Right to Rule of Law

Discussion Materials compiled by NDI for the

District Multi stake holder forums on
Constitution and Peaceful Co-Existence

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Content

1. Rule of law research paper

2. Law and democracy
3. Constitutionalism and Constitution
4. Constitutional Democracy
5. Declaration of Delhi on the Rule of law in a Free society
6. Basic principles on the independence of Judiciary
7. Judicial independence and financial Disclosure
8. Code of conduct for Law enforcement officials
9. Guidelines on the role of prosecutors
10. Basic principles on the use of fire arms by law enforcement
officials
11. Basic principles on the role of lawyers
12. Educating Communities about how to be policed in a democracy

13. Introduction on the policing in South Asian Countries

14. Police reform in Sri Lanka

15. Police Accountability
16. Forced displacement and housing land and property ownership

challenges in post conflict and reconstruction

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 The Right to Rule of Law
A. The Definition of Rule of Law

What is meant by rule of law and its underlying values have attracted the interests’ of
legal historians for many years. Although many legal theorists and writers commented or
attempted to define rule of law, it was Professor A V Dicey in the 19th century that
provided a clear expression to the concept, although his views were greatly criticized by
later theorists.

a). Dicey’s rule of law

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To Dicey, the rule of law had three meanings.

1. Individuals should not to be subjected to officials holding wide discretionary powers -

Therefore fundamental to the rule of law is that all power should be authorized or should
have some legal basis. Dicey felt that wide discretionary powers would only promote
abuse of power, since public officers would use it unreasonably or for personal gain.

2. Rule of law includes the notion of equality where he asserts the equal subjection of all
classes to one law administered by the ordinary courts of the land. All officers from the
top official downwards are under the same responsibility for every act done without legal
justification as any other citizen.

3. Dicey’s rule of law did not include a separate written constitutional code. He believed
that constitutional law is made as a result of decisions of the court when it determines
the rights of private persons brought before the court.

However Dicey’s notion of the rule of law found criticism in subsequent writings such as
by William Robson and Ivor Jennings.1 There are several issues that arise from Dicey’s
formulation of the rule of law.

Issues/Discussion points

 Dicey rejected the assignment of wide discretionary powers to the state or

government that he believed would inevitably lead to abuse and corruption. However
due to the expansion of the modern government’s role to provide welfare and other
social services (i.e such as health, education, housing, communications, industries,
etc) in addition to its traditional function of preserving law and order and managing
defence and foreign affairs, it is necessary to provide more and more discretionary
powers to the executive (The President) to provide an effective and efficient service
to the people. Do you agree?
 All laws authorised or passed in accordance with the fundamental laws of the country
may still be harsh. An example is the South African laws relating to Apartheid, which
imposed restrictions and disabilities on a section of a community that deliberately
discriminated them. Another example is the Emergency Regulations (ERs) and the
Prevention of Terrorism Act (PTA) in Sri Lanka that contains several provisions that
offend the rule of law and basic freedoms such as freedom of speech and liberty of
persons. i.e. Regulation 19 of the ER 2005 enables the arrest and detention of
persons up to one year without access to judicial review for ‘acting in any manner
prejudicial to national security or the maintenance of public order or...essential
services’.2
 Although Dicey asserts that all are equally subjected to one law heard by ordinary
courts, even in modern democratic constitutions all classes are not treated alike.
Certain public officers enjoy privileges which are not enjoyed by others. Judges,
MPs, members of the diplomatic services enjoy immunities from the legal process
which are not enjoyed by ordinary persons. According to Article 35 of the
Constitution the President is conferred immunity for ‘anything done or omitted to be

1 th
See Jeffry Jowel, The Rule of Law and its Underlying Values, The Changing Constitution, 6 Edition 2007, page 6
2
Justice in Retreast- A Report on the independence of the legal profession and the Rule of Law in Sri Lanka, May 2009, An International
Bar Association Human Rights Institute Report Supported by the Open Society Institute

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 done by him either in his official or personal capacity’ during the Presidential term of
office.
 Dicey also referred to ordinary law and ordinary courts. However, Sri Lanka’s legal
system retains a complex mixture of English common law (judge made law) and
Roman-Dutch law, which applies to the majority of citizens in the country and laws
that are called ‘personal laws’ that only apply to certain sections of the community
namely, Kandyan law, Muslim law and Tesawalamai (Jaffna Tamil law) law. These
personal laws are recognized by the constitution under Article 16.
 Moreover not all persons are judged by the same courts. According to the Sri Lankan
Muslim law on issues relating to marriage and divorce, Muslims apply to special
courts called Quasi courts. Furthermore in modern systems there exist a number of
tribunals or specialized organs of adjudication (eg. The Income tax board of review,
labour tribunals, Bribery tribunals, etc) that has the required technical expertise and
complements the ordinary courts of the land for speedier and cheaper administration.
 Dicey argued that the law of the constitution should be judge made. However does
an unwritten constitution guarantee fundamental rights anymore than a written
constitution? Or does its permanence and stability rest on public opinion and
activism?

b. Different values underlying Dicey’s rule of law.

1. Legality – there must be obedience to law, which means that a) a law must be
followed by officers and individuals alike and b) it requires public officers to act
within the powers given to them by law.
2. Certainty – law should be certain and predictable. Dicey felt that more harm is
done to the citizen by unknown laws than harsh laws. .
3. Consistency – related to the value of certainty is consistency. By always applying
‘known rules’ one promotes even handed application of rules and standards.
4. Accountability – rules provide a public standard against, which to measure the
legality of the action.
5. Efficiency – rule based action provide for efficiency.
6. Due process and Access to Justice – no person should be condemned
(imprisoned or fined) without being heard in a court of law at an unbiased and
impartial hearing.

Issues / Discussion points

1. Does certainty and consistency as an underlying value of Rule of law in fact

always promote the rule of law? Does alike treatment always promote
responsiveness and justice. Are all people equal? If they are not then does it
justify the application of laws equally to all? I.e. Article 12(4) of the 1978
Constitution provides for special provisions being made by law for the
advancement of ‘women, children and disabled persons’ at the exception of

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 others.3 Further Sri Lanka admissions to University is considered not solely on
merit but by distributing 55% of the places amongst various districts based on
population and 15% among specified under privileged districts. What is the
justification for ‘special treatment’ or differential treatment of persons in the
examples mentioned above?
2. Does the existence of ‘known rules’ as Dicey mentioned ensure its
implementation? Therefore isn’t due process and active participation by
individuals in decisions that affect them as important as the existence of known
laws?
3. Does access to justice mean access to courts? Although the court system is the
primary avenue for redress against grievances, whether civil or criminal,
adjudication by the courts are not appropriate in all circumstances. i.e. The
Arbitration Act 1995 and Commercial Mediation Centre of Sri Lanka Act 2000
provides for the quick resolution of commercial disputes. Moreover the Mediation
Boards Act provides for community mediation of minor disputes referred to by
parties and also by court.
4. Added to the pre condition of an independent judiciary, access to justice in a
conflict and post conflict country such as Sri Lanka should also include
availability of fully functional courts, physical access to courts, decrease of
cultural, social and economic barriers in accessing courts, security of person and
property to those who opt to litigate, communication in the preferred language
guaranteed by the constitution, etc.

B. Rule of Law and Independence of the Judiciary

An independent judiciary is able to safeguard the rights of the people by keeping a check
on the powers of the President (the executive) and parliament ( the legislative).
independence of the judiciary is important not only to ensure that the judiciary is able to
function without fear, but also to uphold the confidence of the people in the legal
system.

a). Constitutional guarantee and enforceable mechanism to de-politicize judiciary and to

ensure judicial independence.

1978 constitution expressly recognized the separation of powers in Article 4 of the three
organs of the government: the executive, legislature and the judiciary. As a result of this
powers of the Supreme Court and the Court of Appeal are entrenched in the constitution
and the constitution specifically protects the role of the Supreme Court as the ‘highest
and final superior court” in respect of many matters such as election petitions, appeals
from lower courts, constitutional matters, fundamental rights and the breach of privileges
of parliament.4 The constitution similarly protects the powers of the Court of Appeal. In
respect of the lower courts, the appointment, transfer, promotion and disciplinary control
of judges are conducted by the Judicial Service Commission (JSC). The Sri Lankan
Constitution guarantees the independence of the judiciary in Article 107.

3
A similar provision is included in Article 15 of the Indian Constitution, which provides for special provisions for women
and children and socially and educationally backwards classes and certain castes and tribes.
4
Chapter XV of the Constitution contains further provisions relating to the judiciary including the establishment of courts,
public sittings, salaries of judges, the performance of duties and functions by judges, the appointment, removal and
disciplinary control of judges, the Judicial Services Commission (JSC), and the jurisdiction, rules and Registry of the
Supreme Court and Court of Appeal.

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Before the enactment of the 17th amendment to the constitution, the President
(executive) had a lot of power sover the appointment of all judges to the Supreme Court
and the Court of Appeal including the appointment of the Chief Justice (CJ)and the
President of the Court of Appeal. In addition the Parliament (legislature) too exercised
power over the judges of the Supreme Court and Court of Appeal with regard to removal
of judges.

17th amendment to the Constitution

The 17th amendment was introduced in an attempt to depoliticize the public service
including the appointment of judges. The 17th Amendment creates a Constitutional
Council (CC), an inclusive body that has the power to make recommendations for
appointments or in some cases approve appointments to key public offices. 5 The
President however remains the appointing authority, but as mentioned above cannot
make any appointments without the recommendation or approval of the CC. In the case
of appointment of judges to Supreme Court and Court of Appeal including the Chief
Justice and President of the Court of Appeal, the President cannot make such
appointments without approval of the CC.

Therefore the scheme of the 17th Amendment provided important checks and balances
on extensive presidential powers. However, subsequent to the first term of office of its
members, the CC in effect has become dysfunctional due to many reasons including
disagreement amongst minority parties with regard to the elect nominee and due to the
lack of political will, which has affected the independence of the judiciary. protests by
civil society groups and concerned members of the public, the the President made t
direct appointments to those bodies and offices, contrary to the express provisions of the
Constitution. In fact the present Chief Justice was directly appointed by the President in
the absence of the CC.

Judicial Service Commission

Before the 17th Amendment to the constitution, the JSC was established under article
112 of the constitution consisting of the CJ and two judges appointed by the President.
The JSC is responsible for the promotion, discipline, transfer and dismissal of all High
Court and lower court judges, as well as the appointment of lower court judges. Articles
111D-M of the Sri Lanka Constitution, as amended by the 17th Amendment furthers the
rule of law as it bars the President from making the appointments of the two SC judges
without the prior approval of the Constitutional Council.6 Further the removal of a JSC
member can only be done by the President with the recommendation of the
Constitutional Council.
5
The Constitutional Council is a ten-member body comprising five members ‘of high integrity and standing’ who are
nominated jointly by the Prime Minister and the leader of the opposition, while the sixth member is nominated by the other
smaller parties in Parliament. The President appoints the seventh member and is obliged to make the six appointments
outlined above once the nominations are forwarded to him. The remaining three members of the CC are ex officio
members and constitute the leader of the opposition, the Prime Minister, and the Speaker of the Parliament who acts as
Chairman of the CC.
6
By custom and practice, the two other Judges are nominated in order of seniority among the Judges on the Supreme
Court and rotate every three years, while the Chief Justice remains on the JSC throughout his tenure. All decisions of the
JSC are constitutionally mandated to be made by a “majority” of votes (ie, 2 of 3), with the Chief Justice retaining a
“casting vote” if there is an equality of votes. A quorum is satisfied with two of the three members; as such, the JSC is
empowered to act even where there is a vacancy in one of its seats.

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Issues /Discussion Points

 Due to the absence of an active CC since 2005, the President has reverted to the
system prior to the 17th Amendment has and made appointments to vacancies
arising in the public service, the appellate judiciary, the Human Rights Commission
and the National Police Commission. These appointments have reduced both the
perceived and actual independence of these important public institutions. The
ongoing non-implementation of the 17th Amendment is a serious systemic threat to
the rule of law in Sri Lanka. Do you agree?
 The states position on making these direct appointments was to fulfill their obligation
to the people who would otherwise be at a loss if these offices did not function. Do
you agree with this statement? Or does this argument ignore the question of why
the CC is not functioning in the first place. Further the approval and recommendation
mechanism of the CC attempted to fetter the discretionary powers of the executive.
In reverting to the position before the 17th amendment would thereby offend the very
objective of its existence in the first place, to depoliticize the core public institutions
including the judiciary in which the public has lost faith.7 In addition to the content of
the law, judicial activism in the interpretation of constitutional provisions is vital to
ensure the rule of law. Failure to do so would not only undermine the rights of
minorities, which the constitution promises to protect.

C. Strengthening national institutions for accountable, effective and impartial

enforcement of the rule of law.

The 17th amendment to the Constitution

The objective of the CC was to provide an independent oversight of the proper

functioning of Sri Lanka’s key institutions to remove any public perception of of
politicisation and institutional wrong doing. The key public institutions mentioned in the
17th amendment are, the Election Commission, Public Service Commission, National
Police Commission, Human Rights Commission, Commission to Investigate Allegations
of Bribery or Corruption, Finance Commission and the Delimitation Commission as well
as important individual offices such as the Attorney General, Inspector General of Police
and the Auditor General. As mentioned above although the President remained the final
appointing authority, he or she could not make any appointments without the
recommendation or approval of the CC.

The 17th Amendment sets out two modalities for the engagement of the CC in
appointments. Certain appointments require the recommendation of the Council and
others the approval of the Council.

Article 41B(1) states that no person shall be appointed by the President to the following
Commissions except on a recommendation of the Council: Election Commission; Public
Service Commission(PSC); National Police Commission (NPC); Human Rights
Commission (HRC); Commission to Investigate Allegations of Bribery or Corruption;
Finance Commission and Delimitation Commission.
7 th
Refer to the supreme Court determination on the 17 Amendment under article 122 (1) (b)

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Article 41C(2) states that no person shall be appointed by the President to the following
offices unless the President has recommended such person for such appointment to the
Council and the Council has approved the appointment: Chief Justice; Supreme Court
judges; President and judges of the Court of Appeal; Members of the Judicial Service
Commission (other than the Chairman, who is always the Chief Justice); Attorney
General; Auditor General; Inspector General of Police; Parliamentary Commissioner for
Administration (Ombudsman) and Secretary General of Parliament.

Issues /Discussion points

 The establishment of a CC and a mechanism to fetter the discretion of the President

(executive) to prevent abuse of power and uphold the rule of law is insufficient unless
there is political will to do so. i.e The Elections Commission was not appointed even
during the period the CC was functional, as the President rejected the
recommendation of the chairman to the Elections Commission recommended by the
CC. If the President had the discretion to reject nominations made by the CC it would
defeat the entire rationale of the 17th amendment.
 The above example reflects the importance of cooperation between the different
offices of the state to achieve common goals, as they hold office (in which ever way
they originate) in public trust, powers which have been delegated by the people (i.e
elections, etc) to use for the benefit of the people. An absence of cooperation would
only result in the breakdown of the rule of law and established checks and balances
on the organs of the state. For example according to reports made by the Asian
Human Rights Commission (AHRC) the Attorney-General had advised the President
that all appointments that come under the 17th Amendment, including members of
the several independent commissions mandated by the 17th Amendment as well as
nominees to the Court of Appeal and the Supreme Court, had to be done through the
Constitutional Council. Yet, through the course of 2006, the President made judicial
appointments as well appointments o the HRC, NPC and the PSC. As noted by the
AHRC, by persistently ignoring the Attorney-General’s advice, particularly on such
significant issues as appointments to 17th Amendment-mandated bodies, the
President worked to weaken the Attorney-General’s Department by demoralizing its
officers and making them more susceptible to political influence in order to enhance
their own professional well-being.8
 The aim of the CC was not only to control discretionary powers of the President
(executive) but also to remove political influence over key public appointments to
enable them to act independently and impartially.
 The importance of depoliticizing appointments to such key commissions that come
into direct contact with the ordinary citizen on such vital issues such as the HRC and
the Bribery Commission cannot be over emphasized. These commissions deal with
serious grievances (fundamental rights violations, bribery and corruption)
perpetuated by offices of the state. If the public is to come forward to make
complaints against offices without fear of reprisal to family or property, faith in these
institutions must be restored and the first step towards that it to remove appearance
of bias.

8
See Kishali Pinto-Jayawardena, Public Accountability of the Attorney General – To What Extent Should the Exercise of
His Statutory Powers be Reviewed by Court?, Law & Society Trust Review, Vol. 15, Issue 211, May 2005.

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D. Human Rights and the Rule of Law

a). Provisions to Guarantee the Rule of Law

International Human Rights norms

There was a strong movement at the end of the Second World War, to define human
rights and such definitions of declarations have come to form an important part of the
new international concept of the rule of law.

The United Nations Human Rights Commission drafted the Universal Declaration of
Human Rights (UDHR) and was adopted by the General Assembly in 1948. The
Declaration imposes a common standard of achievement for all peoples and all nations.
Although the declaration is not legally binding on state parties it exerts a moral and
political influence over the state. Subsequently, two more covenants, namely the
International Covenant on Civil and Political Rights (ICCPR) and the International
Covenant on Economic, Social and Cultural Rights (ICESCR) were drafted elaborating
on the rights and freedoms recognized in the UDHR and binding all signatories (states)
to take steps to implement the provisions in the covenants . Further an optional protocol
to the ICCPR was also adopted which took human rights one step further by allowing
individual communications to the human rights committee.9 Sri Lanka ratified all the
above conventions and has also ratified many other conventions that protect and
promote human rights and specific rights such as women’s rights, children’s rights, rights
of migrant workers, etc.10 Therefore, the government of Sri Lanka has an obligation to
fulfill these rights recognized under the respective conventions by enacting laws locally.
i.e Sri Lanka ratified the CEDAW in 1981 and as a result of this drafted and passed the
Domestic Violence Act No. 35 of 2005to give way to rights recognized under the
convention. 11

Additionally, the Sri Lankan Constitution contains many important safeguards to protect
the right and freedoms of persons.

The 1978 Constitution and Fundamental rights

In Sri Lanka, human rights are provided the highest protection through the constitution.
Although previous constitutions such as the Soulbury constitution and the 1972

9
Supra 2 at page 19
10
Sri Lanka has ratified the core international human rights instruments, including: the Convention on the Prevention and
Punishment of the Crime of Genocide; the International Convention on the Prevention and Punishment of all forms of
Racial Discrimination; the International Covenant on Civil and Political Rights (ICCPR) and both of its Optional Protocols;
the International Covenant on Economic, Social and Cultural Rights (ICESCR) and its Optional Protocol; the Convention
on the Rights of the Child (CROC) and both of its Optional Protocols; the Convention on the Elimination of all forms of
Discrimination against Women (CEDAW) and its Optional Protocol; the Convention against Torture and other Cruel,
Inhuman and Degrading Treatment or Punishment (CAT) and its Optional Protocol; the Convention on the non-
applicability of statutory limitations to war crimes and crimes against humanity; the International Convention on the
Suppression and Punishment of the Crime of Apartheid; the International Convention against Apartheid in Sports; the
International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families; the
Convention on the Rights of Persons with Disabilities and its Optional Protocol; and the International Convention for the
Protection of all Persons from Enforced Disappearance.
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As a member of the UN General Assembly, Sri Lanka has committed itself to the provisions of the Universal Declaration
of Human Rights (UDHR), the UN Basic Principles on the Independence of the Judiciary, the UN Basic Principles on the
Role of Lawyers, and the UN Guidelines on the Role of Prosecutors. Sri Lanka is also a member of the Commonwealth
and is therefore committed to upholding the Commonwealth’s fundamental values contained in the Harare Declaration.

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constitution had provisions to protect fundamental rights12 of citizens, the fundamental
rights recognized under the 1978 constitution was made justiciable by Articles 17 and
126. this meant that Articles 17 and 126 provided a mechanism by which an aggrieved
person (a person whose fundamental rights have been violated ) may seek a remedy in
the highest court of the country (Supreme Court) for a violation or imminent violation by
executive or administrative action13 of a fundamental right or language right recognized
in the constitution.

Fundamental rights are included in articles 10 -14 of the constitution, it includes freedom
of thought, conscience and religion,14 freedom from torture, cruel, inhuman and
degrading treatment15, equality before the law and equal protection of the law16, freedom
from arbitrary arrest, detention and punishment17, freedom of speech, assembly,
association, occupation, movement18, etc. Article 15 imposes restrictions on the
application of some fundamental rights due to reasons of national security, racial or
religious harmony, national economy, contempt of court, parliamentary privileges, etc.
The freedom of thought, conscience and religion, freedom from torture, the right to a fair
trial and freedom from punishment except according to law are all absolute rights.19 All
other rights mentioned above are subject to restrictions by ‘law’ including ERs passed
under the Public Security Ordinance. Fortunately regulations passed under the PTA Act
are not considered ‘law’ that has the power to restrict fundamental rights.20

There are other laws such as the ICCPR Act that provides protection against violations
of human rights.

b). Provisions to ensure effective implementation of the rule of law.

Fundamental Rights

As mentioned above while fundamental rights are duly recognized by the present
constitution, it provided an avenue to seek redress in the Supreme Court. There are
however several restrictions attached to the redress mechanism specified in Articles 17
and 126. Firstly, Article 17 speaks of infringement of fundamental rights by executive or
administrative action. Thus infringement by legislative action and judicial action21 has
been purposely omitted from the scope of this Article. Article 80 (3) prohibits any court or
tribunal from questioning the validity of any Act of Parliament on any ground whatsoever
including violation of a FR. The constitution only allows the courts to question the validity
or any inconsistencies with the constitution at the Bill stage (a law is referred to as a Bill
before it is passed by parliament).22 However there is no bar to question the validity of a
statute passed by a provincial council.23 Secondly, as aggrieved party has to petition the

12
Fundamental rights are human rights that are contained in the constitution. While all fundamental rights are human
rights all human rights are not fundamental rights. For example although the ICCPR recognizes the right to life as a
human right, the right to life is not contained in the 1978 constitution as a fundamental right.
13
See Fundamental Rights in Sri Lanka, second edition, Jayampathy Wickramaratne, 2006 page 754
14
Article 10
15
Article 11
16
Article 12
17
Article 13
18
Article 14
19
supra note 13 at page 211
20
Thavaneethan v Dayananda Dissanayake 2003 1 Sri L R 74
21
Kumarasinghe v AG SC Application 54/82, SCM of 06. 09. 1982. also see Dayananda v Weerasinghe FRD (2) 292
22
Articles 121 and 122
23
supra 14 at page 755

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Supreme Court within one month of the actual or imminent violation of a fundamental
right. Thirdly, the constitution also stipulates that only the aggrieved party or his or her
attorney –at- law has the legal right (locus standi) to petition the court. However, the
court has relaxed this rule to a great extent even allowing unrelated parties to petition
the Supreme Court in the public interest. Fourthly, Supreme Court is empowered to
grant ‘such relief or make such directions as it may seem just and equitable in the
circumstances’24 Which can vary from case to case leading to inconsistencies.

Human Rights Commission

The HRC was established in 1996 to give force to the state’s commitment as a member
of the United Nations in protecting human rights. Although a mechanism was already
available for a violation of a fundamental right under the constitution, very little of it was
known to the ordinary citizen as relief for such a violation can only be obtained by a court
situated in Colombo, far from the villages. Therefore, the HRC was an attempt to bring
human rights close to people and make it more realistic.25 The HRC was made stronger
with the 17th amendment to the constitution which introduced the CC to make
recommendations to the President for appointments to the commission, thereby
removing any sense of bias or political influence from the commission. However, due to
the non function of the CC and lack of resources, lack of political will to implement the
powers of the commission, etc the HRC today has failed to protect the FRs of the
people. Another major flaw in the law it self, is that while the commission can only
conciliate or mediate and make recommendations or directions, it does not have any
power or the influence to enforce those recommendations except to report to the
President who is expected to take the matter up in Parliament for action.

The Parliamentary Commissioner for Administration (Ombudsmen)

The Ombudsman may investigate and report upon receiving a complaint or allegation of
a fundamental right or other injustices by public offices, offices of public co-operations,
local authorities and other like institutions. The rational again is similar to the HRC, to
bring access to justice closer to people. Again the 17th amendment attempted to
depoliticize this office by removing any influence by the executive.

Issues /Discussion points

 Although international conventions are not automatically binding on states parties, it

is important to note that once a state becomes a signatory to a convention it
voluntarily invites a certain measure of international scrutiny with regard to its
domestic human rights record. International scrutiny may take many forms. Firstly
through the requirement of reporting to relevant bodies established by the
conventions (i.e in the case of the ICCPR- to the ICCPR Committee on step taken by
each government to realize the rights in the convention. Secondly, the international
community can exert pressure on the government through international machineries

24
Article 126 (4)
25
The HRC consists of 5 members, persons having knowledge of or practical experience in matters relating to human
rights. The functions of the commission are broad and include the power to inquire and investigate into violations of
fundamental rights, to inquire and investigate into complaints regarding procedures that non complies with fundamental
rights. The commission has broad powers of investigation and may appoint sub committees to do so. The commission
also has the power on its own motion to investigate into human rights violations without a complaint. The commission can
intervene in court proceedings relating to FRs and monitor welfare of detainees as well.

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 such as the UN or through regional machineries to realize these rights. i.e due to the
escalation of violence towards the end of Sri Lanka’s conflict, it came under heavy
scrutiny by the international community concerned with regard to its obligations
under international humanitarian and human rights law. The United Nations (UN)
Human Rights Council identified deficiencies in the capacity of domestic human
rights structures to safeguard against violations , the ability of national legislation to
properly implement international human rights treaties and the lack of investigations
undertaken into violations of human rights norms.During 2008, Sri Lanka lost its bid
for re-election at the UN Human Rights Council.26 Thirdly, a good human rights
record of a country could become a pre condition to allocation of aid and other
economic concessions. i.e in 2008 the European Commission initiated an
investigation with respect to the implementation of certain international conventions
required under the EU ‘GSP+’ scheme in determining whether Sri Lanka’s
membership of the scheme should be extended or withdrawn. 27
 Although the FRs stated in the constitution are an improvement from the previous
constitutions it has several flaws, firstly with regard to its content it does not include
vital rights such as right to life, liberty and security of the person or economic or
social rights. Secondly, it has many restrictions. i.e a violation of a FR is only
recognized against executive or administrative action. This excludes private action.
Can it be argued that while the SC has sole jurisdiction to hear petitions of FRs
relating to executive and administrative action, violation of a FR by a private party
could be instituted in another court such as the District Court in suits with private
companies, etc.?
 FRs are subject to restrictions made by law. Thus law includes regulations made
under the law for the time being relating to public security such as the ERs made by
the President under the Public Security Ordinance. Therefore, ERs can erode or take
away the very rights intended to protect citizens. i.e under ER 64 a person suspected
or accused of any offence under any ER is produced before a Magistrate, and the
Magistrate has no discretion to either remand or grant bail, but is compelled to
remand such person. This is in contravention of rights recognized under Article 13.
 The interpretation of FRs by the Supreme Court over the years has been criticized
for being conservative and technical, on occasion, inconsistent, with certain cases
being determined according to political considerations and/or alleged national
interests rather than strict legal considerations. Thus while it is important to have
fundamental rights protected under the constitution, it is equally important to have an
independent and impartial judiciary to hear these cases.
 Therefore any number of amendments to the constitution to ensure full guarantee of
FRs are futile unless judicial attitudes towards their role and interpretative techniques
are revised to fully realize and protect these rights.

D. Executive and the Rule of Law

a). The executive’s office’s accountability to the rule of law.

The second report comprised of the conclusions of the International Congress of Jurists
in 1959 relating to the Executive and the rule of law stated that ‘there should be in a
legal system adequate safeguards against the abuse of power of the executive, an
effective government capable of maintaining not only law and order but which will

26
Supra 2 at page 20
27
Ibid

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achieve such social economic conditions within a society as will ensure a reasonable
standard of economic security, social welfare and education for the mass of the people’.

The President of Sri Lanka is elected by popular vote for a term of six-year and is eligible
for a second term. The President serves as head of the state, head of the executive,
head of the government and commander in chief of the armed forces. He or she has the
power to appoint the Prime Minister, the capacity to assign himself or herself any
function, the ability to declare a referendum (including in relation to bills which have been
rejected by Parliament), and also broad powers to determine the cabinet of ministers
(which he heads) and their functions. The President is responsible to Parliament for the
‘due exercise, performance and discharge of his powers, duties and functions under the
Constitution and any written law, including the law for the time being relating to public
security’.28 Therefore under the current constitutional structure the President exercises
substantial powers during term of office as the President is conferred immunity in
respect of ‘anything done or omitted to be done by him either in his official or personal
capacity’ during the Presidential term of office.

Issues /Discussion points

 The President (executive) enjoys broad powers during office due to the immunity
granted by the constitution.. i.e The direct Presidential appointments without the
cognizance of the CC cannot be challenged due to the immunity enjoyed by the
executive under Article 35. However, the immunity granted to the President under
article 35 is only valid for acts done during the term of office. Therefore the immunity
granted to the executive expires when his/her presidential term expires. Therefore
can the appointments outside the scope of the 17th amendment by the President by
challenged once his term of office expires? Compare this with the ‘Waters Edge’
case where the former President Chandrika Bandaranaike was held accountable.
 Article 4 ensures separation of powers and thereby institutes a system of checks and
balances to curb abuse of power by all three organs of the government. Therefore to
ensure the rule of law it is important that all three organs respect the functions and
boundaries of its powers. Failure to do so would undermine the rule of law. The
relationship between the President ( executive) and the judiciary is a key indicator of
the state of any justice system. Politically motivated criticisms of the judiciary as a
whole, or of individual members of the judiciary, by the executive place this
relationship under considerable stress and can in particular have a detrimental
impact on the ability of judges to adjudicate politically sensitive cases impartially and
independently.
 Likewise, the failure by the Government to implement court orders fundamentally
undermines the rule of law and the administration of justice. i.e. there have been
several instances in the past where the President has acted in contravention of
decisions pronounced by the Supreme Court. i.e. in the famous case of “Pavidi
Handa’, the Supreme court held the seizure of leaflets printed by Pavidi Handa in
relation to the referendum was illegal and ordered the superintendent of police ,
Gampaha to pay damages and costs. In this instance the government not only paid
the dues out of public funds but also promoted the office is direct deference to the
court. A recent example is the failure of the Government to implement an interim

28
Supra 2 at page 17

14
 decision of the Supreme Court The decision in question, ‘the petroleum price
decision’, which followed a complex piece of litigation, was handed down in
December 2008 and required the Government to reduce petrol prices from Rs122
(US$1.07) per litre to Rs100 (US$0.8) per litre. The decision was made in a
fundamental rights petition based on the right to equality in Article 12 of the
Constitution in which the Petitioners had complained that the Ceylon Petroleum
Corporation had not reduced petrol prices in Sri Lanka despite world crude prices
falling.29

F. The legislature and the rule of law

The first report of the International Congress of Jurists in 1959 relating to the legislature
and the rule of law stated that ’the function of the legislature in a society under rule of
law is to create and maintain the conditions which will uphold the dignity of man as an
individual’. Rule of law would require the powers of the legislature to be fixed by
constitutional provisions which would guarantee free elections, enact that all legislation
be enacted by the legislature , ensure control of delegated legislation, safeguard the
existence of an independent judiciary and ensure that the legislature does not enact
discriminatory legislation affecting fundamental rights and retroactive legislation.

Article 93 of the constitution declares elections to be free, equal and by secret ballot.
Article 4 (a) and Article 75 vests the ordinary law making power on the parliament.
Although certain special laws have to pass with the approval of the people at a
referendum (article 83), it has been judicially held that the existence of subordinate
legislation does not in any way run counter to the legitimate lawmaking powers of
parliament if there are adequate controls.30 There are also several articles (i.e. articles
107, 108, 112, 115 and 116) as mentioned above that ensures the independence of the
judiciary and acts done or purported to be done by members of parliament that infringe
fundamental rights. The legislature also has responsibility over the executive in relation
to matters of public finance and supervises the proclamation of an emergency which is
necessary for issuing emergency regulations under the Public Security Ordinance.

