by Sofie Rordam
(January 25, Colombo, Sri Lanka Guardian) Alarmingly as it may be, it is now a well-known fact that lawlessness has spread to all aspects of public as well as official life in Sri Lanka. The critical role played by the police system is further recognized as being one of the principal factors causing this situation.
The failures in the system are not due to errors with a particular officer or a particular station. Neither is it a problem that can solely be blamed on the rules and regulations of the separate stations' respective departments or the politicians' dictation of the officers. The politicization of the system requires not only the politicians as players but the several persons, who function as intermediary links within the system; they find convenience in the set-up as well.
Many times all the stages from the arrest to the court room work are a chain of intertwined events where nearly everyone involved becomes complicit in the failure of performing an official requisite procedure for an arrest. If they do not take part themselves, they may fail to intervene as they become aware of the misconduct of others. This includes everything from high-ranking police officers, magistrates, doctors, judicial medical officers (JMO's) as well as the judiciary.
These instalments have to be recognized not as isolated, specific issues, but like prolonged problems that reach far into the institutional design of the Sri Lankan Constitution itself. The systematic use of torture and extrajudicial killings in the police forces deprive from a constitution which leaves room for this misconduct to occur and offers impunity to the prosecutors.
The position of women in the system
Due to the prevailing patriarchal mentality in the overall Sri Lankan society and the traditional lack of gender sensitivity in the security and legal system, the women in Sri Lanka remain the system's main victims directly or indirectly.
It has long been a requirement that police stations contain a separate union for women and children with female officers attached, but while most stations are undermanned, the maintenance of the units is not prioritized. This obviously makes the women more vulnerable to harassment and physical and mental abuse by officers.
There are several legal instruments to protect women and girls from violence including the recent adoption of the Prevention of Domestic Violence Act. However, while the legislation is there, the effectuation is not. The gap between the rights set out on paper and the daily practice at the police stations is tremendous.
The obstacles for the victims coming to the police stations to file a complaint are many. A major factor is the complete lack of victim protection offered by the state, which prevents many women from ever showing up at the stations and expose the ones who do to serious danger. This has a vast impact on all victims, but the complications are many times greater for women especially in cases related to sexual abuse or domestic violence. Most women depend almost solely on their partners economically. They have no means to provide housing for themselves and their children or to sustain their livelihood, which means the alternative to domestic violence and abuse is often homelessness.
By speaking to a range of different women about their views on, and experiences of, the police system in Sri Lanka, a general idea of the prevailing problems and their underlying causes in the police system today materializes. Some of the women have worked within the police force itself, some are lawyers or legal advisers and others are women, who themselves have experience of being a victim at the police stations.
The women cover many issues from the working environment at the stations, the procedures and the overall structure of the system, the corruption, the endemic use of torture, violence and verbal harassment and the political influence on the institution. While the picture they draw is distressing and sad, the actuality of this picture is hard to repudiate.
A question on implementation, not legislation
Harshi Perera is a young lawyer, who has worked on behalf of several human rights groups, particularly on issues relating to women's rights. She puts emphasis on how the problems of the policing system and the widespread use of torture should be considered problems that demonstrate the need for legislation on the matter. The broader context has to be analysed and studies should be conducted on how the institutions themselves regularly block the effectuation of implementation of existing laws. It is a common misconception that there is a natural cause and effect relation between introducing a bill and achieving its intended function. Introducing a bill on an issue sometimes function as a hindrance to its enforcement, since it may relax the pressure on the government and the issue slips out of sight for a while.
As Harshi explains, "The problem is not the laws of Sri Lanka. There are a lot of laws in Sri Lanka and they are quite adequate. Indeed, there is a law, which says torture is a crime. (The CAT Act, Act No 22 of 1994) There is, in fact, a severe penalty for officers who used torture. In the past the Supreme Court has given extraordinary compensation for torture cases. Unfortunately this has now been changed. Also, the law relating to torture is not implemented. Very few cases have been prosecuted. Law enforcement agencies and the courts bare a heavy responsibility on these matters."
