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CHAPTER EIGHT - PREVENTIVE MEASURES

Your Excellency has mandated this Commission under Section (f) to report on

"The measures necessary to prevent the occurrence of such alleged activities in the future"

I. Introduction

The objectives of the recommendations set out below are:

  • The restoration of mutual confidence amongst citizens inter-se, and between citizens and the State
  • The strengthening of the underpinnings of a just and democratic society

We are mindful that our recommendations should have relevance and be meaningful to citizens living in all parts of Sri Lanka. Priority must be given at all times to the avoidance of situations of disappearances arising. The security forces and the police are necessary adjuncts of a state. They are required for the protection of the state and the protection of the citizens of the state. The average citizen looks to them for protection. The tragedy of Sri Lanka lies in the distortion of relationships between the citizens and the security forces including the police, which has resulted from the acts of both politicians and subversives.

II. Provisions Relating to Arrest, Detention and Transfer

The following recommendations shall be applicable to All arrests, detentions and transfers, irrespective of whether they take place under the usual provisions of law or the extraordinary provisions under the Emergency Regulations and the Prevention of Terrorism Act.

1. The Duty to Record Arrests, Detention and Transfer.- All arrests, detention and transfers must be recorded, simultaneous with the event.

2. The Duty to Inform.- The nearest police station should be informed forthwith.

There shall be a concommitant duty on each police station to maintain a register of such notifications. The information to be recorded at the Police station must contain the following particulars :

  1. Name of informant and other particulars of Rank, Regiment, Army camp/Police station.
  2. Time and date when the information was received.
  3. Full particualrs of the transaction informed i.e. place, time, purpose, etc.
  4. Name and address of relatives, as supplies by the detainees.

Information to District Secretary : Additionally, there shall be a duty cast on officers in charge of the police station or the Army camp which was the arresting authority to submit to the District Secretary weekly a list of persons arrested, detained or transferred with particulars including such person's permanent address. There shall be a concommitant duty on the District Secretary to maintain a register of such information received which will be available to relations, lawyers or other persons/organisations with a legitimate interest in such information.

3. The duty to produce before the Magistrate within 24 hours.- The requirement that all persons taken into custody be produced before the Magistrate within 24 hours, wich was a long-standing salutary feature of our law, was rendered inoperative in respect of the many persons in detention under Emergency Regulations and the Prevention of Terrorism Act, with many adverse consequences, some of which have been examined by the Supreme Court in the exercise of its fundamenatl rights jurisdiction. The 24 hour rule shoule be re-ubtroduced without delay.

The Magistrate must be informed of any change in the place of custody, transfer out of the Magistrate's jurisdiction, and release.

The Magistrate's Court shall maintain a written record of such productions, which will be available at the Magistrates Courts.

4. The duty to issue A Receipt of the Arrest.- The arresting officer must give at the time of arrest to a family member or friend of the person arrested a Receipt of Arrest. This receipt must contain the name of person arrested, date, place, officer arresting, with rank, place of intended detention. A copy of this Receipt of Arrest is to be given in writing to the detainee himself.

5. Detention

  1. All detention must be at authorised places of detention.
  2. All places of detention must maintain registers of detainees, irrespective of whether the place of detention is "Permanent"/"Temporary": whether it is maintained by Security Forces/by the Police. Particularsof Detainees held at temporary camps must also be entered in the Registers of the main Army Camp/Police station to which the officers concerned belong.
  3. All officers-in-charge of places of detention must send to the Pradesheeya Sabha Secretary weekly, lists of persons in detention, to be entered in a Register of Detention to be maintained by him.

6. Visits by Magistrate of places of detention.- The Magistrate is required to visit all places of detention once a month. A record of the Magistrate's monthly visit and comments, if any, and of any special visit made by the Magistrate pursuant to his Habeas Corpus Jurisdiction 1 must be maintained at the place of detention as a Record available for persusal by lawyers, Court, and persons/organisation with legitimate interest in the information.

7. Conditions of Detention.- The Prison Rules shall apply, including the right to communicate with the detainee's family.

8. Release.- Release from detention must be

  1. Through Courts or
  2. To the families.

When release is to the family, a family member must sign the record of release. The Magistrate's Court and the Pradesheeya Sabha Secretary must be informed, including particulars of the person to whom the detainee was released.

III. The effect of a failure to abide by Rules regarding Arrest/Detention/Transfer

1. A failure to abide by the above regulations shall make the officer concerned subject to a Disciplinary Inquiry which shall be conducted by an inquiring officer from outside the service to which alleged defaulter belongs.