Issues / Discussion notes

 The legislature as an elected body has the responsibility to ensure rule of law and
good governance. However, much of the delay in the appointment of the members to
the CC under the 17th Amendment to the Constitution was due to the inability on the
29
the Government did not fully implemented the order, and has instead reduced the price by only two rupees to Rs120
rupees (US$1.05). This move led to the Supreme Court revoking all its interim orders in the case, the effect of which is to
expose the Government to substantial compensation claims by local and international banks with which the Government
had entered into complex price hedging arrangements. The Government has publicly stated that it would not fully
implement the initial order as this would be ‘contrary to the war effort’. As mentioned earlier, judicial intervention in a
matter such as the fixing of petrol prices appears to be an unwarranted encroachment into the proper realm of the
executive. Nevertheless, the executive’s response in refusing to fully implement the court order, though triggered by that
unusual exercise of judicial power in the first place, does create a dangerous precedent that the executive can choose to
ignore a court order. This unhealthy tug of war between the two branches of government is not a positive contribution to
the rule of law in Sri Lanka.
30
Weerasinghe v Samarasinghe, 68 NLR page 361. Further in addition to other provisions in the constitution, article 158
also ensures instant control over delegated legislation.

15
 part of the Muslim parties to agree on the representative from the Muslim community
under the fifth category of members31 and thereafter disagreement regarding the
appointment under the sixth category of member who had to be nominated with
agreement amongst the majority of MPs belonging to the smaller parties in
Parliament. Petty party politics dictated the discussions more than the importance of
operationalising the CC.
 The constitutional provisions relating to the expulsion of members of parliament
hinder the stability of parliamentarians and thereby their independent thinking.
According to the constitution a member who is either expelled from his/her party, by
reason of crossing the floor (to join another party) or by voting against a bill
presented by his/her own government causes himself/herself to be expelled and
cannot stay in parliament unless the Supreme Court or a Select Committee of
parliament decide that he has not been in discipline of party discipline or that
principles of natural justice has not been followed, etc.

G. Conclusion

Which ever interpretation one may adopt, it cannot be denied that the rule of law
imposes ‘effective inhibitions upon power’ and provides a defence for the citizen from
powers ‘all intrusive claims’.32 The rule of law is neither a principle of moral law nor that
of legality. It is a principle of institutional morality that guides law enforcement and law
making alike, thus ensuring legal certainly as well as procedural protections. It virtues
are not only formal but also substantive inclusive of a rights conception and one that
encourages accountability, efficiency, fairness and respect for dignity.

LAW AND DEMOCRACY

What is the relationship between law, constitutionalism, and democracy?

In any society there is an ultimate source of the authority to make law. Law is a principal way
that the decisions and actions of any political system are revealed and communicated. In a
democracy, the people are the source of government’s authority to make decisions for the
public benefit. Law is the means by which these decisions are formulated as rules and

31
The Constitutional Council is to consist of (1) the Prime Minister, (2) the Speaker (3) the Leader of the Opposition, (4)
one person appointed by the President (5) five persons appointed by the President on the nomination of the Prime
Minister and Leader of the Opposition – This should be in consultation with leaders of parties in Parliament, and three of
these appointees will represent minority interests following consultation with minority community MPs and (6) one person
nominated upon agreement by the majority of the MPs who do not belong to the parties of either the Prime Minister or the
Leader of the Opposition, and appointed by the President
32
Supra note at page

16
implemented as public policy. Law can thus be seen as the language of public policy. Public
policies can be implemented because they have been formulated in law.

Law provides an essential link between constitutionalism and democracy by translating

fundamental principles into rules which government is obliged to enforce.

While law may be conceived as channeling and limiting human activity, it also supplies the
chief medium for furthering the interests and purposes of a community. The more
deliberative a society, the more it will rely on law and its interpretation to guide the activities
of its governmental institutions and public scrutiny of them. Because a society’s decisions
have been reflected in law, widespread knowledge of the content of law may lead to holding
government accountable for its fidelity to law. To the extent that law facilitates both
deliberation and accountability, it promotes democracy.

1. Constituent character of law. Law provides the primary means for structuring
organizations and establishing relationships in a society. In this sense law sets forth those
basic arrangements and connections that give order to human life. In addition, because
formally enacted law can be read and scrutinized, it need not be conceived of as
immutable but as subject to reconsideration and change.

2. Public policy. If the essence of the political process is making public policy, that is the
making of public decisions and choices, law is the instrument through which these
decisions are expressed, implemented, enforced, and adjudicated.

3. Continuity. Law is the primary means of providing order, predictability, security, and
survival for society. To the extent that law relies on precedent or a tradition of experience
for its meaning, law enables a community to achieve self-consistency and reliability over
time.

4. Aspirations. Law is a primary means by which society expresses and codifies its values,
goals, and mores. In this regard, law may serve to shape as well as to reflect the
aspirations of society. Law can also bridge social divisions and compensate for a lack of
personal trust by creating formal obligations that can be enforced among parties who
otherwise may be wary or suspicious of one another.

CONSTITUTIONALISM AND CONSTITUTION

What is “constitutionalism” and what is its relationship to “constitution”?

Constitutionalism is the political theory [and norm] of limited government. This political
theory is independent of a theory of liberalism or a theory of democracy, although its values
are compatible with the principles of liberalism and democracy. Liberalism, historically, has
served as the major vehicle for the limitation of government on behalf of the liberty of
individuals. Modern democracies share the commitment of constitutionalism to limiting the

17
powers of government to serving the common good as opposed to serving factional interests.
Modern democracies also share the commitment of liberal constitutionalism to limiting
government powers on behalf of protecting the rights of the individual.

Constitutionalism historically arose in part from the idea that there is a higher authority than
human authority. According to this idea, one’s obligations to that higher authority transcend
one’s obligations to government. Therefore, the rightful demands of government for
obedience are necessarily limited. These limitations are grounded in a concept of a higher law
that derives from a Supreme Being who rules earthly rulers.

In addition, another strand of constitutional history produced limitations on government

power arising from the superior and inviolate status of the citizen in Greek democracy or
Roman republicanism.
Endeavors throughout history to create good government have revealed that the establishment
of a formal “constitution” (usually written down) is the best device for realizing the
substantive principles of the political theory of constitutionalism, such as the liberal principle
of protecting liberty and the democratic principle of making political power responsible to its
people.

Constitutionalism as the theory of limited government arises from the transformation of

power into authority. Under this theory, the only legitimate political power is constrained
power and all authority is limited by the terms according to which it is delegated. Authority
operates only by “commission”—that is it is power that is used on behalf of others who
“authorize” it for specified purposes and under defined conditions. All authority also exists
under an obligation to serve the best interests of those on whose behalf it is exercised.
Authority therefore operates as a “trust” that emanates from a more fundamental source, and
its use is conditioned continuously by the purposes for which it was originally established.
These purposes and the principle of “trusteeship” not only constrain authority but sustain it as
well.

As foundations of political systems, some formal constitutions reflect this theory of

government limited by commission and trusteeship, and some do not. When a political
system operates by commission and trusteeship, its constitution derives its authority from a
higher source on whose behalf the power of government is both exercised and limited. This
higher source (such as the People or God) is conceived of as sovereign. In cases of unlimited
governments, constitutions may be used for purposes of deception, as cloaks to misrule,
disguising the unconstrained behavior of those in power.

A political system, whether it has a formal constitution or not, will reflect the principles of
constitutionalism only when its powers and institutions are limited to the terms of the
constitution which reflect the foundational principles of commission and trusteeship. In this
regard the constitution takes on the role of “higher law.”

Thus there is a distinction between a polity (or government) with a constitution and
constitutionalism (or constitutional government). Every political system has a “constitution,”
whether it is a “constitutional” system or not. In this sense the “constitution” is no more than
a description of the makeup or composition of a political system. It portrays the way a polity
is constituted—that is, how its foundation is set forth, its first principles articulated, its
character shaped, and its government organized and operated. The fact that a political system
has such a constitution—even if it is a formal written document—does not mean it meets the

18
standard of constitutionalism. Under the standard of constitutionalism, governments must
themselves be bound by rules.

To implement this standard, a “constitution” that reflects the principles of constitutionalism

will serve as a “higher law.” This higher law establishes and limits government in order to
protect individual rights as well as to promote the common good.

1. Constitutionalism. Under the theory of constitutionalism, a political system takes on a

defined form and character that obligate it to operate in a manner consistent with a set of
established purposes and limits.

The form and character of a political system may be set forth deliberately in fundamental
documents that both describe and prescribe the shape and limitations of its power.
Constitutionalism is both descriptive and normative; it thus lays out what can and cannot
be done as well as what ought to be done.
In establishing the form and character of a political system, constitution-making can be a
profoundly democratic act. The process of public deliberation which leads to the
endorsement of a constitution by the people has become an instrument for the creation of
democracy. The very process of this deliberation seems to anticipate substantial
participation of the people in the resulting political system.

a. Principles of constitutionalism. According to constitutionalism:

• power must be exercised in accordance with established standards

• political systems must be limited in the ends they may seek and in the means they
may use to pursue legitimate ends

• ordinary laws must be made to comport with the “rule of law” by being evaluated
according to a set of fundamental standards

• the sovereign people of a democracy, in consenting to a constitutional system,

agree to limit not only their government but also themselves, e.g., they are bound
by the provisions of their constitution until they are formally changed.

• the rights of individuals may be protected not only by limitations on the power of
government, but also by guarantees of specific rights beyond the control of
government, or by specific grants of powers to governmental institutions to
protect rights

• there are some aspects of life that are not the proper business of politics and
government and are accordingly placed beyond the reach of its authority.

b. Constitutional government. A constitutional government is one in which the

constitution sets forth the foundation and extent of a government’s powers. The
constitution also provides effective means for limiting those powers and a means of
moving towards a correspondence between the principles and values set forth in the
constitution and the reality of political life. A constitutional government is one in

19
 which those in power must and do obey the limitations placed upon them by the
constitution.

c. “Sham constitutions.” In the guise of purporting to honor constitutions or

constitutionalism, some governments set forth misleading or “sham constitutions.”
These so-called “constitutions” bear little relationship to actual institutions and
practices nor do they reflect a commitment to the limitations of constitutional
government. In contrast to constitutional governments, unlimited governments are
those in which there are no regularized and effective means of restraining power.

2. The relationship between constitutionalism and the concept of “rule of law.” The
concept of a rule of law requires that rules are set forth in advance and are widely known,
that they are of general application, and that they are applied impartially. Rule of law
applies both to governmental officials and to all other persons in a country. The rule of
law, therefore, means more than simply having laws or passing legislation. This principle
contrasts with capricious rule based on arbitrary will and inclination, when persons who
rule impose their own personal preferences that are invented for the occasion, applied
with favoritism, and/or not made clear to those who are subject to them.

Under a minimalist understanding of a rule of law, the substance of the rules or laws need
not comport with a standard of goodness or morality, so long as they are fairly and
systematically administered. Thus a rule of law may exist in non-democratic political
systems. Under a more extended understanding of a rule of law, laws must be compatible
with higher standards of justice in order to qualify as law at all.
The rule of law can be used to restrict the actions of citizens and governmental officials
alike in order to protect the rights of individuals and to promote the common good. The
rule of law is one of the most effective ways to establish limited government. Because it
is conducive to a regular and predictable political system, rule of law can enhance
political power through a capacity to coordinate the expectations of large numbers of
individuals and organizations.
Constitutionalism realizes in practice the abstract character of the “rule of law” by
translating its precepts into a more explicit set of rules and provisions that can be
interpreted and applied by institutions of government and by the people in public
discussion and debate.

3. Political, economic, and personal freedom as means of limiting government.

There is a reinforcing relationship between constitutionalism and political, economic, and
personal freedom. Political, economic, and personal freedoms serve as a way of limiting
government. In turn, limited government is essential to the protection of these freedoms.

a. Political freedom involves people’s right to control and influence governance. The
existence of political freedom debars governmental encroachment upon the spheres
in which people exercise this freedom including their right to express their opinions
about public affairs. In exercising their political freedom the people assert their
sovereignty over government.

b. Economic freedom comprises a sphere of enterprise, organization, and activity

independent of direct control by government. {It is a fundamental element of a
liberal society.] It involves the acquisition, use, enhancement, transfer, and disposal

20
 of property. Because economic freedom involves people’s right to conduct
fundamental aspects of their lives and activities independently of unreasonable
governmental supervision and intrusion, its existence creates independent centers of
power that compete with and limit the scope of governmental power.

c. Personal freedom consists of an autonomous zone where individuals or groups of

individuals pursue ways of life and courses of action that do not require the sanction
of political or governmental authority. It may involve, for example, the creation of
families and friendships, the practice of religion, participation in associational
activities, and the pursuit of artistic endeavors. These activities exemplify the self-
determination of the individual and represent a source of independence and choice
separating the person from direct control by government.

CONSTITUTIONAL DEMOCRACY

What is the relationship of government “founded on the people” to idea of a

“constitution”?

The idea of constitution may refer to three levels — the elemental coherence of a people, the
design of a polity, and the framework of a government. At each level the idea of a
constitution provides citizens with the means to take possession of their lives and destiny.

21
A defined population is not in and of itself a civically united people with the potential to
become “a political people” or “a body politic.” To become such a civicly united people—
i.e., a “civic people” or a “political association”—a population must be held together by
relationships of mutuality or toleration sufficient to make a common life possible. This
coherence of the population as a civic body may be conceived as an elemental “constitution”
of the people in which they could recognize each other as potential fellow countrymen.

Such a coherence of the population constitutes the possibility for the development of a
political people as a sovereign whole. This elemental constitution also provides the
groundwork for the creation of an autonomous political unit or polity that may take any of
several forms.

The values of the elemental constitution of the people are implicit in their relationships; they
are not usually formulated explicitly. Further, all of these values may not even be susceptible
to being fully articulated because many of them operate at a level of unstated or unconscious
presumption. The more explicit constitution of any political system must be matched to this
elemental constitution of a people. In more fully evolved systems, the explicit constitution of
a polity formally articulates certain core values of the elemental constitution of the people as
the foundation for political institutions.

The elemental constitution of a people, therefore, provides the foundation for the more formal
constitution or makeup of a political system in which the people can create institutional
arrangements appropriate for governing themselves. Thus a more formal constitution serves
as the political embodiment of the spirit that animates the common life of a people. If this
more formal constitution of the polity and the animating spirit of the people are not well fitted
to each other, the political system has an unstable foundation incapable of sustaining the
people’s self-governance. The idea of three levels of “constitution,” as underlying a political
order founded on the commonality of its people, reflects a primordially democratic
characteristic.

Once the design of a particular political order for a people has been established (e.g., a
particular variant of republic or a monarchy), another aspect of the idea of constitution is the
provision of a “charter of government” – a framework for governmental institutions which
serves as fundamental or basic law. This charter usually takes the form of a written
constitution. To be well founded, the provisions of the charter of government must reflect
principles which are essential to the purposes of the people and which conform with their
character. At the same time, the provisions of the charter of government must remain true to
the defining traits of the polity, whether or not that polity is a democracy.

Because there are distinguishing variations among civic peoples, there is no universally
applicable form of polity or political constitution that can be used everywhere. Nor is there a
predefined set of governmental institutions that will successfully carry on the work of popular
self-governance in every country. Thus, a well-founded constitution for a people must arise
from the people themselves and cannot be given as a finished product by experts from
outside.

1. Concept of a “formal constitution.” A formal constitution—written, partially written,

or unwritten—may set forth or reflect the fundamental values and public character of a
people as a political community. The concept of constitution may be a plan for a political
system set forth in advance of its establishment, or it may be a derivation of principles

22
 that are embedded in an existing political system. A formal constitution embodies or sets
forth the purposes and organization of political power and government for a society.

The concept of a formal constitution has at least the following variants: a “covenant” or
“social compact” in which individuals agree among themselves to be a political people; a
“contract” between a political people and their government; and a “basic law” that forms
the foundation for a system of a rule of law. The term “constitution” may designate a

a. description of a form of government

b. document or collection of documents that set forth basic law

c. written document or series of documents, possibly with procedures for amendment,

augmented over time by custom, legislation, and court decisions

d. set of settled understandings accepted as convention

e. higher, fundamental, or basic law that limits the powers of government, provides a
standard to which all legislation and other activities of government must adhere, and
sets the formal aspirations of a society

f. set of principles, values, and traits that characterize a political people

2. Purposes and uses of formal constitutions in democracies.

Constitutions may be used to

a. create the powers of a political system and the functions of a government

b. prescribe the power and authority of the government as granted by the people

c. establish the standard of justice against which political authority and government
action are judged

d. set forth a framework for the structure of government, empower the government,
specify the offices of government and how they are to be filled, and establish the
relationship between the people and their government

e. limit government’s power in order to protect individual rights and promote the
common good

f. creates space for the autonomous functioning of civil society and personal privacy

g. establishes the preconditions and the basic rules for an economic system

h. allocate power among components of the polity, such as constituent provinces or

states

i. establish the rule of law and set the rules for the resolution of disputes in a peaceful
manner

23
j. embody the core values and principles of a political system, as well as the aspirations
of a society and directions for the future

k. serve as vehicles for change and for resolving social issues

l. provide a reference point or standard by which citizens can evaluate the actions of
their government

Declaration of Delhi on the Rule of Law in a Free Society

New Delhi, India,
(5-10 January 1959)

24
The theme of the New Delhi Congress was "The Rule of Law in a Free Society".
The Congress further developed the principles and procedures underlying the
Rule of Law as well as defining and clarifying the concept itself.

"The Delhi Congress gave rise to three important elements in the concept of the Rule of
Law. First, that the individual is possessed of certain rights and freedoms and that he is
entitled to protection of these rights and freedoms by the State; second, that there is an
absolute need for an independent judiciary and bar as well as for effective machinery for
the protection of fundamental rights and freedoms; and third, that the establishment of
social, economic and cultural conditions would permit men to live in dignity and to fulfil
their legitimate aspirations."
(The International Commission of Jurists; The Pioneering Years, Lucian G. Weeramantry, p. 53)

In total over 185 Judges, Lawyers and Law Professors from 52 countries
participated in the Congress. In preparation of the Congress, the Commission
held a preparatory meeting in The Hague, Netherlands on the 7 and 8 July 1958,
where the drafting of the Congress Working Paper on the Rule of Law was
mandated to former ICJ Secretary-General, Mr Norman Marsh. The 134 page
paper was based on information gathered in an international survey of lawyers
and legal institutions conducted by the ICJ Secretariat in the course of 1957. The
information gathered was divided into the following sections:

1. The Legislative and the Rule of Law

2. The Executive and the Rule of Law
3. Criminal Process and the Rule of Law
4. The Judiciary and Legal Profession under the Rule of Law.

The committees set up during the congress were each dedicated to one of the
four themes with the Working Paper providing the basis of the discussions. The
reports and conclusions of the committees were presented in two plenary
sessions and the texts were subsequently referred to a Steering Committee,
which issued the conclusions at the closing plenary session.

A Summary of the Conclusions of the Committees:

1. The Legislative and the Rule of Law:
In its conclusions, the committee on the legislative stated that under the Rule of
Law, the legislature carried out the function of creating and maintaining

25
conditions that would uphold the dignity of man. This would include
recognition of civil and political rights as well as the establishment of the social,
economic, educational and cultural conditions, which the committee deemed
essential to the full development of the individual's personality.

The committee also stated that minimum standards and principles regulating
the individual within society were essential for the Rule of Law. Such standards
would, however, imply certain limitations on legislative power. The limitations
on the legislative should be enshrined in a constitution and safeguarded by an
independent judicial tribunal.

According to the conclusions of the committee, the legislative had the

responsibility to: abstain from enacting retroactive penal legislation; not
discriminate in its laws between one citizen and another; not interfere with
freedom of religious belief; not deny members of society the right to responsible
government; not place restrictions on the freedom of speech, assembly or
association; not impair the exercise of fundamental rights and freedoms of the
individual; and provide the procedural mechanisms to protect the above-
mentioned freedoms ("procedure of due process").

2. The Executive and the Rule of Law

The committee on the executive concluded that the granting of power by the
legislative to the executive should be undertaken within the narrowest possible
limits and that legislature should define the extent and purpose of such
delegated powers, as well as the procedures by which such delegated power
was to be brought into effect. An independent judicial body should be given the
power to review the legislation passed by the executive (Judicial review).

When the executive directly and adversely affected a person or the property
rights of an individual, he or she should have the right to present his or her case
before a court as well as the right to an adequate remedy. In the absence of a
judicial review mechanism, antecedent procedures of hearing, enquiry and
consultation should be established, through which parties whose rights or
interests would be affected can have an adequate opportunity to make
representation.
The committee also concluded that the Rule of Law would be strengthened if the
executive were to be required to formulate its reasons when reaching its
decisions, and at the request of a concerned party, to communicate them.

26
3. Criminal Process and the Rule of Law
The committee considered the practical application of the Rule of Law in the
field of criminal process. The committee clarified rules which it regarded as the
minimum necessary to ensure the observance of the Rule of Law.

The committee made its conclusions regarding the prohibition of retrospective

enactment of penal legislation (certainty of the law) as well as on the principle of
presumption of innocence, which in the committee's view required that the
burden of proof should only be shifted once facts creating a contrary
presumption had been established.

Concerning the arrest of an individual, the power to arrest should be regulated

and the arrested person should be told at once the grounds of his or her arrest.
He or she should be entitled to a legal adviser and be brought before a judicial
authority within a short period of time.

In relation to pre-trial detention, the committee listed the rights of the arrested,
including the right to apply for bail.

Conclusions were also made in respect to the preparation and conduct of the
defense and the minimum duties of the prosecution. These included the
requirement that the prosecution not withhold favorable evidence from the
accused.

Regarding the examination of the accused, the committee laid down minimum
standards, such as respect for the right not to incriminate oneself and provisions
that guarantee the physical and psychological integrity of the accused.
The committee also made conclusions regarding trial in public for criminal cases
and the right to appeals and remedies.

Lastly, the committee concluded that the Rule of Law did not require any
particular theory regarding punishment, but must necessarily condemn cruel,
inhuman or excessive preventive measures or punishments and thus the
committee supported the adoption of reformative measures wherever possible.

4. The Judiciary and the Legal Professions under the Rule of Law
The committee on the Judiciary and the Legal Profession emphasized the
importance of an independent judiciary in upholding the Rule of Law. The

27
independence of the judiciary would be safeguarded by certain measures,
including co-operation between at least two branches of the state (i.e. judiciary
and legislative) on the appointment of judges. Furthermore, the committee
perceived the "irremovability" of the judiciary as an important safeguard of the
Rule of Law.

Regarding the legal profession, the committee deemed an organized legal

profession free to manage its own affairs to be essential. While a lawyer should
be free to accept any case which is offered to him, he should also in some cases
be obliged to defend persons with whom he does not sympathize.
The committee also addressed the issue of equal access to the justice. It was
perceived to be the primary obligation of the legal profession to use its best
efforts to ensure that adequate legal advice and representation were provided.
The state and community would however have the obligation to assist the legal
profession in carrying out this responsibility.

The Declaration of Delhi

The Declaration was general in nature and embodied the desirable features of
countries governed by the Rule of Law. Most notably, the declaration asserted
the universality of the Rule of Law. Responsibility for the implementation of the
Declaration lay both with the participants and the International Commission of
Jurists: The Declaration "calls on the Jurists in all countries to give effect in their
own communities to the principles expressed in the Conclusions of the
Congress" and the International Commission of Jurists itself was requested to
"employ its full resources to give practical effect throughout the world to the
conclusions of the Congress".

Declaration of Delhi
This International Congress of Jurists, consisting of 185 judges, practising lawyers and
teachers of law from 53 countries, assembled in New Delhi in January 1959 under the
aegis of the International Commission of Jurists, having discussed freely and frankly the
Rule of Law and the administration of justice throughout the world, and having reached
conclusions regarding the legislative, the executive, the criminal process, the judiciary
and the legal profession, (which conclusions are annexed to this Declaration),
Now solemnly
Reaffirms the principles expressed in the Act of Athens adopted by the International
Congress of Jurists in 1955, particularly that independent judiciary and legal profession
are essential to the maintenance of the Rule of Law and to the proper administration of
justice;

28
Recognises that the Rule of Law is a dynamic concept for the expansion and fulfilment of
which jurists are primarily responsible and which should be employed not only to
safeguard and advance the civil and political rights of the individual in a free society, but
also to establish social, economic, educational and cultural conditions under which his
legitimate aspirations and dignity may be realised;
Calls on the jurists in all countries to give effect in their own communities to the
principles expressed in the conclusions of the Congress; and finally
Requests the International Commission of Jurists
1. To employ its full resources to give practical effect throughout the world to the
principles expressed in the conclusions of the Congress.
2. To give special attention and assistance to countries now in the process of
establishing, reorganising or consolidating their political and legal institutions.
3. To encourage law students and the junior members of the legal profession to support
the Rule of Law.
4. To communicate this Declaration and the annexed conclusions to governments, to
interested international organisations, and to associations of lawyers throughout the
world.
This Declaration shall be known as the Declaration of Delhi.
Done at Delhi this 10th day of January 1959

Basic Principles on the Independence of the Judiciary

Adopted by the Seventh United Nations Congress on the Prevention of Crime

and the Treatment of Offenders held at Milan from 26 August to 6 September
1985 and endorsed by General Assembly resolutions 40/32 of 29 November
1985 and 40/146 of 13 December 1985

29
Whereas in the Charter of the United Nations the peoples of the world affirm,
inter alia , their determination to establish conditions under which justice can
be maintained to achieve international co-operation in promoting and
encouraging respect for human rights and fundamental freedoms without any
discrimination,

Whereas the Universal Declaration of Human Rights enshrines in particular

the principles of equality before the law, of the presumption of innocence and
of the right to a fair and public hearing by a competent, independent and
impartial tribunal established by law,

Whereas the International Covenants on Economic, Social and Cultural Rights

and on Civil and Political Rights both guarantee the exercise of those rights,
and in addition, the Covenant on Civil and Political Rights further guarantees
the right to be tried without undue delay,

Whereas frequently there still exists a gap between the vision underlying
those principles and the actual situation,

Whereas the organization and administration of justice in every country

should be inspired by those principles, and efforts should be undertaken to
translate them fully into reality,

Whereas rules concerning the exercise of judicial office should aim at

enabling judges to act in accordance with those principles,

Whereas judges are charged with the ultimate decision over life, freedoms,
rights, duties and property of citizens,

Whereas the Sixth United Nations Congress on the Prevention of Crime and
the Treatment of Offenders, by its resolution 16, called upon the Committee
on Crime Prevention and Control to include among its priorities the
elaboration of guidelines relating to the independence of judges and the
selection, professional training and status of judges and prosecutors,

Whereas it is, therefore, appropriate that consideration be first given to the

role of judges in relation to the system of justice and to the importance of
their selection, training and conduct,

The following basic principles, formulated to assist Member States in their

task of securing and promoting the independence of the judiciary should be
taken into account and respected by Governments within the framework of
their national legislation and practice and be brought to the attention of
judges, lawyers, members of the executive and the legislature and the public
in general. The principles have been formulated principally with professional
judges in mind, but they apply equally, as appropriate, to lay judges, where

30
they exist.

Independence of the judiciary

1. The independence of the judiciary shall be guaranteed by the State and

enshrined in the Constitution or the law of the country. It is the duty of all
governmental and other institutions to respect and observe the independence
of the judiciary.

2. The judiciary shall decide matters before them impartially, on the basis of
facts and in accordance with the law, without any restrictions, improper
influences, inducements, pressures, threats or interferences, direct or
indirect, from any quarter or for any reason.

3. The judiciary shall have jurisdiction over all issues of a judicial nature and
shall have exclusive authority to decide whether an issue submitted for its
decision is within its competence as defined by law.

4. There shall not be any inappropriate or unwarranted interference with the

judicial process, nor shall judicial decisions by the courts be subject to
revision. This principle is without prejudice to judicial review or to mitigation
or commutation by competent authorities of sentences imposed by the
judiciary, in accordance with the law.

5. Everyone shall have the right to be tried by ordinary courts or tribunals

using established legal procedures. Tribunals that do not use the duly
established procedures of the legal process shall not be created to displace
the jurisdiction belonging to the ordinary courts or judicial tribunals.

6. The principle of the independence of the judiciary entitles and requires the
judiciary to ensure that judicial proceedings are conducted fairly and that the
rights of the parties are respected.

7. It is the duty of each Member State to provide adequate resources to

enable the judiciary to properly perform its functions.

Freedom of expression and association

8. In accordance with the Universal Declaration of Human Rights, members

of the judiciary are like other citizens entitled to freedom of expression,
belief, association and assembly; provided, however, that in exercising such
rights, judges shall always conduct themselves in such a manner as to
preserve the dignity of their office and the impartiality and independence of
the judiciary.

9. Judges shall be free to form and join associations of judges or other

organizations to represent their interests, to promote their professional

31
training and to protect their judicial independence.

Qualifications, selection and training

10. Persons selected for judicial office shall be individuals of integrity and
ability with appropriate training or qualifications in law. Any method of
judicial selection shall safeguard against judicial appointments for improper
motives. In the selection of judges, there shall be no discrimination against a
person on the grounds of race, colour, sex, religion, political or other opinion,
national or social origin, property, birth or status, except that a requirement,
that a candidate for judicial office must be a national of the country
concerned, shall not be considered discriminatory.

Conditions of service and tenure

11. The term of office of judges, their independence, security, adequate

remuneration, conditions of service, pensions and the age of retirement shall
be adequately secured by law.

12. Judges, whether appointed or elected, shall have guaranteed tenure until
a mandatory retirement age or the expiry of their term of office, where such
exists.

13. Promotion of judges, wherever such a system exists, should be based on

objective factors, in particular ability, integrity and experience.

14. The assignment of cases to judges within the court to which they belong
is an internal matter of judicial administration.

Professional secrecy and immunity

15. The judiciary shall be bound by professional secrecy with regard to their
deliberations and to confidential information acquired in the course of their
duties other than in public proceedings, and shall not be compelled to testify
on such matters.

16. Without prejudice to any disciplinary procedure or to any right of appeal

or to compensation from the State, in accordance with national law, judges
should enjoy personal immunity from civil suits for monetary damages for
improper acts or omissions in the exercise of their judicial functions.

Discipline, suspension and removal

17. A charge or complaint made against a judge in his/her judicial and

professional capacity shall be processed expeditiously and fairly under an
appropriate procedure. The judge shall have the right to a fair hearing. The
examination of the matter at its initial stage shall be kept confidential, unless

32
otherwise requested by the judge.

18. Judges shall be subject to suspension or removal only for reasons of

incapacity or behaviour that renders them unfit to discharge their duties.

19. All disciplinary, suspension or removal proceedings shall be determined in

accordance with established standards of judicial conduct.

20. Decisions in disciplinary, suspension or removal proceedings should be

subject to an independent review. This principle may not apply to the
decisions of the highest court and those of the legislature in impeachment or
similar proceedings.
© OHCHR 1996-2007

JUDICIAL INDEPENDENCE AND FINANCIAL DISCLOSURE

(This is a Consolidated Response prepared by Prepared by Scott Worden and Leigh Toomey for
the International Network to promote the Rule of Law with contributions from Tyler Rauert,
Scott Worden, Laura Mercean, Meghan Stewart, David Ennis, Nathalie Ndongo-Seh, Rick
Messick, Zafar Gondal, Natalia Djurickovic, Claudia Baroni)

Background:

33
Judicial integrity is a cornerstone of the rule of law. Yet judges in transitional countries
often face immense political and financial pressure to issue corrupt rulings. Judicial
corruption is especially damaging to people’s faith in justice – and governance in
general - but uncovering and eradicating corruption is particularly difficult in countries
that have neither strong investigative capacity nor transparent financial systems.
Requiring routine financial disclosures from judges and other judicial officials can be a
powerful tool in preventing corruption, aiding the discovery and prosecution of corrupt
activity, and increasing judicial transparency by illuminating potential conflicts of
interest.

