The primary duties of any police force relate to the prevention and investigation of crime and the protection of citizens' rights, all of which are to be undertaken in accordance with the law. The following sections relating to arrest, detention, filing complaints and conducting investigations--all of which are central to effective policing, are also particularly vulnerable to police abuse throughout the Asian region. Not only is this abuse a failure to carry out their duties, but also a crime.

A. Procedures of arrest and detention

Illegal arrest and detention are routine aspects of police behavior in too many Asian countries. Not only are police violating procedural provisions for lawful arrest and detention when they engage in these actions, but they are also--and more seriously--committing crimes by violating basic human rights. Some of these crimes include death and torture, which are grave abuses, particularly when committed by state law enforcement officials. The death of Kanai Santra in West Bengal, India was one such death, a result of illegal arrest and detention.

On 25 May 2004, 38-year-old Kanai Santra, of Chakdaulat-Kalitala village, West Bengal, India died at the Bangur Government Hospital. He had been brought to the hospital only hours earlier, following his falling into a state of unconsciousness due to a brutal assault. This assault was at the hands of several policemen, who used their fists, feet and sticks to beat Kanai so severely that he collapsed to the ground and never regained consciousness. The same policemen then used their authority to cover up the murderous act by filing a false complaint regarding the assault, claiming that other persons were responsible for Kanai's death.

The reason for the assault that led to Kanai's death was that feeling anxious and suffocated while in the Alipur court lock-up, Kanai had called out to the attending police officers to release him. Their response however, was to beat him so inhumanly that he fell to the floor unconscious. They then chose to abandon him in his cell.

Later that evening, when police officers from the Nodakhali Police Station--who had initially arrested Kanai--came to the court lock-up to take Kanai back to the police station as the court had rejected his bail application, they found that he was still lying unconscious. Only then was he sent to the Bangur Government Hospital, where he died as a result of his injuries at 8:40pm that evening.

The Nodakhali police committed numerous procedural violations during Kanai's arrest and detention. When he was arrested on 23 May 2004, Kanai was not informed by the police officers of the reason for his arrest. Nor was he provided with a memo of arrest, which the police are obliged to do. It was only when Kanai's family inquired into the matter that they learnt that Kanai was suspected of stealing ornaments from a nearby Kali temple. His family however, insist that the allegation was baseless, emphasizing that not only had the family donated a number of valuable ornaments to the temple, but Kanai had himself supplied all manner of electrical accessories to the temple and had installed them free of charge.

The police officers then illegally detained Kanai until May 25, when his case was produced before the Sub Divisional Judicial Magistrate (SDJM) Court in Alipur, Kolkata, even though article 22(2) of the Constitution of India states that arrested persons must be produced before the nearest magistrate within 24 hours of their arrest. Further violating the Constitution as well as the Criminal Procedure Code, was the police's failure to physically produce Kanai before the magistrate; only legal papers were produced on his behalf, while Kanai remained in the court lock-up. Though it is common practice at the Alipur SDJM for Under Trial Prisoners (UTPs) to be rarely produced before a magistrate, such practice is illegal. Kanai's complaint regarding his prolonged detention in the court lock-up then led to his death.

After learning of Kanai's death, the Officer-in-Charge of the Alipur court lock-up, Mr Samir Mukherjee, lodged a false complaint with the Alipur Police Station, stating that Kanai had been assaulted by the other UTPs he shared a cell with at the court lock-up (Case No. 82 dated 25/5/2004 under sections 325/308 of the Indian Penal Code). Officers from the Alipur Police Station visited the Bangur Government Hospital after the complaint was registered, and after confirming Kanai's death, the Investigating Officer Mr S. A. Khan, added an additional penal section 304 IPC to the initial complaint (304 IPC is related to the case of unnatural death).

