Basil Fernando, Executive Director, Asian Human Rights Commission & Asian Legal Resource Centre, Hong Kong
For decades various official commissions that have studied policing in Sri Lanka have reached the same conclusions about what is wrong and what needs to be changed. Independent groups have verified their work. One common finding is that the system is dysfunctional and needs radical reform. No one disagrees that it is failing; however, no government has treated policing as a priority, and even other groups have been reluctant to make a determined push in this direction. Underlying the inaction is a fear that any serious attempt at change may have adverse consequences on the country’s political system and social life. The job looks too formidable, so no one wants to try. The problem is not in establishing that there is a problem, but in whether or not it can be addressed, and how, by whom, when? This article takes up this aspect of the problem: that attention needs to be turned from diagnoses of the ailments afflicting policing in Sri Lanka to what can be done about them.
Studies of policing in Sri Lanka
Over the years, former governments have appointed commissions to produce reports on the Sri Lankan policing system and make recommendations. These documents are useful to trace the historical roots of present-day problems.
The first of these reports, the Soertsz Commission Report, chaired by Justice Francis J Soertsz, was submitted to the government in December 1946. It covered topics such as the composition of the force; conditions of the service and selection of officers for promotion and transfer; procedure for investigations of complaints made by the public against the police; powers and duties of the police, especially in relation to preliminary investigations of offences, arrest and custody of the accused and suspected persons; the initiating of prosecutions in court and the expeditious conduct thereof; amendment of the police ordinance and of other existing legislation for giving effect to the recommendations of the commission, and a final chapter covering such topics as the Port Police, public prosecutor, criminal investigations department and political police.
In October 1970 the Basnayake Commission again addressed the nature and scope of the functions of the police force; measures that should be taken to secure its maximum efficiency for the purpose of maintaining law and order and to secure a greater measure of public cooperation and confidence; measures to reorganise it; structure and composition; recruitment and training; terms and conditions of service and selection of officers for promotion and transfer; procedure that should be adopted for the investigation of complaints made by the public against members of the police force, especially in relation to the preliminary investigation of offences, apprehension and custody of accused or suspected persons, and the initiating of prosecutions in the courts and expeditious conduct thereof; adequacy of security and safeguards provided hitherto to members of the police against risk to life and bodily injury involved in the performance of their duties, and the adequacy of compensation hitherto payable where injuries were sustained, or where death resulted from any injury sustained in the course of their duties; amendments to the Police Ordinance and other existing legislation which may be necessary for giving effect to recommendations.
In 1995 the Justice D G Jayalath Commission Report dealt with the structure and composition of the police force; recruitment and training; selection of officers for promotions and transfer; the nature and scope of its functions and measures that should be taken to secure its maximum efficiency for the purpose of maintaining law and order; measures that should be adopted to encourage better relations with the general public; the establishment of a permanent police commission to administer recruitment, promotions and disciplinary control; and amendments to the Police Ordinance and to other existing legislation which may be necessary to give effect to the recommendations.
Already by 1946 serious problems had arisen in the policing system; by 1970 these had become much more serious. By 1995 a completely new set of problems had arisen due to the greater politicization of the police and introduction of paramilitary units. None of the recommendations of these commissions were put into effect.
The 17th Amendment to the Constitution
The 17th Amendment to the Constitution of October 2001 was perhaps the most significant attempt made so far to address the serious problems in the Sri Lankan policing system, together with several other public institutions. The amendment was aimed at stopping and reversing the politicisation of public services. It provided for the Constitutional Council, with the obligation to appoint the members of several commissions, including the National Police Commission (NPC).
The NPC in turn was given powers of appointment, promotion, transfer and disciplinary control of all police officers except for the inspector general. It also had the duty to establish a public complaints procedure. The first commission was appointed in November 2002, but by the end of its term the Constitutional Council had ceased to exist, so it was not possible to appoint new commissioners. Ever since there have been no appointments to the commission by the procedure prescribed in the amendment. In 2006 the executive president himself appointed the commission’s members, bypassing the provisions of the constitution. As the NPC derived its authority from the constitution itself, the appointment of its members in this manner has raised serious questions about its legitimacy.
What needs to be done
At the moment there is no agenda to reform the police. However, some senior police officers, international experts and members of the public have identified the major areas that need to be addressed for any serious attempt at reform. These are: eliminating criminal elements within the policing system; reestablishing command responsibility within the police hierarchy; establishing a credible system of criminal investigation; eliminating torture as the most commonly used method of investigation; training police in more sophisticated methodologies of investigation, including forensic science; ensuring police attend courts and comply with court orders; and, establishing a proper system of disciplinary control within the police and a credible public complaints procedure.
