officers. The portrayal of the grass root officer as a person who has to make all the decisions by himself is neither realistic nor is postulated under the Departmental Orders. The wisdom of the Departmental Orders is that it allows the greater knowledge and the experience of superior officers to bear on the acts of the “grass root officers”. It would be terrible for any society if it had to entrust its security to the lowest rank of officers whose knowledge, experience and capacity is very limited. Much of the considerations in the article would have been different if the author had brought in the issue of command responsibility to bear on the matters he is discussing. While it is possible that there are very rare circumstances where some officer must act alone, ordinarily the policing system of any country is organised in a way to exercise responsibilities in consultation with a larger group of persons and through a system of standing orders.
The London bombings
Mr. Gunawardane raises the instance of a innocent man being killed by the British police in the immediate aftermath of the July 7 bombings in London. Within a very short time after this shooting the police announced to the nation, through the television that they had mistakenly killed an innocent man. Is there a single instance in which a similar admission has been made in Sri Lanka? After having made this admission the British government openly accepted responsibility for the act. Mr. Gunawardanes argument that mistakes can be made by anybody is no doubt correct. However, how mistakes are acknowledged and responsibility is accepted is quite a different matter. Further, to assume that all acts of violations by the police are mistakes is also not logically permissible. In all instances the test is what the details of the circumstances show. Mistakes cannot be assumed. Mistakes have to be proved. And the proof must be done according to the standards approved within the particular profession. There is criterion for judging mistakes. However, to regard all claims as being proved by the very claiming of them is not acceptable to any profession in the world.
Mr. Gunarwardane also assumes that human rights activists are silent about the wrong doings of the police and military of developed countries. However, this is far from the truth. International organisations including the United Nations agencies have severely criticised abuses of human rights, for example by the United States, particularly in the recent period within the conflicts in the Middle East. Guantanamo Bay remains one of the detention centres that have come under extensive and consistent criticism in recent years. Nobody claims the more developed countries are innocent of abuses. However, what can be claimed is that within these countries themselves there are strong mechanisms to investigate wrongdoings and to punish wrongdoers. The application of international norms and standards is upheld within the institution itself and also through courts. Where a citizen is not satisfied with the adjudication of the local court on human rights matters they also have a right to go before the European Court of Human Rights or other such international bodies. These countries are also subjected to the monitoring mechanisms of the human rights agencies of the United Nations. Strong lobbies within the country censors any government who does not adequately respond to the criticism of international agencies regarding human rights issues.
A tribal view
To ask whose rights are to be protected is equivalent to asking who the humans are. For fascists all their opponents were non-humans and therefore they could be subjected to any form of punishment. In caste-based societies so-called lower castes are considered non-human and therefore what is done to them is a matter of no concern. There are tribal societies which consider everyone outside their tribe as non-human and not deserving of a similar respect as given to their own. It is this same trick that is sometimes applied to those who are good and those who are considered evil or those considered criminals as against law abiding citizens. Or even those who are terrorists as against the innocent citizens. Once such black and white pictures are created it is possible to justify any form of treatment. However, complex political problems cannot be solved in that way. The solving of complex problems by use of police is resorted to only by extremely repressive states. In a democracy it is other political and social groupings that play the most important roles in finding solutions to such problems. The moment police officers begin to think of themselves as Atlas, having on their shoulders the burden of resolving problems of security, they give themselves far more importance than they actually possess.
Mr. Gamini Gunawardane, a retired Senior Deputy Inspector General of Police who deserves respect for the final step he took in his police career when somebody who was junior to him was appointed as the Inspector General of Police purely for political reasons, demonstrated his objections by resigning. This very act demonstrates that there is much wrong within the policing system of Sri Lanka which has become politicised. That politicisation process itself is responsible for most of the violations that are taking place and if that can be corrected there is adequate provision within the policing system of Sri Lanka to prevent abuses. If the Departmental Orders are properly implemented there would be fewer police officers being brought before court on violations of human rights.
(Basil Fernando is director of the Asian Human Rights Commission based in Hong Kong. He is a Sri Lankan lawyer who has also been a senior U.N. human rights officer in Cambodia. He has published several books and written extensively on human rights issues in Asia.)
