Kishali Pinto Jayawardene (Sunday Times)
When leaving his position as Chairman of the National Police Commission (NPC) to assume an academic appointment overseas last month, Professor Siri Hettige’s reported observation that Sri Lanka’s Independent Police Commission is unable to control the police force and that the Commission has had to seek appropriate powers, attracts a peculiar kind of public scrutiny.
The powerlessness of the NPC
One may well question as to why the outgoing Chairman woke up to this basic realization at the singular point of leaving the post. Surely should this not have dawned on him soon after taking up the leadership of this vital body? And should not the NPC then have forcefully intervened with the Government in bringing about the required changes to enable those powers to be exercised?
Or in the alternative, should not its members have taken the principled stance that there was no point in serving further? What is the point in having a police commission (independent as the case may be) with no powers to accomplish its task? And as I may question further, if so, what is the point of expending public funds on these bodies?
This was, after all, the major problem that was supposed to have been addressed by the 19th Amendment to the Constitution. Let us see exactly where the source of this powerlessness lies. As originally envisaged in the 17th Amendment, the NPC was supposed to be a path-breaker in South Asia when created in 2001. Modeled along the lines of independent police complaint commissions elsewhere in the world, it possessed direct power to appoint, promote, transfer, and exercise disciplinary control and dismissal of all officers other than the Inspector General (IGP). After these provisions were repealed by the 18th Amendment, they were restored by the 19th Amendment with the addition that the NPC must ‘consult’ with the Inspector General of Police (IGP).
Political resistance and not the law was the obstacle
But the problem with the functioning of the NPC was not so much in the law. Rather, the obstacles were elsewhere. History teaches us this lesson very well. Early on in the tenure of the first NPC headed by noted criminal lawyer Ranjit Abeysuriya, the NPC took notice of extreme public concern regarding the disciplinary control and dismissal of police officers and recalled its delegation of that authority to the Inspector General of Police (IGP). It decided to interdict police officers indicted for torture. Has the current NPC decided on a similar court of action, one may ask?
That NPC directly challenged the nexus between the politicians and the police which was the main reason as to why the Rule of Law broke down. It prevented the political transfer of police officers during the pre-election period when elections were declared. At that time and before long, political reactions to the first NPC’s interventions were fierce. This was not confined to the Government. Sensing the dangers, politicians across the divide united in one common disgraceful task; to strip the NPC of its powers. Long before the 18th Amendment came into force, this ‘taming’ of the NPC had been accomplished.
This must be clearly recognized by those who are wont to lay the blame only on the crudities of the Rajapaksa phenomenon. This was no feat of a single political administration. Rather it was the ferocious reaction of a highly sophisticated political system trained to ‘bark and bite’ with terrific impact at any challenge to its authority. What the 18th Amendment did was merely formalize that systemic challenge. And all that we have done now is to plaster over that gaping wound, not to put medicinal salve on it and ensure that the skin eventually heals. This is the uncomfortable reality that continues even now, after the January 2015 ‘yahapalanaya’ victory.
‘Barking and biting’ at reforms
The NPC was also required (“shall) to establish procedures to entertain and investigate public complaints and complaints from members of the public. This was visited with a similar fate. Initially the NPC took every effort to draft such procedures bringing in public interest lawyers to voluntarily aid the Commission (including this columnist) but those procedures could not be gazetted in the first term where the NPC was at its strongest. They were gazetted later but the actual impact of this was again, minimal as the Commission itself was structurally weakened by the 18th Amendment fatally undermining the Commission’s powers.
Image Googled and added by TW
This Government has proved itself to be pitifully incapable of addressing these outstanding issues. A case in point is the IGP being captured on national television promising the Minister of Law and Order that action will not be taken against a particular individual linked to the former Rajapaksa regime. It was astounding that the cry by civil society was for the IGP to resign rather than ask the particular Minister to step down as would have been the case in any country with minimum adherence to governance. In any event, both individuals have not been held accountable.
It is notable also that the tradition of ‘barking and biting’ at systemic reform continues. In recent months, exceptionally negative reactions have been evidenced by the police establishment to the National Human Rights Commission (HRCSL)’s statistics relating to complaints of torture. These indicate a different picture to that presented by government agencies and are substantially higher in number.
Familiar patterns of resistance
The HRCSL’s considered position taken before the United Nations Committee against Torture (CAT Committee during consideration of Sri Lanka’s 5th Periodic Report) last year was that ‘torture is routinely used in all parts of the country regardless of the nature of the suspected offence for which the person is arrested.’
In other respects, the HRCSL has highlighted repressive actions, as for example its order (2015) that the Sri Lanka Police violated international humanitarian law in assaulting a group of students at a demonstration. Put on the defensive, police spokesmen (former and current) have been reacting with anger. These are familiar patterns that we are used to.
All in all, it is doubtful if asking police officers to engage in meditation (as the IGP has reportedly directed while astoundingly breaking down in tears at a function recently) will result in an effective solution of these myriad issues. Neither tears nor meditation will replace serious and sustained political will along with national pressure therein to reform what remains a fundamental deficiency in Sri Lanka’s Rule of Law systems.