Focus on Rights

Linking justice to people power
For any Sri Lankan possessing a conscience of some kind, the recounting of what happened recently to Gerald Perera, a cook employed by Colombo Dockyard Ltd, should have a telling effect.

This man had been arrested, detained and tortured by the OIC of Wattala Police and officers under him, purely on mistaken identity stemming from a claim by an informant that a person named "Gerrad" had committed a murder.

While in custody, the police officers admitted the use of minimum force on the unfortunate man. Medical evidence confirmed how serious his injuries were, including acute renal failure, complete loss of power of both shoulder joint muscles, and inability to grasp objects with the fingers. In this case, he was lucky in being able to go to court, ultimately obtaining a strong judgement in his favour in April this year.

This decision in particular, illustrates the concern with which the Supreme Court now views actions of the police impacting on life and liberty rights. The Court (constituting Fernando J., Edussuriya, J., and Wigneswaran, J.) did not content itself with a mere finding on the violation of conventional rights, namely freedom from arbitrary arrest and detention and freedom from torture.

In addition, it was ruled that the failure by the relevant police officers to release Gerald Perera promptly, or at least to secure prompt medical attention for him amounted to cruel and inhuman treatment.

Even more interestingly, in considering whether liability could be imposed upon the Inspector General of Police in the context of a specific complaint being made to the latter regarding which no action was taken, the Court makes the following observation:
"The number of credible complaints of torture and cruel, inhuman and degrading treatment whilst in Police custody shows no decline, The duty imposed by Article 4(d) to respect, secure and advance fundamental rights, including freedom from torture, extends to all organs of government, and the Head of the Police can claim no exemption.

At least, he may make arrangements for surprise visits by specially appointed Police officers, and/or officers and representatives of the Human Rights Commission, and/or local community leaders who would be authorized to interview and to report on the treatment and conditions of detention of persons in custody. A prolonged failure to give effective directions designed to prevent violations of Article 11, and to ensure the proper investigations may well justify the inference of acquiescence and condonation (if not also of approval and authorization)….."

Gerald Perera was granted eight lakhs by way of compensation, out of which an amount was personally imposed on the respondent police officers. In a notable postcript which quoted international standards meanwhile, the State was also ordered to reimburse the costs of the private medical expenses borne by him on reasoning that affirmed the right of citizens to choose between State and private medical care. He had first been admitted to an ayurvedic hospital and then on medical advice, was transferred to a private hospital.

As acknowledged in this judgement itself, this remains one of the many decisions delivered by the Court in the past two decades which has not resulted in any profound effect on the police force, despite increasing judicial tendencies to impose personal liability on police officers as opposed to the State.

In this context, where police officers and their associates are bold enough to publicly advise victims of torture practices, "Do not strike your head on a stone. No one can do us any harm", do Sri Lankans have any alternative? Can we really have a vibrant judicial system and genuine observance of the rule of law?

Focusing on these questions in particular, a series of publications titled 'Sri Lanka; Legal Reforms and Human Rights', was launched this week by the Hong Kong-based Asian Human Rights Commission (AHRC).

This organisation which has affiliations to people's networks based primarily in Kandy, Panadura and Katunayake has offered a courageous, consistent and effectively non-political critique of the governance and justice processes in Sri Lanka for the past several years, (as differentiated from the selective silence on the part of a majority of so called bodies of this nature within the country itself), and therefore deserves to be given ear.

In its inaugural volume focusing on the Organised Crimes Bill, (withdrawn from parliamentary scrutiny for the moment while it is being further examined for rights compliance), some salient points are advanced on the challenges that this country faces with regard to law and order in particular and justice in general. The AHRC identifies a sense of powerlessness behind the breakdown of the judicial system, pointing out that when such thinking permeates into policy, there is much to worry about.

Crucially, it isolates the fact that confining debate on the law to 'experts' is highly counter productive. Its reasoning in this regard is straightforward and draws from recent history in Sri Lanka. Effectively therefore, AHRC points out that some of the cruelest persons can influence the experts who can write legal drafts to suit the requests of such persons. It is this reality which makes the need to create a strong and open debate on all aspects of the justice system so necessary.

AHRC may, however, be reminded of this excellent point that wanton cruelty may necessarily not be the reason why the law is subverted. Rather, it sometimes also is sheer unconcern that is, in a sense, far more crucifying than any other motive.

This country has seen - and continues to see - vastly elitist unconcern by individuals and organisations (under the elastic umbrella of civil society) who are more preoccupied with raising funding from donors rather than agitating on issues actually impacting on our people, our systems and our institutions. Worse are the instances when their reactions are dictated to by political or personal motivations.

This, in actual effect, is what has crippled the nature of our functioning as a responsible and rights conscious society. Generation of critical debate on how this has come about, the exact nature of the subversion of the rule of law in Sri Lanka and the part played in this process by those primarily responsible for upholding it in the first instance, is therefore to be welcomed.

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