As the Bangur Government Hospital is under the jurisdiction of the Jadavpur Police Station, the Unnatural Death case of Kanai should be registered with them; the Jadavpur Police however, registered his case (No. 241) only on May 26 even though Kanai died on May 25. Furthermore, their negligence led to a delay in the autopsy; although executive magistrate Mr Jiban Krishna Ghosh conducted an inquest on May 26, where multiple external injuries were found on Kanai's body, the Jadavpur Police did not take the papers to the Calcutta morgue for Kanai's post-mortem until May 27, at around 3pm. The inquest had found bruises, cuts, haematoma on the left side of the chest, left eye, toes of left foot, fingers of right hand, left wrist, left knee, as well as other injuries [See further: AHRC UA-54-2004, 1 June 2004].

Such procedural violations by the police personnel involved in this case and their subsequent action in falsifying charges to cover up their own crimes, demonstrates many of the problems that exist within the police force in West Bengal--the police wield inordinate power; they are not held accountable for their actions; and they work within an environment that allows for abuse of the system. In India, the court lock-up is fully managed by the police personnel. Therefore, such incidents are not possible without police action. Principally the court lock-ups should be governed by the judiciary. However, in West Bengal the functions of the lower criminal courts are managed by the police. The magistrates are also dependent on the police in their judicial functions. The SDJMs are reluctant to obey the Constitutional provisions. In most cases, the order of the court is written by the police even before the case is heard.

Kanai's case is unfortunately common not only throughout India, but in various countries. From the moment of his arrest to his post-mortem, the police and other relevant authorities committed numerous violations and did their utmost to cover these up.

Police throughout the region arbitrarily arrest and detain innocent citizens, in many instances hoping to obtain confessions from them regarding crimes of which they know little. While international law provides that everyone has the right not to be tortured, including those arrested by the police and accused of crimes, police are known to routinely commit torture. The lack of adequate domestic legislation means that in some countries torture is not considered a crime, a punishable offence or even an act that requires compensation. India for instance, adamantly refuses to ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), stating that constitutional and other provisions exist to prevent torture, and yet, as Kanai Santra and numerous others' experience clearly shows, this is not the case.

B. Registering complaints

Registering complaints is a focal point for investigations into crimes and abuses, and the first step towards redress made by those seeking justice. However, filing complaints at police stations is a complicated and even dangerous business for most victims in Asia. On the other hand, those with police and other influential connections find it easy to file even false complaints. W. Inuka Prasad Kumara Alwis' neighbour for instance, filed such a complaint against him at the Panadura North Police Station, Keselwatte, Sri Lanka after a dispute. His connections with Officer-in-Charge (OIC) Prasanna meant that before any investigation into the complaint was carried out, Alwis and his companion Sithura Nissanka were illegally detained and tortured. 

On 15 February 2005, after Alwis' neighbour filed the complaint, three policemen from the Panadura North Police Station came to Alwis' house. As he was not home, the policemen told Alwis' wife that her husband should report to the police station the next day.
 
Accordingly, on February 16 Alwis went to the police station with four friends. One of his friends, Sithura Nissanka, accompanied Alwis inside the police station while the others waited outside. Police Constable No. 22197 began to question Alwis about a man named Jeevantha and his brother-in-law Rohan. When Alwis replied that he did not know where Jeevantha lived, the constable threatened him. Nissanka then queried why the constable was questioning Alwis instead of Jeevantha.

Overhearing this conversation, OIC Prasanna ordered the constable to bring Alwis and Nissanka to his room, where he assaulted them both, stopping only when Alwis said he was suffering from a chest ailment. OIC Prasanna then threatened them, boasting of how he had broken one person's arm and shot another person. Alwis was then told to leave the room, while Nissanka was further tortured. Alwis stated that his neighbour--who had filed the complaint--was present at the police station and watched him and Nissanka being tortured.

Alwis was later brought to the OIC's room again, where he was threatened with false charges of illegal weapons possession, and forced to apologize to his neighbour. Alwis was then told to give a statement and leave, while Nissanka continued to be detained. Before Alwis and his friends--those waiting outside--left, their addresses were taken and they were ordered to report to the police station every Saturday; the police alleged that they were suspected of stealing from the complainant. The complainant however, was told to 'leave without fear' and was even promised police protection henceforth [See further: AHRC UA-43-2005, 15 March 2005].

