Focus on Rights

Recent media pronouncements by the National Police Commission (NPC) that it has gazetted a Public Complaints Procedure against police officers and the police service, invites a response. The current Commissioners are individuals who had accepted appointment by President Mahinda Rajapaksa, notwithstanding the fact that their nominations should have been approved by the Constitutional Council (CC), which approval was never conformed to, due to the non-functioning of the CC.

These appointments, along with similar other appointments to the National Human Rights Commission and the Public Service Commission had been subjected to severe opprobrium in this column. This was owing to the shameful ease in which the office of the President and the Parliament was able to obstruct the filling of a few vacancies in the CC and consequently nullify the functioning of the 17th Amendment to the Constitution. If Sri Lanka had a culture of popular protest and its professionals, academics and public servants acted according to their conscience, we may yet have had a working 17th Amendment to the Constitution. The contrary was, of course, the case.

Opinions may differ as to whether the CC lived up to the spirit if not the letter of its constitutional mandate during its first (and probably only?) term of existence. Its amazing claims to be granted immunity for its actions, reports of acute dissension among its members in respect of its functioning and cumbersome ‘application’ procedures precludes a starry eyed assessment of its functioning.

In fact, I remember at one point, a former ‘insider’ remarking that the arrogance of intellectual elitism was as equally problematic as the scourge of political favouritism and nepotism that had led to the public demand for the 17th Amendment in the first place. Nevertheless, this was a specific constitutional amendment passed with rare unanimity by Parliament and despite its flaws, should not have been treated with callous disregard as was evidenced in 2006.

That point being made, there is no doubt that the NPC’s recent efforts, in putting into place a Public Complaints Procedure shows a willingness on the part of its Commissioners to prove their critics wrong. Discussions as to the necessity for such procedures had been, in fact, initiated by activists and lawyers with the former Commissioners of the NPC from 2003. The present Procedures released by the NPC are substantially similar to the content of these draft proposals and as such, should be welcomed as an improvement over what had been ad hoc acceptance of complaints in the past.

Nonetheless, the mere gazetting of such Procedures and the “releasing” of investigative staff to the NPC from the police service will not suffice to demonstrate that these steps will go beyond mere rhetoric. This is immediately evident when the structures of similar bodies in other countries such as the Independent Police Complaints Commission (IPCC) in the United Kingdom are scrutinized, as contrasted to the NPC.

The IPCC, established by the Police Reform Act of 2002, is a non-departmental public body which is government funded but operates completely independently. Apart from its chair and deputy chair, it has fifteen commissioners all of whom, (except one), work full time in supervising a staff of 400 investigators, caseworkers and support staff. It has separate and independent investigators, (not police officers ‘released’ from the police service), and can decide either to supervise police investigations into serious complaints or independently investigate them itself. The independent quality of its investigative staff and the direct disciplinary control that it has exercised over offending police officers are two primary factors that have secured its credibility.

Where the Sri Lankan NPC is concerned, the 17th Amendment expressly stipulates that disciplinary control of officers other than the IGP will be vested with the NPC. As may be recalled even during the previous term of the NPC, such control was delegated to the IGP with the predictable result that no effective supervisory control was ever exercised. Under tremendous public pressure, the NPC recalled the delegation of its disciplinary powers to the IGP in 2004 and commenced interdicting police officers indicted under the Torture Act.

This was, in turn, met with considerable resistance by the police and it is uncertain as to whether the current NPC has discontinued this practice and as to whether this question has received any consideration in the recently gazetted Procedures. If we have reverted to an old status quo, then we are faced with previous ills where police officers, despite being implicated in the most grievous crimes of torture, continued to serve in their posts and harass if not kill the complainants while investigations or trials were ongoing. One notable case in this respect was the shooting of torture victim Gerald Perera three days before the case against his torturers was due to be heard in the High Court.

The NPC had itself announced recently that despite thousands of complaints having been received against police personnel, from the rank of Constable to that of a Deputy Inspector General, only 73 indictments had been filed in 2005 for relatively minor offences. But assuredly, the remedy for this grave situation lies in the hands of the NPC itself. Instead of taking umbrage at the Attorney General for the non-filing of indictments, the NPC should educate the public as to what precise measures it has taken to enforce disciplinary control of malfunctioning police officers in accordance with its mandate.

Indeed, even in terms of its procedures, it appears that disciplinary control of the officers found responsible in the investigations will continue to remain in the hands of the IGP ‘in accordance with applicable departmental procedures.” This makes the Procedures themselves, rather ludicrous.

In many instances where prosecutions have in fact failed, the UK’s IPCC has, in fact, proceeded with suitable disciplinary control against the relevant police officers. In contrast, we are hard pressed to find even one such instance in Sri Lanka despite numerous judgements of the Supreme Court recommending such action. There is no doubt that until a sterner commitment is demonstrated, the gazetting of the NPC’s Public Complaints Procedures will remain commendatory only in theory.