An article by Rasika Sanjeewa Weerawickrama published by the Asian Human Rights Commission
It is an alarming eye opener but yet just another incident experienced by many Sri Lankans in their day to day life that shows the reality of the practice of policing in Sri Lanka. While three members of parliament (MPs) and a Provincial Council member went to make a complaint at the Headquarters Police Station of Galle two of the MPs were assaulted and put into a cell. The police then filed fabricated cases against them. Sadly there is nothing unusual about this. However, it does show the inability of the Sri Lankan police and their unwillingness to implement the rule of law in the country.
Presently in many reported incidents it has become an institution that breaks the law, engaging in many illegal activities for the ruling regime and harasses civilians and even state officers who try to carry out their duties in accordance to the law.
This case was reported in parliament as follow (translated from the original Sinhala):
According to MP Vijitha Herath, former Cabinet Minister and the secretary of the Democratic National Alliance it was revealed that when he went to make a complaint to the police station one Police Constable (PC) first held his neck and pushed him and then a few other police officers also joined in and started to strike his head, chest and face.
First, Vijitha Herath, Ajith Kumara and Arjuna Ranathunga, all members of parliament, went to the Headquarters Police Station of Galle to lodge a complaint against the police for the baton charge and tear gas attack on peaceful protesters in Galle calling for the release of DNA leader, General (Retired) Sarath Fonseka. They had gone to the police station at around 5pm. First they met with Superintendent of Police (SP) Sisira Kumara, and complained about the case. Then they proceeded to the place where complaints are recorded. The officer on duty was Inspector of Police (IP) Ariyasena. He has told them that there are not enough officers to record the complaint. Then MPs Kumara and Herath went back to SP Sisira Kumara to inform him of the situation.
However, a Police Constable would not allow them to enter the SP’s room. MP Herath informed the PC that he was a Member of Parliament and that he wanted to make a complaint to the SP. Then without warning the PC grabbed his neck and pushed him back. Then suddenly IP Dias and some other officers who were there started to assault his head, chest and face with blows. This whole incident was witnessed by SP Sisira Kumara and the Officer in Charge (OIC) of the station, Kiriella. Neither of them made any attempt to intervene and stop the assault.
Following the order of the SP the OIC ordered the police officers who were there to lock up two of the three MPs and the Provincial Council Member Nalin Hewage in a cell. They then introduced a fabricated charge of assaulting police officers against all of them. In this instance, as is common in Sri Lanka the complainants become the accused in the very case that they were attempting to report.
The victims are persons no less than members of parliament. If it has come to the situation were the police are torturing MPs in this manner then what chance does the average citizen of the country have? So the question is, what will happen to them? This is a terrible situation and they are seeking the special intervention from the Speaker of the parliament for this situation.
Analysis reveals the deterioration of the Sri Lanka policing system
Refusing to record complaints and not maintaining official records
One of the primary and most important duties of any police officer under criminal law, especially under the provisions of the Criminal Procedure Code of Sri Lanka, is the recording of complaints and maintaining records of investigations. It is the responsibility of the police to accept the complaints of any person who wishes to make one. Simply put, if the police officers refuse to accept this duty which is a most fundamental part of their responsibilities that means they break the law of the country and engage in a violation of the Constitution of the Republic. All state officers are sworn to respect and fulfill the Constitution and protect the fundamental rights of the citizen. All state officers are obligated to treat citizens equally according to the constitution. They cannot simply ignore that statutory duty.
The act of making a complaint forms the very start of the entire process of the criminal proceedings. Finally it is the basis for the criminal justice system. The practice of refusing to record a complaint cannot be simply ignore as this practice has been a regular feature in all the police stations of the country for many decades. The failure to record complaints is one of the main reasons behind the prevailing impunity in the country. The difficulty to make a complaint demoralises and disgusts the citizen making him distrust the country’s policing and judicial systems. This is how the criminal justice system has deteriorated into to the point of abysmal lawlessness.
Disrespecting the law by senior state officers and disappearance of Command Responsibility within the system
The state sector is organised by orders. It runs on the orders coming from the superior officers down to the junior officers. Diligent supervision by the higher officers will always make the system perfect. It is the same theory behind the Sri Lankan policing system as well. From the very beginning the British have intentionally integrated all these invariable traditions of policing into this system. The Departmental Orders have been framed with all these procedures to be followed by the seniors down to the very lower ranking officers.
In this particular incident the legal duty of the officer in charge was vested with his superior officers. When the MPs were assaulted and the officers refused to accept their complaint and then locked them up in the station, finally bringing fabricated charges against them, all this happened with the full knowledge and consent of one of the most senior ranking officers of the district. This is that the way the police as an institution is run today.
The senior officers are not only supposed to guide their juniors but should also take responsibility for their alleged violations. That is the whole concept of Command Responsibility. In this particular incident everyone from the senior to the junior officer has all broken the law. What then is the responsibility of the Inspector General of Police as the head of the one of the most important institutions of the country?
Filling fabricated charges against innocent persons
The most dangerous practice that is revealed by this incident is of the police filing fabricated charges. The MPs went to make a complaint against the police officers. But they filed case against the MPs on same incident. They didn’t accept the complaint against police offers. Irrespective of the identity of the culprit or the relationship of the culprit to the ruling regime it is the duty of the police to accept the complaint. One of the basic fundamentals of the system is that a crime, regardless of whether it has been committed by an individual or a group is considered to have been done against the whole society. So it is the duty of the state to prosecute the criminals instead of the whole society. It is a sacred duty in order to guarantee the well being of mankind. To execute that obligation of the state, civilised nations have established law enforcement agencies under the state, those being the police, the prosecuting organs like the Attorney General’s Department and the Judiciary. It is in this setup that the police are accountable to fulfill that obligation of the state.