Query:
What are the international standards or best practices for mandating financial disclosure
by judges? What mechanisms should be put in place to implement these requirements?
that are the key variables that must be considered to implement a financial disclosure
regime in a country emerging from conflict, and are there any “lessons learned” that can
be applied from recent experience with enacting judicial financial disclosure legislation?

Response Summary:
Financial disclosure by judges is recognized in developed countries as a useful tool for
policing the judiciary to protect against corruption in the form of illicit enrichment and
conflicts of interest. The form and effectiveness of judicial financial disclosures in war
torn societies emerging from conflict, however, vary significantly based on the type and
level of sophistication of the legal system where it is being applied. In the context of an
international peace operation, financial disclosure regimes often have limited potential
to act as a deterrent against corruption because those countries lack effective systems to
implement and monitor the disclosures. In countries without electronic banking records,
for example, it is extremely time consuming to verify financial records. Oversight bodies
may themselves be corrupted, with the result that sensitive financial information may
not only be lost but also criminally exploited. There are no easy answers to these
significant challenges and there are few examples of successful implementation of such
regimes in countries emerging from conflict.

A basic financial disclosure regime may still be useful as an additional tool for
prosecuting judges who are otherwise accused of corruption. At their most basic level,
financial disclosure regimes require judges to declare their assets on record which, if
later found to be incomplete or false, may assist in proving criminal intent in any
subsequent proceeding taken against a judge. Financial disclosure regimes may also
begin to impart a greater sense of accountability for financial actions in countries that
previously have had no effective rule of law.

Asset disclosures are an increasingly prevalent anti-corruption tool. This response

addresses several common features that should be considered when contemplating
implementation of a judicial financial disclosure regime. It concludes with some

34
cautionary observations regarding implementation in societies searching for a
sustainable peace.

1. Legal authority.
a. Multilateral Instruments: Financial disclosure by judges is emerging as an international
standard practice, reinforced by general principles of judicial integrity, such as those
espoused in the UN Basic Principles on the Independence of the Judiciary33, and by
specific international and regional anti-corruption treaties. The UN Convention Against
Corruption includes a wide range of corruption prevention issues – including measures
to prevent opportunities for corruption in the judiciary (Art. 11) – and recommends that
signatory states adopt financial disclosure regimes for public officials and criminalize
illicit enrichment, which regular financial disclosures may help to reveal. More broadly,
the UN Code of Conduct for Public Officials calls for public officials to comply with
requirements to declare or to disclose personal assets and liabilities as well as, if
possible, those of their spouses or dependants.

Regionally, a number of relevant conventions also include financial disclosure regimes

for public officials, including the Council of Europe Criminal Law Convention on
Corruption (1999), the OECD Anti-Corruption Convention (1997) and the Inter-
American Convention against Corruption (1996).

b. National Regulations: At the national level, financial disclosure obligations for judges
are found in three sources: constitutions, legislation (or codes of conduct) and, less
frequently, judicial decisions or court rules. Generally speaking, when crafting a
financial disclosure regulation, particular attention must be paid to any constitutional or
other legal requirements about the separation of powers in that country to ensure that
laws regulating judges are not an infringement of their rights as judicial officials
independent from the executive branch. Further information on asset disclosure
legislation and disclosure forms from various jurisdictions is found in the Resources
section below.

33
Adopted by the Seventh UN Congress on the Prevention of Crime and the Treatment of Offenders in
1985. These principles do not specifically address the issue of financial disclosure, but provide the basis for
judicial ethics and disclosure legislation. The principles state that persons selected for judicial office shall be
individuals of integrity and shall conduct themselves so as to preserve the dignity of their office and the
impartiality and independence of the judiciary (Principles 8 and 10). Appropriately drafted financial
disclosure laws support these ethical requirements by reducing the possibility and the perception of conflict
of interest and corruption.

35
c. Best Practices: In the absence of more specific universally recognized standards for
financial disclosure by judges34, IFES has produced a list of ten best practices for income
and asset disclosure by judges.

2. Scope of Disclosure
a. Who must disclose?: Do the requirements apply to all judges, or only to judges at some
evels, or to all judicial employees and officials such as prosecutors and clerks? Ideally,
financial disclosure will be required of all judicial officials whose positions give them
sufficient potential to influence the outcome of a case as a result of a bribe or other
improper influence. In many legal systems, this would include prosecutors and
clerks/registrars, and they should also be included in disclosure requirements. In doing
so, however, special attention should be paid to which branch or division of government
has regulatory authority over each type of employee. Thus, judicial disclosure may be
required by a law on the functioning of the judiciary, whereas clerks may be covered by
a law on the civil service. Special attention should also be paid to the budgetary
implications of requiring more employees to file disclosures. In cases where countries
are enacting a comprehensive anti-corruption act and financial disclosure regime for a
wide range of public officials, each relevant category of judicial officials should be
explicitly identified.

b. What must be disclosed?: The contents of financial disclosure regulations vary, but
normally include elements similar to that required by income tax systems, including
basic income from all sources, assets such as investments (stocks, bonds etc), bank
accounts, pensions and intangibles, real property and major items of personal property.
Requiring disclosure of fiduciary interests (board memberships, for example) in an asset

34
In 2001, an attempt to produce a more specific model code on the financial disclosure requirements for
judges was made by a UN convened group of experts - the Judicial Group on Strengthening Judicial
Integrity. The group produced a draft Code of Judicial Conduct in 2001, which contained several guidelines
including:
Rule 1.15 prohibition on serving as a fiduciary, except for the estate of a family member;
Rule 1.16 prohibition on financial and business dealings that would interfere with judicial independence or
the appearance thereof, except for personal or family investments;
Rule 1.20 prohibition of judicial bribery, whether the beneficiary of the gift or advantage is the judge or a
family member;
Rule 1.21 authorization of gifts and benefits, subject to public disclosure requirements;
Rule 1.22 authorization of compensation and expenses for extra-judicial activities;
Rule 1.22a reasonable amount and proportionality to what a non-judge would receive for the same
activities;
Rule 1.22b limitations on reimbursement;
Rule 1.23 requirement of financial disclosure and payment of taxes required by law.

The Code was developed primarily by judges from a common law background. When it was revised in 2002
(see the Bangalore Principles of Judicial Conduct) by judges from other legal traditions, these guidelines
were not included.

36
disclosure is also important to guard against real or potential conflicts of interest.
Disclosure should cover both domestic and international holdings and transactions, as
well as the dates and locations of payment and other basic information to permit
verification of any element of the disclosure. Disclosure should also include any
significant financial liabilities.

c. Family Members: Many disclosure regimes also include the assets of spouses and minor
children to prevent judges from hiding income and assets under their relatives’ names
or from receiving bribes indirectly via family connections. This is particularly true in
societies where assets are held by and shared freely among relatives. However, a
definition that is too broad can raise privacy issues and overburden the disclosure
mechanism.

d. How often will disclosures be made?: The frequency of disclosures may vary depending
on the typical tenure of serving judges and the administrative resources at hand.
Generally speaking, disclosures should be made before employment begins, when
employment ends, and no greater than two years in between. Annual disclosures are
preferable in that they assist in detecting corruption earlier, particularly in the post-
conflict environment, though the costs of doing so may be burdensome and would have
to be taken into account. Disclosure should also be required if the judge is promoted to a
higher court.

3. Use of Disclosures
a. Public or Private: A critical piece of any financial disclosure regulation is the extent to
which information is available to the public. Generally speaking, the more public the
information, the better that corruption and conflicts of interest can be effectively
monitored (by the public and interest groups, as well as by any anti-corruption
agencies). But this will necessarily infringe on general privacy rights of the public
employees and their families. Reasonable national standards will balance this right to
privacy with the public interest in transparency. Thus, some states have adopted a two-
tier system, whereby judges must disclose detailed information to an authorized
monitoring body, but only relevant summary details (such as the names of business
interests without any amounts) are made publicly available. Likewise, access to
disclosed information may be technically “public”, but only at limited locations and
possibly only with valid reasons.

b. Misuse of Information: Protecting privacy of financial information is particularly

important in countries where wealthy individuals may be targeted for bribes or for
kidnapping. Any promise to keep certain disclosed information secret must be
evaluated according to the integrity of the monitoring agency. In some countries,
information given in unsecured financial disclosures may be used as a tool of
intimidation, either by the government or by criminal groups, to apply pressure to
particular judges (and their families) or to extort money from them. Financial disclosures

37
must be well protected to guard against such abuse and to accomplish the purpose
behind the disclosure - judicial integrity - rather than furthering other forms of
corruption.

c. Investigative Uses: Ideally, review and monitoring of disclosures will take place on a
regular basis rather than only when there is an allegation of wrongdoing. This will help
to prevent the appearance or occurrence of conflicts of interest or fraud. Disclosure
legislation should specify the extent to which the information is available for use as
evidence in any subsequent criminal or other judicial process.

4. Administration and Monitoring of Disclosures

Different bodies can be tasked with monitoring financial disclosure, including
anticorruption commissions, public oversight bodies, auditors general, etc. The key is
that the body should be independent from the judiciary and government. Once policy
decisions are made as to how much financial disclosure information is to be publicly
available, procedures should be put in place for the public to access it from this body
(physically, online, or by mail). The body should have investigative capacity to verify
disclosed information. It should also have the power to impose appropriate sanctions for
judges that do not comply with financial disclosure requirements or, depending on the
requirements of the legal system in question, to recommend appropriate sanctions.
Successful enforcement requires an entity with a clear mandate, capacity and resources
to establish and maintain a system that records and monitors the timeliness and
completeness of declarations.

5. Penalties for Non-Compliance

No asset disclosure regime will work if there are not serious and credible penalties for
failure to comply. Non-compliance with disclosure requirements ranges from failure to
file a declaration, filing an incomplete or false declaration, or failing to submit a timely
declaration without good cause. Possible sanctions include warnings, criminal penalties
and removal of judges from office. Penalties must be severe enough to deter. The same
penalties that would apply for the misconduct that the disclosure is intended to
discover, are needed to address non-compliance. The sanctions regime should also
include penalties for those who misuse disclosed information.

6. Practical Considerations in Post-Conflict Countries

a. Capacity: The key variables to consider in implementing a financial disclosure regime
in a country emerging from conflict include the reliability of the local financial system,
the level of development of key institutions, and political will to fight corruption. The
level of development of key institutions, such as civil society, the media, and institutions
of public administration, will determine the level of support for financial disclosure and
other anti-corruption initiatives. In post-conflict societies, these institutions have often
been weakened or are non-existent. Thus, a vital ingredient for generating support for
reform, and pressing for government accountability, may be missing. An effective

38
program to tackle the problem of judicial corruption will focus not only on building
capacity in the judicial institutions and relevant government bodies, but also on
capacity-building in these other elements of society.

b. Verification: Countries emerging from conflict often lack sophisticated and reliable
financial systems, which makes it extremely difficult to verify asset disclosures.
Financial disclosure requirements need to take into account that most transactions in
war-torn economies are cash-based. There may only be a basic non-computerized
banking system, and auditing standards, property registers, and insurance systems to
assist in the verification process may be lacking. This can be addressed to a limited
extent by requiring full disclosure of assets which are easier to verify, such as real and
tangible personal property.

c. Adequate Judicial Pay: It is difficult to expect full compliance with financial disclosure
laws if judges and judicial officials do not receive a sufficient wage to at least maintain a
respectable standard of living and feed their families. In many countries – Afghanistan,
Cambodia, and Liberia, to name a few – judicial officials, magistrates and judges still
receive extremely low wages, and wages are often paid late or not at all (particularly in
rural areas). It is therefore common for judges and others working in the justice system
to resort to taking outside income, including charging illegal fees for undertaking court
work or hearing cases which would normally form part of their employment. Some are
seen as being open to bribes.

7. Complementary mechanisms
The features outlined above are the minimum requirements that should be considered in
implementing a financial disclosure regime. However, over the long term, financial
disclosure laws can be made more effective if they are seen as part of a larger
institutional reform process, which includes appropriate budgetary allocation and
provision of resources to the judiciary. Training and the transparent appointment and
promotion of judges also assist in promoting a professional and accountable judiciary. A
comprehensive package of policies needs to be developed and implemented, including
public information campaigns and whistleblower protection. Laws on privacy, national
security and access to information should also be promulgated to protect the rights of
judges and those involved in the disclosure process.

INPROL would welcome further comments from members on this query, particularly
examples of financial disclosure regimes, which have proven successful in the
postconflict context, and any details about the cost of different levels of disclosure.
________________
Compilation of Resources:
This Consolidated Response draws from many of the following resources. All listed documents
with a hyperlink are uploaded to the INPROL Digital Library unless otherwise noted.

39
INTERNATIONAL AND REGIONAL STANDARDS AND BEST PRACTICES
UN Basic Principles on the Independence of the Judiciary (1985)
UN Convention Against Corruption (2003)
The Bangalore Principles of Judicial Conduct (2002)
UN Code of Conduct for Public Officials (1996)
Council of Europe Criminal Law Convention on Corruption (1999)
OECD Anti-Corruption Convention (1997)
Inter-American Convention against Corruption (1996)

Code of Conduct for Law Enforcement Officials

Adopted by General Assembly resolution 34/169 of 17 December 1979
Article 1
Law enforcement officials shall at all times fulfil the duty imposed upon them by law, by
serving the

40
community and by protecting all persons against illegal acts, consistent with the high degree
of
responsibility required by their profession.
Commentary :
( a ) The term "law enforcement officials", includes all officers of the law, whether appointed
or
elected, who exercise police powers, especially the powers of arrest or detention.
( b ) In countries where police powers are exercised by military authorities, whether uniformed
or not,
or by State security forces, the definition of law enforcement officials shall be regarded as
including
officers of such services.
( c ) Service to the community is intended to include particularly the rendition of services of
assistance
to those members of the community who by reason of personal, economic, social or other
emergencies
are in need of immediate aid.
( d ) This provision is intended to cover not only all violent, predatory and harmful acts, but
extends to
the full range of prohibitions under penal statutes. It extends to conduct by persons not
capable of
incurring criminal liability.
Article 2
In the performance of their duty, law enforcement officials shall respect and protect human
dignity and
maintain and uphold the human rights of all persons.
Commentary :
( a ) The human rights in question are identified and protected by national and international
law.
Among the relevant international instruments are the Universal Declaration of Human Rights,
the
International Covenant on Civil and Political Rights, the Declaration on the Protection of All
Persons
from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment,
the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, the
International Convention on the Elimination of All Forms of Racial Discrimination, the
International
Convention on the Suppression and Punishment of the Crime of Apartheid , the Convention on
the
Prevention and Punishment of the Crime of Genocide, the Standard Minimum Rules for the
Treatment
of Prisoners and the Vienna Convention on Consular Relations.
( b ) National commentaries to this provision should indicate regional or national provisions
identifying
and protecting these rights.
Article 3
Law enforcement officials may use force only when strictly necessary and to the extent
required for the
performance of their duty.
Commentary :
( a ) This provision emphasizes that the use of force by law enforcement officials should be
exceptional; while it implies that law enforcement officials may be authorized to use force as is
reasonably necessary under the circumstances for the prevention of crime or in effecting or
assisting in
the lawful arrest of offenders or suspected offenders, no force going beyond that may be used.
2
( b ) National law ordinarily restricts the use of force by law enforcement officials in
accordance with a

41
principle of proportionality. It is to be understood that such national principles of
proportionality are to
be respected in the interpretation of this provision. In no case should this provision be
interpreted to
authorize the use of force which is disproportionate to the legitimate objective to be achieved.
( c ) The use of firearms is considered an extreme measure. Every effort should be made to
exclude
the use of firearms, especially against children. In general, firearms should not be used except
when a
suspected offender offers armed resistance or otherwise jeopardizes the lives of others and
less
extreme measures are not sufficient to restrain or apprehend the suspected offender. In every
instance in which a firearm is discharged, a report should be made promptly to the competent
authorities.
Article 4
Matters of a confidential nature in the possession of law enforcement officials shall be kept
confidential, unless the performance of duty or the needs of justice strictly require otherwise.
Commentary :
By the nature of their duties, law enforcement officials obtain information which may relate to
private
lives or be potentially harmful to the interests, and especially the reputation, of others. Great
care
should be exercised in safeguarding and using such information, which should be disclosed
only in the
performance of duty or to serve the needs of justice. Any disclosure of such information for
other
purposes is wholly improper.
Article 5
No law enforcement official may inflict, instigate or tolerate any act of torture or other cruel,
inhuman
or degrading treatment or punishment, nor may any law enforcement official invoke superior
orders or
exceptional circumstances such as a state of war or a threat of war, a threat to national
security,
internal political instability or any other public emergency as a justification of torture or other
cruel,
inhuman or degrading treatment or punishment.
Commentary :
( a ) This prohibition derives from the Declaration on the Protection of All Persons from Being
Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
adopted by
the General Assembly, according to which:
"[Such an act is] an offence to human dignity and shall be condemned as a denial of the
purposes of
the Charter of the United Nations and as a violation of the human rights and fundamental
freedoms
proclaimed in the Universal Declaration of Human Rights [and other international human rights
instruments]."
( b ) The Declaration defines torture as follows:
". . . torture means any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted by or at the instigation of a public official on a person for such purposes
as
obtaining from him or a third person information or confession, punishing him for an act he
has
committed or is suspected of having committed, or intimidating him or other persons. It does
not
include pain or suffering arising only from, inherent in or incidental to, lawful sanctions to the
extent
consistent with the Standard Minimum Rules for the Treatment of Prisoners."

42
( c ) The term "cruel, inhuman or degrading treatment or punishment" has not been defined
by the
General Assembly but should be interpreted so as to extend the widest possible protection
against
abuses, whether physical or mental.
Article 6
3
Law enforcement officials shall ensure the full protection of the health of persons in their
custody and,
in particular, shall take immediate action to secure medical attention whenever required.
Commentary :
( a ) "Medical attention", which refers to services rendered by any medical personnel, including
certified medical practitioners and paramedics, shall be secured when needed or requested.
( b ) While the medical personnel are likely to be attached to the law enforcement operation,
law
enforcement officials must take into account the judgement of such personnel when they
recommend
providing the person in custody with appropriate treatment through, or in consultation with,
medical
personnel from outside the law enforcement operation.
( c ) It is understood that law enforcement officials shall also secure medical attention for
victims of
violations of law or of accidents occurring in the course of violations of law.
Article 7
Law enforcement officials shall not commit any act of corruption. They shall also rigorously
oppose and
combat all such acts.
Commentary :
( a ) Any act of corruption, in the same way as any other abuse of authority, is incompatible
with the
profession of law enforcement officials. The law must be enforced fully with respect to any law
enforcement official who commits an act of corruption, as Governments cannot expect to
enforce the
law among their citizens if they cannot, or will not, enforce the law against their own agents
and within
their agencies.
( b ) While the definition of corruption must be subject to national law, it should be understood
to
encompass the commission or omission of an act in the performance of or in connection with
one's
duties, in response to gifts, promises or incentives demanded or accepted, or the wrongful
receipt of
these once the act has been committed or omitted.
( c ) The expression "act of corruption" referred to above should be understood to encompass
attempted corruption.
Article 8
Law enforcement officials shall respect the law and the present Code. They shall also, to the
best of
their capability, prevent and rigorously oppose any violations of them.
Law enforcement officials who have reason to believe that a violation of the present Code has
occurred
or is about to occur shall report the matter to their superior authorities and, where necessary,
to other
appropriate authorities or organs vested with reviewing or remedial power.
Commentary :
( a ) This Code shall be observed whenever it has been incorporated into national legislation or
practice. If legislation or practice contains stricter provisions than those of the present Code,
those
stricter provisions shall be observed.

43
( b ) The article seeks to preserve the balance between the need for internal discipline of the
agency
on which public safety is largely dependent, on the one hand, and the need for dealing with
violations
of basic human rights, on the other. Law enforcement officials shall report violations within the
chain of
command and take other lawful action outside the chain of command only when no other
remedies are
available or effective. It is understood that law enforcement officials shall not suffer
administrative or
4
other penalties because they have reported that a violation of this Code has occurred or is
about to
occur.
( c ) The term "appropriate authorities or organs vested with reviewing or remedial power"
refers to
any authority or organ existing under national law, whether internal to the law enforcement
agency or
independent thereof, with statutory, customary or other power to review grievances and
complaints
arising out of violations within the purview of this Code.
( d ) In some countries, the mass media may be regarded as performing complaint review
functions
similar to those described in subparagraph ( c ) above. Law enforcement officials may,
therefore, be
justified if, as a last resort and in accordance with the laws and customs of their own countries
and
with the provisions of article 4 of the present Code, they bring violations to the attention of
public
opinion through the mass media.
( e ) Law enforcement officials who comply with the provisions of this Code deserve the
respect, the
full support and the co-operation of the community and of the law enforcement agency in
which they
serve, as well as the law enforcement profession.

Guidelines on the Role of Prosecutors

Adopted by the Eighth United Nations Congress on the Prevention
of Crime and the Treatment of Offenders, Havana, Cuba,
27 August to 7 September 1990
Whereas in the Charter of the United Nations the peoples of the world affirm, inter alia , their
determination to establish conditions under which justice can be maintained, and proclaim as
one of

44
their purposes the achievement of international cooperation in promoting and encouraging
respect for
human rights and fundamental freedoms without distinction as to race, sex, language or
religion,
Whereas the Universal Declaration of Human Rights enshrines the principles of equality before
the law,
the presumption of innocence and the right to a fair and public hearing by an independent and
impartial
tribunal,
Whereas frequently there still exists a gap between the vision underlying those principles and
the actual
situation,
Whereas the organization and administration of justice in every country should be inspired by
those
principles, and efforts undertaken to translate them fully into reality,
Whereas prosecutors play a crucial role in the administration of justice, and rules concerning
the
performance of their important responsibilities should promote their respect for and
compliance with the
above-mentioned principles, thus contributing to fair and equitable criminal justice and the
effective
protection of citizens against crime,
Whereas it is essential to ensure that prosecutors possess the professional qualifications
required for the
accomplishment of their functions, through improved methods of recruitment and legal and
professional
training, and through the provision of all necessary means for the proper performance of their
role in
combating criminality, particularly in its new forms and dimensions,
Whereas the General Assembly, by its resolution 34/169 of 17 December 1979, adopted the
Code of
Conduct for Law Enforcement Officials, on the recommendation of the Fifth United Nations
Congress on
the Prevention of Crime and the Treatment of Offenders,
Whereas in resolution 16 of the Sixth United Nations Congress on the Prevention of Crime and
the
Treatment of Offenders, the Committee on Crime Prevention and Control was called upon to
include
among its priorities the elaboration of guidelines relating to the independence of judges and
the
selection, professional training and status of judges and prosecutors,
Whereas the Seventh United Nations Congress on the Prevention of Crime and the Treatment
of
Offenders adopted the Basic Principles on the Independence of the Judiciary, subsequently
endorsed by
the General Assembly in its resolutions 40/32 of 29 November 1985 and 40/146 of 13
December 1985,
Whereas the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power
recommends measures to be taken at the international and national levels to improve access
to justice
and fair treatment, restitution, compensation and assistance for victims of crime,
Whereas , in resolution 7 of the Seventh Congress the Committee was called upon to consider
the need
for guidelines relating, inter alia , to the selection, professional training and status of
prosecutors, their
expected tasks and conduct, means to enhance their contribution to the smooth functioning of
the
criminal justice system and their cooperation with the police, the scope of their discretionary
powers,

45
and their role in criminal proceedings, and to report thereon to future United Nations
congresses,
The Guidelines set forth below, which have been formulated to assist Member States in their
tasks of
securing and promoting the effectiveness, impartiality and fairness of prosecutors in criminal
proceedings, should be respected and taken into account by Governments within the
framework of their
national legislation and practice, and should be brought to the attention of prosecutors, as well
as other
2
persons, such as judges, lawyers, members of the executive and the legislature and the public
in
general. The present Guidelines have been formulated principally with public prosecutors in
mind, but
they apply equally, as appropriate, to prosecutors appointed on an ad hoc basis.
Qualifications, selection and training
1. Persons selected as prosecutors shall be individuals of integrity and ability, with appropriate
training
and qualifications.
2. States shall ensure that:
( a ) Selection criteria for prosecutors embody safeguards against appointments based on
partiality or
prejudice, excluding any discrimination against a person on the grounds of race, colour, sex,
language,
religion, political or other opinion, national, social or ethnic origin, property, birth, economic or
other
status, except that it shall not be considered discriminatory to require a candidate for
prosecutorial
office to be a national of the country concerned;
( b ) Prosecutors have appropriate education and training and should be made aware of the
ideals and
ethical duties of their office, of the constitutional and statutory protections for the rights of the
suspect
and the victim, and of human rights and fundamental freedoms recognized by national and
international
law.
Status and conditions of service
3. Prosecutors, as essential agents of the administration of justice, shall at all times maintain
the
honour and dignity of their profession.
4. States shall ensure that prosecutors are able to perform their professional functions without
intimidation, hindrance, harassment, improper interference or unjustified exposure to civil,
penal or
other liability.
5. Prosecutors and their families shall be physically protected by the authorities when their
personal
safety is threatened as a result of the discharge of prosecutorial functions.
6. Reasonable conditions of service of prosecutors, adequate remuneration and, where
applicable,
tenure, pension and age of retirement shall be set out by law or published rules or regulations.
7. Promotion of prosecutors, wherever such a system exists, shall be based on objective
factors, in
particular professional qualifications, ability, integrity and experience, and decided upon in
accordance
with fair and impartial procedures.
Freedom of expression and association
8. Prosecutors like other citizens are entitled to freedom of expression, belief, association and
assembly.

46
In particular, they shall have the right to take part in public discussion of matters concerning
the law,
the administration of justice and the promotion and protection of human rights and to join or
form local,
national or international organizations and attend their meetings, without suffering
professional
disadvantage by reason of their lawful action or their membership in a lawful organization. In
exercising
these rights, prosecutors shall always conduct themselves in accordance with the law and the
recognized standards and ethics of their profession.
9. Prosecutors shall be free to form and join professional associations or other organizations to
represent their interests, to promote their professional training and to protect their status.
Role in criminal proceedings
10. The office of prosecutors shall be strictly separated from judicial functions.
3
11. Prosecutors shall perform an active role in criminal proceedings, including institution of
prosecution
and, where authorized by law or consistent with local practice, in the investigation of crime,
supervision
over the legality of these investigations, supervision of the execution of court decisions and
the exercise
of other functions as representatives of the public interest.
12. Prosecutors shall, in accordance with the law, perform their duties fairly, consistently and
expeditiously, and respect and protect human dignity and uphold human rights, thus
contributing to
ensuring due process and the smooth functioning of the criminal justice system.
13. In the performance of their duties, prosecutors shall:
( a ) Carry out their functions impartially and avoid all political, social, religious, racial,
cultural, sexual
or any other kind of discrimination;
( b ) Protect the public interest, act with objectivity, take proper account of the position of the
suspect
and the victim, and pay attention to all relevant circumstances, irrespective of whether they
are to the
advantage or disadvantage of the suspect;
( c ) Keep matters in their possession confidential, unless the performance of duty or the
needs of
justice require otherwise;
( d ) Consider the views and concerns of victims when their personal interests are affected and
ensure
that victims are informed of their rights in accordance with the Declaration of Basic Principles
of Justice
for Victims of Crime and Abuse of Power.
14. Prosecutors shall not initiate or continue prosecution, or shall make every effort to stay
proceedings,
when an impartial investigation shows the charge to be unfounded.
15. Prosecutors shall give due attention to the prosecution of crimes committed by public
officials,
particularly corruption, abuse of power, grave violations of human rights and other crimes
recognized by
international law and, where authorized by law or consistent with local practice, the
investigation of
such offences.
16. When prosecutors come into possession of evidence against suspects that they know or
believe on
reasonable grounds was obtained through recourse to unlawful methods, which constitute a
grave
violation of the suspect's human rights, especially involving torture or cruel, inhuman or
degrading

47
treatment or punishment, or other abuses of human rights, they shall refuse to use such
evidence
against anyone other than those who used such methods, or inform the Court accordingly, and
shall
take all necessary steps to ensure that those responsible for using such methods are brought
to justice.
Discretionary functions
17. In countries where prosecutors are vested with discretionary functions, the law or
published rules or
regulations shall provide guidelines to enhance fairness and consistency of approach in taking
decisions
in the prosecution process, including institution or waiver of prosecution.
Alternatives to prosecution
18. In accordance with national law, prosecutors shall give due consideration to waiving
prosecution,
discontinuing proceedings conditionally or unconditionally, or diverting criminal cases from the
formal
justice system, with full respect for the rights of suspect(s) and the victim(s). For this
purpose, States
should fully explore the possibility of adopting diversion schemes not only to alleviate
excessive court
loads, but also to avoid the stigmatization of pre-trial detention, indictment and conviction, as
well as
the possible adverse effects of imprisonment.
19. In countries where prosecutors are vested with discretionary functions as to the decision
whether or
not to prosecute a juvenile, special consideration shall be given to the nature and gravity of
the offence,
protection of society and the personality and background of the juvenile. In making that
decision,
4
prosecutors shall particularly consider available alternatives to prosecution under the relevant
juvenile
justice laws and procedures. Prosecutors shall use their best efforts to take prosecutory action
against
juveniles only to the extent strictly necessary.
Relations with other government agencies or institutions
20. In order to ensure the fairness and effectiveness of prosecution, prosecutors shall strive to
cooperate with the police, the courts, the legal profession, public defenders and other
government
agencies or institutions.
Disciplinary proceedings
21. Disciplinary offences of prosecutors shall be based on law or lawful regulations. Complaints
against
prosecutors which allege that they acted in a manner clearly out of the range of professional
standards
shall be processed expeditiously and fairly under appropriate procedures. Prosecutors shall
have the
right to a fair hearing. The decision shall be subject to independent review.
22. Disciplinary proceedings against prosecutors shall guarantee an objective evaluation and
decision.
They shall be determined in accordance with the law, the code of professional conduct and
other
established standards and ethics and in the light of the present Guidelines.
Observance of the Guidelines
23. Prosecutors shall respect the present Guidelines. They shall also, to the best of their
capability,
prevent and actively oppose any violations thereof.

48
24. Prosecutors who have reason to believe that a violation of the present Guidelines has
occurred or is
about to occur shall report the matter to their superior authorities and, where necessary, to
other
appropriate authorities or organs vested with reviewing or remedial power.