Eliminating criminal elements within the policing system
The inspector general of police himself recently identified criminal elements within the police, together with soldiers and deserters, as being among the culprits of some very grave crimes in the country, including abductions, disappearances and murder, all of which increased sharply at the end of 2006 and are continuing into 2007. According to an Agence France Press report of 6 March 2007, “Police Inspector General Victor Perera said a ‘large number’ of police officers and troops had been arrested on charges of abduction and extortion.”
A year almost to the day, local media had reported that the former inspector general had, in response to the auditor general’s report on the police department, remarked that in the case of some police stations “if action was to be taken, then most officers would be liable to be sacked” (Daily Mirror, 7 March 2006). In the same article the police chief was quoted as referring to a specific instance of how “certain senior officers had swindled thousands of rupees in the police cash reward scheme” by adding zeros to sums of money actually paid to junior officers.
In the aftermath of a drug dealer’s killing of a high court judge, there were public allegations that high-ranking police officers are linked with underworld figures. However, it was perhaps the killing of Inspector of Police Douglas Nimal and his wife that brought the most acute criticism over the police connivance with criminal syndicates. Nimal was investigating several drug-related crimes. He was arrested on false charges and later released by the attorney general. He complained that some persons, including high-ranking officers, had implicated him in order to obstruct his investigations. He was murdered shortly after his release while going to pursue his complaints.
Police reform must necessarily address the involvement of officers in crime. Reform that neglects this aspect of policing in Sri Lanka will receive very little public attention, support or credibility.
Reestablishing command responsibility within the police hierarchy
The loss of command responsibility has been widely discussed. One common agreement is that the police have been politicised, by which it is meant that politicians are playing a direct role in the organisation’s management. The 17th Amendment to the Constitution was intended to address this problem. Political influence over the police is perceived to have extended to all aspects of administration and criminal investigation.
Police are recruited and promoted on the basis of connections to individual politicians or political parties. Others are threatened with transfer to far away places or conflict zones as punishment for non-compliance with political demands.
Investigations are directly and indirectly manipulated. There are instances where investigating officers have been transferred mid-inquiry. Over time many learn to read the minds of their political masters. This behaviour becomes so ingrained that they eventually avoid some investigations altogether: for example, into extrajudicial killings, abductions and disappearances.
Due to political interference junior officers become more powerful than their superiors. Politicians may undermine high-ranking officers to get them to toe the line. When their subordinates see that they have acted to serve political interests, their moral authority is lost.
Under departmental orders, superior officers have specific supervisory duties. An officer in charge of a police station has responsibilities for all personnel linked to that station. An assistant superintendent must attend all police stations within a certain area regularly at short intervals to read all the books maintained at the station as well as to be personally present at investigations into serious crimes. But in recent times there has been widespread complaint that such supervision often has not taken place.
The command structure of the police has been greatly damaged by the periods of emergency laws and antiterrorism laws, when the police were most involved in gross human rights abuses. In the first decades after independence such incidents were few and the disciplinary procedure still somewhat intact. However, after the police were used together with the military to eliminate insurgents they learnt the methods of abduction, illegal detention, torture and killing that they continue to use to this day. The police and military together are estimated to have killed around 10,000 persons alone during the time of the first relatively minor rebellion in 1971. No official inquiries have ever been held into these killings. Official figures have established that during the second phase, from 1987 to 1991, around 30,000 persons disappeared, most in the south.
Overall, the standards set for command responsibility have been lowered dramatically, and with them internal guidelines for the maintenance of hierarchical relationships and codes of conduct have been lost. Police morale also has been destroyed.
Establishing a credible system of criminal investigation
One of the most common criticisms of policing in Sri Lanka, including from within the system itself, is that in recent years the police have not resolved any of the major violent crimes in the country. These include killings and abductions by the military and other armed groups throughout the country, including in the capital, Colombo.
The weakened capacity of the police to conduct credible investigations into crimes is attributed to: the lack of protection for investigating officers, arising from the politicization as well as from internal divisions within the system itself; increased violence by the military and its opponents, which hinders or altogether prevents investigations; stronger links between criminals and the police; overwhelming corruption throughout the country, including within the political establishment; the breakdown of judicial supervision over the investigating process; the lack of demand from persons high up for credible criminal investigations maintained by the judiciary; disruption of the system of command responsibility; the lack of forensic facilities and training; and, the burgeoning of nationalist sentiments that undermine legal norms and standards with regard to crime. Added to these problems is the abandonment of the 17th Amendment, by which some limited interventions were made possible through the office of the National Police Commission
Eliminating torture as the most commonly-used method of investigation
In its shadow report to the second periodic report of Sri Lanka to the Committee against Torture in September 2005, the Asian Legal Resource Centre quoted Dr Radhika Coomaraswarmy, then chairperson of the Human Rights Commission of Sri Lanka, as having said with regards to torture by the police in Sri Lanka that, “We are not talking about isolated cases of rogue policemen: we are talking about the routine use of torture as a method of investigation.” She added that it would require “fundamental structural changes to the police force to eradicate these practices”.