2. The failure to abide by these regulations shall be entered in the officer's service record if proved.

3. A Criminal Prosecution.- the failure or refusal to record arrests, detentions and transfers by the police and the security forces and to record complaints of abductions by the police if followed by an involuntary disappearance shall be declared a cognisable offense by Act of Parliament. A criminal prosecution shall take place.

4. A Right of Private Plaint.- The failure to record arrests, detentions and transfers coupled with the refusal to record complaints or involuntary removals or disappearances as it happened in the period under review lie at the root of the phenomenon under consideration by us. It is a frontal attack at this root that requires attention. With this objective in mind we recommend that the failure or refusal to perform the acts envisaged above per se be declared acts entailing penal consequences. Further, We are of the view that, in the event of the Police failing to institute proceedings against those personnel contemplated above whether at the intervention of the first complainant or any other person or institution having locus standi to do so the first complainant or any other person having locus standi to do so 2 (as recommended by us) must be given the right to file a private plaint. The recognition of an appropriate agency as contemplated above as having locus standi to institute proceedings may serve to translate into practical terms the concept of the community concern in respect of the failure on the part of state agencies on whom public trust has been reposed.

IV. The Enlargement of the Jurisdiction of the Magistrate's Court Fora in Habeas Corpus Applications

The Writ of Habeas Corpus is a main plank in the prevention of disappearance from custody. First and foremost is the requirement of speed of response: The opportunity to invoke this jurisdiction no sooner a situation of unacknowledged custody arises, is the first requisite. The following recommendations are designed with the objectives of enabling a disappeared person's family to move with promptitude in a case of suspected disappearance.

(i) Enlargement of the Magistrate Court Jurisdiction in HCA matters.- Your Commissioners recommend the enlargement of the jurisdiction of the Magistrates Court to empower the Magistrate

To receive the affidavits of the petitioner and his witness register the complaint

To entertain the petitioner's application that the Magistrate visits the place of alleged/unacknowledged detention. 3

Forward to the High Court the affidavit and the note of visit etc.

The existing jurisdiction to record evidence once a matter is referred to the Magistrate Court by the High Court will continue.

The High Court shall continue to exercise jurisdiction in respect of the declaration of responsibility and compensation as at present.

(ii) A Special Division of the Magistrate's Court, Colombo.- It is advisable that a special Division of the Magistrate's Court Colombo should be established in order to deal with the more than 330 Habeas Corpus Applications to the Court of Appeal since 1988 which still await attention. It is important that notices should go out anew to the petitioners from the Court of appeal in respect of their applications.

2. Executive Control of the Police and Security forces.- It has been brought to the notice of this Commission that an award of compensation against an official found responsible in a Habeas Corpus Case does not get reflected in his service record. Your Commissioners find this to be a very unsatisfactory situation. We accordingly recommend that Your Excellency as Commander in Chief of the Security Forces makes a direction that henceforth a finding of responsibility in respect of a disappearance by way of a judicial award in a Habeas Corpus Application shall be entered in the service record of the officer concerned, and consequently be taken into account with regard to promotions, increments, and other features of advancement in service. We consider this to be a necessary measure in order to emphasise to superior officers the need to control, and ultimately create a culture of accountability in, the security forces.

Your Excellency will doubtless ensure that these requirements are made applicable in the case of the police as well.

3. Penal Measures on Evidence of a Lack of Public Accountability.- Criminal prosecution must also follow when there is evidence that "disappearance" is a euphemism for "death". The indictment filed in The Case of the Disappeared Embilipitiya School Boys 4 is an indication of the grave charges that can be framed under the criminal law.

V. Chain-of-Command Responsibility

Officials with Chain-of-Command responsibility who order or tolerate "disappearances" by those under their command should incur criminal liability. 5

The Court of Appeal has already made award against officials with chain-of-command responsibility who had been found responsible in Habeas Corpus Applications. 6

VI. The need to dismantle "Alternative Structures of Command" and the prevention of their coming into existence

The elimination of alternative structure of command within the Police force and Grama Sevaka system is a prerequisite for prevention.

Senior Police officers have described to this Commission how an alternative structure came into being in the Police of officers junior in rank and rapidly promoted through political patronage who were used by politicians for their own ends. Enormous amounts had been paid illegally as "rewards" in contravention of the provisions of the Police Ordinance; and officers against whom the Supreme Court has made order for the payment of compensation for breach of fundamental rights had been further "rewarded" by these amounts being paid by the state, accompanied by a total absence of the recovery of these amounts from the person concerned. In this context we recommend:

  1. The institution of disciplinary action against miscreants, including legal action, in the near future.
  2. The identification of rules as regards the requisite qualifications for police officers and Grama Sevakas by a committe set up for that purpose, accompanied by the promulgation of a rule that future promotions of all officers will be decided on the basis of the possesion of the requisite qualification plus his record of past performance, with new recruitment to be strictly on the basis of the requisite qualifications.
  3. A traning programme in investigations is urgently required for all police officers. The long years of recruitment and training of recruits as assistance to the military in border villages has resulted in a police force sadly deficient in the requisite skills in invistigation. Further, there was the sad spectacle of arbitratiness and an over-dependence on unreliable "informers" in the counter-subversive exercises in the south. It is essential that the reminder goes out to all levels of Police Force that they are valuable and indispensable only if they re-dedicated themselves to the proper police functions of investigations, public relations and the maintenance of law and order.