In this particular case when they arrested only two MPs, the remaining MP, Arjuna Ranathunga asked the officers as to why, if they were arresting the others, why they were not arresting him as well. The answer of the senior police officers was that they were not instructed by ‘higher authorities’ to arrest him but only the others. He openly revealed this comment to the media.
However, several days later MP Arjuna Ranathunga was informed that he also has been made party to the same case for aiding and abetting the other MPs. This makes whole policing system into a joke. The incident happened and was witnessed by the same police officers. When it happened he was informed that there was no need to arrest him but then several days later he is given notice to appear for the same case. This reveals how police proceedings are manipulated to suit their own interests or at least those of the persons giving the instructions. Working in accordance with the law no longer appears to be part of their responsibilities.
Torturing, arresting, detaining and fabricating criminal cases against innocents to make their masters happy
Presently the JVP and the DNA seem to be the major political opponents of the ruling regime. In this particular situation the police file cases to punish political opponent of the regime to please them. The police, in practice, use the law and their authority to harass the public. This is a serious abuse of authority if not a criminal offence by state officers. The police misuse their sacred obligations and duties. It reveals the actual reality for anyone who thinks rationally. First they were arrested and detained to accomplish the orders given by their superiors and not on the suspicion of committing a crime. It seriously violates the law of the country.
It is seen repeatedly that the policing system of Sri Lanka is no longer able to execute its duties to the public in accordance with the laws of the country and the rules and regulations of the its own department. They are no longer able to respect the rule of law or treat people equally and without bias. We have witnessed this in thousands of individual cases that we have continually engaged in for well over a decade. Our long struggle has been to uphold the supremacy of the law and see that the country is ruled by the rule of law and not by the whims of individuals. We have written, argued and asked for necessary reforms in the policing system of Sri Lanka in order to make it a better institution. We have lobbied the local and international organisations to make necessary interventions with the government to allow the police all the avenues that will bring modern day necessities.
We have observed and categorically emphasised the extent to which this policing system has deteriorated. We have given ample examples to prove that it is not an error with a particular officer and it is not a problem that arises and is passed from different administrations in the department. It is a prolong problem and has existed from the time of post independence. Several commissions appointed for police reforms also have clearly identified these defects with the system and have made lengthy recommendations to the different governments which have never been implemented.
A corrupt police is a necessity to all the ruling regimes
The ugly truth behind all this is that a corrupt policing system has benefited all the ruling parties of the country in order to suppress the general public and political opponents. On several occasions this has included the extrajudicial killings of thousands of young people after arrest and detention at police stations island-wide. The police as an institution of the state have deteriorated up to that extent.
This was the start of the destruction of the independency of the judiciary as well. Sri Lanka as a common law country has an adversarial system in the administration of criminal justice system. The police have an unalienable role to play in this system. The whole system of investigations was vested with the police at the same time that the duty to maintain the law and order of the country was vested in it.
The police are now using their official duties such as arresting, detaining criminal suspects, reporting crimes to the courts, conducting searches in criminal investigations, seeking arrest and search warrants from courts and executing them, conducting raids for drugs and offensive weapons for their own benefit and for that of their masters.
The corruption and abuse of power by the officers runs from simply demanding bribes by traffic police officers to cases involving millions of Rupees in illegal businesses, murders and smuggling.
Sadly the intellectuals, professionals and lawmakers all remain silent. It is the whole system of policing that has been sacrificed due to this silence. Now the country has reached the point where it is exceedingly difficult to have criminals convicted in courts of law. That conviction rate for many years now is 4%.
On many occasions the Supreme Court, the country’s highest judicial body has clearly noted and announced that the police are repeatedly misusing their powers and violating the constitutional guarantees of the citizens. On many occasions police officers themselves have been caught committing crimes. This, more than anything else shows the depth to which the police has deteriorated.
Failed attempts of the legislature to reform the Police
On two occasions the legislature as a whole has taken positive steps to make this institution correct and take it to the correct path. The first step was in late nineties under president Chandrika Kumaratunga’s parliament passed an act that restricted the Executive President of the country from dismissing the Inspector General of Police (IGP) and the Attorney General (AG) on his or her discretion. Prior to that the situation was that if the IGP or the AG were engaged in serious investigations or prosecutions that might go against the wishes of the ruling regime the Executive President could simply dismiss any of them with his unchallenged authority. This new act restricted the president’s involvement and stabilized the two most important positions.
The second occasion was the passing of the 17th Amendment to the Constitution. In that the legislature intended to make the police more independent. They wanted to protect the police from political interference. However, it failed due to constitutional discrepancies.
It is important to note that under the Westminster parliamentarian system the lawmakers, the members of parliament are privileged and if there is an arrest of a MP it is the duty of the arresting officers to inform the Speaker of the Parliament. Furthermore the Parliament (Powers and Privileges) Act No: 05 of 1978 also give special protection for the MPs. But in this particular incident several senior police officers have treating the MPs in this way neglecting the law of the country.
Here in this particular incident we have to pay our attention to understanding the events surrounding the incident. How, who and why these officers were so empowered as to be able to break the law with impunity is the question. Who had the authority to give such illegal assurance? That assurance could only have come from the ruling regime. The violators know full well that they ruling regime is behind him.
How is it possible for state officers with this mindset to protect the law of the country? Can they protect the rule of law of the county? Can they maintain the law and order? This is finally what we have to ask ourselves.
About the Author:
Rasika Sanjeewa Weerawickrama LLB, LLM is a Sri Lankan Attorney-at-Law.
The views shared in this article do not necessarily reflect those of the AHRC, and the AHRC takes no responsibility for them.
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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.