Focus on Rights

How is justice realised for the marginalised?
To all intents and purposes, the 17th Amendment to the Constitution is still law in this country. If Sri Lanka's presidential incumbent or his party or any other political party wishes to repeal the 17th Amendment, then it should be declared openly so that the public will understand the true commitment of their leaders to the reform of problematic constitutional structures.

It is conceded that there were problems in the functioning of some of the independent commissions set up under the 17th Amendment. However, there is no doubt that interpolating an external element into what was earlier the sole prerogative of the President in making appointments to vital positions and posts is to be commended. The focus needs to be on the strengthening of the 17th Amendment in order to correct some of its flaws visible through practice rather than its repeal. Unfortunately, it is the latter option that appears to be increasingly preferred by some of our current political leaders.

Notwithstanding the fact that some individuals have, in fact, moved court to try and compel the stalled processes of nominations and appointment to the Constitutional Council, public and media attention on the issue as opposed to the furore on the Geneva talks or political games of tit for tat in the coming local government polls, appears to be minimal.

So, for all intents and purposes, the National Police Commission (NPC) and the Public Service Commission (PSC) have now been thrown into the dustbin? What indictment is this of the outrageous opportunism of these political leaders?

And in the absence of an accountable police service observing procedures stipulating fair treatment of citizens, terrible tales of mistreatment of marginalised persons continue to be recorded. This week, yet another case of an individual killed as a result of brutal treatment by the police on the basis of mistaken identity was recorded.

Lelwala Gamage Nandiraja was allegedly killed by members of the Weliweriya and Pitigala Police who had suspected a 40 year old person named Lalewela Nandiraja of theft. The former who bore a similar name had been arrested and beaten severely, both at the time of arrest and subsequently. The fifty three year old Nandiraja, a native physician, later succumbed to the injuries he had sustained during the beatings. No official inquiry is apparently pending into this death.

This unfortunate case has equally horrendous precedent. On 21 November 2004, another victim of police brutality who dared to fight it out in the legal sphere, Gerald Perera was shot in broad daylight and died thereafter in hospital, days before he was due to give evidence in a High Court trial instituted by the Attorney General's Department under the Torture Act. Perera had earlier, obtained judgement by the Supreme Court declaring that he had been subjected to severe torture. Ironically, at the time of his death, a major portion of the medical re-imbursements had yet not been paid to him.

Investigations have now identified the perpetrators of his subsequent murder as including some of the very same police officers who were found responsible for the torture. Indictment has been filed at long last though the conclusion of the trial

In this case as well as in countless others, the Supreme Court called upon the National Police Commission (NPC) and the Police Department to take stringent steps to subject erring individual officers to appropriate disciplinary action. Towards this end, the Registrar of the Supreme Court was directed to send copies of the judgements to the Inspector General of Police as well as the NPC. However, the effect of such directions have been minimal, a fact remarked upon by the judges themselves on occasion.
Now, of course, we do not have a functional NPC. And, given the stalled process of appointments to the Constitutional Council (CC), it is anybody's guess as to when a new NPC can be constituted.

Contrast this dismal story with what is happening in India. While police brutality on both sides of the Palk Straits have much in common, the process of reforming India's colonial police structures and instilling new mechanisms of accountability have been far more vigorous than here.
Public spirited litigation in 1996 whereby the Supreme Court of India was approached to direct the government to implement the recommendations of the National Police Commission (1979-1981) in regard to reform of the police structures, is a case in point.

In response, the Court and the government set up different Committees to examine the relevance of the National Police Commission recommendations and suggest reforms. The impetus was strengthened by an overall Police Act Drafting Committee, set up in September 2005, which has been given six months to submit its recommendations to the Government. Its work is being commented upon and encouraged by diverse gatherings of citizens' groups.

Contrarily to India, Sri Lanka's constitutional stipulations regarding reform of the police service have now been suspended in mid air. The 17th Amendment, when setting up the NPC, did not only give it the powers of appointments, transfers and disciplinary control of police officers. It also mandated, by Article 155 G(2), the establishing of meticulous procedures regarding the manner of lodging public complaints against police officers and the police service.

The NPC was directed to recommend appropriate action in law against police officers found culpable in the absence of the enactment of a specific law whereby the NPC can itself provide redress.
These procedures were meant to hold both the police officer concerned and officers of the NPC accountable so that both will act in strict compliance with the law. What we had however was a complete non-implementation of these procedures by an NPC beset with problems over police promotion schemes and the like. The ad hoc process that was adopted of receiving complaints during its term of office was extremely unsatisfactory.

Indisputably, public agitation around the 17th Amendment needs to be far more broadbased than it is presently. The reconstitution of the CC and the independent commissions should not been seen as a question affecting an elite layer of public opinion only. This is the challenge presently before the Sinhala and Tamil media which needs to take this issue directly to the people. A well functioning NPC or PSC benefits most, those people who do not have easy access to privileged levels of governance and who are often, the first victims of abusive official treatment. How many more Gerald Pereras or Lelwala Gamage Nandirajas need to die before this truth is realised?

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