Imperative revisions to the criminal law to ensure accountability

By Kishali Pinto Jayawardena

There is a popular perception, even among members of the Sri Lankan judicial and legal community, that the doctrine of command responsibility is not prevalent in our law. While this perception is certainly true of the criminal law, a different rationale has been articulated in the context of fundamental rights violations. On occasion, it is conceded that the Supreme Court, (in the exercise of its exclusive jurisdiction to hear complaints of fundamental rights violations), has declined to apply this doctrine. Yet, in many other decisions, (including as recently as April 2007), as would be referred to in this column, the judges have in fact, affirmed the vicarious liability of superior officers of the police, army and other services who fail to prevent violations of human rights by their subordinates.

As has been repeatedly stressed in this column, a strong legal response can be assured only through the swift and judicious prosecution of perpetrators and not through fact finding Commissions, assisted as they might be by international 'eminent' personalities. These grandiloquent exercises often come to futile endings despite the tremendous amount of resources and energy that are devoted to their progress. And lest the accusation of unwarranted cynicism be leveled against me, I can only cite previous experience in my defence. For example, the 1994 Southern Zonal Disappearances Commission found the security forces responsible for 40% - 75% of the disappearances which occurred during the clash between the Janatha Vimukthi Peramuna (JVP) and the Government in the late eighties and early nineties. However, only nine convictions ensued according to research conducted in 2004.

In the case of the most recent 2006 Commission, as in the case of others, (even with the best will in the world), good prosecutions may simply not be possible due to the rigidity of the current criminal law. The absence of a doctrine of command responsibility is just one facet of a system geared in favour of the perpetrator which is exemplified in its manifold aspects of a tortuous and delayed legal process, the absence of effective witness protection and a stubbornly hostile response to the actual victims.

But first, it is necessary to see as to what this doctrine is all about and why it is so important to the Sri Lankan people, in times of war as well as in times of purported peace. Put simply, this doctrine upholds the notion that junior officers cannot merely be convenient scapegoats for the committal of violations such as the torture of a person in their custody or indeed, the death of such a person. On the contrary, senior officers who stand by and allow such violations to take place, are equally responsible.

The Supreme Court has fleshed out this reasoning in a number of cases, including in one notable instance where it was expressly pointed out that the Inspector General of Police (IGP) may be held responsible for failure to take needed measures to prevent torture of persons in police custody and to ensure proper investigation of complaints followed by disciplinary or criminal proceedings against those subordinates responsible (in Sanjeewa v Suraweera 2003 [1] SriLR, 317 per Mark Fernando J).

Expounding this principle further, in Sriyani Silva vs. Iddamalgoda (2003 [2] SriLR, 63) the officer in charge was held to be vicariously liable for failing in his duty to take all reasonable steps to ensure that persons held in custody were treated humanely and in accordance with the law, which included the monitoring of the activities of his subordinates. Again, in Wewelage Rani Fernando (SC(FR) No 700/2002, SCM 26/07/2004, per Shiranee A. Bandaranayake J) the OIC, Negombo Prison, the chief jailor and the Superintendent of Prisons, Negombo Prison, were found liable in regard to an incident of the death of a prisoner (even though there was no evidence of their direct implication in the assault on the deceased) on the judicial finding that there had been dereliction of their duties. This same principle was applied by the Court in Deshapriya v. Weerakoon (SCM 8.8.2003) in regard to an omission to act on the part of a commanding officer of a naval establishment and in Banda v. Gajanayake (2002] 1 SriLR 365) in respect of detention under Emergency Regulations.

Indeed, this principle has been judicially stretched to encompass even an instance where an officer-in-charge of a police station fails to promptly record the statement of the Petitioner regarding his assault and to embark on an investigation in respect of the same. (See Alagiawannawe vs Lalith Prema and Others (SCM 30.11.2004. per Chief Justice Sarath Silva). In April of this year, the Court in O.K.D. Kithsiri Dharmawardene vs Gunathilaka and Others, (SCM 05.04.2007, per N. Dissanayake J) found several police officers responsible for failing to take steps to stop the assault of a three wheeler driver or to apprehend those responsible.

As contrasted to these cases, there is one decision to the contrary where the Court declined in one problematic instance to hold a senior army officer (Brigadier Parry Liyanage) responsible for the barbaric disappearance of more than fifty school children in the Embilipitiya Case despite this senior officer being commanding officer and in charge of the Sevana army camp where the disappeared children had been detained prior to being killed. In a highly critiqued finding, Brigadier Liyanage's blameworthiness was found to be "neither more nor less than that which was attributable to all those in the chain of command" (SC Application No; 506/99, SCM 25.11.99 per ARB Amerasinghe J)

Despite this one contra judgment, this doctrine has been brought into the determination of fundamental rights violations in no uncertain terms as detailed in this column. The actual effect of these decisions however has been minimal due to the police ignoring the directions of the Court. This has been aggravated by the Court itself, declaring in recent times, that findings on the basis of vicarious liability should not act as a bar in regard to the promotion of police officers (See Wedasinghe and Indika Hapugoda vs Ranjith Abeysuriya and Others, SCM 20.02.2006. per Chief Justice Sarath Silva).

Given the limitations of the constitutional remedy, it is all the more imperative that the doctrine of command responsibility should be expressly incorporated into Sri Lanka's criminal law regime. In its absence, the most that prosecuting officers can do is to plead that insufficiency of action amounts to inaction and thence attracts penal culpability. This was unsuccessfully urged for example in the Bindunuwewa Case,(Munasinghe Arachichige Sammy & Others vs Attorney-General, S.C. Appeal 20/2003 (TAB) H..C. Colombo No. 763/2003 SCM 21.05.2005), where two accused police officers were held not criminally responsible for failure to take action when detainees were attacked inside a truck and for failing to arrest the miscreants.

If such a revision of the criminal law takes place as part of a package of overall law reform and determined prosecutions follow, the demand for an efficacious response to the grave question of impunity for perpetrators of human rights violations would be well met. There would then be less and less reason for fact finding Commissions of Inquiry including the 2006 Presidential Commission to inquire into fifteen selected cases of extra judicial killings, enforced disappearances and the like.