Theme: Due Process Rights
Sub Theme: Fair Trial
Specific Issue: Development of Forensic Facilities and Human Rights: Police reform as a pre-requisite
Application: South Asian Countries in particular

Explanation of the issue

Judge Shirani Tilakawardene also raised the issue of "introducing such systems as DNA printing for identification purposes." In fact the issue is not only of DNA, but the improvement of forensic facilities in general, and the return of police to professional investigations of crime.

These two aspects can be discussed separately.

1. Improvement of forensic facilities

In several developed countries the shift from unacceptable systems of investigations to improved ones has been accompanied with wider and better use of forensic facilities. However, in many Asian countries the tendency has been to head in the opposite direction. The non-use of even the existing facilities and the return to dealing with crimes in ways other than investigations and trials have caused the criminal investigation system as a whole to deteriorate. The result is a gross abuse of rights and the spread of violence among the law enforcement officers. Once again, technology can assist the improvement of human rights, if steps are taken to improve these facilities. This involves a review of existing technological facilities and the introduction of new ones.

Many countries have basic forensic facilities such as :

• post-mortem facilities (some do not have even these)
• finger-printing facilities
• drug-testing facilities
• explosives testing facilities

The usual complaints are that results from the laboratories conducting tests come very late and and trials are delayed considerably because of this. In actual fact there is no reason for delay in this regard due to the technological advances in recent times. Often, the reasons for delay are organizational, both in courts as well as in these laboratories. Proper coordination, with use of computer facilities, can reduce these delays greatly.

Avoidance of this type of delay is mostly the responsibility of the government agencies dealing with administration. Often it is the Ministry of Justice which deals with that. Such agencies can improve the organization of the systems of sending and receiving reports. The systems that exist now in many places have not changed to keep up with the changes in communications, which have vastly changed.

Introduction of new facilities

Technology has introduced many new facilities and they are often not very expensive. Various forms of tests based on blood, on marks left at crime scences and various forms of photography are used as modern forensic methods.

2. The police returning to professional investigations of crime

The major problem regarding the use of forensic facilities is the unwillingness of the law enforcement officers to use them. The practice in many countries in Asia is to use force rather than conduct investigations. This and many other related matters were discussed in two consultations on police reforms, conducted by the Asian Human Rights Commission in collaboration with several other organizations. One was mainly on Cambodia and the other on Sri Lanka.

There were some common findings:

1. That the break-down of discipline in police systems begins from the disintegration of the top layers of the system.
2. The disintegration of the top is caused by political reasons, as some politicians view the existence of a professional police force as a threat to them; others try to use police for their advantage.
3. When such disintegration takes place, criminal investigations suffer greatly.
4. When criminal investigations begin to suffer, new practices are introduced and these new practices in time become "normal" and habitual.
5. When that happens the laws regarding the investigation and prosecution of crimes which are in the country's Penal Code, and the actual practice of criminal investigation become two very different things.

Thus any talk of reform of criminal investigations must begin with reform of the police. However, instead of this, the emphasis these days is to increase punishments to discourage crimes. This cannot be a substitute for police reforms.

3. Impunity of offenders

Indeed, the ineffective and/or breakdown of the judicial system and prosecution procedures are themselves the very practical and real causes of impunity of those responsible for crimes and human rights abuses. Next to the popularly understood concept of "legal" impunity, AHRC has listed a number of ways in which impunity is practically induced:

• Legally declared impunity: Exemption from prosecutions by Constitution-statute-regulation or custom.
• Impunity due to failure of law enforcement : There are offences, and no exemption from prosecution, but impunity lies in the failure to conduct proper criminal investigations. Criminal investigations are prevented due to various pressures.
• Impunity due to defects in the judicial system or judicial process: Lack of respect for judicial independence, breakdown of judicial system.
• Impunity due to erasing of evidence: Kill or hide witnesses, destroy records, destroy material that may be used as evidence or do not record complaints.
• Impunity due to limits of power and independence of criminal investigating and prosecuting authorities or judiciary.
• Impunity due to lack of laws: Here it is not a question of exemption but the absence of any offence at all; or it may be the absence of criminal procedures or suspension of laws by internal security laws or emergency laws.
• Impunity due to no prosecutions: Here there is an offence, no exemption; investigations are undertaken but no prosecution takes place. Prosecutions are prevented due to various types of pressures.
• Impunity due to breakdown of Criminal Investigation Units or Prosecution Units
• Impunity due to the inability or unwillingess of states to spend necessary funds for criminal investigation and prosecutions, as a result of which needed competence and resources may be absent.
• Impunity due to cultural factors: All legal requirements are present, but victims and society do not come forward to complain or prosecute due to fear; shame, lack of faith in the system or cultural inhibitions.

(see chart in Human Rights SOLIDARITY Vol.9 No. 5, May 1999)

What can the people and their organizations do?

1. Report, discuss and publicise the problems faced
2. Make concrete proposals for reforms
3. Lobby for these reforms

For example:

The Consultation on Police Reforms organised jointly by the Vigil lanka Movement, Vigil India Movement and AHRC in Bangalore, India, 7-11 April 1999 formulated a comprehensive Proposal on Police Reforms, which included the following basic recommendations:

On the Mission of the Police:

"The new situation demands that the police change their role from one of a coercive colonial model to that of a service model in keeping with the pressures of modern times, for example, embodying the following resolve:... Being members of the premier law enforcement agency in the country, it will be our commitment as officers of the police department to provide a quality service to the community efficiently and effectively in an honest, courteous, just and impartial manner in providing safety, security and protection; act within the framework of the law with due respect for promotion and protection of human rights and maintenance of the rule of law; and thereby earn the trust, confidence, recognition and acceptance of the public as their friend and protector."

