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NewsSRI LANKA: Supreme Court Judgments of Torture & The State’s Failure To Protection Those In Custody
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SRI LANKA: Supreme Court Judgments of Torture & The State’s Failure To Protection Those In Custody


By Basil Fernando.
One more judgement from the Supreme Court on the issue of torture by the Sri Lankan police was added to a long list of such judgements when the Supreme Court decided in favour of a petition filed by W N L K Fernando of Naththandiya police against officers attached to the Wennapuwa Police station [S.C.F.R. Application No. 612/09]. The Supreme Court decided that three of the police officers have in fact violated the rights of the petitioner guaranteed under the Article 11 of the Constitution by the assaulting petitioner Fernando and ordered the three police officers to pay to the Petitioner 35,000 Rupees each, the total of which amounted to Rs.105,000 out of their own pockets. The Court rejected the version of the Respondent police officers to the effect that the injuries on the petitioner may have been caused in the course of the petitioner’s attempt to resist the arrest. The Court instead accepted the version of the petitioner which was supported by medical evidence that the injuries were consistent with the petitioner’s version of the events.

Similar judgements, finding police officers for having caused torture on persons have been granted by the Supreme Courts on very many occasions. However, there is no indication of any significant improvement of the police behaviour despite of many such judgments.
The recent incidents of reports of deaths of persons while in police custody also highlights that there are very serious problems relating to the execution of duties by the police who are obligated to protect the suspects they arrest.

When a person is arrested, the officers act on behalf of the Sri Lankan state. At the point of securing arrest, the officers are expected to act as the guardians of the persons who have been arrested. Many stories of torture and ill treatment that is heard from around the country indicates that the Sri Lankan police officers have not acquired a basic understanding of their role when they act on behalf of the state in taking custody of a citizen.

What is seen instead is that there seems to be a generalised practice of treating a person who is taken into police custody as a lesser human being or a no human being at all. It is this perception that needs to be scrutinised carefully by the Government, by the officers of the police hierarchy, as well as those who are in charge of all other institutions that are created for the purpose of ensuring the proper carrying out of the duties of the state to ensure the protection of citizens, and even non-citizens who are taken into police custody for the limited purpose of facilitating inquiries into crimes. The National Police Commission and the Human Rights Commission of Sri Lanka are among such institutions which have special obligations for ensuring such protection.

A close examination of the way arrests are made quite often and the way those taken into custody are being treated in the course of many such investigations creates the impression that the officers often have no appreciation of their own roles as protectors. Often the impression one gets is a relationship between a predator and a prey, rather than a protector and a person who is under such person’s protection. Of course this is not the case in all cases of arrest and detention.

Well publicised inquiries which are conducted by some agencies like FCID, Financial Crimes Investigations Department, where the suspects are powerful persons such as politicians and businessmen there is a clear indication of a different type of behaviour. None of those persons involved in high profile cases, have yet complained of torture ill treatment or even impolite behaviour towards them.

Thus, the kind of relationship which looks like that of a predator and prey is mostly in cases handled at the police stations and also quite often regarding persons who are generally referred to as the ordinary folk. The way many police officers seems to understand the ‘ordinary folk’, seems to be that these persons are ‘nobodies’. There is a kind of perception that these nobodies should be treated roughly and with no show of kindness. A civilised treatment of suspects seems almost regarded as being counterproductive.

It is this mentality, exercised mainly towards the common folk, that should receive careful examination, sociologically, psychologically and also from the perspective of what the proper behaviour of public institutions towards all citizens. It is in that regard, that the role of the police hierarchy in moulding the behaviour of officers who work for their institutions need to be clearly examined. When there is a general practice of such improper behaviour towards persons who should din fact be treated with special consideration, due to the fact of owing an obligation of protection it is not unjustified to conclude that there are serious failures on the part of those who are in charge of such institutions.
The failure of those who exercise leadership, become even more glaring when we consider that the issues involved relates to violations of constitutional rights of the people. To expect protection is a constitutional right. When there is a widespread practice of violations of constitutional rights, within a public institution, those in charge of such institutions, cannot plead ignorance nor innocence.

In some instances such as custodial deaths, the issue involved is one of murder. It is easy to carry out a tug-of-war as to whether a particular custodial death is a murder or not in that tug-of-war the ordinary citizen does not have the same power-to-pull, as the authorities the institution has. On occasions of custodial deaths powerful attempts are made to create the impression that there is no foul play involved. It is not within the power of the average citizen to fight with such powerful forces to ensure that proper and fair inquiries are being conducted on such occasions. Often the inquirers themselves are the high ranking officers of the same institution. Such as for example as the ASPs or SSPs. In fact if these officers carry out their obligations in the right manner to ensure that the subordinates under their charge carry out the duties of protection as required by the constitution such unfortunate incidents are unlikely to happen.

Therefore, there Is not only an obligation on the part of the high ranking officers for having allowed situation of the existence of failures, in the exercise of protection function, they also play the same role, in prevention of proper and fair inquiries. Having a fair inquiry is the citizen’s last resort after everything has stood against his advantage. Under the present circumstances, it is not possible honestly to state that even this last resort, exists for individuals who suffer such unfortunate deaths in police custody.

Problems relating to denial of protection for citizens is a fundamental failure in the duties of the state. The very fact that the Supreme Court itself has on so many occasions pointed to this failure by their judgements relating to the violations under Article 11 of the Constitution, is a strong enough an argument to expose the existing failures. Whether the state takes the message of such judgments seriously is a matter on which an unequivocal answer in the affirmative cannot be given in the present context.

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The Asian Human Rights Commission (AHRC) works towards the radical rethinking and fundamental redesigning of justice institutions in order to protect and promote human rights in Asia. Established in 1984, the Hong Kong based organisation is a Laureate of the Right Livelihood Award, 2014.

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