An Article by the Asian Human Rights Commission
By Basil Fernando
“Police officer” refers mostly to persons working for the Sri Lanka Police Service. But in the context of custodial torture, it also includes others who at times are called upon to do police-related duties such as conduct interrogations, similar to the military and other agencies. Another aspect, relevant to this discourse, generally speaking, concerns persons from low income-earning groups. They are the ones who are tortured. There are rare instances where someone outside that social group may be tortured. The latter are few in number as compared to the vast majority of the cases where the victim is from a low-income group. Observations contained herein are made based upon actual case studies, and while one case may be mentioned under each heading, it is only a sample of very many similar cases.
Reasons for torture
A school teacher complains that he has lost Rs. 50,000, which he thinks was stolen from his home by someone. The teacher suspects a young man who has been working in the vicinity as the culprit. He seeks the help of the Police to find the Rs. 50,000. Police records do not show any complaint being recorded from this teacher. Later, the said youth is arrested. At the police station, he is beaten by the police officer-in-charge (OIC) and another officer. He is requested to give back the Rs. 50,000. He denies the allegation. However, due to the severe beating, he becomes unconscious, and is taken to hospital where he subsequently dies.
Why was he tortured? Was it as part of a criminal investigation? If it is part of a criminal investigation, the very first thing that should have been done was to record the complaint of the teacher in the complaints book. In the process of recording such, the teacher should have been asked about the details, such as where the money was kept as well as the particulars which would lead to an understanding of when and how the loss took place. The complainant teacher should have been asked as to what reasons he had to suspect a particular boy as the possible culprit in this theft. The Police should have sought out other evidence in support of the suspicions by the teacher. All such steps that should have been taken for the recording of the statement should be based on the law, as laid down in the Code of Criminal Procedure (CCP).
However, that procedure is valid only if the OIC or any other police officer was sincerely interested in conducting an inquiry as per the criminal law, with a view to collecting evidence to prosecute the offender. This means that the officer’s involvement in the case is basically as a criminal investigator. The functions and the methodologies within which a criminal investigation takes place have been well laid down both by law and institutional principles that evolved over time within the policing system.
What appears in this case is that the police officer or officers who arrested the boy did not have an intention to conduct a criminal investigation. They did not have the view to collect evidence which could be placed before a court, leading to a criminal trial against the suspect. This is not the mindset or the intention of the Police who intervened in this case.
They had taken a complaint made by the teacher who we could assume in terms of the local rural area, wields some kind of influence. The details on the relationships between the teacher and any of the police officers have not been revealed. What is clear is that the Police acted to help the complaining teacher to find the money and that this was their sole objective.
Then the question becomes: Why did the police officers go out of their way to help the complainant get what he wanted? To that purpose, did the police officers ignore all that they are officially bound to do as acting investigators? One could postulate yes to these. Either it is due to personal reasons or they wanted to help the teacher, or they were acting with hope. Hope due to the promise given by the teacher to reward them if they find the money.
When the officers fail to find any information leading to the recovery of the money, they brutally assaulted the boy, which finally led to his death. Now, this instance cannot be in any way explained as an overenthusiastic criminal investigator’s act, the result of his eagerness to solve the crime.
This kind of brutal torture, leading to the boy’s death, would not be consistent with the activity of a criminal investigator. His sole aim is to collect evidence so a successful prosecution could be made. The recovery of the money and the handing over of the money to the complainant under the CCP could only take place through the courts. The money, if it was found, has to be deposited under the courts’ jurisdiction. It would be after the trial that the court could be satisfied that the money belonged to the complainant. The money was to be handed over to him after the suspect is found guilty.
Such a procedure is cumbersome. In terms of the general practice in Sri Lanka, it would have taken a long time. Therefore, the interest of the complainant would have been to obtain the money as soon as possible. Any interest of pursuit against the subject in a criminal case would hinder the achievement of his immediate objective – which is to get the money back as soon as possible.
