SUNDAY OBSERVER_16March 2003
The newly established National Police Commission which was constituted under the 17th Amendment of the Constitution has been hailed as a positive step towards eliminating police torture and safeguarding the rights of the people by human rights activists.
Here, a prominent human rights campaigner, Basil Fernando, Executive Director of the Hong Kong-based Asian Human Rights Commission speaks to the Sunday Observer on why he feels the National Police Commission offers the best hope yet for eliminating human rights abuses in the country and the role the mass media and the general public could play in this process.
Fernando is a qualified lawyer who has handled several cases involving human rights violations. He has been actively involved in a number of UN agencies including the Office of the United Nations Human Rights Commissioner in Cambodia. Since 1995, he has been heading the Asian Human Rights Commission and the Asian Legal Resource Centre, both based in Hong Kong.
Q: Given your experience in mechanisms to prevent human rights violations, do you feel that the National Police Commission would be able to eliminate police torture altogether?
A: From the point of view of its powers, the National Police Commission is one of the most extraordinary mechanisms that has been created in Sri Lanka to check human rights violations. It has been vested with powers to act independently and is outside the policing structure. We feel that once it becomes operational, it would be able to redress cases of torture as well as other rights violations to a very high degree.
This is because when we consider the rules and the powers which this body has been vested with, it has the capacity to make a difference more than any other institution. It is far more powerful than the National Human Rights Commission which has only been vested with powers of recommendation or any other similar institution.
However, the Commission has yet to put in place a procedure for the making of public complaints under Section 1 55 G. This procedure must include entertaining complaints, inquiring into complaints and deciding on redress.
The Commission has been vested with the authority to conduct investigations by bodies coming under its control. They could therefore set up an investigative unit and enlist inquiring officers for the purpose. Such officers however need not necessarily be from the police. They may even be qualified civilians.
The main consideration here is that they should act objectively and not come under the pressure of the police in any manner whatsoever. The Commission has also been vested with the power of making all appointments, promotions and dismissals, except for the Inspector General of Police who is appointed and dismissed by the President of the Republic. All disciplinary inquiries will also come under its purview. In short, all the basic powers of the police which earlier came under the control of the IGP is now vested in the Commission. Furthermore, the IGP himself comes under the control of the Commission and is directly accountable to the Commission.
We therefore feel that the Commission has been vested with sufficient powers to make a change for the better. It is now up to the Commission to put its powers into practice and the duty of the state to provide them with the necessary resources.
It will however be mostly dependent on the people. Public awareness is necessary to bear pressure on the Commission to get itself going. Further, the public perception of police torture must also change and they should be made to realise that something indeed could be done about it. They should turn their attention away from the IGP, DIGs etc. and focus it on the Commission. The media too has a very important role to play in this connection.
Q: What are the measures that have been taken to safeguard the independence of the Commission?
A: The Commission could only be appointed by the Constitutional Council and its removal could be accomplished only according to procedure. The Commission will hold office for a three-year term and will have to function within a constitutional framework.
Anybody appointed the Commissioner would have to resign from whatever post he holds in public service which includes the police service. At that point, even if he were a police officer he would no longer function as one. In the case of the lower ranking jobs, police officers could be recruited, but would have to function under the control and guidelines of the Commission.
We are confident that once the Commission becomes fully operational, it could, within as little as three months, build up public confidence as no other institution has and will not fail like the other institutions such as the National Human Rights Commission and the Bribery Commission which have today virtually become toothless organisations.
We have been very critical of the earlier institutions, but from the very first day the proposal to establish the National Police Commission was mooted, we saw in it a great opportunity to mobilise people's confidence for change.
We even went to the extent of publicising our approval in the mass media. It has been further provided that if anybody interferes with the activities of the Commission with a view to exerting undue influence, he would be committing a criminal offence which is punishable in a high court. It is a very serious offence similar to interfering with the judiciary. It is therefore up to the Commission to safeguard its independence. They cannot claim to be victims like certain officials whose jobs depend on the favours of politicians. As such, they have all the reason to act independently.
Q: What are the reasons which you feel prompted the government to establish the Commission?
A: There are many reasons. We must however bear in mind that the Commission was not established at the instance of any one single party. The required amendment obtained a two thirds majority with all the major parties supporting it. I think the realisation which we all have is that things have gone too far.
We are constantly reminded of this not only by the high level of crime in the country which is everybody's concern, but also the concerns of investors. No foreign investor is likely to invest in a country where the rule of law does not exist. We therefore find a situation where not only the freedom of the individual is at stake, but also the survival of the state. The major influence has however been public pressure.
Q: How could a member of the public make a complaint of torture against the police? What are the measures that could be taken against the police officer concerned? Could complainants seek compensation from the Commission or are they to seek legal redress?
A: A member of the public could make a complaint orally by being present at the office of the Commission or could submit it in writing, giving all the details and addressing the complaint directly to the Commissioner. The situation will however change a lot after a proper procedure for public complaints has been established. This is one of their many constitutional duties and public pressure should be exerted to set it in place as soon as possible.
With regard to the measures that could be taken against the police officer concerned, the Commission has been vested with powers of inquiry and could direct such an inquiry to a final prosecution under Act No.22 of 1994. This Act has incorporated the UN Convention against Torture under which the minimum punishment for torture is seven years imprisonment.
The prosecution of Torture Perpetrators Unit which functions under the Attorney General's Department would be controlling the inquiry while the Attorney General would be prosecuting the case. Besides being handed over for prosecution by the state, police officers found guilty of torture could also be subjected to disciplinary action and could be dismissed from service at the discretion of the Commission as dismissals come under its purview.
The Commission could even go to the extent of depriving offending police officers of their pensions in cases of very serious offences as happens in some other countries. It is up to the Commission to lay down the consequences to follow.
As for the question of compensation, the Commission will be entitled to grant compensation to victims of torture. Since torture is considered one of the most heinous crimes today under international law, very high payments for compensation could be awarded to victims as per international standards.
Such compensation would have to be borne by the state which should further prompt the government to take some positive measures to prevent police torture from taking place. We therefore feel that the National Police Commission will go a long way in eliminating police torture in the country.