Harshi Perera goes on to say that the situation has reached a stage where people are afraid of going to the police station. As she explains, it is both more efficient and safe to write a complaint from home and send it to the relevant authorities by oneself. The problem is that only educated people, who know the procedure, will be able to do this and therefore most cases will never be reported.
Being asked about the police system's most prevailing issues and their needed changes, Harshi answers promptly: "The first thing that needs to be stopped and changed is the politicization of the police. It is very essential that it becomes an independent institution. It is also vital that the people's trust in the police is re-established and a system of accountability is created. The National Police Commission should be independent and be able to deal with the problems. The same must be done with this Human Rights Commission (HRCSL). The HRCSL should be strong and should be able to deal with bad policing."
The hierarchy at the stations
There is a strong ranking order within the police system reflecting the deeply rooted patriarchal and hierarchical structure of Sri Lankan society as well as the lack of resources and personnel at the police stations. The hierarchy is one of the contributing factors to the officers' power abuse exercised on the public.
A retired Woman Police Constable (WPC), who does not want to be named, but who served the Police Department of Sri Lanka for 28 years in different areas like Kegalle, Kandy, Matale, Serunuara and Kanthale, blames the police use of arbitrary power and their violent attitude on the pecking order within the police, which particularly affects the lower ranking officers.
As she explains, "Although we are suppose to work only an 8 hours shift it is usually extended for up to 12 hours most of the time due to the heavy work load and the lack of officers in service. No additional allowance is allocated to the officers. Under these kinds of situations, it is usual for the officers to get deep frustrations and mental traumas. We are not allowed to communicate with higher-ranking officers regarding our situation or to make claims for relief. The senior officers in service treat the lower ranking officers with no sense of humanity or kindness. Most of the times they treat us like slaves."
When violence and punishment are the lessons given among the officers; naturally the officers will expose these methods in the work as well. The exercitation of power travel down the ranks and the frustration and anger the lower ranking officers encounter subsequently get projected at the citizens, to whom they are still an authority. Citizens coming to the police stations are many times already victims and therefore vulnerable and easy targets.
Lack of education of police officers
Mrs. Rmar is a retired police sergeant, who served as a woman police sergeant for more than 29 years. She also wants to stay anonymous and will go under her cover name Rmar. According to her view, one of the problems on ground within the police system is the lack of proper education and continuous training of the officers. She believes that the fundamental errors in the methods and procedures of interrogation and investigation are some main factors leading to the use of torture.
Mrs. Rmar emphasizes that instead of trying to get all possible facts from the suspected, the officers should work to investigate the surrounding facts and reasons for the arrest and collect the necessary evidence. There is a strong need for a systematic technique in the investigation procedure and for a discipline to follow that procedure.
She explains that, "The officers need to have much patience and a scientific approach. They should collect information without breaking the chains of evidence. For that they have to develop their research skills and be able to analyse facts. If they do not pay attention at the very beginning of a crime scene investigation evidence can easily be destroyed."
Mrs. Rmar notes that training in use of DNA evidence or rudimentary techniques as the taking footprints or fingerprints are included in the basic training of police officers, but with time many of the techniques are forgotten. Without a continuous training of the officers, they will go for the easier method of torturing the suspect in order to conclude the investigation.
However, she also acknowledges that before a proficient education will have a highly significant effect, the structure of the system has to change. Even if the officer school provides highly professional education, when the lower ranks become senior themselves after years with harassment from higher ranking officers, the methods have become so deeply rooted and regarded as a mean to uphold their position. Consequentially, when there are no bodies to monitor the procedures, the system keeps reproducing itself.
Corruption and lack of resources
Many public institutions are undermanned and under equipped due to the lack of resources. Even if the officers get training in advanced equipment for investigations at the officer school, many stations do not provide the gear.
