Feudal Forces: Democratic Nations - Police Accountability in

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FEUDAL FORCES: DEMOCRATIC NATIONS56 :: POLICE ACCOUNTABILITY IN SOUTH ASIAThe judiciary ensures that the laws made by parliament and acts of the executive complywith constitutional and international human rights standards. It also protects citizens fromthe excesses of the state and its agents by bringing to book perpetrators of human rightsviolations and breaches of law, and by ensuring that victims obtain sufficient redress. Allcountries in the region have a constitutionally established judicial system. However, theindependence of the judiciary and its powers to grant redress against the police vary fromone country to another. Independence from the executive is a prerequisite to a thrivingjudiciary that strives to check executive excesses and protect individual rights.While the judiciary in India is regarded as fairly independent, this is not the case in othercountries in the region. In Maldives “in addition to his authority to review high court decisions,the president influenced the judiciary through his power to appoint and dismiss judges.” 133In November 2005, bowing to national and international pressure, the President announcedthe creation of a 10-member Judicial Services Commission (JSC). Headed by the ChiefJustice (who is himself a presidential appointee), and comprising as many as sevenGovernment officials as its members, the JSC is empowered to “appoint, dismiss, and examinethe conduct of all judges, and recommend candidates for judgeships to the president.” 134The JSC has not been a particularly visible or active oversight mechanisms. It took eightmonths to establish its rules of procedure and has not made any deliberations orrecommendations public. 135In Bangladesh there was no separation between the subordinate judiciary and the executive,despite directions from the Supreme Court to ensure the separation, until January 2007. InPakistan, the Constitution provides for an independent judiciary. However the executive haseroded this independence over time. In January 2000, the President ordered the country’shighest-ranking judges to swear allegiance to his regime. Only 89 of Pakistan’s 102 SuperiorCourt judges took the oath, and the Supreme Court Chief Justice and several other judgeswho refused to take the oath lost their jobs. 136 In 2007, the President of Pakistanunceremoniously and illegally declared the Chief Justice of the Supreme Court non-functionalon allegations of corruption and allegedly held him under effective house arrest. Under theConstitution, the President could refer an issue regarding a judge to the Supreme JudicialCouncil but does not have the power to stop the judge discharging his or her office. 137 TheChief Justice was reinstated in July 2007 after the Supreme Court showed great courage inrejecting the President’s reference.In Sri Lanka, the Supreme Court has recently been accused of being extremely politicised.Lawyers and human rights activists are complaining that fundamental rights cases areincreasingly refused hearings and the judgments are consistently less favourable towardscomplainants. 138 In early 2006, two senior judges of the Supreme Court (constituting theJudicial Service Commission along with the Chief Justice as the Chairman) resigned theirposition citing grounds of conscience. The widely held perception was that the resignationswere due to differences with the Chief Justice whose actions in dismissing and transferringjudges of the subordinate courts had been challenged as being arbitrary and motivated bypolitical factors. The appointments to the two vacancies created were made directly by thePresident ignoring the constitutional mandate that that they receive the approval of theConstitutional Council. 139Protecting law-abiding police officialsIndependent courts are the best mechanism to ensure that state agencies, including thepolice, adhere to laws and do not violate rights of individuals. They are also effective structuresto ensure that law-abiding police officials are not punished by unscrupulous politicians forfailing to tow party lines. In a case where the court was called upon to determine the extentand scope of superintendence that the central Government could legally exercise over itspremier investigative agency, the Indian Supreme Court held that “The general superintendenceover the functioning of the Department…would not include within it the control of the initiationand the actual process of investigation”. 140 In order to protect the investigative police agencyfrom illegitimate control, the Supreme Court also instructed the Government to place the
superintendence of the agency in the hands of an independent statutory body called theCentral Vigilance Commission.Judiciary protects the rights of the policeIn India, the government set up the Central Administrative Tribunal (CAT) in 1985as a fast-track court to deal with all cases relating to personnel and service mattersfor government employees aggrieved by government decisions, including policeofficers. Many state governments have established state administrative tribunals todeal with matters relating to state government employees. Earlier, these cases weredealt by the ordinary courts, which were unable to cope with the high number ofcases. The Tribunals often deal with the problem of governments issuing arbitrarytransfer orders to police officers, holding them accountable for what may amountto political interference in the administration of the police forces.A senior police officer in Gujarat approached the CAT claiming that he was deniedpromotion because he refused to bow to intense political pressure during Gujaratriots in 2002. The CAT ruled in his favour and although he had retired by that time,it was a huge moral victory for the officer. 141Punishing perpetratorsApart from Maldives, the courts in the region have held the police to account in a variety ofways. At a minimum, they have punished misbehaving police officers where there has beenproof of misconduct. In Bangladesh, in September 2004, two former policemen were hangedto death after a judicial decision of 1997 found them guilty of kidnapping, raping and thenstrangulating an eighteen-year-old girl. However, there is also no dearth of cases where thecourts have let off accused officers who were convicted by lower courts despite the fact thatthey were believed to be guilty. Usually, it is because the higher courts were of the opinionthat the evidence presented by the police or prosecution was not sufficient to hold theaccused guilty. In many cases, where police deliberately tampered with evidence to protecttheir colleagues, courts have proved ineffective in punishing the perpetrators. In a smallnumber of these cases, the courts have ordered departmental inquiries against the concernedinquiry officers.In 2003, the Colombo High Court sentenced five people, including two police officers, fortheir involvement in a massacre of minority Tamil youths at a detention centre in Sri Lanka. 142More than 25 young Tamils were attacked and killed by a Singhalese mob, in the presenceof guards. Evidence later showed that some policemen turned a blind eye to the atrocitiesbeing committed by the mob, while others actively assisted. The Court observed: “If not forthe complicity of police officers, this would have been avoided…. When the victims wentrunning to policemen seeking protection, they were fired at by the police”. 143 However inMay 2005, upon appeal, the Supreme Court reversed the order of the High Court. Acquittingall the accused, the Court held that the High Court had wrongly appreciated evidence inholding these people guilty. Many human rights activists unhappy with the judgment arguethat the investigators and prosecutors had deliberately and systematically destroyed evidenceof the massacre of the minority community, and insist that the Supreme Court should havetaken these factors into account when considering evidence.Awarding monetary compensationIn many cases, courts have awarded monetary compensation to victims of police misconduct,not only in civil suits filed for this purpose, but also in criminal cases and fundamental rightpetitions. The Indian Supreme Court has held in a number of cases that the state is obligedto give compensation to victims or their heirs for violation of fundamental rights by itsPOLICE ACCOUNTABILITY IN SOUTH ASIA :: 57
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