Similarly, Jayakumar Thangavelu, a deputy inspector general of police, has written that on occasion of asking some one hundred inspectors of police about the use of torture, “their observations were that they had to resort to the use of force to solve cases” for reasons of loss of face if they fail to solve them; lack of resources; 24 hours of custody being insufficient; and pressure from superiors. He continues, “And when I asked them whether I was incorrect in saying that in almost all the instances of torture in police custody, the victims were the poor, the destitute and the defenceless, they sheepishly admitted it was so.” (‘Equal access to justice’, An x-ray of the Sri Lankan policing system and torture of the poor, AHRC, 2005, pp. 52–59).
In 1994 Sri Lanka enacted the Convention against Torture and Cruel or Inhuman Treatment Act (Act No. 22 of 1994), which has a mandatory sentence of seven years rigorous imprisonment and a fine of not less than 10,000 Rupees for convicted persons. Over 50 cases have been filed under the act and there have been two convictions. However, due to the long delays in filing cases followed by long delays in the courts, many victims come under severe pressure and abandon their cases. The delays in adjudication and absence of a witness protection programme defeat the purpose of the act. Other features of the country’s dysfunctional policing system negate the possibilities that exist on paper.
Training police in more sophisticated methodologies of investigation, including forensic science
There have in recent times been some small advances in the education of some officers on forensic science. However, there has not been any systematic attempt to replace the earlier model of obtaining oral evidence through torture with the introduction of new methodologies for investigation. Training and introduction of some new knowledge and technology is of little use within the current set up. More education on forensic science will only become a solution when accompanied by measures to address bigger and even more serious problems afflicting the entire police force.
On the matter of improved investigating methodologies, the Committee Appointed to Recommend Amendments to the Practice and Procedure in Investigation and Courts, headed by the solicitor general, observed in its April 2004 report that “the primitive nature of investigative techniques presently used by the Police, i.e. outdated fingerprinting technology and the lack of rudimentary investigative equipment such as Polygraph machines (lie detectors) in Sri Lanka, highlights the urgent need to invest in equipment relating to IT and forensics”.
Ensuring police attend courts and comply with court orders
The Committee Appointed to Recommend Amendments to the Practice and Procedure in Investigation and Courts identified the failure of police to attend court when ordered as one of the major reasons for delays, and thus recommended introducing “administrative measures requiring Police Officers to attend Court on a compulsory basis, in view of the frequency with which Police Officers obtain leave and abstaining from Court sighting inappropriate grounds”. It also called on the Ministry of Justice to advise the Judicial Service Commission and the judges’ institute “to educate Judicial Officers on the necessity to take prompt and appropriate action against Police Officers who default on appearances on inappropriate grounds”.
This is significant as it points to the disjuncture between the courts and police which began with the killings in 1971. Ever since, the police have excused themselves from court on grounds of having to attend to other duties of higher consideration, such as providing security for politicians. The police hierarchy has done very little to correct this situation, despite the committee having recognized this as one of the serious problems in administration of justice. Under the present circumstances it is difficult for magistrates to give orders to the police on investigations and matters relating to the basic rights of citizens.
Establishing a proper system of disciplinary control within the police and a credible public complaints procedure
The National Police Commission has itself pointed out that despite large numbers of complaints received against police officers, disciplinary action is rare. The 17th Amendment under which the commission was established recognised the need for a public complaint procedure and obliged that it be implemented (article 155G). In January 2007 the commission announced that such a procedure had been set up; however, the conduct of investigations has not changed.
Ultimately, discipline cannot be divorced from the larger problems caused by the dysfunctional policing system; it cannot be dealt with in isolation, purely on instructions to improve discipline.
Is police reform possible in Sri Lanka?
A question that has been raised by many persons during the last decade—including senior lawyers, judges and even some police—is whether or not the system that exists in Sri Lanka can be reformed at all. When speaking privately, most police admit that there is something gravely wrong with the system and that there is no serious discussion about putting it right.
Police reform must concentrate on the factors making the system dysfunctional, rather than on minor changes, for instance, the simple introduction of forensic science or similar training of police. Such work will contribute little to understanding of the magnitude of the problem or the finding of meaningful solutions.
The crisis in Sri Lankan policing is part of a larger political and social crisis. The real question is what type of policing do we want? If the state fears and opposes the development of an efficient policing system because it may threaten how the country is run then this is what must be addressed. If state and society cannot agree on how to eliminate the obstacles deliberately put in the way of reform then any talk about change will be of little practical value. What role is dysfunctional policing expected to play in the larger dysfunctional state in Sri Lanka today?