The lack of personnel results in a heavy workload and constant overtime for officers and is a causative factor to the senior officer's exploitation of the lower ranks. Many times the officers are not able to perform the functions required of them, which contributes to the practice of neglecting mandatory procedures and measures such as maintaining the records of complaints or filing mandatory papers during an arrest and the conduct of impatient interrogations often leading to the use of torture.
Corruption has become a highly integrated part of the political and judicial system in Sri Lanka along with the police system. As mentioned, overtime is an almost daily occurrence at the stations and as there is nothing as overtime pay, taking bribes is considered a supplement to the salary and is justified due to the bad working conditions.
Bribery has also become a tool for politicians or other influential people to see to the arrest, often involving torture, of a political opponent, a critical journalist or a personal adversary or to prevent investigation of cases in their personal interest. Simultaneously, police officers have interest in good relations to the politicians, who can see to their promotions or provide convenient supplements to their salaries.
This larger scale of corruption has travelled down to even the simplest of procedures. Some of the women interviewed gave reports of officers giving out their phone numbers to complainants to recharge their phones as a payment for taken down their complaints. It has become a system that all levels from the rickshaw drivers near the police station to the judges in the Supreme Court benefit from. Corruption lays the ground for many other misconducts to occur as it extend the implicated persons morality and deplete the society's concept of a system functioning on legal grounds.
Discrimination and harassment of women
Seetha Kumarasinghe is a fifty six year old retired lady police sergeant, who worked in the police force for 25 years. She is a Sinhalese from Mathale in Central Province.
She draws attention to the discrimination and arrogance that especially the poorer people experience when they come to the stations, as they do not have the financial means or connections to deal with the officers. Women are insulted and harassed by the male officers and how, in cases of rape or other sexually related crimes, the officers often refuse to take down complaints or even blame the women for the incidents. She further describes how this environment of intimidation and coercion also applies among the officers themselves where stories and methods of torture are deliberately discussed and shared with encouragement.
Kumarasinghe exemplifies with a story: "I have seen one woman coming to the police station for many days to make a complaint, but nobody took it down. Later she came with an officer from The Human Rights Commission to help get the complaint recorded. Her story was that her fourteen-year old daughter had been abducted by somebody in the neighbourhood. The response she got from the police officer was that since the boy had kept the girl for several days, there was nothing the police could do and the only option the mother had was to get her daughter married to the boy."
Underlining that the abduction of the girl amounts to statutory rape, Kumarasinghe further emphasizes on the tremendous courage and strength it requires from a woman deciding to report a rape case. She goes on by saying: "Now, when a police officer goes to the extent of giving advice of this nature, what kind of legal relief can people expect from the police?"
Lack of public trust as a reminiscence of the past
For many people the general lack of trust in the police derives from personal experiences, where the police have failed or refused to deliver any form of help or even been complicit in the crimes that the people seeking help have been subjected to. The extremely violent and politically chaotic years when the civil war was on one of its heights from 1987 to 1991 was manifested in the large-scale disappearances that took place during these years. The disappearances carried out by police or armed security forces are conservatively estimated to have taken the lives of more than 30.000 people.
The horrendous violence has affected the lives of many families in Sri Lanka. The wounds are almost impossible to heal as well as the trust in public authorities is hard to recover. This is especially prevalent when many of the high-ranking officers from that time still hold office today and legal investigations have been denied the relatives in most case.
Mrs. Gannoruwa, 80, is a former Sinhala primary and senior schoolteacher. Her son was abducted in 1989 on his way to school, four days after taking his qualifying exams for university. She now campaigns against disappearances.
Mrs. Gannoruwa tells her story about her fight and struggles to get clarity of what happened to her son back then.
When she became aware of her son's abduction, she initially went to her local police station, where the sergeant scolded her and sent her away. She therefore went to Kandy Police Station and met the Superintendent, who called her local station and instructed them to take her complaint. At her local station, the Officer in Charge insulted her for going to 'the big shots' and refused to write down the complaint in the official complaint book, but only on a loose paper sheet. He told her, "Keep your mouth shut, I'll do what I want."