Basic Principles on the Use of Force and Firearms by Law Enforcement Officials
Adopted by the Eighth United Nations Congress on the Prevention of Crime and the
Treatment of Offenders, Havana, Cuba, 27 August
to 7 September 1990
Whereas the work of law enforcement officials 1 is a social service of great importance and
there is,
therefore, a need to maintain and, whenever necessary, to improve the working conditions
and status
of these officials,

49
Whereas a threat to the life and safety of law enforcement officials must be seen as a threat to
the
stability of society as a whole,
Whereas law enforcement officials have a vital role in the protection of the right to life, liberty
and
security of the person, as guaranteed in the Universal Declaration of Human Rights and
reaffirmed in
the International Covenant on Civil and Political Rights,
Whereas the Standard Minimum Rules for the Treatment of Prisoners provide for the
circumstances in
which prison officials may use force in the course of their duties,
Whereas article 3 of the Code of Conduct for Law Enforcement Officials provides that law
enforcement
officials may use force only when strictly necessary and to the extent required for the
performance of
their duty,
Whereas the preparatory meeting for the Seventh United Nations Congress on the Prevention
of Crime
and the Treatment of Offenders, held at Varenna, Italy, agreed on elements to be considered
in the
course of further work on restraints on the use of force and firearms by law enforcement
officials,
Whereas the Seventh Congress, in its resolution 14, inter alia , emphasizes that the use of
force and
firearms by law enforcement officials should be commensurate with due respect for human
rights,
Whereas the Economic and Social Council, in its resolution 1986/10, section IX, of 21 May
1986,
invited Member States to pay particular attention in the implementation of the Code to the use
of force
and firearms by law enforcement officials, and the General Assembly, in its resolution 41/149
of 4
December 1986, inter alia , welcomed this recommendation made by the Council,
Whereas it is appropriate that, with due regard to their personal safety, consideration be given
to the
role of law enforcement officials in relation to the administration of justice, to the protection of
the
right to life, liberty and security of the person, to their responsibility to maintain public safety
and
social peace and to the importance of their qualifications, training and conduct,
The basic principles set forth below, which have been formulated to assist Member States in
their task
of ensuring and promoting the proper role of law enforcement officials, should be taken into
account
and respected by Governments within the framework of their national legislation and practice,
and be
brought to the attention of law enforcement officials as well as other persons, such as judges,
prosecutors, lawyers, members of the executive branch and the legislature, and the public.
General provisions
1. Governments and law enforcement agencies shall adopt and implement rules and
regulations on the
use of force and firearms against persons by law enforcement officials. In developing such
rules and
regulations, Governments and law enforcement agencies shall keep the ethical issues
associated with
the use of force and firearms constantly under review.
2. Governments and law enforcement agencies should develop a range of means as broad as
possible

50
and equip law enforcement officials with various types of weapons and ammunition that would
allow
2
for a differentiated use of force and firearms. These should include the development of non-
lethal
incapacitating weapons for use in appropriate situations, with a view to increasingly
restraining the
application of means capable of causing death or injury to persons. For the same purpose, it
should
also be possible for law enforcement officials to be equipped with self-defensive equipment
such as
shields, helmets, bullet-proof vests and bullet-proof means of transportation, in order to
decrease the
need to use weapons of any kind.
3. The development and deployment of non-lethal incapacitating weapons should be carefully
evaluated in order to minimize the risk of endangering uninvolved persons, and the use of
such
weapons should be carefully controlled.
4. Law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-
violent
means before resorting to the use of force and firearms. They may use force and firearms only
if other
means remain ineffective or without any promise of achieving the intended result.
5. Whenever the lawful use of force and firearms is unavoidable, law enforcement officials
shall:
( a ) Exercise restraint in such use and act in proportion to the seriousness of the offence and
the
legitimate objective to be achieved;
( b ) Minimize damage and injury, and respect and preserve human life;
( c ) Ensure that assistance and medical aid are rendered to any injured or affected persons at
the
earliest possible moment;
( d ) Ensure that relatives or close friends of the injured or affected person are notified at the
earliest
possible moment.
6. Where injury or death is caused by the use of force and firearms by law enforcement
officials, they
shall report the incident promptly to their superiors, in accordance with principle 22.
7. Governments shall ensure that arbitrary or abusive use of force and firearms by law
enforcement
officials is punished as a criminal offence under their law.
8. Exceptional circumstances such as internal political instability or any other public
emergency may
not be invoked to justify any departure from these basic principles.
Special provisions
9. Law enforcement officials shall not use firearms against persons except in self-defence or
defence of
others against the imminent threat of death or serious injury, to prevent the perpetration of a
particularly serious crime involving grave threat to life, to arrest a person presenting such a
danger
and resisting their authority, or to prevent his or her escape, and only when less extreme
means are
insufficient to achieve these objectives. In any event, intentional lethal use of firearms may
only be
made when strictly unavoidable in order to protect life.
10. In the circumstances provided for under principle 9, law enforcement officials shall identify
themselves as such and give a clear warning of their intent to use firearms, with sufficient
time for the

51
warning to be observed, unless to do so would unduly place the law enforcement officials at
risk or
would create a risk of death or serious harm to other persons, or would be clearly
inappropriate or
pointless in the circumstances of the incident.
11. Rules and regulations on the use of firearms by law enforcement officials should include
guidelines
that:
( a ) Specify the circumstances under which law enforcement officials are authorized to carry
firearms
and prescribe the types of firearms and ammunition permitted;
3
( b ) Ensure that firearms are used only in appropriate circumstances and in a manner likely to
decrease the risk of unnecessary harm;
( c ) Prohibit the use of those firearms and ammunition that cause unwarranted injury or
present an
unwarranted risk;
( d ) Regulate the control, storage and issuing of firearms, including procedures for ensuring
that law
enforcement officials are accountable for the firearms and ammunition issued to them;
( e ) Provide for warnings to be given, if appropriate, when firearms are to be discharged;
( f ) Provide for a system of reporting whenever law enforcement officials use firearms in the
performance of their duty.
Policing unlawful assemblies
12. As everyone is allowed to participate in lawful and peaceful assemblies, in accordance with
the
principles embodied in the Universal Declaration of Human Rights and the International
Covenant on
Civil and Political Rights, Governments and law enforcement agencies and officials shall
recognize that
force and firearms may be used only in accordance with principles 13 and 14.
13. In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials
shall
avoid the use of force or, where that is not practicable, shall restrict such force to the
minimum extent
necessary.
14. In the dispersal of violent assemblies, law enforcement officials may use firearms only
when less
dangerous means are not practicable and only to the minimum extent necessary. Law
enforcement
officials shall not use firearms in such cases, except under the conditions stipulated in principle
9.
Policing persons in custody or detention
15. Law enforcement officials, in their relations with persons in custody or detention, shall not
use
force, except when strictly necessary for the maintenance of security and order within the
institution,
or when personal safety is threatened.
16. Law enforcement officials, in their relations with persons in custody or detention, shall not
use
firearms, except in self-defence or in the defence of others against the immediate threat of
death or
serious injury, or when strictly necessary to prevent the escape of a person in custody or
detention
presenting the danger referred to in principle 9.
17. The preceding principles are without prejudice to the rights, duties and responsibilities of
prison
officials, as set out in the Standard Minimum Rules for the Treatment of Prisoners, particularly
rules

52
33, 34 and 54.
Qualifications, training and counselling
18. Governments and law enforcement agencies shall ensure that all law enforcement officials
are
selected by proper screening procedures, have appropriate moral, psychological and physical
qualities
for the effective exercise of their functions and receive continuous and thorough professional
training.
Their continued fitness to perform these functions should be subject to periodic review.
19. Governments and law enforcement agencies shall ensure that all law enforcement officials
are
provided with training and are tested in accordance with appropriate proficiency standards in
the use
of force. Those law enforcement officials who are required to carry firearms should be
authorized to do
so only upon completion of special training in their use.
20. In the training of law enforcement officials, Governments and law enforcement agencies
shall give
special attention to issues of police ethics and human rights, especially in the investigative
process, to
alternatives to the use of force and firearms, including the peaceful settlement of conflicts, the
4
understanding of crowd behaviour, and the methods of persuasion, negotiation and mediation,
as well
as to technical means, with a view to limiting the use of force and firearms. Law enforcement
agencies
should review their training programmes and operational procedures in the light of particular
incidents.
21. Governments and law enforcement agencies shall make stress counselling available to law
enforcement officials who are involved in situations where force and firearms are used.
Reporting and review procedures
22. Governments and law enforcement agencies shall establish effective reporting and review
procedures for all incidents referred to in principles 6 and 11 ( f ). For incidents reported
pursuant to
these principles, Governments and law enforcement agencies shall ensure that an effective
review
process is available and that independent administrative or prosecutorial authorities are in a
position to
exercise jurisdiction in appropriate circumstances. In cases of death and serious injury or
other grave
consequences, a detailed report shall be sent promptly to the competent authorities
responsible for
administrative review and judicial control.
23. Persons affected by the use of force and firearms or their legal representatives shall have
access to
an independent process, including a judicial process. In the event of the death of such
persons, this
provision shall apply to their dependants accordingly.
24. Governments and law enforcement agencies shall ensure that superior officers are held
responsible
if they know, or should have known, that law enforcement officials under their command are
resorting,
or have resorted, to the unlawful use of force and firearms, and they did not take all measures
in their
power to prevent, suppress or report such use.
25. Governments and law enforcement agencies shall ensure that no criminal or disciplinary
sanction is
imposed on law enforcement officials who, in compliance with the Code of Conduct for Law

53
Enforcement Officials and these basic principles, refuse to carry out an order to use force and
firearms,
or who report such use by other officials.
26. Obedience to superior orders shall be no defence if law enforcement officials knew that an
order to
use force and firearms resulting in the death or serious injury of a person was manifestly
unlawful and
had a reasonable opportunity to refuse to follow it. In any case, responsibility also rests on the
superiors who gave the unlawful orders.
1/ In accordance with the commentary to article 1 of the Code of Conduct for Law Enforcement Officials,
the term
"law enforcement officials" includes all officers of the law, whether appointed or elected, who exercise
police
powers, especially the powers of arrest or detention. In countries where police powers are exercised by
military
authorities, whether uniformed or not, or by State security forces, the definition of law enforcement
officials shall be
regarded as including officers of such services.

Basic Principles on the Role of Lawyers

Adopted by the Eighth United Nations Congress on the Prevention of Crime

and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September
1990

54
Whereas in the Charter of the United Nations the peoples of the world affirm,
inter alia , their determination to establish conditions under which justice can
be maintained, and proclaim as one of their purposes the achievement of
international cooperation in promoting and encouraging respect for human
rights and fundamental freedoms without distinction as to race, sex,
language or religion,

Whereas the Universal Declaration of Human Rights enshrines the principles

of equality before the law, the presumption of innocence, the right to a fair
and public hearing by an independent and impartial tribunal, and all the
guarantees necessary for the defence of everyone charged with a penal
offence,

Whereas the International Covenant on Civil and Political Rights proclaims, in

addition, the right to be tried without undue delay and the right to a fair and
public hearing by a competent, independent and impartial tribunal
established by law,

Whereas the International Covenant on Economic, Social and Cultural Rights

recalls the obligation of States under the Charter to promote universal
respect for, and observance of, human rights and freedoms,

Whereas the Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment provides that a detained person shall be
entitled to have the assistance of, and to communicate and consult with,
legal counsel,

Whereas the Standard Minimum Rules for the Treatment of Prisoners

recommend, in particular, that legal assistance and confidential
communication with counsel should be ensured to untried prisoners,

Whereas the Safeguards guaranteeing protection of those facing the death

penalty reaffirm the right of everyone suspected or charged with a crime for
which capital punishment may be imposed to adequate legal assistance at all
stages of the proceedings, in accordance with article 14 of the International
Covenant on Civil and Political Rights,

Whereas the Declaration of Basic Principles of Justice for Victims of Crime

and Abuse of Power recommends measures to be taken at the international
and national levels to improve access to justice and fair treatment,
restitution, compensation and assistance for victims of crime,

Whereas adequate protection of the human rights and fundamental freedoms

to which all persons are entitled, be they economic, social and cultural, or
civil and political, requires that all persons have effective access to legal
services provided by an independent legal profession,

Whereas professional associations of lawyers have a vital role to play in

55
upholding professional standards and ethics, protecting their members from
persecution and improper restrictions and infringements, providing legal
services to all in need of them, and cooperating with governmental and other
institutions in furthering the ends of justice and public interest,

The Basic Principles on the Role of Lawyers, set forth below, which have been
formulated to assist Member States in their task of promoting and ensuring
the proper role of lawyers, should be respected and taken into account by
Governments within the framework of their national legislation and practice
and should be brought to the attention of lawyers as well as other persons,
such as judges, prosecutors, members of the executive and the legislature,
and the public in general. These principles shall also apply, as appropriate, to
persons who exercise the functions of lawyers without having the formal
status of lawyers.

Access to lawyers and legal services

1. All persons are entitled to call upon the assistance of a lawyer of their
choice to protect and establish their rights and to defend them in all stages of
criminal proceedings.

2. Governments shall ensure that efficient procedures and responsive

mechanisms for effective and equal access to lawyers are provided for all
persons within their territory and subject to their jurisdiction, without
distinction of any kind, such as discrimination based on race, colour, ethnic
origin, sex, language, religion, political or other opinion, national or social
origin, property, birth, economic or other status.

3. Governments shall ensure the provision of sufficient funding and other

resources for legal services to the poor and, as necessary, to other
disadvantaged persons. Professional associations of lawyers shall cooperate
in the organization and provision of services, facilities and other resources.

4. Governments and professional associations of lawyers shall promote

programmes to inform the public about their rights and duties under the law
and the important role of lawyers in protecting their fundamental freedoms.
Special attention should be given to assisting the poor and other
disadvantaged persons so as to enable them to assert their rights and where
necessary call upon the assistance of lawyers.

Special safeguards in criminal justice matters

5. Governments shall ensure that all persons are immediately informed by

the competent authority of their right to be assisted by a lawyer of their own
choice upon arrest or detention or when charged with a criminal offence.

6. Any such persons who do not have a lawyer shall, in all cases in which the
interests of justice so require, be entitled to have a lawyer of experience and

56
competence commensurate with the nature of the offence assigned to them
in order to provide effective legal assistance, without payment by them if
they lack sufficient means to pay for such services.

7. Governments shall further ensure that all persons arrested or detained,

with or without criminal charge, shall have prompt access to a lawyer, and in
any case not later than forty-eight hours from the time of arrest or detention.

8. All arrested, detained or imprisoned persons shall be provided with

adequate opportunities, time and facilities to be visited by and to
communicate and consult with a lawyer, without delay, interception or
censorship and in full confidentiality. Such consultations may be within sight,
but not within the hearing, of law enforcement officials.

Qualifications and training

9. Governments, professional associations of lawyers and educational

institutions shall ensure that lawyers have appropriate education and training
and be made aware of the ideals and ethical duties of the lawyer and of
human rights and fundamental freedoms recognized by national and
international law.

10. Governments, professional associations of lawyers and educational

institutions shall ensure that there is no discrimination against a person with
respect to entry into or continued practice within the legal profession on the
grounds of race, colour, sex, ethnic origin, religion, political or other opinion,
national or social origin, property, birth, economic or other status, except
that a requirement, that a lawyer must be a national of the country
concerned, shall not be considered discriminatory.

11. In countries where there exist groups, communities or regions whose

needs for legal services are not met, particularly where such groups have
distinct cultures, traditions or languages or have been the victims of past
discrimination, Governments, professional associations of lawyers and
educational institutions should take special measures to provide opportunities
for candidates from these groups to enter the legal profession and should
ensure that they receive training appropriate to the needs of their groups.

Duties and responsibilities

12. Lawyers shall at all times maintain the honour and dignity of their
profession as essential agents of the administration of justice.

13. The duties of lawyers towards their clients shall include:

( a ) Advising clients as to their legal rights and obligations, and as to the

working of the legal system in so far as it is relevant to the legal rights and

57
obligations of the clients;

( b ) Assisting clients in every appropriate way, and taking legal action to

protect their interests;

( c ) Assisting clients before courts, tribunals or administrative authorities,

where appropriate.

14. Lawyers, in protecting the rights of their clients and in promoting the
cause of justice, shall seek to uphold human rights and fundamental
freedoms recognized by national and international law and shall at all times
act freely and diligently in accordance with the law and recognized standards
and ethics of the legal profession.

15. Lawyers shall always loyally respect the interests of their clients.

Guarantees for the functioning of lawyers

16. Governments shall ensure that lawyers ( a ) are able to perform all of
their professional functions without intimidation, hindrance, harassment or
improper interference; ( b ) are able to travel and to consult with their clients
freely both within their own country and abroad; and ( c ) shall not suffer, or
be threatened with, prosecution or administrative, economic or other
sanctions for any action taken in accordance with recognized professional
duties, standards and ethics.

17. Where the security of lawyers is threatened as a result of discharging

their functions, they shall be adequately safeguarded by the authorities.

18. Lawyers shall not be identified with their clients or their clients' causes as
a result of discharging their functions.

19. No court or administrative authority before whom the right to counsel is

recognized shall refuse to recognize the right of a lawyer to appear before it
for his or her client unless that lawyer has been disqualified in accordance
with national law and practice and in conformity with these principles.

20. Lawyers shall enjoy civil and penal immunity for relevant statements
made in good faith in written or oral pleadings or in their professional
appearances before a court, tribunal or other legal or administrative
authority.

21. It is the duty of the competent authorities to ensure lawyers access to

appropriate information, files and documents in their possession or control in
sufficient time to enable lawyers to provide effective legal assistance to their
clients. Such access should be provided at the earliest appropriate time.

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22. Governments shall recognize and respect that all communications and
consultations between lawyers and their clients within their professional
relationship are confidential.

Freedom of expression and association

23. Lawyers like other citizens are entitled to freedom of expression, belief,
association and assembly. In particular, they shall have the right to take part
in public discussion of matters concerning the law, the administration of
justice and the promotion and protection of human rights and to join or form
local, national or international organizations and attend their meetings,
without suffering professional restrictions by reason of their lawful action or
their membership in a lawful organization. In exercising these rights, lawyers
shall always conduct themselves in accordance with the law and the
recognized standards and ethics of the legal profession.

Professional associations of lawyers

24. Lawyers shall be entitled to form and join self-governing professional

associations to represent their interests, promote their continuing education
and training and protect their professional integrity. The executive body of
the professional associations shall be elected by its members and shall
exercise its functions without external interference.

25. Professional associations of lawyers shall cooperate with Governments to

ensure that everyone has effective and equal access to legal services and
that lawyers are able, without improper interference, to counsel and assist
their clients in accordance with the law and recognized professional
standards and ethics.

Disciplinary proceedings

26. Codes of professional conduct for lawyers shall be established by the

legal profession through its appropriate organs, or by legislation, in
accordance with national law and custom and recognized international
standards and norms.

27. Charges or complaints made against lawyers in their professional

capacity shall be processed expeditiously and fairly under appropriate
procedures. Lawyers shall have the right to a fair hearing, including the right
to be assisted by a lawyer of their choice.

28. Disciplinary proceedings against lawyers shall be brought before an

impartial disciplinary committee established by the legal profession, before
an independent statutory authority, or before a court, and shall be subject to
an independent judicial review.

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29. All disciplinary proceedings shall be determined in accordance with the
code of professional conduct and other recognized standards and ethics of
the legal profession and in the light of these principles.
© OHCHR 1996-2007

EDUCATING COMMUNITIES ABOUT HOW TO BE POLICED IN A

DEMOCRACY

(This is a Consolidated Response prepared by the International Network to promote the Rule of
Law with the contribution from Major Moayyad Abzakh, David Bayley, Robert Bereiter, Art
Crosby, Elizabeth Kunce-Wagner, Otwin Marenin, John Nikita, Gordon Peake)

60
Background:
The police face major problems building legitimacy in countries emerging from conflict
where a uniformed officer is often a cause for fear rather than a source of protection and
comfort. Typically, politically motivated crimes are never investigated by the police.
Strategies to reform the police must be supported and sustained by community support
and assistance, beginning with education about the values and processes involved in
democratic policing.

Query:
What effective methods are in place for educating the civilian community on "How to be
policed in a democracy"? How do you transition from a police force oriented toward the
use of "force" to one that is focused on "public service"? How does the community hold
the police accountable and make them responsible for upholding democratic principles,
the rule of law, and human rights.

Response Summary:
To educate communities in “How to be policed in a democracy,” in countries emerging
from conflict, the philosophy and strategies that have been used for democratic and
community based policing are relevant. Community policing seeks to inculcate the
following democratic policing principles into standard practice:

Maintain a degree of social order that makes a peaceful democratic society possible
(i.e. mediating in the day-to-day disputes that result from inter-personal and inter-
group conflicts).
Safeguard the individual right to life, personal security and enjoyment of property.
Ensure law is enforced within the bounds of justice, through equality, fairness,
impartiality and the exercise of discretion.
Respond to and assist those in need or those who cannot care for themselves. This
principle recognizes the humanitarian and social side of the police function and
responsibility to the community.
Create and maintain a relationship with the public that builds respect for and
participation in the law. This principle acknowledges that citizen involvement is the
most important means of dealing with crime and social disorder as part of their
responsibility as citizens of the community.
Prevent crime and control conduct that is threatening to persons or property, thereby
promoting a feeling of security within the community. This recognizes that security
and safety are created by police presence and actions.
Support the criminal justice system in such a manner as to command the respect of
and support from the public. This is accomplished through monitoring the activities
of the police and encouraging fair and equal treatment of the public.

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Community policing requires all citizens of the community, the police, social services,
and NGOs to work together to identify the root causes of crime, disorder and threats to
public safety and develop solutions in a collaborative manner. Effectiveness rests on two
core elements:

Changing the role of the police, including demilitarization, if necessary, and placing
primacy on community service as opposed to partisan support for political
authorities.
Establishing a supportive relationship between the police and the public.

1. Changing the role of police to place primacy on community service

Educating the public about how to be policed in a democracy will not succeed on its
own. Police behavior will need to begin to conform to principles of democratic policing,
which may require a fundamental transformation. Before seeking to implement an
education program about policing in a democracy, international police advisors and
monitors should assess the following:

What is the current nature of relations between the police and the communities that
have been engaged in the internal conflict? Have the police been politicized and used
as an instrument of violent repression by the state against one of the parties to the
conflict? Is this inter-group schism reflected within the rank and file of the new
police force? How do the police respond to calls for service by members of the
groups formerly involved in the conflict? What are the police doing to promote
cultural sensitivity and inter-group cooperation?
Have the police been suborned by criminal networks with linkages to ruling political
elites, creating an illicit power structure antithetical to democratic policing and the
rule of law?
Is there a civil society to work with? Which individuals, organizations and groups
have a stake in building trust and educating the community about a democratic role
for the police? Do any of these actors have the ability to support police
accountability?
What are the current accountability structures for police misconduct? Do they
function? Are they well known, transparent, and trusted by the public?
What is the present attitude within the police force toward democratic and
community policing? What are the current practices, if any, that are utilized to build
trust between the police and the community?

In the aftermath of conflict, the result of this assessment is liable to reveal that the
existing police force operates in a political context that is hostile to democratic policing,
either because the police have been militarized, politicized or criminalized, perhaps all
three. Civil society is apt to be weak or non-existent and incapable of serving as a check
on the abuse of state power. These are not propitious circumstances for police reform,

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but international police advisors and mentors will have a mandate to undertake to
change this. The mandate should allow international police to play a leading or at least a
supporting role in demilitarizing, depoliticizing and/or decriminalizing the role of
police. Checkpoints should be eliminated, as should fees for basic services such as
applications for licenses. A corollary to this is the necessity to pay police a living wage. If
international police fail to obtain results in police reform, efforts to educate the public
about democratic policing might succeed in mobilizing civil society to demand reform,
but they are unlikely to empower them to effect such change.

Effective, impartial, and ethical performance is the most effective way to educate the
public about the role of police in a democracy. To help ensure that police performance is
not at odds with the rhetoric of the public education campaign, the following measures
may be effective in educating the public about the role of police in a democracy and
effectively transforming lawless rule into rule of law:

Establish community advisory boards to give the local community a role in selection
of candidates to be police officers, setting standards they are to uphold, and the
manner in which they are trained. Establish community crime watch and citizen
police academies to develop local partners and new leadership within the local
community.
Community engagements described in the next section are recommended as a
starting point. Well-established relationships can lead to community cohesion and
accountability in support of a properly functioning rule of law system. Civilian
oversight mechanisms have pros and cons. They can be costly and unsustainable.
The cost could divert funds away from training and education and the establishment
of a well-staffed and organized Internal Affairs office with an early warning system
that is designed to support and promote the overall wellbeing and professionalism
of the law enforcement officer. They can be more reactive than preventive in nature
and a political feel-good measure for the community but may not necessarily change
the overall relationship with law enforcement.
Seek out human rights organizations (international and local) and encourage them to
work together to advocate for democratic policing that is oriented toward
community service and accountability to the citizenry. Work with them to establish
open lines of communication with police leadership that will provide the foundation
for their involvement in advisory and accountability structures. If there are no local
human rights organizations, work with international human rights groups to
encourage their development.
Work with partners in the international donor and NGO communities to get the
message out that the police should be part of the community and responsible and
accountable to the community. Identify educational, developmental and
humanitarian projects that the police collaborate with to educate the public abut the
role of the new democratic police force.

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 Work with the press to get the message out on the use of force policy and the
primacy of community service for police. Hire experienced public affairs
professionals to deal with media relations at the ministry level and in the major
media markets across the country. Conduct regular press conferences and, when
important events occur, convene ad hoc sessions to discuss major cases and highlight
the new police role.
Engage the youth in the public education campaign through the educational system.
Train "school liaison officers" whose specific function it is to maintain contact with
schools, explain police practices, stress their availability and address security issues
that students may have. Arrange visits by school children to police facilities.

2. Establish a supportive relationship between the police and the public

The most effective means of educating the public about how to be policed in a
democracy is through exposure to and interaction with police who respect democratic
principles. Community policing is designed to engender a mutually supportive
relationship through the following practices:

Develop committees comprised of local political leaders, community elders, business

owners, school officials, student representatives, and social workers to meet
regularly with police to identify local public order and individual safety concerns,
collectively develop solutions, implement alternatives, and assess results.
Assign community police specialist to specific neighborhoods, villages and towns
with the responsibility to patrol, become familiar with the people, and respond to
their needs.
Live in and become part of the community where the police station is located.
organize visits to the local police station to let the public talk to police and observe
what they do.
Patrol on foot or bicycle whenever possible.
Visit people in their homes and places of work to develop and cultivate a bond of
trust between the people and the police. Assist victims and those who are potential
victims of crime, especially minority group members and the elderly, by attempting
to visit these people to assure them of some degree of security by your presence and
attention.
Visit schools and speak to students and teachers about democratic policing and the
way it is addressing local concerns, including peaceful relations between identity
groups that had been associated with the internal conflict. Solicit feedback.
If you have a specific skill, such as sports, volunteer to coach or organize community
events involving the police (e.g., soccer games). Sponsor activities that are helpful for
the local community (e.g., sporting events, charitable activities, environment
protection).
Undertake surveys of public confidence in complaining to the police and sponsor
tests of the police complaint mechanism to see if complaints are readily accepted and
lead to appropriate action.

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Start only those initiatives that can be sustained after you leave. International advisors
and monitors will need to inculcate in the hierarchy and rank and file of the local police
force an enduring commitment to building a bond of trust and working relationship
with people.

3. Educating the community about how to hold the police accountable

If the community does not have experience holding the police accountable, and they
neither expect nor enjoy transparency, the first two steps described above will be crucial
to establishing the conditions under which a functioning accountability system for police
misconduct can be instituted. Public education cannot substitute for unwillingness by
the police to be held accountable.

Among the concepts that need to be understood in educating the public about how to
hold the police accountable and make them responsible for upholding democratic
principles, the rule of law, and human rights are the following:
What is public service? How can I obtain public service?
What are my rights and responsibilities as a citizen and what are the roles and
functions of police officers? Courts? Prisons?
How do I know when the police are abusing their authority or violating the principle
of public service? When should I assert my rights?
How do I report police misconduct? (It should be possible to submit complaints
anonymously, without going to the police in person, and the results of investigations
should be made public.)
Who can I go to for help if I fear that I will face police retaliation?

Note: All opinions stated in this consolidated reply have been made in a personal capacity
and do not necessarily reflect the views of particular organizations. INPROL does not
explicitly advocate policies.

Police Reform in Sri Lanka

Commonwealth Human Rights Initiatives

1. Background
With more than twice the per capita Gross Domestic Product of India, Pakistan or
Bangladeshi and an independence not born out of partition or civil war, Sri Lanka enjoys
an economic and political system that is more stable than its neighbours. However, while
there is no threat of a military coup during election cycles, as there has been in Pakistan
and Bangladesh, the ongoing civil war in Sri Lanka has undermined its ability to cultivate
a functional social contract. Since 1983, when the Tamil insurgency began in earnest, the

65
focus and attention of the Sri Lankan state has been to eliminate the terrorist threat posed
by the Liberation Tigers of Tamil Eelam (LTTE). This civil war has dominated the
political scene in Sri Lanka for the past 25 years. A breakthrough ceasefire agreement
between the two sides was brokered in February 2002. It was monitored by the
Norwegians and was widely viewed as successful in reducing the carnage and destruction
that had become a way of life for many.

With the ceasefire in March 2002, there was a hope for change as both the LTTE and the
Government of Sri Lanka (GoSL) seemed interested in reaching a mutually acceptable
political arrangement. The thaw in hostilities was most evident in a changed approach to
policing. “The operation of draconian legislation such as the Prevention of Terrorism Act,
which gave the police extraordinary powers, was suspended, and there was a recognition
that the police which had faced a difficult situation during the period of conflict,
responding to acts of terrorism by the LTTE, had to embark on an initiative relevant to
the new phase of conflict resolution where the police would not only have to return to its
more traditional role of civilian policing, but do so in a manner that was sensitive to the
challenges of multi-ethnicity, pluralism and respect for diversity”. ii

However, the LTTE-boycotted election of 2005 witnessed the ascension of Mahinda

Rajapakse to the Presidency of Sri Lanka. The leader of the Sri Lanka Freedom Party
made it clear during the political campaign that he would take a more aggressive
approach towards the LTTE. Once in office, military confrontation between the GoSL
and the LTTE intensified under the new administration. Emergency regulations that
imposed restrictions on civil liberties including the freedom of expression and movement
were introduced, extra-legal killings, abductions and disappearances increased, and in a
relatively short period there developed a culture of impunity that has caused considerable
concern in civil society and the international community. iii

2. Culture of Impunity
The number and degree of human rights abuses perpetrated by state actors in Sri Lanka is
well documented. The Working Group on Enforced or Involuntary Disappearances
“stress[ed] that Sri Lanka remains the country with the second largest number of non-
clarified cases of disappearances on its list”.iv Four Commissions of Inquiry appointed by
the government put the “total number of persons who had disappeared during the period
1988-90 ... at [approximately] 27,200”.v The recent resurgence of violence between the
Sri Lanka Government and the LTTE has given rise to allegations of a new round of
disappearances, with the Sri Lanka Human Rights Commission reporting that in 2006
there were “345 instances countrywide of politically motivated disappearances at the
hands of the security forces or by paramilitary forces allegedly tied to the government, or
the LTTE”.vi In March 2007, the Inspector General of Police (IGP) in Sri Lanka officially
recognized the role of the police and army in disappearances when he announced that
more than 400 people including “ex-soldiers, serving soldiers, police officers and
underworld gangs and other organized elements” had been arrested since September 2006
on charges of abduction.vii

The Special Task Force (STF) is a good example of an actor that has not been held

66
accountable for abuses it has perpetrated. Formed in 1983, the STF is a paramilitary unit
that specializes in counterterrorist and counter-insurgency operations. Primarily involved
in fighting the LTTE, the STF became notorious for its human rights violations, including
“disappearances” and extrajudicial killings. The Sri Lankan Commission of Inquiry into
Involuntary Removal or Disappearance of Persons in the Northern and Eastern Provinces
concluded in 1997 that the STF was the arresting agency in 5% of the 1,219
“disappearance” cases that took place in the North Eastern Batticaloa district between
1988 and 1996.viii The UN Special Rapporteur on extrajudicial, summary or arbitrary
executions also reported that individuals allegedly died while in the custody of the STF of
Sri Lanka in Colombo.ix Despite well-documented allegations of abuse, STF members
have managed to avoid accountability for their actions and continue to function with
impunity. x

Even when complaints of police abuses are initiated by lawyers or human rights
organizations, they are investigated by high-ranking officers belonging to the same areas
where the abuses have taken place. Their inquiries usually drag on for a long time, give
more opportunities for the perpetrators to intimidate the victims and their supporters, and
don’t produce credible results. These officers meanwhile try to persuade or intimidate
complainants to arrive at compromises.xi

In the unusual event that a matter is actually taken to court, the judiciary frequently fails
to hold the wrongdoers accountable. Since the crime of “enforced disappearances” is not
in the Sri Lankan Penal Code, the prosecution normally files indictments on the charges
of abduction or abetment. However, proving such offences during times of conflict is
extraordinarily difficult.xii As a result, from the time a right has been violated to a trial
that rarely occurs, a culture of impunity reigns supreme.