Torture victim Marasinghe Arachchige Anura Dissanayaka however, found it impossible to file a complaint with the police regarding his assault by drunken Sergeant Nimal of the Wadduwa Police Station, Wadduwa, Sri Lanka. The assault was witnessed by five other police officers, none of whom stopped the assault, and further refused to file Dissanayaka's complaint the next day.

At 12:30am on 24 January 2005 Dissanayaka was awoken and informed by a neighbour that a man was standing in front of his house. After identifying the man as Sergeant Nimal of the Wadduwa Police Station, Dissanayaka greeted him by saying 'hello'. Sergeant Nimal, who was in plainclothes and was drunk, immediately raged at Dissanayaka, saying, "Who the devil are you to call me hello? (kavuda yako mata hallo kiyanne?)" He then hit Dissanayaka around the face and ears, stopping only after Dissanayaka's wife intervened.

At the time of assault, Sub Inspector Rajapaksha and four other officers from the Wadduwa Police Station were also present, but did nothing to prevent or stop the assault. Before leaving, Sergeant Nimal warned Dissanayaka not to inform any higher authorities about the incident.

Regardless, at 10:00am on the morning of January 24, Dissanayaka went to the Wadduwa Police Station to lodge a complaint. Sub Inspector Rajapaksha requested him not to make the complaint, but he persisted. Police constable Upali refused to take down the complaint however, and directed the victim towards the Officer-in-Charge (OIC), who likewise refused to accept the complaint. Finally, Dissanayaka went to the Senior Superintendent of Police-Panadura and lodged a complaint on January 25.

The assault resulted in Dissanayaka's eardrums being ruptured, for which he is receiving treatment at Navaloka Pvt. Hospital, after initial treatment at Nagoda Government Hospital from January 27-31. His family live in a state of instability, unsure of what will happen next regarding the brutal assault by Sergeant Nimal. Even after finally filing a complaint, no serious investigation has been conducted into the case [See further: AHRC UA-21-2005, 8 February 2005].

In many Asian countries such as India, where the police are heavily influenced by politicians and religious or communal elements, minority and marginalized groups also find it particularly difficult to file complaints and seek redress for injustices committed against them. In a recent incident, officers at the Tarun Police Station, Tehsil Bikapur, Faizabad, Uttar Pradesh, India refused to file the complaint of a Dalit villager, stating that 'it is your problem'.

The complainant, Babu Lal, had his home destroyed and possessions looted by a group of armed villagers from the peasantry community on 8 July 2004, who opposed the granting of land to Dalit villagers under a state scheme. They reached his house in Balli Kripal Pur village, Tehsil Bikapur sub-district, Faizabad district, Uttar Pradesh, India at around 11am, when Babu Lal, a landless farmer belonging to the Chamar community of Dalits, was not at home. Only his wife Mantora, his son Prem Kumar and his daughter-in-law Kamlesh were present, all of whom were severely beaten by some of the armed villagers, while the others demolished the house and took all their possessions. Among them were Ramjeet and Mansha Ram, both of whom belong to the powerful Kurmi family, which is part of the village's peasantry community. Although the attack took place during daylight, the attackers left the house without any fear or obstruction.

After the incident, Babu Lal's family rushed to the Tarun Police Station--located within three kilometers from the victim's house--to lodge a complaint. The police refused to file a case however, allegedly saying, "It is your problem. We would not like to be a party to your game. We don't want to come there even for urinating." Even when the sarpanch (head of village administration) approached the police to take action regarding this matter, they refused to do anything.

Babu Lal then lodged complaints with the National Commission for Scheduled Castes, the Uttar Pradesh State Human Rights Commission, the Chief Minister of Uttar Pradesh and District Magistrate of Faizabad regarding the incident. Since then, Babu Lal took the case to the local magistrate court where it is currently pending, while the authorities have taken no action regarding the case under the pretext that the matter is in court. Babu Lal however, is skeptical as to whether his family can get justice; he says that the judicial system in India is too slow. Since the incident, Babu Lal and his family have lost all their possessions and live in a desperate situation. They are staying in a small hut together with another Dalit family. The family also lives in fear of a second attack by the perpetrators as they are pursuing the case in the court [See further: AHRC UA-29-2005, 24 February 2005].