Mrs. Gannoruwa also wrote the President, a parliamentarian and the Human Rights Commission, but no real steps were or have since been taken to investigate the case. She claims that her son was disappeared because her husband was a businessman who supported the Sri Lanka National Party.
On the question about the relationship between the police and the public, she promptly responds: "I would never go back to a police station after our incident! And my children are not allowed to go there neither!"
She clarifies further: "I have two images. For those with money, they are treated in a fine manner. They can drive their vehicles directly inside the police station and even the OIC gets up from his chair and will go meet them. But for low-caste or ordinary people it's a different story. They are treated in a bad manner. They find it hard to get help or anything done if they don't spend money."
Underlining an alarming fact, she explains how a few good and active police officers do exist around the country. But when they start to push for inquiries or investigations, he or she will be transferred to a rural area or dismissed from service.
A Constitution with room for misconducts by the police
As the interviews with the different women have demonstrated, many structural and social factors contribute to the extent and intensity of such procedures and their expansion and development. Nevertheless, as the span of the interviews also confirm, they are not exceptional cases that should be dealt with separately. The core of the problems is to be found in the institutional framework laid out in the 1978 Constitution of Sri Lanka.
Nimalka Fernando is a lawyer and presently serving as President of The International Movement Against All Forms of Discrimination and Racism (IMADR) and Convenor of Mothers and Daughters of Lanka (MDL), a campaign network against disappearances by women's groups and feminist activists.
Nimalka Fernando emphasizes the importance of addressing the overall structural problems. According to her the most dangerous thing is that the President deliberately violated the Constitution. In her words, "he has turned our democracy upside down." Further, she states, that "the Attorney General and the police who should be assisting the courts in the administration of justice have become mouthpieces of Rajapakse's government."
The last attempt for a reform of the police system to de-politicize was taken with the 17th Amendment in 2001. It provided checks on the powers of the President, providing for high-level appointments like the Chief Justice, the National Police Commission, Public Service Commission and the National Human Rights Commission under the supervision of the Constitutional Council. The Constitutional Council was also expected to deal with promotions and dismissals of police officers to secure independence between the governing institutions.
However, President Rajapakse blocked the implementation of the Amendment as he refused to appoint the Council's successors, when their first term lapsed in 2005 although the members had already been selected by various parties constitutionally empowered to make the nominations. Despite Rajapakse's constitutional obligations to appoint the nominees, his immunity made it impossible to challenge the negligence in court and the Council has been in abeyance ever since.
The passing of the 18th Amendment to the Constitution on September 8, 2010 delivered a fatal blow to the foundations of any democratic, public institutions and their monitoring or investigative functions. It gave sweeping new powers to the President by removing the Presidential term limits and provided him with the power to regularly attend and address Parliament. Furthermore, the removal of check and balances enabled him to appoint key officials in the police, the Human Rights Commission and the judiciary and provided him blanket impunity.
Nimalka Fernando underlines how there has to be a platform for a dialogue with the police on human right issues and a general understanding from the state in of the importance of protecting these. Within the present situation neither the police nor the Human Rights Commission can be expected to conduct any impartial investigations. This is the initial challenge before any other changes within the police system can be rightly implemented.
Nimalka clarifies, "The conversation today is built on a power paradigm. People are afraid to expose the wrongdoings of the police. We need to develop a healthy dialogue. We cannot do this artificially. We cannot merely liberate one institution from this abyss. Our democracy has gone to the dogs. We have to liberate the police from the clutches of the Executive to develop a real vigorous conversation."