VII. A system of a Police Lay-Visitor' Panel for each Police Area

It is necessary to reestablish the community-based forces and procedures to which the citizens can turn when faced with a possible misuser of police powers state power. Such community-based structures have a valuable part to play in the spheres both of monitoring and of prevention of such misuse. A Panel of Lay-Visitors for each police station area could serve this function.

- to speak to detainees

- to check conditions of detention

- to check records of tire police station in respect of a detention

- to liaise in the presentation of complaints to the police station

- to liaise with the SSP/DIG of the area

- to accompany persons to the police stations when requested to do so

- to make complaints themselves in a representative capacity, inclusive of impending problems

- the coordination at local level with the Human Rights Task Force(HRTF) could be an aspect of their work with importance for the restoration of Law and Order nationally.

VIII. Citizens Advisory Bureaus 7

A System of Citizen Advisory Bureaus located in the vicinity of every district secretariat would be a valuable aid to the whole community for advise on various matters. In the context of disappearances specifically, such a system is required for the assistance of bereaved persons on where to go and what to do obtain the requisite assistance.

IX. The Elemination of the Possibility of the Maintenance of a "Private Army" at state Expense

The maintenance of a considerable number of armed personnel as security guards etc, of a politician at state expense was a feature of the period under consideration. In requires to be dismantled immediately. Persons selected by the politicians were given the rank and emoluments of an Army Officer. They were paid by the Army, armed by the Army, but not controlled by the Army of employed in the Army's function of the protection of society from its enemies. These "soldiers" saw their role rather in the sphere of moving against personal enemies, acting for personal benefit or moving against the opponents of the politician concerned.

The security of public figures should be provided by a special security coordination Division of the Police officers attached to this division should be subjected to the command and supervision of superior officers in the service. All officers should be subjected to periodical transfer

X. The Manifestation of the requisite Political Will: The appointment of the three Commissions on Disappearances in Nov. 1994 is an important manifestation of the political will to come to grips with the problems which the Commission has found to exist.

A further development lies in The Presidential Directives of July 1995 to the armed forces and the police requiring that :

No person shall be arrested or detained under any Emergency Regulations or the Prevention of Terrorism Act. No. 48/1979 except in accordance with the law and proper procedure and by a person who is authorised by law to make such arrest or order such detention, and (that) every member of the armed forces and of the Police shall "Assist and facilitate the Human Rights Task Force". 8

These regulations go on to specify that :

- the person arresting shall identify himself by name and rank;

- the person arrested should be informed of the reason for the arrest; and

- a document acknowledging the fact of arrest should be given to a close relation or be recorded in the Police Information Book.

It is time now to harness civil society in the implementation of these provisions.

With these paramount considerations in mind we make the following recommendations additionally.

  1. the need to introduce consititutional safeguards
  2. the need to enlarge the Human Rights Commission Act
  3. the need to create the office of the Independent Human Rights Prosecutor

A The need to introduce Constitutional safe-guards.

We recommend the following additions to the safeguards guaranteed by the constitution on arrest.

  1. A constitutional right in the person arrested to Communicate with a relative or friend and a corresponding duty on the arresting officer to afford reasonable facility to do so be recognised and declared.
  2. A constitutional right in the person arrested to have issued to his relations with copy to him self a document acknowledging the fact of arrest inclusive of date and place, and particulars of the arresting authority inclusive of name, rank and place of work, and a corresponding duty on the arresting officer to issue such document or to report to the nearest police station within 24 hours the fact that the document was not issues and the reasons therefor, be recongnised and declared 9
  3. A constitutional right in any person to be represented by the Human Rights Task Force or a similar body in bringing to the notice of the Supreme Court the existence and location of a place of detention which has not been published in the Gazette to be a place authorised by the Secretary, Defence, in an application to have the place declared as being an unauthorised place of detention by the Supreme Court
  4. A constitutional right in a person detained in such a place of detention to be represented by the Human Right Task Force or a similar body to prefer and indictment through the intervention of the proposed off ice of public prosecutor against any persons or person alleged to have been respossible for the setting up of/or continuation of such place of detention.
  5. Principle 3410 of the UN Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment11 be incooporated in the constitution.