On the relations between the Police and Community:

"The police should develop strategies and methodologies to win the public confidence. It is imperative that such strategies are accepted and implemented department-wise with zeal and enthusiasm, thereby providing a better service while giving due recognition in evaluation of officers for promotion and upward progress in the department."

On Organisational Chain of Command:

"There is a need for structuring the police force on sound lines to help create and preserve a society where the rule of law and human rights are respected ?The police organisation everywhere is hierarchical and pyramidal in structure. The large body of constabulary is at inspector-general of police (IGP) or director-general of police (as in India) at the top. The police department as a monolith organisation has a chain of command and flow of authority from the top to the bottom ... The present arrangement will operate against professionalism. It would encourage people who can please the political executive to manipulate for the post. Such appointments would not instil confidence nor help to generate a proper chain of command or command control structure. The Sri Lankan police need a head of the department, a professional selected from the force who can give correct leadership."

On Interference by Politicians in Administration of Police department:

"There is the need to restore the traditional chain of command working through the IGP and strengthen his position by ensuring a reasonable period of tenure."

On Militarisation of Police

"The military way of dealing with enemies is different to police functions of criminal investigation and maintenance of law and order. A very deliberate attempt must be taken to rid the police force of the military mentality and habits. For this purpose it is necessary to separate units engaged in criminal investigation work from those engaged in law and order functions. The units like those engaged in riot control must function separately."

On Police and training:

"Raising the professional standards of the police should be considered an urgent challenge. Immediate steps should, therefore, be taken to set up a fully-fledged police academy to this challenge."

On Prosecutions:

"In many jurisdictions, the situation has now changed, with representatives of prosecuting departments playing a greater role in advising on investigations into crime and preparing prosecutions at a much earlier stage before receipt of the completed files from the police. Adoption of a similar practice would improve the quality of criminal investigations in the country. Such advice from professional prosecutors can also go a long way to elimination of torture ... the intervention of professional prosecutors will also be helpful in instilling professional habits of proper investigation on police investigators."

On Instructions on Persons in Police Custody:

"Due to very serious deterioration of the situation in recent times it is necessary to re-issue and constantly to remind officers of these instructions. We recommend that the IGP in Sri Lanka should issue such instructions."

(A very useful model for such instructions taken from the Indian Supreme Court judgement in the case of D.K. Basu V. State of W.B is recommended. See full text of the proposal)

On the Human Rights Commission:

"It is a well established principle in international law as well as Sri Lankan law, expressed through the Sri Lankan Constitution and the Convention Against Torture and Cruel Inhuman and Degrading Treatment or Punishment Act No. 22 of 1994, that torture is a fundamental violation of the Sri Lankan law and is not allowed under any condition. It must be noted that enormous developments in the field of international jurisprudence on human rights have taken place during the last 50 years.

We recommend:

• That the commission using its power lays down guidelines to be followed by the police and other members of the armed forces with regard to arrest and treatment of persons in their custody, and procedures to be followed in the event of cell murders and inquests in these circumstances.
• That its officers make regular visits to police stations and other places of detention to monitor and prevent torture and other inhuman treatment.
• That it appoints without delay such number of sub-committees at the provincial level using the power vested upon it to exercise such powers of the commission as may be delegated to them.
• That it provides in-depth training to its members and staff on international human rights law using the good offices of the United Nations and other international agencies.
• In cases where the police authorities do not take action on proven allegations of torture and other violations of human rights, the commission must refer the matters to the Supreme Court for action, including action for contempt of court in instances where the Supreme Court directives for holding of such disciplinary inquiries are ignored.
• That the powers of the commission be expanded to enable the commission to enforce their decisions.
• That the commission takes speedy action on the matters mentioned above and thereby enhances the confidence of the community in its ability to promote and protect human rights."

On Police and Promotion of Human Rights Education:

"Establishing new structures of the State, especially police agencies and personnel, can be easily, effectively and meaningfully made responsible for human rights violations on one hand, and can be made to internalise basic respect for dignity of the individuals on the other. Human rights education: an exercise in assimilating, creating, and disseminating knowledge is a powerful means of influencing and bringing attitudinal change in the police behaviour, with the citizens ultimately aiming at promotion of human rights."

Human Rights education for the Police is based on the principle that:

"Police have two responsibilities: one as a law enforcement agency and the other as an institution to protect the rights of citizens enshrined in the Constitution. Police service has to develop attitudes on the basis of concepts of social justice contained in the Constitution. Only such attitudes will promote the use of strategies and skills compatible with human rights standards in the law and order functions of the police.

Human rights education for the Police has the following Objectives and Strategies:

1. The police force must learn to use the power positively for the protection of both international and national human rights standards.
2. Human rights education requires strong linkages and networking between the police force and human rights activists and various non-governmental organisations (NGOs).
3. Human rights education must encompass in it a strong research component on various aspects of human rights and their complexities

• Human Rights education for the Police should include among other subjects, the following:
• Police protection for human rights and constitutional governments.
• Human rights-friendly skills and strategies in tackling law and order problems.
• Balance between freedom and social control power of the police, use of force, action in exercising the right of private defence.
• Use of force - choice of a lesser evil use of "intelligence" in law and order functions, police attitudes in dealing with different types of agitation - political agitation and use of human rights-friendly skills, labour and student unrest and use of human rights. Preventive strategies for communal agitation and other similar situations must be addressed.

(The full text of the Proposal on Police Reform can be found in Human Rights SOLIDARITY, June 1999 Issue, Volume 9 No. 6, available from AHRC; or on AHRC web-site: www.ahrchk.net)