While security hawks often argue that the extreme circumstances of war demand extreme
responses, experience from around the world shows that a culture of impunity does not
improve the security situation, but rather increases political and social tensions and can
therefore deepen the security crisis. xiii Indeed, the UN Security Council 1674 (2006), on
the protection of civilians in armed conflict, states: “ending impunity is essential if a
society in conflict or recovering from conflict is to come to terms with past abuses
committed against civilians affected by armed conflict and to prevent future such
abuses”. xiv

3. End of the Ceasefire Agreement

By 2006 the terms of the ceasefire were being virtually ignored. On 2 January 2008, the
GoSL formally announced its withdrawal from the ceasefire agreement and subsequently
initiated an intense military offensive against the LTTE.xv This far-reaching military
campaign has effectively stifled substantive discussion on human rights in Sri Lanka. In
its pursuit of eradicating terrorism, the GoSL has focused all its energy and time in
enacting legislation and policies that seek to undermine the LTTE but that also have the
effect of disrespecting the rule of law and human rights. For instance, Regulation 23 of
the Emergency Regulations (originally passed in 2005) was amended in 2006 and it
requires every householder to furnish the names of all those that live in his/her house

67
when requested by the officer-in-charge:

1. Every Officer-in-Charge of a Police Station may direct every householder

residing within his Police Station area to furnish him with a list of names of all the
persons residing with him in his household, distinguishing the members of his
family from other residents, whose stay may be of a temporary or permanent
nature, and servants. Further, if he is so directed by the aforesaid Police Officer,
he shall from time to time, report any increase or diminution or change in the list
furnished by him.
2. No householder who has received a direction under paragraph (1) shall harbour a
stranger in his household without informing the aforesaid Officer-in-Charge of
such fact.
3. Every householder directed to furnish information under paragraphs (1) and (2)
who fails to comply with such direction, shall be guilty of an offence.xvi

While the regulation technically applies to all Sri Lankans, clearly the intent is to itemise
where all the Tamils live in Colombo.xvii Currently, the majority of arrests made by the
police in Colombo are through the application of this particular regulation. The police
often ask for far more information than is required to be given, demanding details about
income, bank accounts and other extremely sensitive information. These requests are
most definitely outside the scope of Regulation 23. However, the general public is
ignorant of the fact that standardized forms for Regulation 23 have been drafted. The
problem is that the police do not utilize these standardized forms; they use forms which
reflect their desire for additional information. xviii

Provisions such as Regulation 23 create a hostile environment for Tamils, one predicated
on profiling. For instance, during the early hours of 7 June 2007, the police and army
officers forcibly evicted 376 Tamils living in lodges (boarding houses) in Colombo.xix
People were given less than half an hour to pack all their belongings and board buses.
This move was thought to have occurred because the IGP at the time said that Tamils
could not remain in Colombo without a valid reason.xx

The expansive application, and sometimes abuse, of Regulation 23 is reflective of the

aggressive tactics often employed by the police in Colombo and in other parts of Sri
Lanka. Consequently, there is little public trust of the police in Sri Lanka. As far back as
1970, an independent commission identified the pervasive shortcomings of police in Sri
Lanka:

The police do not enjoy the goodwill of the public. The public image of the police is not
at all what it should be. The fear of battery by the police is in every citizen. Several cases
of torture have come to light in the courts. The police have therefore to win the public
confidence by a long period of correct behaviour before public co-operation can be
gained. The outlook and attitude of mind towards the public has to change. Courteous
attention and civility must replace the rude and militaristic attitude that is characteristic of
a police station. No laws can effect the change. Even after public attention has been
focused on a number of incidents in which the police have belaboured the public, reports
of police violence still continue to appear in the press. We think that this attitude of mind

68
 of the police is largely due to the fact that the machinery for investigating complaints by
the public against the police at present is unsatisfactory and does not command the
confidence of the people. xxi

The above words, although written in 1970, are still true today. Like the other countries
in South Asia, many reports and studies have been commissioned in Sri Lanka to
examine the poor state of policing. And as in those other countries, these reports have
been largely ignored by the politicians of Sri Lanka.

History of Police Reform in Sri Lanka

Sri Lanka retains Police Ordinance No. 16 of 1865 as its governing police legislation.
While Section 56 enumerates duties that are still relevant today (i.e. try to prevent all
crimes, offences, and public nuisances; preserve the peace; apprehend disorderly and
suspicious characters; detect and bring offenders to justice; collect and communicate
intelligence affecting the public peace; and promptly obey and execute all orders and
warrants lawfully issued and directed to him by any competent authority), the ordinance
is silent on accountability measures.xxii

The first in-depth examination of police reforms in Sri Lanka was the 1946 Soertsz
Commission Report (named after Justice Francis J. Soertsz, Commissioner). The title of
the report was ‘Sri Lanka Police Service – Suggestions for Improving its Efficiency and
Effectiveness.’ This report covered such topics as the composition of the force; the
conditions of the service and selection of officers for promotion and transfer; procedure
for investigations of complaints made by the public against the police; the powers and
duties of the police; and amendment of the police ordinance to give effect to the
recommendations of the commission. xxiii

Another commission report was published by the government publication bureau in

October 1970 and this was named the Basnayake Commission. This commission’s
mandate was to examine the nature and the scope of the functions of the police; the
measures that should be taken to secure the maximum efficiency of law enforcement
agencies; the measures that should be taken to reorganise the police; the structure and
composition of the police force, including methods of recruitment, training of personnel
and the selection of officers for promotion and transfer; and the procedure that should be
adopted for the investigation of complaints made by the public against members of the
police service.xxiv The Basnayake Commission went to great lengths to analyse the issues
facing the police and in fact even reworked the existing 1865 law in order to remedy its
many shortcomings. However, nothing ultimately came out of this effort.

The report of a further commission was published in 1995, which is generally known as
the Justice D.G. Jayalath Commission Report. The mandate of this commission was to
examine and report on the structure and composition of the police force; the methods of
recruitment and training of personnel; the selection of officers for promotions and
transfer; the nature and scope of policing functions; measures that should be taken to
secure the maximum efficiency with respect to the maintenance of law and order;
measures that should be adopted to encourage better relations with the general public;

69
and the establishment of a Permanent Police Commission to administer recruitment,
promotions and disciplinary control in the Police Service. xxv The Jayalath Committee
reiterated the concerns and recommendations of the Basnayake Commission. However,
nothing was done in the aftermath of this report to minimise the illegitimate political
interference of police functioning.

4. An Attempt at Reform: The 17th Amendment

Although there have been half-hearted attempts to reform the police throughout Sri
Lanka’s history, the dire situation reached a critical point in 2001. There was a genuine
desire in Sri Lanka to address the longstanding politicisation of government business in
several different sectors of the bureaucracy and other institutions. Due to the increasing
polarisation of politics in Sri Lanka, nearly every public appointment became a partisan
affair. As a result, there was unanimous support in Parliament for the passage of a
Constitutional Amendment that sought to address this matter. The 17th Amendment to
the Sri Lankan Constitution created an apolitical 10-member Constitutional Council
(CC). The CC was to be composed of the Prime Minister, Leader of the Opposition,
Speaker, a Presidential appointee, five persons appointed by the President on the
nomination of both the Prime Minister and the Leader of the Opposition, and one person
nominated by the minority parties. xxvi Since this body was tasked with making
appointments to key institutions,xxvii it was important that its composition drew from all
the parties and was not inherently partisan.

4.1 The National Police Commission (NPC)

With police being one of the institutions most affected by undue political interference, the
17th Amendment provided for the creation of a National Police Commission (NPC).
Composed of seven civilians selected by the President from recommendations made by
the CC, the mandate of the NPC is to insulate the police from political interference and
investigate public complaints against the police. An indication of how central this
particular task is for the NPC, Article 155F(1) reads:

Every person who, otherwise than in the course of such person’s lawful duty, directly or
indirectly by himself of by or with any other person, in any manner whatsoever influences or
attempts to influence or interferes with any decision of the Commission or a Committee, or to
so influence any member of the Commission or a Committee, shall be guilty of an offence
and shall on conviction be liable to a fine not exceeding one hundred thousand rupees or to
imprisonment for a term not exceeding seven years, or to both such fine and imprisonment.

The NPC appointments are for a three-year term and members will be required to step
down if they decide to hold a political office. xxviii The powers of the NPC are found under
Article 155G and include:

 the appointment, promotion, transfer, disciplinary control and dismissal of police

officers other than the Inspector General of Police (this power shall be exercised
in consultation with the Inspector General of Police);
 establishing procedures for the investigation of any public complaints initiated by
an aggrieved person against a police officer or the police service; and
 formulation of schemes of recruitment and training and the improvement of the

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 efficiency and independence of the police service.

Although the NPC put its foot down and rejected the politically motivated transfer orders
of 60 officials in 2002,xxix the Commission invited much criticism by initially delegating
its powers of transfers back to the IGPxxx who was empowered to further delegate these
powers. Since the NPC was created to insulate the police from political pressures it was
argued by some that the delegation of its powers back to the head of the police (who is
still appointed by the political executive) would frustrate that purpose. Admitting that it
was difficult for the NPC to administer the police organisation, commentators argued that
instead of exercising its authority to delegate powers to the IGP, the NPC should have
delegated its powers to a Committee of the Commission (not consisting of members of
the Commission), that it could appoint.xxxi

In 2004, the NPC responded to its critics and altered its delegations. The powers of
appointments, promotions and transfers (but not disciplinary control) of officers
including and below the rank of Sub Inspectors were given to a three member Committee
of the Commission headed by a retired High Court Judge. However, senior officers of
specified ranks could still complete transfers on grounds of exigencies of services and
contemplated disciplinary action with respect to these ranks. Also, powers of disciplinary
control with respect to officers below the rank of Inspector of Police were once again
delegated to senior officers. With respect to appointment, promotions, disciplinary
control and transfer of all officers of and above the rank of Inspector of Police, the NPC
retained all its powers. With the changes made in 2004, the NPC appeared partially
successful in checking political interference in police functioning. However, after the first
membership term expired and the new members were political Presidential appointees,
the situation at the NPC changed for the worse.

4.2 The Constitutional Council and Dilution of NPC

In March 2005, the term of the original members of the CC expired. Although the Prime
Minister and the Leader of Opposition had provided the President with new names for the
Council, the minority parties failed to agree on the name of the member to be nominated
by them. When the minority parties continued to fail to nominate a member, President
Rajapakse chose to unilaterally appoint members to the Commissions, including the
Police Commission, instead of appointing the already nominated members to the CC.
With strong allegations that the appointees are the supporters or personal friends of the
President, the Commissions have lost much of their credibility. xxxii

Under pressure from the opposition and civil society to demonstrate a commitment to the
17th Amendment, President Rajapakse has ordered a Parliamentary Select Committee to
review the amendment and assess how it can be fixed. However, while the Committee
considers the 17th Amendment, the President has stated that the Constitutional
amendment will not be applied.xxxiii This logic strikes many as strange; it has been stated
that it is the equivalent of not prosecuting murder cases because you have decided that
you are going to reconsider the definition of murder.xxxiv There is nothing stopping the
government from following the dictates of the 17th Amendment while a review is
underway except a complete disinterest in minimizing political interference.

71
After the tenure of the original NPC lapsed on 24 November 2005, and before new
appointments were made, the task of transfers and promotions fell to the President’s
brother, Gotabhaya Rajapakse (Secretary of Defence). During that time, there was a spate
of transfers including “the transfer of senior officers instrumental in successfully carrying
out anti-crime drives. Some reports state that these senior officers are being transferred
for offending powerful figures through their strict enforcement of the law”. xxxv

Shortly thereafter President Rajapakse made his unilateral appointments to the

Commissions and on 10 April 2006, selected Neville Piyadigama as the Chairperson of
the NPC. This was a controversial appointment because of Mr Piyadigama’s close
relationship to the President.xxxvi Mr Piyadigama’s record as Chairperson has been
equivocal. Although a public complaints procedure was finally gazetted during his tenure
(see below), it is widely felt that the NPC has not sufficiently fulfilled its role as
articulated by the 17th Amendment. For instance, it has been suggested that the NPC
ought to wield far more disciplinary control over the police force than it currently
does.xxxvii

In both its first and second terms the NPC’s functioning has been hampered by lack of
financial resources, inadequate investigative powers and lack of cooperation from the
police department.xxxviii In addition to these systemic constraints, the current NPCs
willingness to address allegations of police involvement in abductions and
“disappearances” has been questioned. In response to an inquiry from Human Rights
Watch, the NPC stated that it had received “several complaints” on abductions and
“disappearances”, but “most of these abductions and disappearances are allegedly by
paramilitary elements, Karuna group, the army or unidentified men, or cases of
missings”. xxxix The NPC maintained that “there are no specific allegations about police
involvement” in these crimes. The NPC also mentioned that when the commission
receives reports of police inaction in response to such complaints, it refers such cases to
senior officers “concerned to expedite inquiries,” and monitors the progress in such
cases.xl The NPC, however, did not provide Human Rights Watch with any statistics or
further details regarding such instances.

But it is not just the public that is sceptical of the NPC’s ability to safeguard rights. The
constabularies are also disenchanted with the NPC’s performance. According to a survey
conducted by Transparency International – Sri Lanka, 66.8% of police constables and
sergeants are dissatisfied with the NPC, whereas only 18.7% are satisfied. This is
problematic as it is the junior officers that are most subject to the corrupt orders of
superiors and need assistance from an institution such as the NPC.xli

4.3 Police Complaints Investigation Division (PCID)

The 17th Amendment to the Constitution introduced a public complaint mechanism to the
National Police Commission. Article 155G(2) requires that the NPC establish a procedure
for entertaining, investigating and redressing complaints against police personnel and the
police service. However, initially an effective public complaints mechanism did not exist,
mainly because the NPC referred complaints to the IGP, who in turn referred the cases to

72
the Special Investigation Unit.xlii

Instead, during its first term, the NPC appointed nine district coordinators (mostly retired
policemen) to deal with complaints.xliii During that year the NPC registered 1078
complaints. As a result of the disciplinary action taken against the errant police officers,
thirteen were charge sheeted and one was interdicted.xliv

At the beginning of 2007, the NPC finally gazetted rules for the PCID. However, the
rules were not nearly as progressive as had been hoped. Rule 17 stipulated that officers
found responsible in the investigations will continue to remain in the hands of the IGP “in
accordance with applicable departmental procedures” rather than referred for rigorous
legal sanctions.xlv

After the creation of the necessary rules, the NPC received 1,216 complaints from the
public against police officers between January and June 2007. However, only in four
cases were the suspects formally charged with crimes, and in seven instances policemen
were given warnings.xlvi Although the institutions are in place and the requisite rules have
been established, it appears that there is little political will to aggressively pursue the
cases brought before the NPC.

Procedure to Remove the IGP

Since the Constitutional Council is no longer the independent entity envisioned by the
17th Amendment, the Presidential appointment of the IGP as provided by Article 41C is
not subject to any non-politicised scrutiny. However, although it is a difficult process,
Section 3 of the Removal of Officers (Procedure) Act, No. 5 of 2002 permits the removal
of the IGP from office if he or she is:
(a) Adjudged an insolvent by a court of competent jurisdiction;
(b) Unfit to continue in office by reason of ill health or physical or mental infirmity;
(c) Convicted of an offence involving moral turpitude, treason or bribery;
(d) Found guilty of misconduct or corruption;
(e) Found guilty of gross abuse of power of his office;
(f) Found guilty of gross neglect of duty;
(g) Found guilty of gross partiality in office; or
(h) Ceases to be a citizen of Sri Lanka.

Under (a), (b), (c), or (h), the IGP can be removed by the President.xlvii But under (d), (e),
(f), or (g), a Committee of Inquiry (composed of a Supreme Court Justice, Chair of the
NPC, and an eminent lawyer/public administrator agreed to by the Speaker, Prime
Minister and Leader of the Opposition) must look into the matter and report its findings
to Parliament.xlviii If an absolute majority of parliamentarians vote in favour of removal,
then the IGP is forthwith removed from office. xlix

5. Another Attempt at Reform: Sweden & Sri Lanka

In addition to the reform processes described above, the Swedish Government also
undertook an attempt to help improve the functioning and processes of the Sri Lanka
Police (SLP). This collaborative effort, entitled “Enhancing the Capacity of Civilian

73
Policing in Sri Lanka”, commenced in 2005 when the ceasefire between the GoSL and
the LTTE was still in place. The objective was to: 1) improve crime investigations,
including crime scene examinations; 2) strengthen the respect and promotion of ethnic
integration and human rights in SLP and; 3) increase the management capacity of SLP.l

However, the increased hostility between the GoSL and the LTTE made the program
untenable. It was found that “the interest in fundamentally reforming SLP and shifting the
focus from national security to civilian policing dwindled with the onset of the war. The
change of government as well as of the higher management of SLP also contributed to a
decreased interest in reform.”li The Swedish Government found that the interest and
political space within SLP for any substantial pro-peace and pro-human rights reform in
the context of civil war was extremely limited. It was felt that even those regarded as
“reformminded” seemed to have only a very limited interest in engaging with human
rights issues or police reform”.lii As a result, after a comprehensive review was completed
and a conclusion reached that the fighting will only intensify in the short-term, the
Swedes withdrew from the project and decided to focus their governance and
development efforts in Africa rather than Sri Lanka.liii

The effort to implement better policing in Sri Lanka has stalled. Attempts to reform the
police in Sri Lanka, like the 17th Amendment and the Swedish initiative, have fallen
victim to the overriding focus and attention placed on battling the LTTE in the North.
The ongoing military offensive has dictated governance decisions in all sectors,
particularly in policing. For instance, in cases where military strategy may come into
conflict with investigations into alleged abuses, the investigation may simply not be
allowed. liv Similarly, the increasing use of the military to carry out normal policing
functions means that the distinction between security forces and police is so blurred that
it is incredibly difficult to ascertain who to hold accountable for the well-documented
disappearances and abductions that security agents have become notorious for.lv It
appears that there is very little hope for police reforms to advance in any meaningful way
till the civil war between the GoSL and the LTTE abates.

6. Does International Pressure Work?

With a very large, and influential, Tamil diaspora spread throughout the world, Sri Lanka
is at times quite sensitive to how the international community views its human rights
record. For instance, after a disturbing number of serious attacks throughout 2005 and
2006, there was great international pressure for the Government of Sri Lanka (GoSL) to
properly investigate the incidents. As a result, the GoSL established a Commission of
Inquiry to Investigate and Inquire into Alleged Serious Violations of Human Rights to
look more closely into 16 serious cases, including ones that involved security forces. In
order to add greater legitimacy to the proceeding, an International Independent Group of
Eminent Persons (IIGEP) was tasked to assist the Commission “with the view to
satisfying that such inquiries are conducted in a transparent manner and in accordance
with basic international norms and standards pertaining investigations and inquiries”. lvi

However, notwithstanding the international pressure to have the Commission of Inquiry

be transparent and effective, the legitimacy of the endeavour was questioned almost from

74
the beginning. On 15 June 2007, the IIGEP issued a statement indicating that it was very
concerned that the Attorney General was going to lead evidence at the Commission. It
cited this as a serious conflict of interest, holding that the Commission “does not seem to
have taken sufficient corrective measures to ensure that its proceedings are transparent
and conform to international norms and standards of independence, impartiality and
competence”.lvii When the GoSL did not improve its approach, the IIGEP became
increasingly frustrated and then announced on 6 March 2008, that it was terminating its
involvement with the Commission of Inquiry. lviii It described the original police
investigation of the Trincomaleelix incident as “flawed and incompetent” and questioned
why the deficiencies of the first investigation went undetected, ignored, and possibly
abetted, by the responsible government authorities.lx

The international community has also attempted to wield influence with Sri Lanka by
linking trade with human rights performance. For instance, under a regime called
Generalised System of Preferences (GSP+), Sri Lanka (along with a few select other
countries) is afforded special trading privileges with the EU if it ratifies 27 international
conventions dealing with environmental, labour and human rights standards. Under this
arrangement, trading related to 7000 products is covered. This means 300,000 direct jobs
in Sri Lanka’s apparel industry, and 700,000 indirect jobs. lxi The value of this trading
agreement to Sri Lanka is over 1 billion USD. However, despite the upsurge in violence
recently, the EU announced in October 2008 that it was provisionally renewing GSP+ for
an additional three years, pending a review to be conducted within one year’s time to
determine whether Sri Lanka is in compliance with the EU human rights requirements.lxii

In a major “victory” for human rights advocates, Sri Lanka ratified the Convention
Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
in 1994 and subsequently passed the CAT Act of No. 22 of 1994. To ensure efficient
prosecution in torture cases, the government created the Prosecution of Torture
Perpetrators Unit (PTP Unit) within the Attorney General’s department. However, this
unit only exists on paper and does not have its own permanent staff. Torture cases that
fall within the jurisdiction of the PTP Unit are handled by five counsels who also take on
other criminal cases.lxiii

It is clear that instead of making a diligent effort to investigate and prosecute human
rights abuses, various Sri Lankan governments over the years have responded to
international criticism by simply setting up different mechanisms that merely give the
impression of addressing human rights violations. The creation of these mechanisms
allow the government to claim it is taking action, while in reality, to date, all of them
have failed to halt the crisis of “disappearances”.lxiv As a consequence of its inaction on
human rights issues, the Human Rights Council rejected Sri Lanka’s bid to serve a
second term on the Council. lxv It remains to be seen whether the international
community’s firm stance holds steady and if it does, whether it can have the effect of
modifying Sri Lanka’s behaviour.lxvi

7. Recommendations
Government of Sri Lanka (GoSL)

75
1. Seek a political solution to the current conflict. It is incredibly difficult to implement
reform during a time of war. Therefore, in order to achieve any success in democratizing
the police, it is important to scale back the military offensive and pursue a long-term
political solution that involves some form of power devolution to the provinces.

2. Respect the 17th Amendment. The non-partisan effort to depoliticise governmental

institutions in 2001 was a step in the right direction. The refusal of the Rajapakse
administration to abide by the 17th Amendment has seriously damaged efforts to
democratize the police and other governance sectors. Notwithstanding the fact that the
recommendations of the Parliamentary Select Committee on how to “fix” the 17th
Amendment are still pending, the GoSL should immediately appoint the Constitutional
Council in accordance with procedures laid down in the 17th Amendment.

3. Explicitly address the culture of impunity that plagues Sri Lanka. In order to ensure a
transparent and accountable police force, the GoSL must demonstrate a commitment to
prosecuting human rights abusers that wear the SLP uniform. For instance, the Attorney
General should not be leading evidence at the Commission of Inquiry to Investigate and
Inquire into Alleged Serious Violations of Human Rights. Absent the political will to
engage in unbiased inquiries of wrongdoing, police reform in Sri Lanka will never get off
the ground.

4. Strengthen the National Police Commission (NPC). Independent of whether the 17th
Amendment is followed, the GoSL should make a commitment that the Chairperson
appointed for the next term of the NPC (due in 2009) will be an independent and not a
well-known associate of the President. This will vastly improve the credibility of the
NPC.

Sri Lanka Police (SLP)

5. Limit unjust and illegitimate transfers and promotions. The propensity for transfers and
promotions to be based on non-meritorious considerations has severely undermined the
morale of police officers across Sri Lanka. Having this illegitimate practice become the
exception rather than the norm will greatly increase the professionalism of the SLP.

6. Formally entrench the notion of command responsibility into policing practices.

Therefore, if a junior officer is found responsible for violating an individual’s human
rights, then his/her superior should also be viewed as culpable if it can be established
that:
a. There is a superior-subordinate relationship;
b. The superior knew or had reason to know that the criminal act was about to be or had
been committed; and
c. The superior failed to take reasonable measures to prevent the criminal act or to punish
the perpetrators thereof. Linking subordinate malfeasance to superiors will undoubtedly
increase the level of internal accountability procedures.

7. Centralize internal discipline in one unit. Having various aspects of internal discipline
reside with the Special Investigations Unit, the Disappearance Investigation Unit, and the

76
Attorney-General’s Torture Unit results in a fractured approach to ensuring
accountability. Centralising internal discipline in one unit, with the participation of
independent members so as to increase the credibility of the body, will rationalise the
existing system.

8. Strengthen the SLP’s Human Rights Division (HRD). Providing the HRD, a unit of the
SLP directly under the supervision of the IGP and tasked with educating police personnel
on the need to protect human rights, with more resources and support will institutionalize
the understanding that effective policing and respect for rights are not mutually exclusive.
In order to further promote this understanding, the education provided by the HRD
should particularly emphasise the role of human rights defenders and should encourage
the police to view them as allies, rather than opponents, in effective policing.

9. Improve efforts to integrate the SLP. Using recruitment as a means to include more
under represented Tamils in the SLP, and providing police services in both Tamil and
Sinhala (particularly in districts that are predominantly Tamil-speaking), will help build
bridges between the overwhelming Sinhalese-SLP and the Tamil community.

10. Articulate guidelines that sincerely reject torture as a legitimate investigative tactic.
The frequent use of torture in police stations throughout Sri Lanka demonstrate a firm
belief on the part of the SLP that torture is an effective method to elicit information from
witnesses and suspects. Legal sanctions alone will never eliminate the use of torture.
There must be an explicit understanding and acceptance on the part of police that torture
does not work because information secured from such tactics is notoriously unreliable.

11. Improve training of investigative techniques. Better familiarity with forensic science
and crime scene examination procedures will help to professionalise the SLP.

National Police Commission (NPC)

12. Strengthen the Public Complaints Investigation Division (PCID). The current rules
governing the PCID are far too deferential. Rule 17 of the PCID, stipulating that
malfeasant officers will continue to have their fate determined by the IGP in accordance
with applicable departmental procedures, does little to change the currently dysfunctional
system. Rather, the PCID should examine ways wherein it can provide complainants with
redress, as provided under Article 155G(2) of the 17th Amendment.

13. Fill personnel vacancies. Despite the fact that the NPC receives a number of
complaints, it is understaffed.lxvii A move to fill vacancies will increase its capacity to
robustly investigate allegations of torture and police misconduct.

14. Do more to limit political interference. At the moment, police officers do not have
confidence that the NPC is willing or able to address the endemic politicisation of
transfers and promotions.lxviii In order for it to do its job effectively it is imperative for the
NPC to have the respect of police officers.

Civil Society Organisations (CSOs)

77
15. Undertake efforts to encourage community policing. Facilitating conflict resolution at
the local level would obviate the need for formal police intervention. A joint CSO-SLP
initiative in this regard might do a great deal to rehabilitate the mistrust that currently
exists between the police and the public. The creation of Citizen’s Committees in
Ratnapura district provides a successful template on how to include the community in
making neighbourhoods more secure.lxix

16. Campaign and educate on the need for police reforms. With severe media restrictions
in place, and little space generally accorded to human rights issues, it is even more
critical for CSOs to publicly articulate the importance of having a democratic police force
in Sri Lanka. In the absence of any dialogue, nothing constructive can be accomplished.

17. Develop police-specific documentation centres. By keeping proper and accurate

records of practices that have proved effective in professionalising the police, complaints
filed against the SLP, and incidents of torture, a body of documentation will emerge that
can serve as the basis for advocacy and education on the issue of police reform.

Reference
1
Wikipedia website, “List of countries by GDP (nominal) per capita”: http://en.wikipedia.org/wiki/
List_of_countries_by_GDP_(nominal)_per_capita#cite_note-2 as on 12 November 2008.
1
Edrisinha, R., Olander, K., and Orjuella, C. (December 2007), Review of Development Cooperation
between SriLanka Police and Swedish National Police Board, p. 9.
1
Ibid., p. 11.
1
Working Group on Enforced or Involuntary Disappearances (1999) Report on the visit to Sri Lanka by a
member of the Working Group on Enforced or Involuntary Disappearances, (25-29 October 1999) p. 13:
E/CN.4/2000/64/Add.1:http://www.unhchr.ch/huridocda/huridoca.nsf/AllSymbols/E6D08BB09C61C6D780
2568A9006830F1/$File/ G9916479.pdf?OpenElement as on 12 November 2008.
1
Human Rights Committee (2002), Fourth Periodic Report: Sri Lanka, State Part report submitted to the
Human Rights Committee under Article 40 of the ICCPR, p. 37, CCPR/C/LKA/2002/4:
http://www.unhchr.ch/tbs/doc.nsf/ (Symbol)/CCPR.C.LKA.2002.4.En?Opendocument as on 5 November
2008.
1
Bureau of Democracy, Human Rights, and Labor, (2007), Country Reports on Human Rights Practices
2006:Maldives, United States Department of State: http://www.state.gov/g/drl/rls/hrrpt/2006/78875.htm as
on 1 November2008.
1
Asian Centre for Human Rights (2007), “Sri Lanka: Spectre of abductions by the security forces officially
admitted”, ACHR Weekly Review, March, Review: 157/07: http://www.achrweb.org/Review/2007/157-
07.htm as on 29 October 2008.
1
Commission of Inquiry into Involuntary Removal or Disappearance of Persons in the Northern and
Eastern Provinces (1997), Final Report, Sessional Paper No.7:
http://www.disappearances.org/news/mainfile.php/ frep_sl_ne/ as on 12 November 2008.
1
UN Commission on Human Rights (1998), Report of the Special Rapporteur on extrajudicial, summary or
arbitrary executions, Mr. Bacre Waly Ndiaye submitted pursuant to Commission on Human Rights

78
resolution 1997/61, E/ CN.4/1998/68/Add.2, 12 March 1998, p.31 at para. 131: http://www.unhcr.org/cgi-
bin/texis/vtx/refworld/ rwmain?page=search&docid=3ae6b1044&skip=0&query=waly as
on 1 December 2008.
1
Human Rights Watch (2008), Recurring Nightmare: State Responsibility for “Disappearances” and
Abductions in Sri Lanka, v.20, no.2(c), pp. 48-50: http://www.hrw.org/en/reports/2008/03/05/recurring-
nightmare-0 as on 12 November 2008.
1
Fernando, B. (2009), Recovering the authority of public institutions, Asian Human Rights Commission
(Hong Kong), p.12: http://www.ahrchk.net/pub/pdf/AHRC-PUB-002-2009-RecoveringAuthority.pdf.
1
Pinto-Jayawardena, K. (2007), “‘Cosmetic’ Commissions and the Rule of Law in Sri Lanka,” CHRI
Newsletter, Spring 2007:
http://www.humanrightsinitiative.org/publications/nl/newsletter_spring_2007/article2.htm as on 6
December 2008.
1
International Commission of Jurists (2008), Briefing Paper, Sri Lanka’s Emergency Laws and
International Standards, June 2008: p.8: http://www.icj.org//IMG/SriLanka-BriefingPaper-Mar09-
FINAL.pdf as on 11 October 2008.
1
United Nations Security Council Resolution 1674(2006), S/RES/1674, 28 April 2006, para. 7:
http://domino.un.org/UNISPAL.NSF/f45643a78fcba719852560f6005987ad/e529762befa456f88525716100
45ebef!OpenDocument as on 12 November 2008.
1
Ministry of Defence, Public Security, Law & Order (Sri Lanka) website, “Government takes policy
decision to abrogate failed CFA”: http://www.defence.lk/new.asp?fname=20080102_12 as on 12
November 2008.
1
Gazette Extraordinary No. 1450/18 of 21 June 2006, Amended Regulation 23 found in the Public Security
Ordinance (Chapter 40).
1
Interview with former police official, Colombo, 19 June 2008.
1
Ibid
1
(2007), “Police evicts Tamils from Colombo”, BBC News, 7 June 2007: http://news.bbc.co.uk/1/hi/world/
south_asia/6729555.stm as on 10 December 2008.
1
Edrisinha, R., Olander, K., and Orjuella, C. (December 2007), Review of Development Cooperation
between SriLanka Police and Swedish National Police Board, p. 13.
1
21 Basnayake Commission (1970), Final Report of the Police Commission of 1970, Chapter 4, para 54:
http://www.ruleoflawsrilanka.org/resources/PoliceCommissionReport1970.doc/view as on 10 December
2008.
1
Section 55, Police Ordinance No. 16, 1865 (Sri Lanka), states that the IGP may frame orders and
regulations that the police under his command are bound to follow so as to prevent neglect or abuse and
ensure the efficient discharge of duties. And while there are penalties if an officer does not follow the rules,
the ordinance does not provide for any external review of misconduct or provide internal procedures for
disciplinary proceedings.
1
Asian Human Rights Commission website, “Sri Lanka: Police Reform Initiatives within a Dysfunctional
System”:http://www.ahrchk.net/pub/mainfile.php/sldysfunctional/254/ as on 1 December 2008.

