When the Speaker of Parliament certified the 17th Amendment to Sri Lanka's Constitution on 3rd October 2001, it was veritably a momentous occasion. In a House consisting of parliamentarians otherwise bitterly divided on party political lines, this constitutional amendment was passed without opposition1 with one singular purpose in mind - to restore public confidence in the rule of law.
This strengthened the process of appointment to existing key institutions such as the Public Service Commission, the Human Rights Commission and the Bribery Commission. Vitally, it created two new monitoring bodies, the National Police Commission (NPC) and the Elections Commission. Members of these Commissions were appointed by the President on the recommendation of a newly created Constitutional Council (CC), which had significant 'apolitical' representation.
This paper attempts to highlight some issues related to to the functioning of the NPC. It asks the question of whether Sri Lanka is squandering a golden opportunity in relation to the creation of a body that is unique in its constitutional formulation, particularly where law and order institutions in South Asia are concerned.
If the NPC had functioned according to its constitutional mandate, it may well have proved to be a shining example for the rest of South Asia. Regrettably, the converse has been the case.
Sri Lanka's Policing System - The Historical Critique and Its Present Deterioration
The historical critique of policing is not difficult to trace. Several government commissions released reports, including the 1946 Justice Soertsz Commission, the 1970 Basnayake Commission, the 1995 Jayalath Committee and the Commissions of Inquiry into the Involuntary Removal and Disappearance of (Certain) Persons, set up in 1994 and whose final reports were submitted in 2001. The Basnayake Commission recommended an independent Police Service Commission to be in charge of appointments, transfers, dismissals and disciplinary control.
However, the reality is perhaps far worse than what these official reports suggested. After decades of civil and ethnic conflict, the country was left with more of a system of military style social control than a sophisticated crime investigation institution. Reported instances of abuse by police officers are now legion. Many victims have brought cases to the Supreme Court resulting in many judgements on the prohibition of torture. While the Court has awarded compensation, its directions to the Inspector General of Police (IGP) to enforce disciplinary sanctions have gone unheeded.
The NPC - Serious Deficiencies in its Functioning
The NPC was the first serious legislative attempt to remedy this situation. It comprises a body of 7 persons whose security of tenure is explicitly provided for.
Its powers are two fold. Firstly, it is vested with the powers of appointment, promotion, transfer, disciplinary control and dismissal of all officers other than the Inspector General.3 Secondly - and most vitally - the 17th Amendment stipulates that the NPC "shall establish procedures to entertain and investigate public complaints and complaints from any aggrieved person made against a police officer or the police service..."
Disciplinary Control of Police Officers
Insofar as the first mandate is concerned, the performance of the NPC was initially disappointing due to its decision to delegate the disciplinary control of subordinate police officers to the IGP. Such delegation was justified on the basis that it was considered necessary for the IGP to administer his own department. The IGP in turn referred the cases to his subordinate officers, or to a special investigation unit. However, as police officers continued to investigate other police officers, no effective change took place in the rampant indiscipline of the service.
In addition, as the higher ranking officers who earlier oversaw the conduct of such inquiries were accustomed to making settlements between complainants and alleged perpetrators rather than conducting inquiries in an objective manner, most complainants were rightly distrustful of these inquiries.
Till July 2003, the functions of the NPC in this regard were appropriately described by its critics as being similar to that of a 'post box'; that is, it merely entertained complaints and referred them to the police for investigation. Very few disciplinary inquiries were completed, and the outcome of these was not known.
Due to strong public criticism, the NPC decided in mid 20044 that it would recall its delegated powers and assume substantive disciplinary control as mandated by the 17th Amendment over the police officers of all ranks, excepting the IGP. This decision was taken amidst adverse statements by frontline ministers that the 'independence of the NPC' was not needed and that the IGP should be involved in the decision-making processes of the NPC. Inflammatory remarks by other political figures of the ruling coalition also added fuel to the fire.5 Hostility between the IGP and the NPC surfaced as the IGP felt the creation of the NPC had imposed an unwarranted fetter on his powers.
Despite this hostility, the interventions of the NPC in preventing politically motivated transfers of police officers prior to elections and its recent interdictions of police officers found culpable in rights violations, is to its credit. Such initiatives will however be short-lived unless the necessary support by the Government as well as the Office of the Inspector General of Police is forthcoming. Currently, this is notably lacking.
Public Complaints Procedures
In so far as the second mandate is concerned, Article 155G(2) of the Constitution clearly requires the mandatory establishment of meticulous procedures regarding the manner of lodging public complaints against police officers and the police service. The NPC also has a duty to recommend appropriate action in law against police officers found culpable, in the absence of the enactment of a specific law whereby the NPC can itself provide redress.
Such complaints procedures would include detailing the persons who can complain, the way it is recorded and archived and the way in which it is inquired and investigated. Quick responses need to be manifested in terms of not only documentation but also ensuring medical attention and victim protection. Similar procedures in other countries require the OIC (Officer in Charge) and his superior officers to automatically report categories of grave incidents to the monitoring body, whether a complaint is made or not.
These procedures would hold accountable both the police officer concerned and officers of the NPC so that both act in strict compliance with their constitutional and statutory duties. This is particularly important where officers of monitoring bodies have been accused of colluding with the very perpetrators of terror. Acts of collusion include settling with victims of gruesome torture for small sums of money and in extreme cases, collaborating with the police to cover up the incidents.
Such Public Complaints Procedures have, however, not yet been established. The NPC currently appoints district coordinators (mostly retired policemen) to look into complaints. However, what is required is not ad hoc consideration of complaints where the complainant is left to the mercy of an individual NPC officer but the prescribing of uniform procedures in this regard. Clearly, not adopting such procedures continues to be in dereliction of its mandatory constitutional duties.
It is evident that during its first term of existence, the NPC has been cribbed, cabined and confined in respect of many aspects of the fulfillment of its constitutional duty. This term is almost over and the second set of Commissioners will soon be appointed.
For the future, it is crucial therefore that the NPC be given all the support that it needs by the government as well as by the IGP in order that it effectively carry out its mandate.
On its own part, the NPC will have to create strong disciplinary procedures and enforce them. Importantly, it needs to put into place the Public Complaints Procedures as constitutionally decreed. Without these two factors complementing each other, a dramatic (albeit difficult) process towards change within the Sri Lankan police force may be impossible.