A reader of this column wrote to me a while back in a half humorous, half serious query regarding the apparent ease with which unarmed 'suspects' are shot by the police while 'trying to escape custody.' In all cases, the ridiculous aspect of the story was as to how, in all credibility, unarmed suspects could manage to create a situation of threat in regard to several armed policemen and moreover, a situation of such gravity that would occasion the suspect being shot and killed?
Unofficial 'shoot to kill' policy
The question is whether there is an unofficial policy on the part of our law enforcement officers where they are encouraged to get rid of alleged criminals by 'shoot to kill'orders from above. For example, I recall a former Inspector General of Police justifying such killings and pointing out that these were persons who had previous conviction and therefore, had to be dispensed with in order to prevent them from engaging in further crimes.
The extremely deleterious consequences of such orders which go against the very norm of proper law enforcement is obvious. As UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston observed recently 'In many cases, the police allege that the use of force became necessary when, after having been arrested, presumably searched and (in most cases) handcuffed by the police, the suspects attempted either to escape or to attack the officers. In all cases, the shooting was fatal and in none was a police officer injured. The Government confirmed that in none of these cases had an internal police inquiry been opened. The reason proffered was that no complaints had been received. The pattern of summary executions that emerges, demands a systematic official response that brings those responsible to justice and discourages future violations." (Mission to Sri Lanka, 28 November - 6 December 2005)
In his Mission Report, it is observed that the other main cause of death is torture in police custody. Its prevalence is undoubted; for example, between 1 January and 30 October 2003, the National Police Commission had received 221 complaints concerning assault and torture by the police, six of which resulted in deaths. The Special Rapportuer on Torture had, in another illustrative example, recorded 52 allegations in 2003. (CN.4/2004/56/Add.1) and the 76 allegations in 2004 (E/CN.4/2005/62/Add.1).
Reasons for deaths in custody
The factors that encourage and facilitate widespread use of such practices are several. Pre-eminently the reason as to why deaths in custody go unpunished is due as much to the laxity of the magistrate as it is to the excessive actions of the police. In many of these cases, the deaths are due to police torture of the suspects, disguised in fictitious explanations such as that he was attempting to run away or that he was resisting arrest as explained above. However, magistrates do not assume a very pro-active role in these circumstances in the stringent questioning of police actions in this regard. On the contrary, a verdict is entered of justifiable homicide without any questioning of the police actions.
Magisterial actions are lax in other respects as well. Sections 36 and 37 of the Code of Criminal Procedure Act mandates production of a person arrested before a Magistrate (having jurisdiction in the case) without unnecessary delay, which period shall not exceed twenty four hours (exclusive of the journey from the place of arrest to the Magistrate). Article 13(2) of the Constitution underpins this excellent principle in constitutional terms. This fettering of the time limit is to ensure that police officers are not given a free hand to abuse persons in their custody and to ensure an element of independent magisterial supervision. However, this is seldom observed in practice. As early as in 1946, the Soertz Commission observed that the practice of taking a suspect directly to a police station was an encouragement to torture and CIDT.
Though the law and judicial interpretation thereof specifies that reasons be given for arrest, this caution is not observed in practice in a vast majority of the documented cases. Family members are not informed of the arrest and are often denied access. They are unable to obtain legal representation for the suspect due to financial difficulties in retaining lawyers and as a result, the police are encouraged to fabricate stories of involvement in grave crimes and request remand from the magistrate. Sometimes, linkages between the police and criminal lawyers prevent a suspect from being represented adequately.
Further, due to the magistrate himself/herself not questioning the police adequately, fabricated stories serve to put a suspect unjustifiably in remand and even if the suspect is granted bail, this is to little purpose as an adequate surety cannot be furnished. A further problematic development is the production of a suspect at the home of a magistrate or an acting magistrate where in many cases, decoys or impersonators are produced.
Fairy stories of shootings of unarmed suspects
In such a context, it is little wonder that we continue to be entertained by fairy stories of the shooting of unarmed suspects by the police. While this may bring an occasional burst of joy particularly when the offender is a heinous criminal, the impact of such practices on the Rule of Law in general and legitimate law enforcement in particular cannot be more serious. . |
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