79
1
Ibid.
1
Ibid.
1
Article 41(A), 17th Amendment, Constitution of the Democratic Republic of Sri Lanka, 1978.
1
See Article 41(B), 17th Amendment, Constitution of the Democratic Republic of Sri Lanka, 1978.
1
Article 155(A), 17th Amendment, Constitution of the Democratic Republic of Sri Lanka, 1978.
1
A national daily reported that the transfer list of these officers “was prepared at the request of certain
Ministers and government party MPs [Members of Parliament]”. It added that this was “the first occasion
when the Commission has issued orders countermanding the orders of the Police Department.” Daily
Mirror, December 24, 2002, as cited by Weliamuna, J.C. (2004) “The National Police Commission”, Sri
Lanka: State of Human Rights 2004, p. 178, Colombo: Law and Society Trust.
1
National Police Commission (2003), Circular No. 1703/2003, 26 March as cited by Weliamuna, J.C.
(2004) “The National Police Commission”, Sri Lanka: State of Human Rights 2004, p. 173, Colombo: Law
and Society Trust.
1
Article 155(J)(1), 17th Amendment, Constitution of the Democratic Republic of Sri Lanka, 1978: The
Commission may, subject to such conditions and procedures as may be prescribed by the Commission,
delegate to the Inspector-General of Police or in consultation with the Inspector-General of Police to any
Police Officer, its powers of appointment,promotion, transfer, disciplinary control and dismissal of any
category of police officer.
1
Pinto-Jayawardena, K. (2007), “Regretting what might have been: a critique of the National Police
Commission of Sri Lanka”, paper presented at the Roundtable on Police Reform: A exchange of
experiences from South Asia held on 23 and 24 March 2007:
http://www.humanrightsinitiative.org/programs/aj/police/exchange/CHRI%20PAPER%20%20MARCH%2
02007.doc as on 12 November 2008.
1
Fernando, B. (2009), Recovering the authority of public institutions, Asian Human Rights Commission
(HongKong), pp. 10-11: http://www.ahrchk.net/pub/pdf/AHRC-PUB-002-2009-RecoveringAuthority.pdf.
1
Interview with Mr Lasantha Wickramatunga, Editor of Sunday Leader, Colombo, 17 June 2008.
1
Asia Human Rights Commission (2006), “Sri Lanka: Bypassing the 17th Amendment is a move towards
the returnto absolute power”, Asia Human Rights Commission (statement), 14 February 2006, AS-024-
2006: http://www.ahrchk.net/statements/mainfile.php/2006statements/432/ as on 12 November 2008.
1
When President Rajapakse was Labour Minister, he made Mr Piyadigama his Ministry Secretary and
when he wasappointed as the Fisheries Minister, again Mr. Piyadigama functioned as Ministry Secretary.
See Gnanadass, W.(2006), “A post for President’s pal cuts root of 17th Amendment”, The Nation, 11 June
2006: http://www.nation.lk/2006/06/11/newsfe4.htm as on 12 December 2008.
1
Pinto-Jayawardena, K. (2007), “An Unfulfilled Promise: Critical Scrutiny of the National Police
Commission of SriLanka”, LST Review, Volume 18, Issue 238, August 2007, p. 18.
1
(2007) “Sri Lanka: Spectre of abductions by the security forces officially admitted,” Asian Center for
Human Rights Weekly Review, 157/2007, 7 March 2007, http://www.achrweb.org/Review/2007/157-07.htm
as on 20 November 2008.

80
1
Human Rights Watch (2008), Recurring Nightmare: State Responsibility for “Disappearances” and
Abductions in Sri Lanka, v.20, no.2(c), at Annex II: http://www.hrw.org/en/reports/2008/03/05/recurring-
nightmare-0 as on 12 November 2008.
1
Ibid.
1
Weliamuna, J. C. (2006), In Pursuit of ‘Absolute Integrity’: Identifying Causes for Police Corruption,
Transparency International – Sri Lanka, p. 76.
1
Ibid., p. 36.
1
Pinto-Jayawardena, K. (2007), “An Unfulfilled Promise: Critical Scrutiny of the National Police
Commission of Sri Lanka”, LST Review, Volume 18, Issue 238, August 2007, p. 17.
1
National Police Commission (2006), Annual Report 2006, p. 37.
1
The precise wording of Rule 17: “At the conclusion of an investigation, if it recommended that
disciplinary action or prosecution against a police officer shall be instituted, the IG or DIGG, as the case
may be, shall be notified along with evidence recorded at the investigations and draft charges, to initiate
forthwith such disciplinary action according to departmental procedure or prosecution against such police
officer”. See Gazette Extraordinary 1480/8 – 17 January 2007.
1
Human Rights Watch (2008), Recurring Nightmare: State Responsibility for “Disappearances” and
Abductions in Sri Lanka, v.20, no.2(c), p. 101: http://www.hrw.org/en/reports/2008/03/05/recurring-
nightmare-0 as on 12 November2008.
1
Section 4(1),Removal of Officers (Procedure) Act, No. 5 (2002).
1
See Sections 5 and 6, Removal of Officers (Procedure) Act, No. 5 (2002).
1
Section 18 of the Removal of Officers (Procedure) Act, No. 5 (2002).
1
Edrisinha, R., Olander, K., and Orjuella, C. (December 2007), Review of Development Cooperation
between SriLanka Police and Swedish National Police Board, p. 3.
1
Ibid., p. 4

1
Ibid., p. 30.
1
Interview with Mr Goran Schill, First Secretary of the Swedish Embassy, Colombo, 18 June 2008.
1
Fernando, B. (2009), Recovering the authority of public institutions, Asian Human Rights Commission
(Hong Kong), p. 7-8: http://www.ahrchk.net/pub/pdf/AHRC-PUB-002-2009-RecoveringAuthority.pdf.
1
International Commission of Jurists (2008), Briefing Paper, Sri Lanka’s Emergency Laws and
International Standards, June 2008: p. 12: http://www.icj.org//IMG/SriLanka-BriefingPaper-Mar09-
FINAL.pdf as on 11 Octobe 2008.
1
International Independent Group of Eminent Person website: http://www.iigep.org/mandate.htm as on 12
Decembe 2008.

81
1
(2007), “International Independent Group of Eminent Persons (IIGEP) Second Public Statement”, June
15,2007: http://www.ahrchk.net/statements/mainfile.php/2007statements/1065/ as on 12 November 2008.
1
International Independent Group of Eminent Person website, “Press Releases: 6 March 2008”:
http://www.iigep.org/press-releases.htm as on 12 November 2008.
1
Trincomalee refers to a highly controversial incident where 5 youth were shot in the head at close range
by security forces, who claimed that the teenagers belonged to the LTTE. Evidence subsequently revealed
suggests that the five teens were all advanced level qualified civilian students from the same school who
were simply at the beach for a night out.
1
International Independent Group of Eminent Person website, “Press Releases: 6 March 2008”:
http://www.iigep.org/press-releases.htm as on 12 November 2008.
1
Interview with Mr Lasantha Wickramatunga, Editor of Sunday Leader, Colombo, 17 June 2008.
1
(2008), “EU grants GSP+ to Sri Lanka for another three years,” 11 December 2008: http://
www.colombopage.com/archive_08/December11121813RA.html as on 18 December 2008.
1
(2005), “Persisting problems and outstanding issues, An alternative report to the Committee Against
Torture” presented by the Law & Society Trust, Sri Lanka and Asian Human Rights Commission, Hong
Kong, October 7,2005. From 1994-2004, there were no convictions under the CAT Act and since then,
there have been only 3 convictions till date.
1
Human Rights Watch (March 2008), Recurring Nightmare: State Responsibility for “Disappearances”
and Abductions in Sri Lanka, v.20, no.2(c), pp. 102-103:
http://www.hrw.org/en/reports/2008/03/05/recurring-nightmare-0 as on 12 November 2008.
1
Tighe, P. (2008), “Sri Lanka Loses Bid for UN Human Rights Council Seat”, 22 May 2008:
http://www.bloomberg.com/ apps/news?pid=20601091&sid=ajQ846Zx3do8&refer=india as on November
12, 2008.
1
For greater detail on Sri Lanka’s human rights record, please refer to CHRI’s publication, “Easier Said
Than Done:A report on commitments and performances of the Commonwealth members of the UN Human
Rights Council 2007-2008 Edition” (to be published in 2009), R.I. Ilango and L. Mathieson (Ed.),
Commonwealth Human Rights Initiative.
1
National Police Commission (2006), Annual Report 2006, p. 32.
1
Weliamuna, J. C. (2006), In Pursuit of ‘Absolute Integrity’: Identifying Causes for Police Corruption,
Transparency International – Sri Lanka, pp. 81-82.

1
Weliamuna, J. C. (2006), In Pursuit of ‘Absolute Integrity’: Identifying Causes for Police Corruption,
Transparency International – Sri Lanka, p. 67.

82
 Introduction on the Policing in South Asian countries
By
The Commonwealth Human Rights Initiatives
“In order for Commonwealth South Asian countries to fulfill the promise of
independence and cultivate robust democratic institutions, policing in the region
must change. Simply put, democratic nations need democratic policing.”

From the Khyber Pass to the Burmese border, and from the Himalayas to the Pearl of the
Orient, the state of policing throughout Commonwealth South Asia is abysmal. At the
end of 2007, CHRI published Feudal Forces: Democratic Nations – Police Accountability

83
in Commonwealth South Asia. That report delved deeply into the theory of democratic
policing and why it is a desirable model for the region. Its examination of policing in
South Asia revealed a state of law enforcement wholly unsuitable and devoid of public
confidence. Even as some weak attempts have been made to reduce the politicisation of
police, increase its accountability, and improve its management, implementation has
been poor because governments are reluctant to fully and urgently engage on
desperately needed reform.

The problems relating to police are patent and well documented, including by CHRI in
Feudal Forces: Democratic Nations. The present report does not provide a laundry list of
the ills that affect policing in South Asia. Rather, its purpose is to provide greater detail
on the current state and pace of police reforms in Bangladesh, India, Pakistan and Sri
Lankalxx and the concrete steps that can be undertaken to transition policing in the
region from a force to a service.

1.1 Colonial Legacy

When the British Empire first started wielding more control and influence on its colonies
in South Asia, it modeled policing after the militaristic Irish Constabulary rather than
the civilian London Metropolitan model. This was meant to subjugate very large and
hostile indigenous populations with a relatively small force. The British implemented
police forces that:

☻ answered predominantly to the regime in power and its bureaucracy and not to
the people;
☻ were responsible for controlling populations, rather than protecting the
community;
☻ sought to secure the interests of one dominant group;
☻ were required to remain outside and distinct from the community; and
☻ were extremely hierarchical in structure where loyalty was to the leadership and
the establishment rather than to the rule of law.
Even after independence from British rule South Asian governments have largely
retained this colonial structure of policing. The central government in India has retained
the Police Act of 1861 and state governments have generally modeled their respective
Acts after it as well. Bangladesh, a unitary state, has also chosen to retain the Police Act
of 1861. Sri Lanka continues to use the Police Ordinance No.16 of 1865. Pakistan has a
Police Order from 2002 but it is largely ignored. And the Maldives only created a police
force distinct and separate from its National Security Service in 2004.lxxi Regardless of the
idiosyncratic tendencies of any particular jurisdiction, there continues to be a strict
hierarchical division between officers and the constabulary throughout Commonwealth
South Asia. The former are often well educated and relatively well paid, while the latter
suffer from incredibly poor working conditions.

1.2 Independence and its Failed Promise

84
The experience of colonial oppression deeply influenced constitution-making in South
Asia. As a result, Bangladesh, India, Pakistan and Sri Lanka all drafted an ambitious Bill
of Rights that enshrined the sovereignty of citizens, acknowledged the paramountcy of
law, provided explicit guarantees of civil and political rights, and enumerated social and
economic rights. Yet 60 years later, despite such noble proclamations, everyday policing
is unable to protect basic fundamental rights such as the right not to be arbitrarily
detained or arrested. Even the absolute and non-derogable right against the use of
torture is abused by police throughout South Asia.lxxii

Policing across the region still does not reflect the transformed citizen-state relationship
that ought to have taken shape post-independence. The notion that a policeman is
merely a citizen in uniform providing a lawful service to the population is rarely
understood in government or within the police establishment. Policing continues to
reflect a feudal-colonial model that remains structurally incapable of assuring that a
citizen’s constitutional rights are staunchly protected rather than indiscriminately
violated.

1.3 What is “Democratic Policing”?

In order for Commonwealth South Asian countries to fulfil the promise of independence
and cultivate robust democratic institutions, policing in the region must change. Simply
put, democratic nations need democratic policing.lxxiii While recognising that definitions
of democracy can be contested, the approach taken by the United Nations in its human
rights training manual for police is most ideal. This definition of democracy operates
within the framework of the Universal Declaration of Human Rights and the
Convention of Civil and Political Rights and includes:

☻ being able to take part in government;

☻ promoting equal access to the public service;
☻ ensuring that the will of the people is the basis of government;
☻ ensuring that this will is expressed through elections; and
☻ upholding the rule of law and protection of rights.lxxiv

Democratic policing is a term that has emerged over the past decade to describe the
characteristics of policing a democracy, where the police serve the people of the country
and not a regime.lxxv The UN International Police Task Force (1996) succinctly
encapsulates what policing in democracies should be like: “In a democratic society, the
police serve to protect, rather than impede, freedoms. The very purpose of the police is
to provide a safe, orderly environment in which these freedoms can be exercised. A
democratic police force is not concerned with people’s beliefs or associates, their
movements or conformity to state ideology. It is not even primarily concerned with the
enforcement of regulations or bureaucratic regimens. Instead, the police force of a
democracy is concerned strictly with the preservation of safe communities and the
application of criminal law equally to all people, without fear or favour.”lxxvi

85
Democratic policing sets out a normative framework for police agencies in a democracy
even though the systems and strategies for police in one jurisdiction may be quite
different from another. It provides a common frame of reference for civil society, policy-
makers, donors and the police.lxxvii A democratic police is characterised by the following:
an orientation to serve civic society rather than the state; transparency and
accountability runs throughout the organisation; personnel reflects the demographic
make-up of the country; the police are insulated from undue political influence; their
members have the skills to perform their tasks effectively and efficiently; and there is
professionalism throughout the organisation.lxxviii “These values are considered non-
negotiable and without all of them, or processes which seek to move the police towards
their achievement, police organisations cannot be considered democratic in their
structure, culture or performance.”lxxix

Democratic policing is about much more than simply “maintaining law and order”. It is
about establishing and nurturing a healthy relationship with the community, based on
mutual respect and understanding. But in order to do this law enforcement agencies
throughout Commonwealth South Asia need to change their mindset. The emphasis
ought to be on providing a service as a means to uphold the law, rather than utilizing
force to impose the law. By any objective measure the police in the region do not come
close to meeting this standard. Rather than serving to protect the freedom and integrity
of communities, the police are all too frequently accused of excessive use of force,
torture, disappearances, extrajudicial executions, failure to follow due process,
discriminatory behaviour and corruption. As a result, there is a lot of work to be done
before police organisations on the Indian subcontinent are able to transition from a
“force” to a “service”.

1.4 Problems with Policing in South Asia

Policing in South Asia does not command the confidence of the public because it is seen
as oppressive, unfair and woefully inefficient. Consequently, the police are frequently
alienated from the communities they serve and hence have less chance of successfully
containing crime, civil unrest and extremist violence. Even when in desperate need, a
visit to the police station is often viewed as a measure of last resort (Especially if the
person in need happens to be a woman or sexual minority). Across the region a number
of common problems plague policing.

First, a culture of impunity exists for wrongful acts perpetrated by the police. Abuse of
power, bias, corruption, illegal methods and excess use of force are, even when well
documented, left unattended and unpunished. Common abuses include: extrajudicial
killings (otherwise known as “encounter deaths”); the widespread use of torture as a
premier method of investigation; unjustified arrests; refusal to register First Information
Reports; detentions beyond permissible statutory time limits; reluctance to accept
complaints or investigate them; and giving false evidence.

86
Second, there is very little effective oversight or review of police conduct. Linked to the
issue of impunity, having such mechanisms in place greatly enhances the likelihood that
police will behave lawfully. However, none of the countries in Commonwealth South
Asia have what could be described as a transparent and functional external (or internal)
accountability mechanism that complies with international good practice. In addition,
parliamentary oversight is practically non-existent in the region. Legislatures should
constantly be overseeing the effectiveness of policing, but in fact spend little time
examining the issue of police performance. Though ad hoc commissions of inquiry or
national human rights institutions exist in each South Asian country, they have proved
unable to hold police accountable for malfeasance or to change its methods.

Third, illegitimate political interference in all aspects of police administration is endemic

throughout the region. It is not uncommon for transfers, promotions and issues of
tenure to be dictated by considerations other than fairness or merit. Consequently, the
treatment of law and order problems and the pace of crime investigation is often
coloured by this issue. Political interference is one of the most pervasive and insidious
problems that undermine the professionalism of police personnel throughout South
Asia. The situation makes it incredibly difficult for diligent and honest officers to
maintain their integrity and expect to also advance their career.

Fourth, the police suffer from a serious lack of resources. Despite increasing budgetary
allocations, financial resources for law enforcement are poorly deployed and managed.
As a result, police officers at the thana (police station) are often deprived of the basic
necessities required to do their jobs with any level of efficacy. For example, public
complaints cannot be written because paper is frequently out of stock and if a vehicle is
available for use, then it is without petrol. Moreover, irrational provisioning results in
surreal situations where hardware is provided (i.e. computers, mobiles, radio sets or
forensic equipment), but essential peripherals, maintenance contracts, or training for use
are absent.

Fifth, the conditions and conditioning of the lower ranks are unconscionably bad. In
addition to the fact that recruitment is often marred by bribery and influence peddling,
the officers ultimately employed often fail to reflect the demographic composition of the
community being policed. Further, police to population ratios are well below
international norms because many sanctioned positions remain vacant. Also, it is not
uncommon for police personnel to work 24-hour shifts without a rest day or live in sub-
standard barracks. These inadequate conditions of the lower ranks are exacerbated by
non-existent or deficient training in investigative techniques and crime scene
examination. Under these circumstances it is hardly surprising that the police are surly,
discontented and unmotivated. The consequent public alienation further isolates the
police and continues a vicious cycle of mutual distrust that only gets worse with each
passing year.

87
1.5 Why is Policing in South Asia Deficient?
There is a structural inevitability to poor police performance in South Asia because the
system of governance in these countries is largely dysfunctional. The political, economic
and social conditions of the region ensure that policing remains bad and that attempts at
reform are stymied. With respect to the first issue, the political culture of
Commonwealth South Asia is the main reason that policing in the region is
unprofessional and suspect. With a regular oscillation between military and democratic
rule in some jurisdictions, as well as having constitutions repeatedly rewritten or
amended, the constant flux in governance has undermined a consistent approach
towards police reform.

Further, corruption runs deep in each of Bangladesh, India, Pakistan and Sri Lanka. This
corrosive practice not only compromises the integrity of the police, but its manifestation
amongst the political class, the judiciary and the civil service means that police
interaction with each of these sectors is inevitably coloured by the same tarnished brush.
Thus, even if policing institutions magically decided one day to eliminate internal
corruption, its effort would fall short because it would still be embedded in a larger
system that remained unreformed.

Bad policing also exists due to economic reasons. The tremendous poverty in South Asia
means that there is a limited pool of money for many competing needs. As a result,
police forces throughout the region are not always provided the basic necessities
required to perform an effective job. Sometimes this deficiency is a function of
mismanagement rather than due to a shortfall in funds. However, when per capita
expenditure on policing is 1.40 USD in Bangladeshlxxx and 215 USD in the United
States,lxxxi it is clear that the mismanagement of budgets is not the only reason that police
have insufficient funds available. Overcoming the constraints posed by limited resources
is a constant challenge to improving policing.

The social conditions of the region have also had a profoundly negative impact on
policing and its ability to reform. The inherently class-oriented and feudal structure of
South Asian societies has informed how people treat and view the police. For instance,
the police are manipulated and exploited by the wealthy and influential for selfish
reasons and this is rarely seen as strange or inappropriate. Additionally, inadequate
educational services means that the average citizen is rarely aware of his/her rights or
even what sort of policing they are entitled to. Thus, it is understandable that the public
often sends mixed signals about what kind of police service it wants. When affected by
criminal activity it would like an efficient and aggressive police force. But when
victimized by police excess, they profess a desire for policing that is “fair and
responsive”. This paradox can only be resolved through education and engagement
with policing.

88
1.6 Way Forward
In order to separate the police from the political, economic and social conditions that
have historically limited progress on this issue, a few critical steps need to taken. First,
there must be a clear understanding of what kind of policing is required by a
democracy. Policing in South Asia requires reform of the relationship between police
and the political executive, improvement in the management and leadership of police,
attitudinal changes of all stakeholders, improvements in provisioning and, most of all,
much better external oversight and accountability. These issues have to be considered at
the outset and kept at the forefront of any discussion on reform.

Second, it is vital to define the contours of the executive-police relationship. In any

democracy the ultimate responsibility for ensuring public safety and security lies with
the people’s representatives. The police are implementers. As such, the police and
political executive are both bound together in the common endeavour of preventing and
investigating crime, maintaining law and order and ensuring that the people have a well
functioning essential service that protects life, property, liberty and creates an
environment within which citizens – especially those that are most at risk such as
women, children, minorities, the aged and disabled – can enjoy guaranteed
constitutional rights to the fullest.

For policing to work in an efficient and unbiased manner, the powers and
responsibilities of each entity involved has to be properly articulated. A careful balance
has to be struck between legitimate “supervision” of the police by the political executive
and illegitimate interference and influence. Conversely, the police must always remain
accountable to elected politicians for upholding the law and to perform its duties in
accordance with the law. If this balance is properly struck, then democratic policing will
be inevitable. That is why it is so important to carefully define what “superintendence”
of the police actually means and to carve out spheres of competence that ensure that the
power of the executive is conditioned while the police have operational responsibility.

Third, the management and provisioning of finances, infrastructure and equipment

must be suitable and sufficient to ensure exceptional performance. Even if directing
more funds to law enforcement is impossible, priorities for its use need to be redefined
and actual expenditures examined to ensure optimum utility. This is not presently the
case.

Fourth, reform will not succeed unless police have a greater respect for the rule of law
and democratic norms. An efficient and well provisioned police without constitutional
values is likely to be a harsher entity than even at present. The entrenched social
conditioning of police has to be addressed if sustainable police reform is to be achieved.
For instance, law enforcement agencies on the subcontinent rarely reflect the
multicultural and multiethnic populations they police. The Sri Lanka Police Service is
almost exclusively Sinhalese and is increasingly perceived as siding with that

89
ethnicity.lxxxii In addition, scheduled castes/ scheduled tribes and muslims are grossly
under represented in the higher ranks of Indian policing.lxxxiii Moreover, none of the
countries in Commonwealth South Asia have sufficiently incorporated women into the
police services.lxxxiv An important step would be to recruit more minorities and
marginalised groups into the policing fold.

Ideally, police reforms need to be done in tandem with reforms in the criminal justice
system and in broader governance. To focus solely on reforming the police while
ignoring these other critical sectors will guarantee failure on all fronts. Nevertheless,
waiting to solve all is a certain way of solving none. By zeroing in on this one sector, and
seeking to right it, tensions will inevitably be created in what is a largely static and
feudal system. Reforms in policing can stir a moribund system into action, thus
overcoming the inertia that plagues the region. The police require particular and
immediate attention because they are the gatekeepers of citizen protection, safety and
security, peace and justice. The interplay between the public and the police is usually
more immediate, intense and frequent than interactions with the judiciary, bureaucracy
or political class. Therefore, if left unchecked and unreformed, policing will continue to
undermine security rather than provide it.

The consequences of inaction on this issue are significant. In 2008, 67 suicide attacks in
Pakistan killed 973 and injured 2,318.lxxxv Bangladesh has developed a reputation as the
prime transit route for trafficking heroin to Europe from South East Asia.lxxxvi India has
been unable to control the ongoing violence taking place in Naxal-affected areaslxxxvii and
has also suffered a number of high-profile terrorist attacks in 2008.lxxxviii Further,
thousands of people continue to “disappear” in Sri Lanka, with little expectation that
those responsible will be caught.20 Compromised physical security, whether in the form
of a high-profile terrorist attack or everyday bad policing, continues to expand the
schism between the public and the police.

This publication provides concrete measures that can be undertaken to improve policing
services in each jurisdiction. It is CHRI’s firm belief that true reform will occur only
when informed public opinion creates the requisite political will to change traditional
patterns of conduct. Publications like this, as well as consistent long-term advocacy on
the issue, are intended to inform and catalyse much needed reforms.

Police reforms are too important to neglect and too urgent to delay.

i
Wikipedia website, “List of countries by GDP (nominal) per capita”: http://en.wikipedia.org/wiki/
List_of_countries_by_GDP_(nominal)_per_capita#cite_note-2 as on 12 November 2008.
ii
Edrisinha, R., Olander, K., and Orjuella, C. (December 2007), Review of Development Cooperation
between SriLanka Police and Swedish National Police Board, p. 9.
iii
Ibid., p. 11.

90
iv
Working Group on Enforced or Involuntary Disappearances (1999) Report on the visit to Sri Lanka by a
member of the Working Group on Enforced or Involuntary Disappearances, (25-29 October 1999) p. 13:
E/CN.4/2000/64/Add.1:http://www.unhchr.ch/huridocda/huridoca.nsf/AllSymbols/E6D08BB09C61C6D780
2568A9006830F1/$File/ G9916479.pdf?OpenElement as on 12 November 2008.
v
Human Rights Committee (2002), Fourth Periodic Report: Sri Lanka, State Part report submitted to the
Human Rights Committee under Article 40 of the ICCPR, p. 37, CCPR/C/LKA/2002/4:
http://www.unhchr.ch/tbs/doc.nsf/ (Symbol)/CCPR.C.LKA.2002.4.En?Opendocument as on 5 November
2008.
vi
Bureau of Democracy, Human Rights, and Labor, (2007), Country Reports on Human Rights Practices
2006:Maldives, United States Department of State: http://www.state.gov/g/drl/rls/hrrpt/2006/78875.htm as
on 1 November2008.
vii
Asian Centre for Human Rights (2007), “Sri Lanka: Spectre of abductions by the security forces
officially admitted”, ACHR Weekly Review, March, Review: 157/07:
http://www.achrweb.org/Review/2007/157-07.htm as on 29 October 2008.
viii
Commission of Inquiry into Involuntary Removal or Disappearance of Persons in the Northern and
Eastern Provinces (1997), Final Report, Sessional Paper No.7:
http://www.disappearances.org/news/mainfile.php/ frep_sl_ne/ as on 12 November 2008.
ix
UN Commission on Human Rights (1998), Report of the Special Rapporteur on extrajudicial, summary
or arbitrary executions, Mr. Bacre Waly Ndiaye submitted pursuant to Commission on Human Rights
resolution 1997/61, E/ CN.4/1998/68/Add.2, 12 March 1998, p.31 at para. 131: http://www.unhcr.org/cgi-
bin/texis/vtx/refworld/ rwmain?page=search&docid=3ae6b1044&skip=0&query=waly as
on 1 December 2008.
x
Human Rights Watch (2008), Recurring Nightmare: State Responsibility for “Disappearances” and
Abductions in Sri Lanka, v.20, no.2(c), pp. 48-50: http://www.hrw.org/en/reports/2008/03/05/recurring-
nightmare-0 as on 12 November 2008.
xi
Fernando, B. (2009), Recovering the authority of public institutions, Asian Human Rights Commission
(Hong Kong), p.12: http://www.ahrchk.net/pub/pdf/AHRC-PUB-002-2009-RecoveringAuthority.pdf.
xii
Pinto-Jayawardena, K. (2007), “‘Cosmetic’ Commissions and the Rule of Law in Sri Lanka,” CHRI
Newsletter, Spring 2007:
http://www.humanrightsinitiative.org/publications/nl/newsletter_spring_2007/article2.htm as on 6
December 2008.
xiii
International Commission of Jurists (2008), Briefing Paper, Sri Lanka’s Emergency Laws and
International Standards, June 2008: p.8: http://www.icj.org//IMG/SriLanka-BriefingPaper-Mar09-
FINAL.pdf as on 11 October 2008.
xiv
United Nations Security Council Resolution 1674(2006), S/RES/1674, 28 April 2006, para. 7:
http://domino.un.org/UNISPAL.NSF/f45643a78fcba719852560f6005987ad/e529762befa456f88525716100
45ebef!OpenDocument as on 12 November 2008.
xv
Ministry of Defence, Public Security, Law & Order (Sri Lanka) website, “Government takes policy
decision to abrogate failed CFA”: http://www.defence.lk/new.asp?fname=20080102_12 as on 12
November 2008.