Not only do the police in many Asian countries thus refuse to file legitimate complaints, but when it serves their personal gain they even harass those who come to complain. This harassment has often taken the form of death threats, particularly when complaints are simultaneously being made to other agencies. Gerald Perera not only suffered from threats and pressure to withdraw his complaints against Sri Lankan police officers who allegedly tortured him brutally, but finally lost his life fighting against injustice. He was shot just a few days before he was to appear in court to testify against those who had tortured him. Those responsible for his death have been arrested; they are the officers accused of torture [See further: AHRC UP-14-2005, 16 February 2005].

C. Investigations

The refusal of the police to file complaints will simultaneously mean the lack of investigation. However, even when complaints are registered, there can still be little corresponding investigation. This lack of proper investigation is a prime cause for the increase in crime and impunity of perpetrators throughout Asia. It also prevents victims of abuse from obtaining justice and redress, which are not possible without adequate investigations and prosecutions. Apart from instances where the police deliberately refuse to investigate or manipulate the investigation, the police are also guilty of using torture and assault as a means to obtain confessions from the accused--these actions are then termed as practices of a routine 'investigation'.

In Thailand, a recently awarded 10-year sentence shows how corrupt and ineffective investigative practices of the police resulted in an innocent man being harshly sentenced. Chanon Suphaphan was traveling along a road near the Tantanote temple, Muang district, Singhburi province at around 6:00pm on 24 November 2002, when he was hailed by a local villager who asked him to assist a man injured in a motorcycle accident. Chanon helped the injured man, Mr Thawatchai Nakthong, back to his feet and ensured that he was not seriously hurt. He did note that Thawatchai, who suffers a disability in his right leg, was incoherent and unable to stand or walk properly, but concluded that this was due to Thawatchai being drunk and not because of the accident he had just been involved in. Thawatchai is known locally to be a drunkard and his state on that day was not unusual. Therefore, all parties involved, including the nine persons who witnessed Chanon assist Thawatchai, left him by the roadside with his motorcycle and went their respective ways.

On 17 December 2002, Chanon was summoned to the Singhburi District Police Station, where he was charged with robbery of Thawatchai. Apparently, Thawatchai had complained to the police on December 2 that he was beaten and robbed by Chanon. He claimed that Chanon had asked him for three Buddha amulets, but he refused to give them. He also claimed that Chanon assaulted him at the site where he had fallen from his motorcycle.

Although Chanon denied the allegations and was released on bail, the police did not do anything to investigate this case. When Chanon and his parents, together with seven other witnesses, were at the police station to make bail on December 17, the police failed to take any statements from the witnesses. The same occurred when the witnesses returned on December 27. On January 10, when the witnesses tried for a third time to have their statements taken, the police agreed to take statements from just four of them.

During this time, the police were also negligent in their duties of investigating the material evidence. For instance, Pol. Sub-Lt. Sornsaran Kaensingh did not collect material evidence himself. A relative of Thawatchai took photographs of the site of the incident and Pol. Sub-Lt. Sornsaran certified them without going to the place in person. In fact, the photos were of the wrong location, around 50 metres from where the accident actually occurred.

On 3 April 2003 the public prosecutor filed a criminal case against Chanon. He was then appointed a lawyer. However, the lawyer did not study the case or meet with witnesses, but simply told them not to worry because they had a village headman--a government official--as a witness. At no point did he visit the site of the incident or speak to any of the persons concerned.

On 22 October 2004 the trial opened in Singbhuri Provincial Court and statements by the plaintiff and three witnesses were heard. None of the three were eyewitnesses to the event. One was the superior officer of Pol. Sub-Lt. Sornsaran, Police Lieutenant Colonel Sirisak Naksuk. The second was Mr Nern Lukindra, a health care officer from the local public health centre who reported treating Thawatchai for injuries to his face the following day, November 25. He was not aware when he came to the court that he was being summoned as a witness for the plaintiff. The third was the aunt of Thawatchai, Mrs Samnao Indrarit, who met him the morning after the alleged assault.

