Thoughts on the drowning of one man

By Kishali Pinto Jayawardene

(November 09, Colombo, Sri Lanka Guardian) Public shock and astonishment that greeted the recent forcible drowning of a mentally challenged man by police officers attached to the Bambalpitiya police station illustrates the culture of extreme denial in which we function as citizens in Sri Lanka today.

From where does this incredulity spring from? Are we surprised that such an incident happened in the first instance? But how can this be so when this is just one of the many such incidents that have now become commonplace? Or are we so outraged due to the visuals that were obtained so fortuitously of the entire tragic event? If this had not been captured on film but had been relegated to a few bland lines of newsprint, would our reactions have been different? These are some hard questions but which need to be asked nonetheless for our extreme surprise, (given the most positive interpretation that can be given to it), speaks to an unbelievable if not dangerous naivete regarding the very society that we live in.

Sustained pressure needed

So what do we expect from this tragic saga once the inevitable letters to the newspapers are written or the equally inevitable columns and editorials are penned? Even if a solitary scapegoat is punished, will that prevent such incidents in the future? The issue here is not that this is a single case of brutality. Rather, it is that such brutality is endemic in the police force today. Remedying this cannot be accomplished through fleeting outrage over one incident. Instead, there must be consistent and sustained pressure for reforms that return a measure of accountability to the fact of policing in this country.

It is clear now that Inspector Generals of Police (IGP) cannot, even with the best of intentions, restore discipline to the police department. The notion of political command has effectively replaced the idea of superior police command. Many good police officers who attempt to perform their duties honourably have become victims to this. Let us look at the actual record of internal discipline within the police department to illustrate this point.

Though the National Police Commission (NPC) in its first term opted to exercise disciplinary control over all police officers according to its constitutional mandate and following public representations, this was changed during the NPC's functioning (unconstitutionally) in its second term. The lack of good faith on the part of the Rajapaksa Presidency as well as Sri Lanka's Parliament is now a matter of historical record in this respect. All this had the most deleterious impact on police discipline.

The past record

During its second term, disciplinary powers in respect of police officers below the rank of Chief Inspector were delegated to the IGP by the NPC due to concern expressed by the Police Department that the IGP will lose his authority over his officers if such powers were exercised by the NPC. However, this delegation proved to be of little avail.

In one case for example, the Officer-in-Charge (OIC) of the Wattala police station, who was found to have consented and acquiesced in the torture of an innocent man, Gerald Perera by the Supreme Court, (Sanjeewa v Suraweera, [2003] 1 Sri LR 317) was only lightly reprimanded following a disciplinary inquiry held by the IGP. The inquiry procedure itself in this instance was alleged to have been irregular. However, at that time, there was no possibility of challenging this matter before the NPC as the power in this regard had been delegated to the IGP and whilst such delegation remained, the NPC stated that it could not intervene unless the affected police officer himself or herself appeals to the NPC.

Yet, where a police officer has escaped punishment following a disciplinary inquiry conducted by the IGP, he or she would certainly not appeal against this order to the NPC. Such cases caused dissatisfaction in the ranks of the Police Department, itself. Police officers became resentful of the fact that a few favoured police officers were allowed to escape the consequences of their actions.

Where senior officers were concerned, a Disciplinary and Legal Division established within the NPC was entrusted with the task of preferring charges against police officers based on preliminary investigation reports and recommendations of the IGP. Inquiries were held by tribunals of inquiry appointed by the NPC which finally decided on appropriate disciplinary action. The inquiries were conducted by retired public servants drawn from a panel appointed by the Ministry of Public Administration.

The reports of the Police Department indicate the extent to which this procedure has functioned or failed to function as the case may be. During 2007, 67 draft Charge Sheets had been received from the IGP, 40 Charge Sheets had been issued, out of which inquiries had commenced in 24 cases. Six inquiries had been concluded. Out of the Charge Sheets issued before 2007, 53 inquiries had been concluded during 2007. However, the actual disciplinary action taken, the nature of the offence in question and other relevant data are not disclosed.

Little results on public complaints

Meanwhile, Rules of Procedure (Public Complaints) were put into place in January 2007, (Gazette No 1480/8 - 2007 January 17, 2007), the substance of which took in elements from a draft submitted by independent legal consultants to the NPC (in its first term) in 2006. However, in its second term, the NPC's Complaints Procedure, showed little results. For example, the Annual Report of the NPC pertaining to 2007 indicated that from around 1, 940 complaints received from the public, the highest number of complaints (31%) amusingly related to alleged police inaction, not more serious action.

Misuse of power and partiality amounted to 25% and 12% respectively. Court proceedings were initiated against 6 police officers, one officer was fined under summary disciplinary procedure, 05 officers were transferred on disciplinary grounds and 22 police officers were warned. Further and astonishingly, despite the rise in incidents of police brutality, the number of complaints against the police received at the officers of the NPC in fact, seem to indicate a downwards trend since 2004.

During the time that the Public Complaints Procedures were in operation, resource difficulties also abounded; there were only three investigating officers attached to the NPC's Public Complaints Investigation Division (PCID) and the investigation work of the PICD was limited in this regard.

Reconstitution of the NPC

These statistics show that we cannot have a sham of a National Police Commission in place. The Rajapaksa Presidency should toss aside its nonplussed annoyance over the unfavourable GSP Plus report of the European Commission (EC), refrain from appointing committees of ministers who can add little sanity to an already lamentably lunatic situation, stop wasting time by drafting 'responses' to a clear breakdown of the Rule of Law and instead (as a first step) immediately reconstitute the National Police Commission according to the conditions laid down in the 17th Amendment to the Constitution.

If this is demonstrated, (quite apart from the EC dilemma), the Government would certainly gain much needed public support at this point of time.

-Sri Lanka Guardian