Terrorism prevention as an excuse for power abuses
In Sri Lanka as in many other countries there is a widespread perception of torture being more or less as an extension of severe violence and a common refusal to see it as an isolated phenomenon. The line between torture and violence is of course not clear-cut and they are both elements of each other, but seeing torture as an aggravated assault suggests a strategy not corresponding to the roots of the problems of torture and thus a critical indicator of the collapse of the institutional system.
This view is especially prevalent in the justification of the use of torture being necessary under special circumstances in so-called 'prevention' of terrorism. This is reflected in the legislation on the matter.
For Nimalka Fernando one of the biggest treats to the impartiality and effectiveness of the police system is these legislative measures such as the Prevention of Terrorism Act (PTA), that have given the security agencies much of the power, they now hold.
The legislatures were introduced during the civil war as emergency measures under which a countless number of people disappeared and where extrajudicial killed. Despite the conflict officially ended more than a year ago, they have not been repealed. The Act is being widely exploited by all actors in the security system as it set the normal, requisite procedures for an arrest out of play. It is further used as an excuse for a counterattack on civilian Sri Lankan's labelling them as anti-patriotisms or traitorous business, when they make claims of violations by governmental institutions or forces.
As Nimalka Fernando explained, "The police treat everybody arrested like a terrorist and has gradually become an arm of the PTA and the Executive by implementing the law to please the Executive and the politician of the ruling party in the area."
She goes on by saying, "It is my view that even a terrorist cannot be tortured. The police today are treating a petty thief like a person taken under the PTA and they disappear or face torture or their limbs are broken. The culture behind their present training is to eliminate the enemy. This is the ideology of the State and governance in Sri Lanka."
The institutional failure's effect on the use of torture at the police stations
Sarani Fernando is a lawyer living in Negombo. She has been active in human rights work for about ten years. For her the police system in Sri Lanka today is a disgrace to what the government is trying to present as a modern, civilised society and barely signifies anything else than an institution of terror with torture being an inseparable part of it.
"It is sad to say that torture has become part of the very identity of the Sri Lankan police service. (..) A mentality has been created believing that in order to eliminate crime it is necessary to subject the people suspected of doing such crimes to torture," she explains.
Naturally this has destroyed the public's trust in the police and the relationship of confidence between the civil society and the police, which is vital for a public institution's effectiveness in a democratic society. Instead it has been replaced by an atmosphere of terror and fear. As Sarani Fernando makes clear; when they do not provide an example for the people to follow, lawlessness is further projected to the civil society. When the police fail to deliver on their intended function, many people start to take the law in their own hands.
As she states, "The power of punishment according to the law is given to the courts. The police have no right to punish anyone. What happens at the present is that the police are doing something, which they have no right or power to do. They are following a methodology, which is contrary to the law. The fact that these things happen, impacts on the thinking of society and influences the mentalities of the people."
The police as a representative of the state
It is a fundamental concept in all civilized societies that rightful punishment can only be effected by a competent judicial body authorized through law. It is extremely unsettling that it has become an accepted, common practice for the police to take on the role of the judiciary by carrying out the punishment and verdicts themselves. This distorts the basic norm of justice, on which all others norms depend.
The outcry from the interviewed women is clear and targeted. The image they draw is one of an institution in despair close to a collapse only uphold by strings pulled by politicians and other people in power. This group has organized the system to their convenience depleting it of its ability to carry out impartial and competent investigations by preventing any form of monitoring of the system.
As the police system is one of the most visible presences of the state, its procedures and actions are principally seen as reflections on the attitude and agenda of the state, which are projected on the civil society and the way it functions as a unity. Carrying this essential symbolism, an impartial and effective framework of the police institution is a crucial factor for a state to gain the trust of the public and perform a valuable enforcement of the law.
Recognizing this fact and listening to the women's deliberate analysis of the core issues within the system would be an initial step for Rajapakse and the Sri Lankan government to take. The women's views form an useful foundation for the vital transformation and reformation that has to be instigated if Sri Lanka shall ever become anything close to the democracy based on the Rule of Law that its governments tries to present it as.
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