On October 26, the accused and two witnesses were heard. The police presented the complaint and photographs to the court in evidence, but did not present the witness statements taken on 10 January 2003. At no time were these statements mentioned. The appointed defence attorney also did not raise this issue. Outside the court, Chanon's relatives asked the police why they did not present the witness statements for the defence, but the police did not respond.

On November 26 the court found Chanon guilty of robbery under section 339(3) of the Penal Code and sentenced him to the maximum ten years in jail. It also ordered the return of the three amulets, or payment of 500 Thai baht, to the injured party. Chanon has now appealed against the case. He is obtaining alternative legal assistance. Over 200 local villagers have signed a petition supporting his claim of innocence [See further: AHRC UA-40-2005, 9 March 2005].

There have also been several recent cases in Thailand of the police using torture to obtain confessions as a means of conducting investigations. On 2 November 2004, Mr Ekkawat Srimanta, 21, was arrested by officers at Phra Nakhon Si Ayuttaya Station in Aytthaya Province, on allegations of robbery. After being taken into custody, Mr Ekkawat had a hood draped over his head and was then brutally tortured by 12 police officers in their attempt to have him confess to robbery. However, when he did not confess Mr Ekkawat was transferred to Uthai Police Station, as the stolen goods were meant to be in the area of its jurisdiction. Upon his arrival, Mr Ekkawat was mercilessly electrocuted by 11 police officers from that station, who applied electrical equipment to his genitalia. As a result of this torture inflicted by the 23 police officers (all of whom are ranking police who hold the position of sergeant of higher), Mr Ekkawat suffered severe burns to his testicles, penis, groin and toes. He also had bruising on his back, swelling to his face, throat and thighs and was bleeding from his eyes. Despite the police officers' determination to gain a confession, they never did so and Mr Ekkawat was released without charge [See further: AHRC UA-153-2004, 9 November 2004].

Police in Sri Lanka are also known to arrest and torture people on mistaken identity and wrong information. In fact,

The type of assaults committed… show that police officers are not making an attempt at all to collect information relating to crimes in an independent or rational manner, as the law requires them. In all these cases, and many others, the very first thing the police seem to do is to beat people mercilessly with the hope some information may come out from suspects. However, the frequently extraordinary level of torture makes the victim incapable of remaining normal.

Gerald Perera's case demonstrates the problem very clearly. The police were inquiring into a triple murder that had taken place some time before his arrest. The police apparently were under enormous pressure to show the results of the investigations into this very serious crime. They were unable to deal with forensic evidence. They were also not qualified in the use of rational methods for discovering information. They seem to have been arresting people on unverified information. All these added together resulted in some major consequences. One of the first persons to be arrested in this triple murder case was a three-wheel taxi driver. He was harassed into admitting involvement in the crime. He has since attempted to commit suicide, unable to bear the harassment and accusations, about which he knew nothing…

The second victim was Gerald Perera, who also has subsequently been declared absolutely innocent. In his case, as so many others, no evidence of any sort existed against him at the time of arrest. Someone's casual remark was enough. No statements were recorded from anyone making accusations. A belief that beating people is the path to discovering the truth was all that these criminal investigators went by…

Most disconcerting is the popular perceptions that develop among the people regarding police stations. The atmosphere in police stations is one of terror, and that does not in any way help to obtain the type of cooperation from the public that is very essential for criminal investigations. On the one hand, there is an extreme breakdown of cooperation between the public and the police. On the other hand, as a result, there is even more torture, which results in a further loss of confidence and contact with the people. The criminal investigator thus functions in a vacuum [Basil Fernando, 'Trying to understand the police crisis in Sri Lanka', article 2, vol. 1, no. 4, August 2002, pp. 42-3].

The above cases describing the way police conduct arrests, file complaints and carry out investigations clearly speak to the absence of rule of law in these countries. The police blatantly violate legal procedures and ignore citizens' rights without fear of reprisal.

Questions For Discussion

1.    Have you heard/come across similar instances of police behaviour? What is the situation in your country regarding
a.    Filing complaints at police stations
b.    Police conduct of arrest and detention
c.    Police investigations
2.    Discuss reasons for police misbehaviour: What is the relationship between rule of law and police abuse; between procedural violations and human rights abuse?