91
xvi
Gazette Extraordinary No. 1450/18 of 21 June 2006, Amended Regulation 23 found in the Public
Security Ordinance (Chapter 40).
xvii
Interview with former police official, Colombo, 19 June 2008.
xviii
Ibid
xix
(2007), “Police evicts Tamils from Colombo”, BBC News, 7 June 2007:
http://news.bbc.co.uk/1/hi/world/
south_asia/6729555.stm as on 10 December 2008.
xx
Edrisinha, R., Olander, K., and Orjuella, C. (December 2007), Review of Development Cooperation
between SriLanka Police and Swedish National Police Board, p. 13.
xxi
21 Basnayake Commission (1970), Final Report of the Police Commission of 1970, Chapter 4, para 54:
http://www.ruleoflawsrilanka.org/resources/PoliceCommissionReport1970.doc/view as on 10 December
2008.
xxii
Section 55, Police Ordinance No. 16, 1865 (Sri Lanka), states that the IGP may frame orders and
regulations that the police under his command are bound to follow so as to prevent neglect or abuse and
ensure the efficient discharge of duties. And while there are penalties if an officer does not follow the rules,
the ordinance does not provide for any external review of misconduct or provide internal procedures for
disciplinary proceedings.
xxiii
Asian Human Rights Commission website, “Sri Lanka: Police Reform Initiatives within a
Dysfunctional System”:http://www.ahrchk.net/pub/mainfile.php/sldysfunctional/254/ as on 1 December
2008.
xxiv
Ibid.
xxv
Ibid.
xxvi
Article 41(A), 17th Amendment, Constitution of the Democratic Republic of Sri Lanka, 1978.
xxvii
See Article 41(B), 17th Amendment, Constitution of the Democratic Republic of Sri Lanka, 1978.
xxviii
Article 155(A), 17th Amendment, Constitution of the Democratic Republic of Sri Lanka, 1978.
xxix
A national daily reported that the transfer list of these officers “was prepared at the request of certain
Ministers and government party MPs [Members of Parliament]”. It added that this was “the first occasion
when the Commission has issued orders countermanding the orders of the Police Department.” Daily
Mirror, December 24, 2002, as cited by Weliamuna, J.C. (2004) “The National Police Commission”, Sri
Lanka: State of Human Rights 2004, p. 178, Colombo: Law and Society Trust.
xxx
National Police Commission (2003), Circular No. 1703/2003, 26 March as cited by Weliamuna, J.C.
(2004) “The National Police Commission”, Sri Lanka: State of Human Rights 2004, p. 173, Colombo: Law
and Society Trust.
xxxi
Article 155(J)(1), 17th Amendment, Constitution of the Democratic Republic of Sri Lanka, 1978: The
Commission may, subject to such conditions and procedures as may be prescribed by the Commission,
delegate to the Inspector-General of Police or in consultation with the Inspector-General of Police to any

92
Police Officer, its powers of appointment,promotion, transfer, disciplinary control and dismissal of any
category of police officer.
xxxii
Pinto-Jayawardena, K. (2007), “Regretting what might have been: a critique of the National Police
Commission of Sri Lanka”, paper presented at the Roundtable on Police Reform: A exchange of
experiences from South Asia held on 23 and 24 March 2007:
http://www.humanrightsinitiative.org/programs/aj/police/exchange/CHRI%20PAPER%20%20MARCH%2
02007.doc as on 12 November 2008.
xxxiii
Fernando, B. (2009), Recovering the authority of public institutions, Asian Human Rights
Commission (HongKong), pp. 10-11: http://www.ahrchk.net/pub/pdf/AHRC-PUB-002-2009-
RecoveringAuthority.pdf.
xxxiv
Interview with Mr Lasantha Wickramatunga, Editor of Sunday Leader, Colombo, 17 June 2008.
xxxv
Asia Human Rights Commission (2006), “Sri Lanka: Bypassing the 17th Amendment is a move
towards the returnto absolute power”, Asia Human Rights Commission (statement), 14 February 2006, AS-
024-2006: http://www.ahrchk.net/statements/mainfile.php/2006statements/432/ as on 12 November 2008.
xxxvi
When President Rajapakse was Labour Minister, he made Mr Piyadigama his Ministry Secretary and
when he wasappointed as the Fisheries Minister, again Mr. Piyadigama functioned as Ministry Secretary.
See Gnanadass, W.(2006), “A post for President’s pal cuts root of 17th Amendment”, The Nation, 11 June
2006: http://www.nation.lk/2006/06/11/newsfe4.htm as on 12 December 2008.
xxxvii
Pinto-Jayawardena, K. (2007), “An Unfulfilled Promise: Critical Scrutiny of the National Police
Commission of SriLanka”, LST Review, Volume 18, Issue 238, August 2007, p. 18.
xxxviii
(2007) “Sri Lanka: Spectre of abductions by the security forces officially admitted,” Asian Center
for Human Rights Weekly Review, 157/2007, 7 March 2007, http://www.achrweb.org/Review/2007/157-
07.htm as on 20 November 2008.
xxxix
Human Rights Watch (2008), Recurring Nightmare: State Responsibility for “Disappearances” and
Abductions in Sri Lanka, v.20, no.2(c), at Annex II: http://www.hrw.org/en/reports/2008/03/05/recurring-
nightmare-0 as on 12 November 2008.
xl
Ibid.
xli
Weliamuna, J. C. (2006), In Pursuit of ‘Absolute Integrity’: Identifying Causes for Police Corruption,
Transparency International – Sri Lanka, p. 76.
xlii
Ibid., p. 36.
xliii
Pinto-Jayawardena, K. (2007), “An Unfulfilled Promise: Critical Scrutiny of the National Police
Commission of Sri Lanka”, LST Review, Volume 18, Issue 238, August 2007, p. 17.
xliv
National Police Commission (2006), Annual Report 2006, p. 37.
xlv
The precise wording of Rule 17: “At the conclusion of an investigation, if it recommended that
disciplinary action or prosecution against a police officer shall be instituted, the IG or DIGG, as the case
may be, shall be notified along with evidence recorded at the investigations and draft charges, to initiate
forthwith such disciplinary action according to departmental procedure or prosecution against such police
officer”. See Gazette Extraordinary 1480/8 – 17 January 2007.

93
xlvi
Human Rights Watch (2008), Recurring Nightmare: State Responsibility for “Disappearances” and
Abductions in Sri Lanka, v.20, no.2(c), p. 101: http://www.hrw.org/en/reports/2008/03/05/recurring-
nightmare-0 as on 12 November2008.
xlvii
Section 4(1),Removal of Officers (Procedure) Act, No. 5 (2002).
xlviii
See Sections 5 and 6, Removal of Officers (Procedure) Act, No. 5 (2002).
xlix
Section 18 of the Removal of Officers (Procedure) Act, No. 5 (2002).
l
Edrisinha, R., Olander, K., and Orjuella, C. (December 2007), Review of Development Cooperation
between SriLanka Police and Swedish National Police Board, p. 3.
li
Ibid., p. 4

lii
Ibid., p. 30.
liii
Interview with Mr Goran Schill, First Secretary of the Swedish Embassy, Colombo, 18 June 2008.
liv
Fernando, B. (2009), Recovering the authority of public institutions, Asian Human Rights Commission
(Hong Kong), p. 7-8: http://www.ahrchk.net/pub/pdf/AHRC-PUB-002-2009-RecoveringAuthority.pdf.
lv
International Commission of Jurists (2008), Briefing Paper, Sri Lanka’s Emergency Laws and
International Standards, June 2008: p. 12: http://www.icj.org//IMG/SriLanka-BriefingPaper-Mar09-
FINAL.pdf as on 11 Octobe 2008.
lvi
International Independent Group of Eminent Person website: http://www.iigep.org/mandate.htm as on
12 Decembe 2008.
lvii
(2007), “International Independent Group of Eminent Persons (IIGEP) Second Public Statement”, June
15,2007: http://www.ahrchk.net/statements/mainfile.php/2007statements/1065/ as on 12 November 2008.
lviii
International Independent Group of Eminent Person website, “Press Releases: 6 March 2008”:
http://www.iigep.org/press-releases.htm as on 12 November 2008.
lix
Trincomalee refers to a highly controversial incident where 5 youth were shot in the head at close range
by security forces, who claimed that the teenagers belonged to the LTTE. Evidence subsequently revealed
suggests that the five teens were all advanced level qualified civilian students from the same school who
were simply at the beach for a night out.
lx
International Independent Group of Eminent Person website, “Press Releases: 6 March 2008”:
http://www.iigep.org/press-releases.htm as on 12 November 2008.
lxi
Interview with Mr Lasantha Wickramatunga, Editor of Sunday Leader, Colombo, 17 June 2008.
lxii
(2008), “EU grants GSP+ to Sri Lanka for another three years,” 11 December 2008: http://
www.colombopage.com/archive_08/December11121813RA.html as on 18 December 2008.
lxiii
(2005), “Persisting problems and outstanding issues, An alternative report to the Committee Against
Torture” presented by the Law & Society Trust, Sri Lanka and Asian Human Rights Commission, Hong

94
Kong, October 7,2005. From 1994-2004, there were no convictions under the CAT Act and since then,
there have been only 3 convictions till date.
lxiv
Human Rights Watch (March 2008), Recurring Nightmare: State Responsibility for “Disappearances”
and Abductions in Sri Lanka, v.20, no.2(c), pp. 102-103:
http://www.hrw.org/en/reports/2008/03/05/recurring-nightmare-0 as on 12 November 2008.
lxv
Tighe, P. (2008), “Sri Lanka Loses Bid for UN Human Rights Council Seat”, 22 May 2008:
http://www.bloomberg.com/ apps/news?pid=20601091&sid=ajQ846Zx3do8&refer=india as on November
12, 2008.
lxvi
For greater detail on Sri Lanka’s human rights record, please refer to CHRI’s publication, “Easier Said
Than Done:A report on commitments and performances of the Commonwealth members of the UN Human
Rights Council 2007-2008 Edition” (to be published in 2009), R.I. Ilango and L. Mathieson (Ed.),
Commonwealth Human Rights Initiative.
lxvii
National Police Commission (2006), Annual Report 2006, p. 32.
lxviii
Weliamuna, J. C. (2006), In Pursuit of ‘Absolute Integrity’: Identifying Causes for Police Corruption,
Transparency International – Sri Lanka, pp. 81-82.

lxix
Weliamuna, J. C. (2006), In Pursuit of ‘Absolute Integrity’: Identifying Causes for Police Corruption,
Transparency International – Sri Lanka, p. 67.
lxx
Maldives has been omitted due to an inability to conduct primary research in that jurisdiction.
lxxi
Maldives also passed its first Police Act in 2008. However, CHRI has been unsuccessful in securing an English
version of the Act.
lxxii
Human Rights Watch (March 2008), Recurring Nightmare: State Responsibility for “Disappearances” and
Abductions
in Sri Lanka, v.20, no.2(c): http://www.hrw.org/en/reports/2008/03/05/recurring-nightmare-0 as on 12 November 2008;
International Crisis Group (2008), Reforming Pakistan’s Police, Asia Report N°157, p. 8: http://www.crisisgroup.org/
home/index.cfm?id=5570&l=1 as on 12 December 2008; Odhikar (2008), Human Rights Report: Odhikar Report on
Bangladesh, p. 38: http://newsfrombangladesh.net/dbimages/241473-0
Odhikar%20annual%20human%20rights%20report%202008.doc as on 20 March 2009; Human Rights Watch (July
2008), Being Neutral is Our Biggest Crime, pp. 54-58: http:// www.hrw.org/en/reports/2008/07/14/being-neutral-our-
biggest-crime-0 as on 17 October 2008.
lxxiii
For a detailed discussion of democratic policing and why it is important, please refer to Chapter 2 of Rauch J.,
Prasad D., Mehta S., and Canineu M.L. “Police Accountability: Too important to neglect, too urgent to delay”, 2005,
CHRI report by the International Advisory Commission of the Commonwealth Human Rights Initiative: http://
www.humanrightsinitiative.org/publications/chogm/chogm_2005/chogm_2005_full_report.pdf.
lxxiv
United Nations Office of the High Commissioner for Human Rights (1997), Human Rights and Law Enforcement:
A
Manual on Human Rights Training for the Police, Chapter IX: http://www.unhchr.ch/html/menu6/2/training.htm as on
11 December 2008.

95
lxxv
Commonwealth Human Right Initiative and Kenya Human Rights Commission (2006), The Police, The People,
The Politics- Police Accountability in Kenya:
http://www.humanrightsinitiative.org/publications/police/kenya_country_report_2006.pdf.
lxxvi
United Nations International Police Task Force (1996), Commissioner’s Guidelines for Democratic Policing in the
Federation of Bosnia-Herzegovina.
lxxvii
Bruce, D. and Neild, R. (2005), The police that we want - A handbook for oversight of police in South Africa,
Centre for the Study of Violence and Reconciliation, p. 15: http://www.justiceinitiative.org/db/resource2?res_id=102519
as on 13 September 2008.
lxxviii
Marenin, O. (2005), Restoring Policing Systems in Conflict Torn Nations: Process, Problems, Prospects,
Democratic
Control of Armed Forces, June 2005.
lxxix
Ibid, p. 29.
lxxx
Van Zant, E. (2005), “Better Policing: Tracking the problems besetting the Bangladeshi police services means
overcoming a long history and great shortage of funds”, ADB Review: http://www.adb.org/Documents/Periodicals/
ADB_Review/2005/vol37-2/better-policing.asp as on 12 December 2008.
lxxxi
Greene, J .R. (2006), The Encyclopedia of Police Science, 3rd edition, CRC Press, p. 271:
http://books.google.ca/ books?id=HIE_zF1Rv7MC&dq=The+Encyclopedia+of+Police+Science&printsec=frontcover
&source=bl&
ots=fVss9CXj5K&sig=q12KHMFxkRP89LHfu84dgTFqLJE&hl=en&ei=bubqSZLJPNCGkQX4jeClCA&sa=X&oi=boo
k_result&ct=result&resnum=4#PPA713,M1 as on 24 November 2008.
lxxxii
Edrisinha, R., Olander, K., and Orjuella, C. (December 2007), Review of Development Cooperation between Sri
Lanka Police and Swedish National Police Board, p. 10; Laksiri, F. (2005), Police-Civil Relations for Good Governance,
Colombo: Social Scientists’ Association.
lxxxiii
Swami, P. (2006), “Bias and the Police”, Frontline, v.23, Issue 24, December 2-15: http://www.hinduonnet.com/
fline/fl2324/stories/20061215002503300.htm as on 13 November 2008.
lxxxiv
Nataranjan, M. (2005), “Status of Women Police in Asia”, The Journal for Women and Policing, Issue No.17,
pp.45-47: http://www.auspol-women.asn.au/issue%2017.pdf as on 1 December 2008.
lxxxv
Usman, A. (2009), “HRCP launches report on human rights situation in 2008: a year of challenges”, The Daily
Times, 7 April 2009: http://www.dailytimes.com.pk/default.asp?page=2009%5C04%5C07%5Cstory_7-4-2009_pg7_23
as on 8 April 2009.
lxxxvi
(2008), “Bangladesh transit route for heroin trafficking”, The Bangladesh News, 7 March 2008: http://
www.bangladeshnews.com.bd/2008/03/07/bangladesh-transit-route-for-heroin-trafficking/ as on 17 September 2008.
lxxxvii
Human Rights Watch (July 2008), Being Neutral is Our Biggest Crime:
http://www.hrw.org/en/reports/2008/07/14/ being-neutral-our-biggest-crime-0 as on 17 October 2008.
lxxxviii
There were major terror attacks in Jaipur (13 May 2008), Ahmedabad (28 July 2008), New Delhi (13
September 2008), Guwahati (30 October 2008) and Mumbai (26-28 November 2008).

96
 Police Accountability
Too Important to Neglect, Too Urgent to Delay

The conduct of the police is an important barometer of the state of governance,

and their performance can significantly shape the social health of nations. Police,
whether in a democratic or dictatorial regime, perform much the same functions.
What distinguishes good from bad policing is the commitment to protect the civil
and political freedoms of individuals, while helping to create an environment
that will maximize the enjoyment of economic, social and cultural rights as well.

The price that democracies pay for unreformed, unaccountable policing is high.
Overall human and national security is compromised in a global environment
often prone to terror without and insurgency within. Access to justice, already
remote for many, is further distanced from the population at large. The rights of
the vulnerable like women, children, minorities, refugees and the vast
population of poor that inhabit the Commonwealth go unrealized. Corruption,
violence and fear thrive and the rule of law remains an aspiration on paper when
it should be the demonstrable assumption on which all people can base their
everyday lives.

The elements of reform are many and the Commonwealth is rich in excellent
examples of how accountability has been achieved. However, there is also a

97
stubborn reluctance in some jurisdictions to move away from "regime" to
"democratic" policing. A deal of the tardiness associated with initiating reform
and ensuring accountability comes from the inability of in-country police and
political bosses to access knowledge about the nuts and bolts of how it can be
accomplished. In advocating for stronger efforts at police reform, this report
showcases good practices in accountability. It provides practical suggestions
about how reforms can be undertaken and the values on which policing in the
Commonwealth must be premised in order to be effective.

The Commonwealth must explicitly acknowledge that police reform and

accountability are crucial to realizing democracy and development. It must
commit itself to developing Commonwealth Principles on Policing that underpin
best practices and provide member countries with assistance in reforming laws
and crafting institutional arrangements that will eliminate abuse and corruption,
and ensure the highest standards of policing.

Policing in the Commonwealth

Some of the best policing in the world is found in the Commonwealth, and also
some of the worst. But by and large, its 1.8 billion people do not have the
policing they deserve. Police reform is now too important to neglect and too
urgent to delay. In too many countries, governments are failing in their primary
duty to provide the public with an honest, efficient, effective police service that
ensures the rule of law and an environment of safety and security. The only
legitimate policing is policing that helps create an environment free from fear
and conducive to the realization of people's human rights, particularly those that
promote unfettered political activity, which is the hallmark of a democracy.
Given the weight of evidence it would be easy to paint the police across the
Commonwealth in monochromatic black. This would be entirely unfair. In many
countries the police are a very trusted and well-respected public service and in
many more they do a hard and thankless job in difficult circumstances.
Nevertheless, barring a few honourable exceptions, there is too much wrong
with policing in the Commonwealth for the association and its member states to
persist in closing their eyes to the fact that the continued presence of unreformed
policing - powerful, unaccountable, coercive, biased, and corrupt – remains a
badge of long gone colonial subservience rather than a mark of confident
sovereignty.

What Ails the Police?

98
Repeated citations of police wrongdoing, ranging from individual bad behaviour
to institutionalized criminality, are undermining the fundamental principles of
the Commonwealth Harare Declaration, to which all Commonwealth members
have committed to abide. Abusive policing methods damage democracy, weaken
the rule of law and lead to gross violations of human rights. Rising crime, greater
perceptions of vulnerability and fear of victimization in all parts of the
Commonwealth demand improved policing. Unprecedented security concerns
have created more room for heavy-handed policing methods and tighter internal
security regimes. This has generated new problems in police community
relations and torn at the interface of policing, democratic values and human
rights.

Routine disobedience to procedural law is a prevalent feature of abusive

policing. This includes: detaining people without reasonable cause and/or for
longer than permissible periods without bringing them before a designated
authority; carrying out indiscriminate arrests; and even taking innocent family
members hostage to coerce those wanted for questioning to turn themselves in.
Corruption too, is impeding police functioning in large parts of the
Commonwealth. A bribe is often a prerequisite to registering a crime - or for
looking away, with payments made to help "steer" investigations. Equally
disturbing is the stifling of legitimate political activity. Too often acting as agents
of ruling elites, police marginalize political opponents, assist in toppling
governments in some places and help them stay in power in others. Trampling
key human rights through police bias against ethnic, religious or linguistic
minorities is a major cause of concern as well. Crimes against women abound in
Commonwealth countries but are often met with a poor response, with
stereotyping of women and patriarchal attitudes prejudicing the way police
handle cases.

All too frequently, chilling reports surface of police resorting to extra judicial
killings as a 'quick fix' device. Faced with mounting public frustration at their
inefficacy in controlling crime or low-level conflicts, police seek to solve deep-
rooted security challenges by simply liquidating the problem without the need to
go through the "inconvenience" of the legal process. Most alarmingly, regular
reports from all regions of the Commonwealth show that torture is a widely
prevalent incident of custody. Perhaps the greatest public resentment and
disappointment over bad policing is reserved for impunity - the safety from
punishment provided by authorities and supervisors to errant police. This
includes a boundless tolerance for poor performance in delivering safety and

99
security and protecting the rule of law. Given that the police are largely
governed by the political executive - and in many jurisdictions closely controlled
by it - impunity persists not by accident, but by design. Serious breaches of law
and accountability arise out of nurtured relationships of patronage.
Undoubtedly, government is entitled to provide police with policy direction and
set standards for performance. However, the distinction between appropriate
executive direction and inappropriate political interference in operational
matters is frequently transgressed to the detriment of the rule of law.

Improving Policing
Democratic nations need democratic policing. This gives practical meaning to the
Commonwealth's promise of democracy and good governance and is applicable
to any context - rich or poor, large or small, diverse or homogenous.
Commonwealth countries have signed up to many international laws and
standards. Although these provide a framework for democratic policing, in
practice, national constitutions and police laws are more immediately relevant to
the conduct of police officers and organizations. As such, it is vital that
legislation reflects these international standards and establishes police that "serve
to protect, rather than impede, freedoms. The very purpose of the police is to
provide a safe, orderly environment in which these freedoms can be exercised. A
democratic police force is not concerned with people's beliefs or associates, their
movements or conformity to state ideology. It is not even primarily concerned
with the enforcement of regulations or bureaucratic regimens. Instead, the police
force of a democracy is concerned strictly with the preservation of safe
communities and the application of criminal law equally to all people, without
fear or favour" (United Nations International Police Task Force, 1996). The
Commonwealth now has inspiring examples of reform, despite often very deep
initial resistance to such change. The end of conflict in Northern Ireland, for
instance, provided a moment for redesigning a new kind of police capable of
sustaining the confidence of a diverse and divided community. Countries like
South Africa, Sierra Leone, Fiji and Nigeria that have undergone dramatic
transitions from authoritarianism to democracy have begun to showcase some of
the seminal lessons for police reform.

Depending on the context, police reform has entailed wholesale review of

legislation and redefinition of role, as well as restructuring aimed at making the
organisation less militaristic and hierarchical and more merit-based. Reform has
sought to change the internal sub-culture in matters of ethics and discipline to
bring about changes in attitude aimed at moving the police away from its

100
frequently fortress-like mentality to becoming inclusive and responsive.
Recruitment has been improved to be more representative. Training has gone
beyond the military march and baton drill to inculcating knowledge of human
rights, nurturing initiative, honing new skills and creating professional
specialisations. Reform has addressed the need for improved service conditions
of the rankand file, and given attention to their career advancement based on
good performance rather than patronage. It has also harnessed technology,
reassessed available financial and human resources, and devised strategies to
make optimum use of scarce resources while putting in place rigorous oversight
systems that ensure financial integrity. Vital to new systems is their ability to
insulate police from illegitimate outside interference, permitting officers
functional autonomy coupled with management responsibility for delivering
overall good services. This has involved careful demarcation of roles between
political authorities and security agencies.

Democratic Policing
Reform requires a shift from "regime" policing to "democratic" policing. This
entails an approach founded on principles of equity and equality, accountability,
transparency, participation, respect for diversity, the accommodation of dissent,
protection of individual and group rights, and encouragement of human
potential. A 'democratic' police organization is one that:

is accountable to the law, and not a law unto itself. Democratic policing
requires that the police act within the boundaries of domestic and international
law. Actions of the police are always subject to court scrutiny and those who
break the law face consequences both through internal disciplinary systems and
the criminal law.

is accountable to democratic governance structures and the community. To

ensure that the police do not become overly controlled by and identified with a
single seat of power, democratic police independently answer to all three
branches of governance - the executive, the parliament and the judiciary - as well
as to the community.

is transparent in its activities. Most police activity should be open to scrutiny

and regularly reported to outside bodies. Information about individual
behaviour, as much as operations, must be in the public domain.

101
 gives top operational priority to protecting the safety and rights of individuals
and groups. The police must be responsive to the needs of individuals and
groups - especially those who are vulnerable and marginalized. In diverse and
fragmented societies, police organizations must be responsive and respectful
across social divides and always uphold the law without bias.

protects human rights. Police must protect the right to life and dignity of all,
and in particular the exercise of democratic freedoms - freedom of speech,
association, assembly, movement, and freedom from arbitrary arrest, detention
and exile.
provides society with professional services. As an organization with huge
powers in which the public places enormous trust, the police must be governed
by a strong code of ethics and professional conduct and be answerable for
delivering high quality services.
is representative of the communities it serves. Police organizations which
reflect the populations they serve are more likely to enjoy their confidence and
cooperation and earn the trust of vulnerable and marginal groups who most
need their protection.

Democratic policing not only protects democratic institutions and supports an

environment where activities essential to democracy can flourish but also
demonstrates democratic values in its own institutional structures and processes.

Accountability Mechanisms
In line with the doctrine of checks and balances that characterize democratic
systems of governance, at the heart of democratic policing lies the need to create
multiple layers of accountability to transform police organizations from
oppressive engines of a few powerful interests to a service for all. Internally these
deal with discipline, ethics and performance, while external oversight extends
across parliament, the judiciary and the executive, to the community and widens
to giving account to newer independent civilian oversight mechanisms
(including human rights commissions and ombudsmen). Working in tandem, the
strength and impartiality of each of these mechanisms creates strength and
credibility for the police.

A Model for Police Accountability: 3 + 1

Accountability to the Three Pillars of State

102
Ensuring human security is the high duty of the state and every country is
obligated to provide an honest, effective and efficient police service. All three
pillars of governance – the executive, parliament and the judiciary - each have a
specific and defined role to play in ensuring good policing. Government is
entitled to provide clear policy direction, prepare policing plans, set standards or
performance indicators, and establish strong accountability mechanisms.
However, the distinction between appropriate political direction from a
government to a police force and inappropriate political interference in
operational policing matters is significant, in law, policy, and practice. Clear
delineation of roles, responsibilities and relationships between the police and the
executive laid down in law helps to pinpoint accountability. It also minimizes the
possibility of unfettered interference seeping into policing matters and
influencing their functioning. Countries across the Commonwealth have
experimented with various institutions to check illegitimate political interference.
Service commissions are autonomous government bodies that oversee
disciplinary and management matters in police agencies and were established
precisely to limit potential political interference in selection, promotion, transfer,
and removal of police officers. In practice, however, the dominant role of the
head of state in many small states in the Caribbean and Pacific allows them to
wield their power in appointing commission members, providing space for
potential political patronage. Newer models of service commissions have been
granted huge powers. Nigeria's Police Service Commission, for instance, is
potentially one of the most powerful new commissions in the world. Established
in 2001, its membership includes human rights advocates, women,
businesspeople and media persons as well as a retired Justice of the Superior
Court. Coupled with the statutory obligation to establish a complaints
investigation department, as an independent Constitutional body it has the
power to discipline, dismiss, and refer cases for criminal prosecution. The
Commission can also formulate and implement policy. During the 2003 general
elections, the Commission collaborated with the Centre for Law Enforcement

Education Nigeria and the Open Society Justice Initiative to develop guidelines
on police conduct and monitored police behavior. Several countries have also
established police boards and authorities to minimize executive interference in
policing and develop policy. Created in response to a long history of conflict,
Northern Ireland's Policing Board is one of the most powerful bodies of this
kind. It is not only responsible for delivering an efficient police service, but is
also mandated to help the police fulfill the statutory obligations in the Human
Rights Act 1998. The Board can launch its own inquiries into any aspect of police

103
work even without the agreement of the Chief Constable, giving it a more active
management and oversight role than most other boards. Serious breaches of law
and accountability arise out of inappropriate relationships of patronage that
develop where there are biddable service commissions, no objective procedures
and criteria for the appointment and removal of police chiefs, and inadequate
oversight processes. In countries that practice democratic policing, the
appointment process for instance is more collaborative and requires input from
civilian oversight bodies. In the Australian state of Queensland, the
Commissioner is appointed by the Governor "on a recommendation agreed to by
the chairperson of the Crime and Misconduct Commission” with the approval of
the Minister for Police.

Courts also ensure that acts of the executive and laws made by parliament
comply with and promote international human rights standards.4 They also
protect citizens from the excesses of the state and its agents by bringing to book
perpetrators of human rights violations and breaches of law, and by ensuring
that victims obtain sufficient redress. Accountability for policing may require the
judiciary to enunciate and lay down standards of acceptable behavior, punish
infractions and, at times, reign in the executive. Judges help maintain high
standards of policing when they throw out cases and refuse convictions because
of procedural aberrations - including arrests without proper cause or warrant,
force used to extract confessions, illegal searches and wrongful recovery of
goods. To protect due process where there is persistent misbehavior, judges may
produce their own guidelines and procedures for police.

Parliaments equally have many powers to question police wrongdoing, to correct

systemic faults by passing new laws, to seek accounts of police performance, and
to keep policing under constant review. Opportunities for oversight of police
affairs include question time, debates, drawing attention motions, and private
members bills, which, though very often defeated, spur debate and introduce
innovations. Special commissions of inquiry may also be established to pursue
particularly serious concerns. While these devices draw occasional attention to
the more dramatic aspects of policing, it is the more mundane, regular features
such as departmental reviews, budget sessions and accounts audits that provide
opportunities for thorough examination of police functioning; and the detailed
work in committees that seriously impact on creating a better service. In South
Africa, the significance of committees as vehicles of democratic governance is
well recognized. Committees are empowered to summon any person to give

104
evidence under oath or produce a document, receive petitions or submissions
from any interested parties, and conduct public hearings.

Internal Accountability
Governments are of course duty-bound to hold the police to account. But it is
also the responsibility of the police themselves to ensure that internal systems
guarantee discipline, performance and all round good policing. Two mechanisms
define internal accountability.
The first is the disciplinary environment, which is made up of both the formal
apparatus for censuring misconduct and the informal culture that pervades the
establishment. The second is the comparatively new technique of performance
management that aims to assess police efficiency through target setting.

In their design, internal disciplinary systems are usually comprehensive in

structure and scope. If they were implemented as set out in law and in adherence
with the principles of natural justice, there would be far fewer problems.
However, in too many jurisdictions internal accountability mechanisms do not
enjoy the confidence of either the rank and file or the public. The frequency of
bad behaviour and poor performance indicates that internal standard setting and
compliance systems are either badly implemented or deliberately disregarded.

Extending transparency bolsters credibility. In many Commonwealth

jurisdictions, figures for the number of complaints against police officers
received and resolved each year are released. Going beyond figures and telling
the stories behind acts of misconduct reinforces the notion that leaderships will
not protect or tolerate misbehavior. In the long run, laying bare the anatomy of
internal mechanisms and outcome builds faith both in the public and within the
police. Internal accountability mechanisms come into play after an act of
misconduct. Changing the way police organisations function - from forces into
services where the citizen "customer" is king – requires regular attention to the
whole system rather than being addressed in a piecemeal fashion.

Modern policing systems require modern management structures. Good

management is grounded in principles of good governance and accountability,
both individual and organizational. As modern systems of accountability are
based on objective criteria, they reward merit and professionalism, constantly
review performance and quickly repair weaknesses so that little room is left for
misconduct. "Performance management" uses statistics to look at the police in
terms of the results they deliver. The outcomes most often measured are those

105
that address the issue of police effectiveness, particularly the contribution the
police make both to tackling criminality and creating a safe environment for the
public.

Typical measures include crime figures or opinion poll data regarding public
confidence in the police. Such data is then used for two purposes: internally as
"management information" to help police leaders focus on improving areas
where performance is poor; and externally as a means of explaining police
performance to the public. Both can be powerful accountability tools: the former
as a way of highlighting problems inside the organization (by comparing
individuals or units and by identifying trends, say in complaints against the
police); the latter as a way of expressing the results the police achieve in objective
terms, which can then act as the basis for discussion about how to improve.

Independent Civilian Accountability Agencies

As governments increasingly embrace the philosophy of democratic policing,
attempts are on to make policing more transparent, involve outsiders, build
public confidence, allay fears of bias, assure impartiality of investigation, and
make the receipt of complaints easier, reduce abuse of power and misconduct,
change the internal culture and ensure ever better performance. Countries across
the Commonwealth have therefore sought to augment government and internal
accountability systems with other external or civilian – meaning non-police -
oversight mechanisms. It is hoped that these systems will complement existing
external mechanisms and together create a web of accountability from which it is
increasingly difficult for police misconduct to escape without consequences.
Variously named5 and designed, such bodies fall into two broad categories:
organizations exclusively dedicated to investigating, reviewing and monitoring
police related complaints; and agencies such as ombudsmen and national human
rights institutions (which are usually called commissions) that have broader
mandates. Where multiple oversight agencies contribute to police accountability,
a system of coordination and referrals carves out jurisdictions and protects
against overlapping, duplication and contradictory recommendations. In South
Africa, which has both a Human Rights Commission and an independent police
complaints agency, the Commission refers all police-related complaints to the
latter.

Much of how effectively complaints authorities, ombudsman's offices and

human rights commissions perform their functions once again depends on how
truly separate from police and executive influence they are and how autonomous

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and well embedded their status is in the country's legal architecture. Their
effectiveness also depends upon the width and clarity of their mandate; the
scope of their investigative powers; the composition and competence of their
leadership and staff; and the adequacy and sources of financing. A particularly
crucial factor is their ability to compel obedience to recommendations and the
attention and clear support their reports and findings receive at the hands of the
government and the police. These minimum requirements have been
internationally recognized and summed up in the Paris Principles for National
Human Rights Institutions, but they also apply equally to any oversight agency.
The Commonwealth has also compiled National Human Rights Institutions Best
Practice guidelines. Unfortunately though, not all civilian oversight agencies in
the Commonwealth abide by even these basic guidelines.