B. The Need to Amend the Human Rights Commission Act

  1. A common and recurrent feature during the terror period was the lack of responsibility shown by law enforcement authorities to take action on complaints regarding 'disappearance'. This lack of action by the Autorities was seen even after judicial acknowledgement of 'disappearances' (The cases of Richard de Soyza and lawyer Liyanarachchi besides many others serve as illustrations).
  2. Consequently, as a measure to prevent future occurrences of this kind of public unaccountability there is an imperative need for a separate institutional machinery to entertain and process complaints against excesses by police and armed personnel. A first step towards this has already been taken by Your Excellency's Government in the form of the establishment of a permanent Human Rights Commission. However we feel the need to give more teeth to this Commission so that it can serve the function of a more effective Human rights Watch, Accordingly we recommend that the Human rights Commission Act be amended by creating an independent investigating unit to inquire into complaints received by the Commission with adequate powers for that purpose.

In any event the existing agencies with their jurisdictional limitations (for example, 500 disappearances taking place in different parts of the country in a short period of time or the phenomenon of 500 disappearances in one part of the country over a year) and other constraints (complaints to police against police personnel) are not equipped to handle this type of situation expeditiously. What is required is a quick, effective and accountable agency to address the complaint without the need for an abated healing process through investigations conducted by Disappearance Commissions long after the event with attendant political overtones, Indeed, if there is an inbuilt mechanism to deal with human rights violations whatever thier magnitude as and if they arise it will serve as a Human Rights Watch. Such a Human Rights Watch would act as a deterrent, and is most likely to obviate the need to appoint ad hoc Commissions in the future.

C. Need to Create an Office of Independent Prosecutor.-

As a necessary adjunct to the measures recommended above we feel the need to create an office of an independent prosecutor with security of tenure (with a supporting staff) to institute prosecutions once evidence has been collected by the proposed investigating unit. The existing framework of the Attorney General's Office is not structured to fill this need. The Attorney General's function is to mount prosecutions and represent generally state officers in complaints against them. This appears to place that office in a paradoxical position. The sole concern of the proposed independent prosecutor's office would be to institute proceedings (criminal prosecutions) where the Human Rights Commission (with the assistance of its investigating unit) has found sufficient evidence for that purpose. We also recommend that while the salary of the proposed independent prosecutor be made a charge on the Consolidated Fund, the nomination to that office be made by and ratified by a Majority of the Members of Parliament.

CONCLUSION

The manifestation of the requisite political will by the reaffirmation of the state's commitment to human rights, the reaffirmation of the right to peaceful dissent, free and fair elections being held at regular periods, and the commitment to overall development irrespective of race, caste, religion or region, are an essential and integral part of the national reconciliation to which Your Excellency has already committed the state and the people.

ENDNOTES

1. See Chapter Ten "Habeas Corpus Applications."
2. See post, Section on "the need to amend the Human Rights Commission Act."
3. See further Chapter Ten, Section on Habeas Corpus Applications.
4. HC Ratnapura 121/94. See further: in the Report on the Disappeared Embilipitiya Students, chapter on "The Indictment."
5. See Indictment in HC Ratnapura 121/94 in the Report on the "Disappeared Embilipitiya School Boys"
6. See Chapter Ten section on Habeas Corpus Applications.
7. See Chapter Seven" "Legal Proceedings" and annexure on ""the The System of Citizens Advisory Bureaus in United Kingdom"
8. Presidential Directive issued under Regulation 8 of the Emergency (Establishment of a Human Rights Task Force) regulations No: 1 of 1995
9. Regulation 19 (9) of the 1994 Emergency Regulations provides as follows:
"where any person shall without reasonable cause fail to issue a document acknowledging the fact of arrest as required by paragraph (8) or willfully omits to make such an entry as is referred to in the proviso to paragraph (8), or to report the fact that the documents was not issued and the reasons (therefor), he shall be guilty of an offence and upon conviction after trial before the High Court be liable to a term of imprisonment extending to two years, and a fine."
10. Principle 34 provides that:
"when ever the death or disappearance of a detaine or imprisoned person occurs during his detention or imprisonment, and inquiry into the cause of death or disappearance shall be held by a judicial or other autority, either on its own motion or at the insistence of a member of the family of such a person or any person who has knlwledge of the case. When circumstances so warrant, such an inquiry shall be held on the same procedural basis when ever the death or disappearance occurs shortly after the termination of the detention or imprisonment. The findings of such inquiry or a report thereon shal be made available upon request, unless doing so would jeopardize and ongoing criminal investigation"

Posted on 1999-01-01



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