Sunday Observer Online


Sunday, 25 September 2016





Marriage Proposals
Government Gazette

CCTV in cells only first step against brutality

The announcement by the Minister of Law and Order and Southern Development Sagala Ratnayake that the Ministry has initiated programmes to install CCTV systems in the cells of all police stations to provide better security is quite welcome. The Minister made this statement while answering a question raised by joint opposition leader MP Dinesh Gunawardana about whether the government was aware of the death of a man at Pussellawa police station and if the government would take responsibility for the death.

The police claim that the 30-year-old Raviraj Kavichandran of Roslanda Estate, in Pussellawa, hung himself with his shirt inside a police cell. The parents and relatives of the deceased have publicly stated that Raviraj was assaulted by the police at the time of his arrest and also at the police station.

The Minister stated that a comprehensive investigation would be conducted by the Government into the death of Raviraj by a special police team that includes two Assistant Superintendents of Police.

Complaints regarding assaults of suspects are being received constantly from almost all police stations throughout Sri Lanka. The use of torture and ill treatment at police stations has been a regular occurrence ever since the Sri Lankan police system was established.

Detention cells

If CCTV cameras are installed in detention cells at all police stations, this would be the first significant and practical step taken by any government to counteract against the widespread practice of torture and ill-treatment.

However, the proper implementation of this measure will depend on a consensus at the very top level of the police hierarchy to decisively bring an end to the practice of torture and ill treatment of suspects. The consensus that has prevailed so far is that it is practically impossible to abandon the use of torture and ill treatment. This is in spite of the public statements made by high-ranking police officers condemning and denying the existence of such a practice.

It is this dual policy of public denials and the continuity of the use of third degree methods that requires to be brought to an end if the CCTV cameras are to be used effectively to help end the widespread and systematic use of torture and ill treatment in police stations.

The problem, however, is that CCTV cameras are part of modern technology while the Sri Lankan policing system remains a primitive system of policing in its outlook, in its training and education, and in its perception of the responsibilities it owes to the community. In fact, the way that the police understand the meaning of a community has very much to do with the kind of policing that they would engage in.

In recent times, we have seen very serious inquiries being conducted against very powerful persons by such agencies as the FCID. While many such inquiries are being conducted, there have not been any public complaints that the suspects are dealt with by way of torture and ill treatment in the course of such inquiries. Thus, rules and proper discipline has been observed when it comes to a particular class of persons in society.

Ironically, complaints about the use of torture do not relate to investigations of serious crimes, but mostly relate to the arrest and detention of suspects from lower income groups where the alleged investigations are about petty crimes.

Three young men

Just last week, the whole country was alerted to the plight of three young men, who were arrested allegedly for the theft of a few bags of paddy/rice by police officers from the Hambanthota police station. The three men complained about being assaulted and one of them, Gayashan, fled from the police station and remained wandering in the area until a Buddhist monk helped him to surrender. It was the fear of being further assaulted that led the young man to flee.

In another reported case, a 14-year-old school girl, who complained to the police about being raped by the driver of her school bus, later complained of being assaulted by a woman police officer, who told her not to mention the name of the actual culprit in the girl’s statement to the police. Narratives of this sort have been documented in their thousands by human rights organisations.

The government’s policy against torture and ill treatment and the approach of the police hierarchy toward the issue shows a manifest lack of seriousness. The behaviour of the authorities in the aftermath of complaints that get publicised is often pathetic and even comic. That, of course, is not only on this matter, but also on many other issues, including investigations complaints relating to the rape and sexual abuse of women and children.

Institutionally, the policing system, having remained an outdated institution, is unable to relate to the community at large in a serious and responsible manner. The issue is not just about externally showing a friendly face; it is about a serious commitment to engage with the community in a manner that could win the confidence of the public. The public cares for security above all other things. What the policing system has failed to do is to assure the community that their presence plays a beneficial role.

Thus, while the installation of CCTV cameras is welcomed, the matter is connected to other policy issues, such as the development of the constitutional principles that can enable a generation of socially responsible public institutions. In short, there must be an overall respect for the law at all levels of society.