Here, the police officer is transformed from a criminal investigator’s position to some sort of an assistant. He could provide help for a complainant to acquire what he wants materially but not in terms of justice. The police function is not exercised in order to enforce justice within the framework of the law but in a sort of practical way, so as to resolve a person’s problem. It is not within the legal function of a police officer to engage in such work. For example, if the teacher, instead of going to the Police, went to the ordinary criminal who engages in the use of force to settle matters, the teacher could have sought such a person’s help. And that person, in turn, by threatening directly, assaulting, or using some other means, could have forced the suspect to give back the money. Now, the teacher, instead of completing this in a criminal fashion, uses the police officers to accomplish the same objective. When the Police, in their uniforms and with official authority, act in a worse way than the criminal, they are protected by the law. Therefore, the matter could be brought to an end in this manner.
We are seeing this process in a majority of theft and robbery cases; against complainants or persons in low-income groups. They fall into this kind of category of crime and this kind of transformation.
This cultural transformation could have happened not entirely due to the bad quality of policing but due to other societal changes. It is necessary to understand what these societal changes are in order to understand the kind of policing that has developed in Sri Lanka – and also the reasons for torture that takes place in police stations.
The assumption that the police officers engaged in torture in the course of a criminal investigation (in order to find more evidence to be placed before the courts) is not the basis on which, in most instances, particular activities done by the Police towards the low-income groups, happen to take place.
In order to gain promotions
A young man of about 20 or so is brought by the Police to a Magistrate’s Court just as the Court begins its work for the day. His case is called and the court clerk begins to read a series of charges. Altogether, there are about 15 charges of theft and robbery. After each charge, the young man pleads guilty. Then, the case was postponed for sentencing for the next day, and for a subsequent day, and the young man was sent back to the prisoners’ cell block within the court. While the court proceedings were going on, suddenly, a huge cry is heard from the prisoners’ cells. It was the young man and he is crying. During the short interval in the court, some prisoners called the lawyers who represented them and informed them that the young man was asking for help. A few young lawyers talked to the young man. The young man tells the following story.
He is from a far-away village, travelling a long distance by bus, and coming towards Colombo. At one spot, as is the usual custom, the bus stops for passengers to have a little rest and perhaps to have a cup of tea. As the young man wanted to relieve himself, he goes to a place behind a big stone and was urinating when a police officer passes by. The police officer is a sergeant in a nearby police station. The police officer inquires about where the boy is from. He mentions the name of his far-away village. The boy is asked to accompany the policeman to the nearby police station, which he does. He was then detained in the police station and kept there for about three weeks. In the beginning, he was tortured to admit to certain crimes that he does not know anything about. Due to the long detention, harassment, and promises made, he finally agrees to plead guilty to some charges. But he does not know anything about them. The Police gathered together all the unresolved cases remaining at the police station. They attribute this young man as the suspect in all these cases. And, then, he is told that if he pleads guilty, the Magistrate, being a very kind man, will take a lenient attitude towards him. Because of his honesty and because he is young, he would be given a mild suspension sentence and be allowed to return home. To assure him that what they were saying was true, he was given Rs. 10 to go back home after the hearing that day. Believing in all this, the young man pled guilty to all the charges, notwithstanding that he was a person from a far-away village, knowing nothing about all these thefts and robberies that took place in a particular area he had never been to before. It was only when he goes back to his cell that the prisoners experienced about these matters told him this: That he will be in jail for a very long time, as he had pled guilty to some 15 crimes. It was at that point that the boy started crying. The lawyers, having all the details, approached the Magistrate. They used the powers available to them, under the CCP, to request a withdrawal of the plea he made. The Magistrate postpones the case and asks the lawyers to take up the issues on the next date.
The lawyers draft a letter to the police officer who was in charge of these proceedings. He is told that he has filed cases against an innocent person and that unless he withdraws these cases against him (the young man), they will proceed to take action against him. It was a letter of demand assigned by a lawyer. The next day, the senior police officer, in charge of making up these cases against the suspect, sends a junior officer to the lawyers concerned. He states that he is willing to withdraw all the cases by the next day. Then, he tells this to the lawyer who was taking the most active part in the case: “Sir, the OIC wants to let you know that you have prevented his imminent promotion.”
This particular story is purely one among many similar cases that surface in the magistrate’s courts quite often. When the Police receive complaints of unresolved petty thefts and/or even robberies, they usually look for a defenceless and poor young person to blame. He/she is charged in all the cases, and given promises of sorts to create confidence that no significant consequences will follow.
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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.