31 October, 2020

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Supreme Court Judgments On Torture & The State’s Failure To Protect Those In Custody

By Basil Fernando

Basil Fernando

Basil Fernando

One more judgement from the Supreme Court, on 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 Article 11 of the Constitution by assaulting petitioner Fernando. The Court ordered the three police officers to pay the Petitioner Rupees 35,000 each, i.e. Rupees 105,000 in total, out of their own pockets. The Court rejected the version of the Respondent police officers that the injuries on the petitioner might have been caused in the course of the petitioner’s attempt to resist arrest. The Court instead accepted the version of the petitioner – supported by medical evidence – that the injuries were consistent with the petitioner’s version of the events.

The Supreme Court has pronounced similar judgements, finding police officers having committed torture, on many occasions. However, there is no indication of any significant improvement of police behaviour despite these 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 persons who have been arrested. Many stories of torture and ill-treatment heard from around the country indicate 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 a citizen in custody.

What is seen instead is a generalised practice of treating a person taken into police custody as a lesser human being or a non human being. It is this perception that needs to be scrutinised carefully by the government, by the officers of the police hierarchy, as well as those in charge of all other institutions created for the purpose of ensuring the proper carrying out of the duties of the state, which are, in this regard, ensure the protection of citizens, and non-citizens, 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 to ensure 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. 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 that are conducted by some agencies, like 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 seem to understand the ‘ordinary folk’, is in seeing them as ‘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 should be. 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 in fact be treated with special consideration, due to the obligation of protection, it is justified to conclude that there are serious failures on the part of those in charge of such institutions.

The failure of those exercising leadership becomes even more glaring when one considers that the issues involved relate to violations of constitutional rights of the people. To expect protection is a constitutional right. When there is widespread practice of violations of constitutional rights, within a public institution, those in charge of such an institution, cannot plead ignorance or innocence.

In some instances, such as custodial deaths, murder is involved. It is easy to carry out a tug-of-war, whether a particular custodial death is a murder or not; in this tug-of-war, the ordinary citizen does not have the same power-to-pull, as the authorities and the institution have. 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, for example, 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 the existence of failures in the exercise of protection functions, 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 are a fundamental failure in the duties of the State. The very fact that the Supreme Court has itself, on so many occasions, pointed to this failure, in judgements relating to violations under Article 11 of the Constitution, is a strong enough argument to expose 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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Latest comments

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    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2/

  • 1
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    My column is empty. I am rotting… Couls someone at least contribute something.
    This article is for my supper………….
    Only way I earn a living is selling my motherland.

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      [Edited out]

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    Torture as a means of persecution and punishment has been extensively practised in Sri Lanka.

    https://en.wikipedia.org/wiki/Human_rights_in_Sri_Lanka

    Many UN Rapporteurs have visited and confirmed this state of affairs, in the past, and made known their findings to successive governments.

    Deaths in custody are a shame for any country, especially for one which prides itself on Buddhist values of government.

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    [Edited out]

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    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2/

  • 1
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    All Good stuff!

    But when are we going to revisit the Bindunuwewa Massacre?

    The hills of Bandarawela still echo with cries of that dark, nearly-forgotten October night.

  • 2
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    In Journalism there is truth, unless of course you offend the friends of the Colombo Telegraph.

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