The high price of our culpable inaction

| by Kishali Pinto-Jayawardena

( August 12, 2012, Colombo, Sri Lanka Guardian) Public debate is rife with heated opinions in regard to the virtual breakdown of the law and order process in Sri Lanka. The government continues to deny that there is a steep rise in crime and quite absurdly blames the media for reporting on crime. The root causes for this deterioration in law and order, namely the involvement of politicians from the highest to the lowest level in the underworld and the nefarious activities of corrupt police officers, are however glibly passed over.

The public right to know

This week, we hear the frightening story of an organized gang which had abducted an employee of a business establishment in Colombo and kept him in unlawful detention for three days in order to torture him. This treatment was for the alleged stealing of the owner’s wife’s necklace. After the detention and torture, when nothing was disclosed presumably because he did not in fact steal the necklace, he was released and severely warned not to complain. A local government politician was a member of that gang.

In what seems to be a welcome contrast to the ordinary story of impunity, the Colombo Crimes Division had made some arrests this week and other arrests, including that of the local government politician were pending (Island, August 7th 2012). Let us see however whether the arrests would lead to concrete consequences in terms of the law.

We would like to know meanwhile the exact punishment meted out to the Chairman (past? present?) of the Tangalle local authority accused of wantonly killing a British tourist in December last year and of raping his Russian girlfriend? Letters have been put into the public domain where the removal of this character (now apparently out on bail) from party positions and official posts was thereafter revoked. Is this the actual position or not? The public deserves to know.

Markings of abuse of police power

This column has maintained all along that the intention in focusing on the deterioration of law and order in Sri Lanka is not to paint all the officers serving in the police force as villains. Rather, it is to urge reform of the police disciplinary structure and to minimize or remove political control in order that good officers are encouraged and recruits would have a chance to work honorably without getting sucked into the morass of the political underworld. It is axiomatic that torture should not be a part of law enforcement by any means as its practice does not encourage the lessening of crime. This is well seen if practices of torture on the part of law enforcement personnel in Sri Lanka are examined throughout the past decade in particular.

Abuse of powers conferred by law to police officers in order to exact personal vengeance is marked by two distinct features. First, where torture is resorted to for interrogation purposes (when a ‘terrorist suspect’ is in custody) and secondly where it is apparent as a pure abuse of power. In the second category of cases, the victims are suspected of having committed petty theft or he/she is mistakenly identified for a known criminal

Indeed, degrading treatment may follow even from such trivia as asking for the name of a policeman. Instances abound where former illicit liquor sellers, who gave up their businesses had been thereafter punished by local police officers.. Such businesses often yield extra income for police officers as they are carried out with the payment of bribes. Consequently these officials are infuriated when sellers of illicit liquor stop their activities. Fabrication of false charges against persons frivolously arrested by the police is a matter of course.

All these instances are characterized by the denial of commonly accepted rights such as the right to be given reasons for the arrest and the right to be speedily brought before a Magistrate.

Women are particularly at risk

In these cases, women suffer the most. The torture of Yogalingam Vijitha from Vavuniya is relevant as this reflects what women are typically subjected to. She was accosted by a group (later identified to be policemen) in civilian clothes headed by a Reserve Sub Inspector of the Negombo police station who arrested her and took her to a garage initially. After accusing her of being a LTTE suicide bomber, they assaulted her with a club on her knees, chest, abdomen and back. Some four hours thereafter, she was put into a cell at the Negombo Police Station and detained for five days under a detention order issued under the then prevalent Emergency Regulations.

Being unable to bear the torture, she signed a confession which were neither read nor explained to her. She was then transferred to the Terrorist Investigation Division, where she was further assaulted. On 21st of September, she was remanded under the Prevention of Terrorism Act. Despite suffering tremendous physical and psychological stress, she insisted on going before the Supreme Court which considered her case and awarded her compensation after passing severe strictures on the police. The Court stated that there had not been a shred of evidence to support her arrest on suspicion that she was an LTTE member (see FR App. No. 186/2001, SCM 23.08.2002). In actual fact, she had been illegally detained and tortured after her estranged husband had instigated the culpable police officers with whom he was well acquainted.

Later, when questioned under the Special Procedures as to whether indictment in terms of Sri Lanka’s 1994 Convention Against Torture had been filed against the perpetrators, the Government replied that, as the victim had left the country, this was not possible (Report of the UN Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, E/CN.4/2004/56/Add.1, 23 March 2004, Commission on Human Rights, sixtieth session, at paragraph 1574 in Addendum, Summary of Information including individual cases transmitted to Governments and replies thereof). This is the normal answer given in many of these cases in complete disregard of the Government’s own duty to provide protection to these victims to enable them to receive justice.

Deterioration in law and order a gradual process

As in the case of the 18th Amendment to the Constitution as well as threats in regard to the independence of Sri Lanka’s judiciary, the deterioration in law and order was not a sudden development. On the contrary, this too was a gradual process, discernible steadily throughout the past decade.

The strain on the police force has been understandable. Quite apart from the civilian law enforcement machinery taking on the character of a militarized counter terrorism entity due to decades of war, the political control of the police has reached a new high under this administration. Good officers find it almost impossible to work properly and the best possible effort of the current Inspector General of Police to enforce impartial governance of the police has become a truly Sisyphean task. Reports of drunk and abusive police officers are featured daily in our newspapers and instances of ordinary people being tortured at the hands of the police and instigating politicians/business rivals/family members, are now endemic.

If only we had the courage and wisdom as a society to act at a point when the law and order process was not as subverted as it is now, the situation may be different today. Our failure to do so has led to each and every individual being placed at the risk of incurring the most terrible consequences if, even by chance, one falls foul of the ‘establishment’ at any given moment of the day. The risk is now not merely confined to ‘terrorist suspects’. This is the high price of our most culpable inaction.