Loss of faith

What we have seen in recent decades is the loss of faith in the law. That loss was not accidental. The very purpose of the 1978 Constitution was to displace the significance of the law and to enlarge the area of discretion in all three branches of the government. In these few decades, what the country has experienced is the extremely arbitrary use of discretion and the near-complete displacement of the rule of law. However, a stable democratic society can only be built on the principle of “law not discretion”.

What this means is, as former Lord Chief Justice of England Tom Bingham has succinctly put in his great work entitled The Rule of Law, “… questions of legal right and liability should be ordinarily resolved by application of law and not the exercise of discretion.” That is keeping with the very meaning of the rule of law: “…the core of the existing principle of the rule of law [is] that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefits of the law publicly made, taking effect (generally) in the future and publicly administered in the courts.”

The proper functioning of an organised society based on the rule of law requires that the Head of the State, the Ministers, the legislators, the judges, prosecutors, law enforcement officers, military officers and all civil servants act only on the basis of law and exercise discretion only to the most limited extent necessary in the given circumstance.

However, in the period after the institution of the executive presidency, that is since 1978, this basic principle was abandoned and in every area of governance the use of discretion, which often meant the arbitrary use of discretion, became widespread and legal principles were trivialised.

The central issue in the development of a new constitution should be to displace that trivialisation of law. The law must return to its due place in all areas of governance, including the administration of justice itself.

Place of law

As much as Executive Presidents undermined the place of law, a similar process was also followed in the administration of justice itself. Former Chief Justice Sarath Nanda Silva’s period as the Chief Justice of Sri Lanka saw a seeming preference on the part of the head of Sri Lanka’s judicial institution to undermine legal principles and, in particular, the abandonment of well-established legal procedures.

The fact that this atrocious abandonment of the law was seemingly encouraged at that top institutional level was particularly heinous. Illustrations of the many instances where this occurred would occupy a large space.

Just one example highlights the absurd levels to which this discretion was enlarged, which is the case of Michael Anthony (Tony) Fernando’s contempt of court case [Anthony Fernando v. Sri Lanka, Communication No. 1189/2003,U.N. Doc. CCPR/C/83/D/1189/2003 (2005)].

Here, the litigant was a layman and one of his requests was that his case should not be heard before Sarath Nanda Silva as Chief Justice, given that one of his complaints involved an allegation of judicial misbehaviour on the part of the then Chief Justice. But the case was taken up with Sarath Nanda Silva himself, presiding as Chief Justice, with two other judges.

Tony Fernando was asked what he wanted from the court. He replied that he wanted to be treated with equality, as enshrined in Article 12(1) of the Constitution. He was then told to keep quiet and that if he spoke a single word more, one month would be added for each word to the sentence that the court was about to pronounce. The court then sentenced him to one year’s rigorous imprisonment for contempt of court. The sheer arbitrariness of this decision was condemned by the United Nation’s Human Rights Committee, which expressed its views on the communication filed by Mr. Tony Fernando, upholding his claim that his human rights were violated by the Supreme Court of Sri Lanka.

This was just one illustration. What is important to note is that judgments made in this arbitrary manner have now entered into the Sri Lankan law on the basis of judicial precedent. Thus, there is a serious problem about judgements which would not stand the test of legality if examined strictly on the basis of established legal principles. They remain judgments only on the basis of the use of judicial discretion, which amounts, in fact, to an abuse of discretion.

Finality of judgements

This brings us to the issue of whether the new constitution should provide for precise and more expansive rules regarding the review of such manifestly arbitrary judgments of the highest court? It appears that leaving this matter to the wisdom of Sri Lanka’s judiciary is not wise given experiences of the past decades which saw judges themselves not conforming to precedent or indeed settled law in these cases.

In the United States many judgements of the highest courts have been set aside on findings based on DNA tests, which proved that the convicted accused was not the culprit in the said case.

However, in Sri Lanka the concept of the finality of judgements of the highest court has been interpreted to mean that no further appeal is possible. Thus, if this principle is to be followed, some of the judgements which were not based on sound legal principles may remain as Sri Lankan law, with the only possibility of replacement being a new law passed by the legislature.

The discussions on the new constitution should also address this aspect as part of working towards re-establishing the fundamental principle that ‘the law not discretion’ should be used, and thereby creating the only basis on which a legal system that respects the rights of its citizens can function.


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