Focus on Rights

Constitutional duties imposed upon the IGP and their bypassing
This week's statement by the Inspector General of Police Chandra Fernando (in a daily newspaper on Saturday), that the "Police department is severely hampered by interdictions of police officers as suspects in human rights violations before they are convicted" gives rise to a considerable amount of consternation if not incredulity.

It may be recalled that this is the same Inspector General who initially balked at proceeding against the assault on his own officers by the obnoxious offspring of the equally obnoxious Deputy Minister Mervyn Silva. Again, this is the same Inspector General who has consistently been attempting to block the efforts by the National Police Commission to fulfill its mandate in terms of the 17th Amendment to bring about an improvement in the functioning of the police service.

Why then has this honourable gentleman thought it fit to object to the interdiction of his errant officers once a prima facie case has been made out against them in regard to the committal of grievous wrongs? One of the more known cases remains the best illustration of the absurdity of his contention; namely the torture and killing of Gerald Perera, a wholly innocent (gainfully employed) man.

In finding the OIC of the Wattala police station and his subordinates culpable of the most gross torture of Perera (after they had mistaken him for a hard core criminal), the judges pointed generally to the fact that the duty imposed by Article 4(d) [of the Constitution] to respect, secure and advance fundamental rights, including freedom from torture, extends to all organs of government.

The Head of the Police can claim no exemption. If he fails to give effective directions designed to prevent violations of Article 11, and to ensure the proper investigation and initiation of disciplinary or criminal proceedings, his non-action may well justify the inference of acquiescence and condemnation (if not also of approval and authorization.

Despite this specific judicial finding, most of the culpable officers (including the OIC) continued to hold office at the very moment that Perera was murdered in late 2004, days before he was due to give evidence at a High Court trial that had been instituted by the Attorney General against some of those very same police officers under the Torture Act. Within a year consequent to the killing, these police officers were again indicted in respect of the murder itself.

So, what exactly is the argument of the Inspector General of Police in this respect? Does he maintain that despite all the above, these police officers, for example, ought to remain in their posts until after the completion of that long period, (given the inevitability of laws delays), ending in convictions? The public, who is at their mercy in the meantime, is entitled to ask this question from him.

From another perspective, has he, even in one case, initiated departmental inquiries against any police officer found culpable in respect of a rights violation? In hundreds of cases, the Court has directed that the IGP take disciplinary action, after due inquiry, against these officers.

These judgements have all been ignored by him and indeed, by his successors. On judicial reasoning, this omission on his part may make himself liable to the allegation that he is ignoring a constitutional duty imposed upon him.

His airy contention therefore that those rare interdictions that do, in fact, take place, are 'hampering' the working of his department is highly inappropriate if not ludicrous. On the one hand, we have government bodies themselves acknowledging that Sri Lanka has a serious problem in regard to the prevalence of torture practices in the country, often practiced against the poor and the marginalised in the context of ordinary law and order, not in any emergency situation. In a recent interview with the London based REDRESS, for example, the Chairperson of Sri Lanka's Human Rights Commission has stated that torture practices have become endemic and are not confined to a few rogue policemen. The NHRC has acknowledged the significantly increased number of complaints received by its officers each day.

Apropos, the IGP needs to be reminded that in November this year, Sri Lanka will have to respond to questions of the Committee Against Torture (CAT Committee) to which it has presented its periodic report in respect of the measures domestically taken to give effect to the Convention Against Torture. In its List of Issues published before the session, the CAT Committee has specifically asked the government to provide information as to what internal disciplinary processes exist within the police force and whether accused public officials remain at work during investigations of torture? (see Issues 10 and 11)

Perhaps the IGP's statement this week could be furnished to the Committee as good evidence of the obstructionist attitude prevalent on the part of the Head of Police in respect of his statutory if not constitutional duty to gradually return the police force to the old ideal of actually serving the citizens and not abusing them.

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