Commonwealth countries are increasingly aware that the presence of at least one
external, independent civilian agency sends the message that the police will be
held accountable.

Civilian agencies that are solely dedicated to dealing with complaints against the
police have been the most successful in holding the police to account. Single
focus agencies build up expertise, investigative techniques and the capacity to
analyse patterns of police conduct and evaluate performance. In any case, how
ever independent oversight is structured, political will and strong leadership of
both the police and the independent bodies are essential for building a truly
accountable and responsive policing system.

Accountability to the Community

Finally, democratic policing requires accountability to the community that it
serves – in other words, it requires the consent and cooperation of the
community being policed - not least because close connectivity makes policing
more effective. People need to feel they can trust the police and that the police
priorities their concerns and will not subject them to abuse or corruption.
In seeking greater accountability, some civil society representatives engage and
some confront, and some do both depending on the circumstance. Experience
has shown that it is essential to confront those in power with hard evidence of
policing problems, rather than unsubstantiated statistics and easily dismissed
anecdotal stories. Civil society groups traditionally seek accountability by
documenting patterns of police abuse. They are also increasingly using
international forums for naming and shaming which creates deep
embarrassment at home.

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Sustained support for reform and accountability comes only when there is a
broad domestic constituency that understands and supports the concept of
responsive and accountable policing. Many groups therefore sensitise the police
and educate the public, including providing legal awareness about
constitutionally guaranteed freedoms, rights on arrest, rights of special groups
like indigenous people, the disabled, gays and lesbians, and the steps to take
when police overreach their powers. Victims groups give a human face to the
problem of unaccountable policing and have been important catalysts in shaping
public opinion. The media's enormous influence in developing public opinion
has prompted many groups to train media personnel on the intricacies of
policing. Without analysis of how police accountability can be brought about, the
public is deprived of a platform for informed progressive debate and advocacy.

Creating political will requires constant engagement. Timing is vital.

Opportunities abound: from getting police reform into political manifestos at
election time; holding winners to their promises; providing submissions to
parliamentary committees; to intervening at all levels of the law making and
scrutiny processes where police functioning and performance are up for
discussion. Advocates have sought ratification of treaties, the creation of
oversight bodies, and enactment of laws that enhance accountability and
transparency such as right to information, whistle-blower protection, and anti-
corruption. At the very least, civil society groups demand the right to participate
in policy processes and community safety.

Concerns about safety and security have pushed governments to relocate

policing more firmly within local communities. More and more countries are
experimenting with "community policing". While some, like South Africa, UK
and Canada, have institutionalized this through law or entrenched practice, most
are still testing its use. Community policing essentially "signifies a collaboration
between the police and the community, which identifies and solves community
problems".7 Several factors determine success: traditionally centralized police
organizations are required to shift decision-making and responsibility
downward and recognize that it is front-line officers who have to make the new
community policing approach work. Police and public have to interact as equals
and with a sense of shared values. In societies where power relationships are
extremely uneven, community policing has to consider diversity and not be
hijacked by dominant groups, otherwise there is a danger that already

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marginalized groups will be further victimized by the alliance between police
and local privilege.

Despite the mixed reception for police reform initiatives across the
Commonwealth, there is room for optimism. Growing global concern with crime
and security has created fertile ground for new dialogues about police
performance and accountability. As more people feel insecure and unsafe, they
become interested in knowing how the government and the police plan to
protect life and property and the need for deeper engagement between the
government, police and the community becomes more urgent.

CONCLUDING RECOMMENDATIONS

CHRI makes a series of priority recommendations to different target groups:

Commonwealth Heads of Government must:

In their CHOGM communiqué:

recognise that the Commonwealth principles of accountability, transparency,
participation, adherence to the rule of law, respect for diversity and democratic
functioning apply to the security and justice sectors, including police
organisations;

explicitly acknowledge that democratic policing is crucial to realizing

democracy and development;

commit the Commonwealth to developing Commonwealth Principles on

Policing drawn from its core principles and international standards; and

undertake to apply these principles to policing in their own countries.

Mandate the Commonwealth Secretariat to further better policing through:

providing member countries with technical assistance to reform laws, craft
institutional arrangements and adopt practices that will eliminate abuse,
corruption and ensure better accountability;

providing the Human Rights Unit with adequate resources to engage with
police

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organisations, focusing on adherence to human rights standards;

undertaking a series of Commonwealth-wide exchanges for police ministers,

police personnel, experts and civil society designed to encourage the spread of
good practice in democratic policing; and

catalyzing the formation of a Commonwealth Association of Police Officers

that can mutually assist and share ideas

In addition, Heads of Government must:

Solemnly agree to ratify international human rights treaties within a finite time
frame and develop a mechanism at CHOGMs to report on and monitor
implementation of past commitments.

Affirm compliance with the standards of policing required by the International

Bill of Rights, the UN Code of Conduct for Law Enforcement Officials, and the
UN Basic Principles on the Use of Force and Firearms.

Member countries must:

Acknowledge that it is the foremost duty of a state to ensure people's right to
safety and security and thereby to provide a police organisation that is efficient,
effective and adheres to the rule of law. Review and recast police laws, rules and
regulations, especially those that pre-date the

1948 Universal Declaration of Human Rights, so as to incorporate and further the

principles of democratic policing. Re-examine internal security laws to minimise
the possibility of impunity and remove obstacles to prosecution or victim
compensation and civil suits for police wrongdoing.

Protect whistleblowers from harm and victimisation through legislation and

supportive systems.

Strengthen traditional executive, legislative, and judicial oversight of police; and

put in place and support multiple additional independent civilian oversight
mechanisms, such as an ombudsman, human rights commission, anti-corruption
body or dedicated police complaints agency as appropriate.

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Ensure - through institutional arrangements such as strong, autonomous police
service boards, commissions and authorities - that executive oversight does not
illegimately interfere with operational independence of the police.

Publish annual performance targets and evaluation measurements against which

adherence to human rights, value for money, performance and community
satisfaction can be publicly judged.

Design transparent and merit-based procedures that can be measured against

objective publicly-known criteria for representative and non-discriminatory
recruitment, selection, and appointment of leadership and rank and file.

Ensure good service conditions for police and fair accountability procedures
applicable to all. Initiate, in collaboration with police organizations, procedures
and mechanisms designed to involve civil society groups and the community at
large in creating policy, determining priorities, setting targets and evaluating
performance.

Re-examine, in collaboration with police organizations, training content,

methodology and frequency to emphasize human rights awareness.

Police leaders and police organizations must:

Ensure that upholding the rule of law and protecting human rights and
democratic values are core values of policing integrated into its vision, policies
and procedures, reinforced through training, and demonstrated in its work.

Send a strong signal to all within and outside that as an organisation of high
professional standards, the police will perform well, be open and approachable,
and not tolerate abuse of power, corruption, neglect of duty, suborning the law,
or any misconduct, nor will it protect wrongdoing.

Ensure that internal accountability mechanisms are well resourced and are fair
and firm, enjoying the support and confidence of the public as well as police
personnel. Cooperate with external oversight mechanisms.

Ensure that the police organization is representative of the population it serves;

in particular by improving the representation and retention of minority groups
and women, ensuring the work environment is suitable to their particular needs
and providing equal career opportunities to all.

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Ensure maximum possible transparency to build public confidence in the police
and trust in police-community relationships.

Civil society must:

Equip itself to campaign for police reform and accountability by understanding
the police, its environment, relevant laws, its resources, responsibilities and that
of the government and oversight bodies.

Assess police functioning in accordance with national and international

standards and continuously challenge and draw attention to police wrongdoing.

Demand and publicly disseminate information about policing to create a

democratic discourse, participate actively in policy processes and public debates
on policing issues to challenge the perception that policing is a technical issue
only to be discussed by those in uniform.

Engage in partnerships with the police to bring about community involvement

and improve community safety.

Donors must:
Require that accountability and human rights issues be integrated into all donor-
supported police reform programmes.

Take firm measures against recipient governments that use police to curb civil
liberties and consistently do not adhere to international human rights standards
in practice.

ENDNOTES
1 This section is adapted from Bayley, D. (2001) Democratising the Police Abroad:
What to Do and How to Do It, National Institute of Justice, US Department of
Justice, Washington, pp 11-15; Bruce D. and Neild R. (2004) The police that we
want: a handbook for oversight of police in South Africa, Center for Study of
Violence and Reconciliation, Johannesburg, and Open Society Justice Initiative,
New York; and Stone, C. E. and Ward H. H.(2000) Democratic policing: a
framework for action, Policing and Society, Vol. 10, number 1, p 36.

112
2 Chukwuma, I. (2005) "The Future of Police Reform in Nigeria", Justice
Initiatives, OSJI, New York, 1 February 2005, p. 12:
http://www.justiceinitiative.org/db/resource2?res_id=102523 as on 25 May 2005

3 Section 4.2(1), Police Service Administration Act 1990 (Queensland, Australia)

4 Zeitune, J. (2004) International Principles on The Independence and Accountability of

Judges, Lawyers and Prosecutors: A Practitioner's Guide, International Commission
of Jurists, p. 1

5 Independent Police Complaints Commission, England and Wales (UK); Police

Integrity Commission, New South Wales (Australia); National Police
Commission, Sri Lanka; Independent Complaints Directorate, South Africa;
Police Ombudsman of Northern Ireland; Commission on Human Rights and
Administrative Justice, Ghana; and National Commission on Human Rights and
Freedoms, Cameroon are some of the different names for civilian oversight
mechanisms in the Commonwealth.

6 See United Nations et. al, (1993) Principles Relating to the Status and
Functioning of National Institutions for Protection and Promotion of Human
Rights (Paris Principles):
http://www.ohchr.org/english/about/publications/docs/fs19.htm#annex. The
Principles state that institutions must be independent and that this is guaranteed
by statute or constitution; autonomous from government; plural and diverse,
including in membership; have a broad mandate which is based on universal
human rights standards; have adequate powers of investigation; and have
sufficient resources to carry out their functions.

7 Bureau of Justice Assistance (1994) Understanding Community Policing: A

framework for action,
http://www.communitypolicing.org/eleclib/pdffiles/commp.pdf as on 5 January
2005d fast rule about the form that good police accountability must

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114
115
 FORCED DISPLACEMENT AND HOUSING, LAND, AND PROPERTY
OWNERSHIP CHALLENGES IN POST-CONFLICT AND
RECONSTRUCTION

(This is a consolidated response prepared by the International network to promote the

rule of law (INOROL) with constributions from Yolande Bouka, J.Oneil G. Pouliot, and
Sermid D Al-Sarraf.)
Background:
Post-conflict reconstruction and stabilization requires providing protection and
assistance to internally displaced persons (IDPs) who have been uprooted from their
homes and communities and consequently made vulnerable to violence, exploitation,
discrimination, and other human rights violations. Responses to forced displacement
should include finding durable solutions for those dispossessed of their homes, land,
and other property. Many of the displaced cannot return and reintegrate because their
homes and land are occupied by others who are themselves unwilling or unable to settle
elsewhere. Enforcing property rights and resolving ownership disputes can be an
incredibly complex endeavor, one with policy as well as legal dimensions. It can be
especially challenging in countries with less formalized legal and judicial systems. This
Consolidate Response will review the relevant international standards and best practices
for guaranteeing and protecting the housing, land, and property rights of internally
displaced persons based on the queries and responses of rule of law practitioners from
the INPROL membership.

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Query:
Very few of Iraq's 4.9 million refugees and internally displaced persons have exercised
their right to return to their homes. Some would like to do so in the near term, but are
constrained by secondary occupants in their homes and the lack of effective enforcement
mechanisms. Others are waiting for the security situation to improve before returning
home. Others believe it may never be safe to return home, given the changed character
of their neighborhoods and the nature of threats made before or since they left.
Experience in other countries shows that regular courts often cannot handle the volume
of property cases arising from displacement. With this in mind, I have developed the
idea of the Peace-at-Home Trust to return the homes of displaced households in Iraq
to the effective control of their lawful owners so they may choose how to use, manage or
dispose of their homes. A concept paper for this trust is attached. I would welcome
comments and in particular any relevant experience in other countries. Please find the
concept paper here. A simple model of the concept can also be found here.

Response Summary:
Who is an IDP?
Internally displaced persons (IDPs) are “persons or groups of persons who have been
forced or obliged to flee or to leave their homes or places of habitual residence, in
particular as a result of or in order to avoid the effects of armed conflict, situations of
generalized violence, violations of human rights or natural or human-made disasters,
and who have not crossed an internationally recognized State border." (Guiding
Principles on Internal Displacement, Introduction, para. 2).

The two most important questions to keep in mind for purposes of identifying who is an
internally displaced person are 1) is the nature of the individual’s movement
involuntary or coerced and 2) has the individual crossed an international border? IDPs
do not choose to leave their communities on their on accord. They are instead forced to
flee. Their movement is involuntary. In this regard, IDPs can be distinguished from
economic migrants who choose to seek employment and an improved livelihood
elsewhere. Also, while IDPs are forced from their homes and communities, they remain
within the borders
of their country of residence. They do not leave the country.

It is important to note that IDPs should not be confused with refugees. “Refugee” is a
legal term of art applied to and used to identify the rights and responsibilities of
individuals who cross an internationally recognized border in search of safety from
persecution. By definition, IDPs stay within the borders of their own country and under
the jurisdiction of national laws and policies. Unlike refugees, IDPs remain citizens or
habitual residents of their country and are entitled to protection and assistance on that
basis alone. IDPs experience what may be thought of as refugee-like situations, yet they

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are a fundamentally different population with fundamentally different protection and
assistance needs.

National authorities have the primary responsibility for addressing these needs and for
securing the safety and well being of persons displaced within their borders. However,
they sometimes lack the capacity or willingness to fulfill this sovereign responsibility,
particularly during ongoing situations of conflict, violence, and disaster. As a result,
IDPs
lead very insecure and unsafe existences and are highly vulnerable to human rights
violations—sometimes at the hands of agents of the state that is responsible for their
protection.

In contrast to IDPs, refugees enjoy relative safety and benefit from the protections of
international refugee law (the 1951 Refugee Convention) which purposefully obliges
receiving and host governments to meet the basic social needs of refugees and to refrain
from returning them to their country of origin against their will in accordance with the
principle of non-refoulement. Similarly, refugees are entitled under international refugee
law to receive international protection and humanitarian assistance, including access to
food, shelter, health care, and education provided by international humanitarian relief
organizations and United Nations agencies. Internally displaced persons do not fit the
definition of refugee, and therefore, they may not avail themselves of these protections.

Displacement Facts and Figures

Estimates of the total number of displaced persons world-wide can vary. However, most
authoritative sources put the number of conflict-induced IDPs in 2007 at roughly 26
million. This number is up from 19 million in 1990 and can partly be explained by a
surge
in internal armed conflicts that followed end of the Cold War. Most IDPs are found in
Africa, where at least 12 million people are displaced within their own countries at the
present time. Africa is not alone in experiencing large-scale displacement though. There
are significant numbers of IDPs in all regions and in more than 50 countries around the
world. The largest IDP populations are located in Sudan (5 million), Colombia (2.5-3
million), Iraq (2-2.5 million), Uganda (1.5 million), and the Democratic Republic of the
Congo (1-1.5 million).

Conflict is only one of several displacement triggers. Displacement also occurs as a

consequence of natural and man-made disasters and development projects. Natural
disasters, such as tsunamis and earthquakes, as well as protracted draughts and
extensive flooding, displace tens of millions of persons per year. Recent IDP generating
natural disasters include: the Sichuan earthquake in China (4.8 million), the Northern
Pakistan earthquake of 2005(3.5 million), the Asian tsunami of 2004 (1.6 million), and
Hurricane Katrina in the United States (800,000). In 2007, the total number of persons

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displaced as a result of natural disasters amounted to 26 million. Disaster induced IDPs
combined with those displaced from armed conflict, situations of generalized violence,
and development projects make up close to 1 percent of the world’s total population.
Notably, the world’s refugee population, including Palestinian refugees, is thought to
number about 16 million, well below the overall number of 52 million IDPs.

Vulnerabilities and Needs of the Displaced

IDPs are subject to heightened vulnerabilities in areas of personal safety, human rights,
and livelihoods. They are often unable to escape the effects of armed conflicts and can
fall victim to the violence. Women and children, who make up the majority of IDPs, face
an acute risk of sexual exploitation and abuse. In addition, IDPs are often in need of
protection and assistance in finding adequate shelter, food, medical treatment, and
employment. They also suffer discrimination as a result of being displaced and can be
denied access to government services and the right to vote and participate in public life.
The loss, destruction or confiscation of identity, and other important personal
documentation is a common occurrence in situations of displacement as well. IDPs also
face an especially high risk of losing ownership of their housing, property, and land.
This dispossession can lead to loss of livelihoods and economic security as well as
physical security.

International Standards and IDP Protections

There are no internationally binding legal instruments dedicated to protecting the
internally displaced. IDPs are not afforded any special status in international law.
However, they do enjoy the rights and freedoms guaranteed to all individuals by
international human rights and humanitarian law. Those particularly germane to
internally displaced persons have been compiled in the United Nations Guiding
Principles on Internal Displacement, which have been endorsed by the UN General
Assembly and recognized by the 2005 World Summit Outcome Document as the most
important international framework for IDP protection.

The Guiding Principles do not create new law. They restate existing rights and freedoms
found in binding instruments—such as the International Covenant on Civil and Political
Rights, International Covenant on Economic, Social, and Cultural Rights, Convention
Against Torture, Geneva Conventions, and the Universal Declaration on Human
Rights—and customary international law and interpret them in the context of IDP
vulnerabilities and protection needs. These rights and freedoms are grouped into the
following four areas:

 Rights related to physical security and integrity (e.g., rights to life, integrity and
dignity of the person; freedom from arbitrary detention, torture, sexual abuse,
and exploitation);

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  Rights related to basic necessities of life (e.g. rights to food, potable water, health,
shelter, etc.);
 Rights related to civil and political protection (e.g., rights to personal
documentation, political participation, access to courts and justice, and freedom
from discrimination); and
 Rights related to economic, social, and cultural protection (e.g., rights to
employment, education, restitution, and compensation for lost property).

In addition to articulating how these rights apply once a person has been displaced, the
Guiding Principles describe guarantees against arbitrary displacement and rights IDPs
have to finding dignified and durable solutions to their displacement.

The Guiding Principles make clear that national governments, not the international
community, have the primary duty to guarantee and protect the rights of internally
displaced persons through domestic laws and policies. This duty is based on the notion
that with sovereignty comes responsibility. Although states have the right to conduct
their internal affairs without interference, they must do so in a way that protects the
rights
of their population, including displaced persons. Since they were adopted in 1998,
dozens of countries have used the Guiding Principles to develop legal and policy
frameworks that address displacement and IDP rights.

Housing, Land, and Property Rights

In matters of housing, land, and property, the General Principles affirm the general right
that all individuals have to be protected against being arbitrarily displaced from their
homes or residences (Guiding Principle 6). Moreover, the Principles set forth the
responsibility of national governments to support the property rights of internally
displaced persons so they may voluntarily return to their homes or resettle elsewhere:
and when these rights have been violated, the Guiding Principles affirm the right of
IDP’s to substantive reparations.

Guiding Principle 29(2) states, “[c]ompetent authorities have the duty and responsibility
to assist returned and/or resettled internally displaced persons to recover, to the extent
possible, their property and possessions when they left behind or were dispossessed of
upon their displacement. When recovery of such property and possessions is not
possible, competent authorities shall provide or assist these persons in obtaining
appropriate compensation or another form of just reparation.” In so doing, the Guiding
Principles have played an important role in articulating emerging norms and remedies
to address displacement-related property issues in post-conflict environments. The
Principles have also assisted national authorities and others working on reconstruction
and stabilization to fill gaps that exist in national law and policy. This includes the right
to property restitution and remedies.

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The housing, land, and property rights of all displaced persons, including the right to
remedies, were further strengthened with the adoption of the United Nations Principles
on Housing and Property Restitution for Refugees and Displaced Persons in 2006. This
document, often referred to as the Pinheiro Principles, is the first international standard
focused exclusively on property-related rights for the displaced. It affirms the
overarching
rights that all displaced persons enjoy, i.e. non-discrimination (Principle 3), gender
equality (Principle 4), protection from displacement (Principle 5), privacy and respect for
the home (Principle 6), peaceful enjoyment of possessions (Principle 7), adequate
housing (Principle 8), freedom of movement (Principle 9), and voluntary return
(Principle 10).

Most notably, the Pinheiro Principles articulate the right of all displaced persons to
property and housing restitution (Principle 2). In accordance with this Principle, IDPs
and refugees have the right “to have restored to them any housing, land and/or property
of which they were arbitrarily or unlawfully deprived, or to be compensated for any
housing, land and/or property that is factually impossible to restore as determined by an
independent, impartial tribunal.” (Principle 2.1) It also describes the right to restitution,
which refers to the return of lost property to its lawful owner, as a distinct right and as
the preferred remedy in response to the illegal or arbitrary dispossession of housing,
land, or property. Adequate and fair compensation may also serve as a legitimate
remedy in cases where restitution is not possible.

Contexts and Challenges

There are a variety of challenges to housing, land, and property rights that arise in the
context of conflict-induced displacement. They range from redressing the past
politicization and ethnitization of property ownership and customary land regimes that
discriminate against women and minorities to overcoming land scarcity, soil
degradation, and massive destruction of housing and public services such as plumbing
and electrical networks. In some situations of mass displacement, IDPs seeking to return
to their homes and land must first evict squatters and post-displacement occupants,
some of whom may have unknowingly acquired title to property on the basis of
fraudulent and forged sales transactions. Others must contend with having sold or
transferred title to their property under circumstances of extreme duress or coercion.

Legal and Policy Frameworks and Best Practices

Protecting the housing, land, and property rights of IDPs during post-conflict
reconstruction and stabilization can be a highly complex undertaking, one requiring the
development of legal and policy frameworks. At a minimum, these frameworks should
contain the following basic elements:

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  Prohibitions on destruction, unlawful use, occupation, and arbitrary
appropriation of IDP homes, land, and property along with basic measures to
safeguard IDP property throughout the period of displacement;
 Clear articulation of the property rights of internally displaced persons,
including the right to restitution, compensation, and other forms of reparations;
and
 Establishment of efficient mechanisms to mediate and resolve disputes, restore
the property rights of IDPs, and provide remedies when these rights have been
violated.

Although regular courts and adjudicatory bodies can be used to resolve property
disputes, situations of mass displacement may necessitate the creation of ad hoc
property commissions to process large numbers of claims. The following techniques and
facilitated procedures may be used to process these claims, particularly where common
or generalized patterns of displacement are evident:

 Limited and expedited procedures for fact finding, including use of

presumptions;
 Reduced evidentiary burdens that favor IDP claimants by allowing less formal
and alternative forms of evidence to prove ownership; and
 Standardized compensation formulas to quickly and consistently establish
property values and provide cash or in-kind awards, when restitution is either
impossible or impractical.

Other measures and best practices in addressing housing, land, and property issues
following displacement include:

 Reform of property and inheritance laws to allow women and minorities to hold
title to housing, land, and property without discrimination of any kind;
 Invalidation of coerced transfers and contracts to sell or exchange housing, land,
and property made under duress;
 Public education and “know your property rights” campaigns that describe
rights, remedies, and procedures related to resolving property disputes;
 Availability of free or affordable legal assistance and easy access to mediation
and dispute resolution mechanisms for IDPs and post-displacement occupants of
disputed property;
 Reliance on customary or informal dispute resolution systems, as a response to
insufficient state capacity, must be accompanies by efforts to ensure due process
and human rights standards;
 Authorization of law enforcement and local officials to execute court judgments
and property commission decisions in property matters; and

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  Providing temporary allocation of and/or permanent transfer of ownership of
state owned land to IDPs.

Compilation of Resources:
This Consolidated Response draws from many of the following resources, which are useful
reference tools for policing practitioners. All listed documents with a hyperlink are uploaded to
the INPROL Digital Library.

Note: All opinions stated in this consolidated reply have been made in a personal capacity
and do not necessarily reflect the views of particular organizations. INPROL does not
explicitly advocate policies.

WITNESS PROTECTION IN COUNTRIES EMERGING FROM

CONFLICT

Prepared by Leigh Toomey with contributions from Angela Krueger, Christina Storm, J. O’Neil G. Pouliot,
Claudia Baroni, Francis Bremson, Ilias Chatzis, Melinda Lord, Vivienne O’Connor, Charles Briefel, David
Kerem, Mark LaLonde, and Michael Hartmann for the Inernational Network of the rule of Law.

Background:
Victim and witness cooperation is essential to ensure fair and successful prosecutions,
yet often in post-conflict situations, individuals do not want to cooperate out of fear.
Providing witness protection is therefore both an expedient for law enforcement as well
as a fundamental legal obligation. This poses a significant challenge in countries
emerging from conflict where the impunity of powerful perpetrators of politically or
ethnically motivated crimes has not been effectively confronted. Investigators and
prosecutors who are biased in favor of one of the parties to the conflict, or involved with
criminal-political power structures, may also jeopardize the safety of witnesses. While
the need to investigate and prosecute serious crimes will arise at an early stage, it can
take years to enact legislation to establish effective mechanisms to protect witnesses,
including building the capacity and ensuring the integrity of those who implement these
mechanisms.

Query:

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What short-term strategies and immediate measures can be taken to protect witnesses in
criminal trials, as an alternative or complementary to a long-term legislative solution?
that other longer-term measures can be employed to protect witnesses?

Response Summary:
In many countries emerging from conflict, the prosecution of serious criminal activity is
severely hampered by the reluctance of witnesses to testify at trial because of threats to
their lives or those of their families by alleged criminal perpetrators or those acting on
their behalf. This includes witnesses’ self-imposed censorship due to a fear that they will
put their lives, or at least livelihood and social standing at risk, even if there are no
explicit threats. Moreover, instead of coercion, the accused perpetrator may offer
implicit or explicit favors to the witnesses, ranging from cash payments to promises of
future positions or promotions. The need to encourage witnesses to come forward and
give testimony exists at each stage, from the initial police investigation through the
formal civil law investigation by the judge or investigative prosecutor, to the trial itself.

Even if there is complete protection and encouragement of witness testimony, there is

also a need for simultaneous capacity building of police, prosecutor and judicial
functionality, integrity and public credibility, along with access and outreach to the
citizenry and the development of a functioning defense bar. In most countries emerging
from conflict, this requires strong anti-corruption strategies side-by-side with effective
strategies to address organized crime and terrorism. There must be, in short, an
integrated justice sector strategy, of which witness protection is one important part.

The need to protect witnesses is increasingly recognized in international conventions, as

discussed further below. However, these assume that resources and institutional
capacity are sufficient to implement witness protection programs, which is not likely to
be the case in a society struggling to escape from vicious internal conflict.

Steps that can be taken to improve the protection of witnesses include:

vetting;
monitoring and making accountable police, prosecutors and judges and facilitating
training and material assistance, to promote impartial involvement in the
investigation;
prosecution and adjudication of crimes;
rebuilding police stations, prisons and courthouses to separate witnesses from
accused persons, and
strengthening legislative and executive capacity to enact appropriate protection
measures through legislation, regulations, SOPs or guidelines/protocols.

Short-term Measures to Protect Witnesses

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Investigators and prosecutors must carefully consider which witnesses need protection.
This will depend on the level of risk that they face before, during and after the trial.

(a) Who to protect: Witnesses in serious criminal cases may include victims and
bystanders, as well as individuals who have been involved in criminal activity but
who are cooperating with police or who have received immunity from prosecution
or a mitigation of sentence in return for their testimony. All of these types of
witnesses may require witness protection, which includes legislative and regulatory
measures to protect revelation of identity, as well as funded programs to temporarily
or permanently safely house them. Their family members may also require
protection.

(b) When to protect: Police resources are finite and can only be made available to
protect witnesses who are at serious risk of intimidation or harm. In each case, it will
be a matter of professional judgment on the part of investigators and prosecutors as
to whether witness protection effectively manages the risk, taking into account
factors such as:

the nature of the alleged crime (Is it serious enough to warrant protection?)
the nature of the threat (Has an overt and credible threat already been made against
the victim?)
the relationship between the witness and alleged perpetrator (Is there a relationship
that gives the alleged perpetrator access to the witness? Does the alleged perpetrator
have access to the witness through associates or through other suspects who have
not yet been apprehended?)
the status of the alleged perpetrator (Has the alleged perpetrator been released on
bail?)
the criminal record of the alleged perpetrator (Does he/she have a history of violence
or reprisals?)
the importance of the testimony to be given by the witness (Does it implicate an
individual or a larger organized group? How important is the evidence to the overall
success of the trial? Is the testimony credible? Can the same evidence be presented
by another means or another witness? Has the witness agreed in writing to testify at
the trial?)
the psychological state of the witness (Is he/she likely to be intimidated into refusing
to testify? Does he/she have problems with drug abuse, alcoholism, mental
disorders, or an inability to appreciate the need for security? Was the witness
involved in the crime and also at risk of flight?)
the period in which the witness is likely to be at risk (How long might the risk
continue after the trial?)

(c) How to protect: There are several measures that can be undertaken expeditiously

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to improve witness security.

Policing Strategies Police officers can be trained to adopt pre-emptive strategies at

the investigation stage that reduce the likelihood of witness intimidation. These
include:

(i) standard investigation procedures that protect the identity of potential witnesses.
This would include a policy not to broadcast witness particulars over police
radio when officers are dispatched to an investigation; handing out business
cards to potential witnesses at the crime scene (rather than conducting on-site
interviews, unless that is absolutely necessary); and interviewing witnesses later
at a location other than their home or the police station;

(ii) deployment of police officers of appropriate ethnicities to serve ethnic

communities and to strengthen ties with leaders who may have influence over
community members disposed to violence; and
(iii) greater emphasis on investigation of reports of witness intimidation. This would
also engender trust in the police and encourage reporting of other crimes.

Close Protection Once a witness has been identified as being at risk, he/she can be
placed under close protection. This may be provided by police or military units and
may involve around-the-clock physical protection of the witness and his/her family
members. It may also include placing the witness in a safe house or other secure
location or transporting the witness to another city to minimize risk before and
during the trial.

The composition and level of training of a close protection team will vary according
to the nature and level of the threat. The team may include members who are
responsible for surveillance and security of static locations, such as courthouses and
residences, and those responsible for securing the safety of vehicles, communication
and other infrastructure. Teams must be tailored to the specific requirements of the
mission area. For example, while police may be suited to a relatively urban area such
as Kosovo, personnel with military experience may be better suited to working in
rural areas of Afghanistan. Team members can be seconded from donor
governments, raised from international forces in the mission or contracted from
private security companies.

Close protection does not generally require legislative amendments, although it will
usually require standard operating procedures so that the police or military unit can
quickly determine the level of threat and coordinate the protection operation. A
police force may opt to establish a separate witness protection unit `if many

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 witnesses are likely to be at risk. In 2001, a Witness Protection Unit was established
in Kosovo under the authority of the UN Mission in Kosovo (UNMIK)
Police Commander.

Change of Infrastructure Donor assistance can be sought to bring about relatively

simple enhancements to infrastructure that offer better protection to witnesses. For
example, pre-fabricated containers can be used at police stations and courthouses to
create separate waiting and interview facilities to ensure that witnesses do not come
into contact unnecessarily with the alleged perpetrator before and during the trial.
More complex infrastructural changes, such as creating separate entrances to
buildings or even building new facilities, may only be realistic over the longer-term.

Trial Observation Another method of protecting witnesses is observation of the trial

by independent monitors. This only offers limited protection as a monitor can
merely report to local and international authorities and the media on the conduct of
the trial, including any threats or intimidation but cannot actually secure the
physical safety of witnesses. Effective observation may be enough in some
circumstances to deter threatening behavior. If a judge is aware that a trial is being
monitored, he/she may also refrain from unnecessary delays or continuances that
require the witness to come to court several times. However, trial observation is not
appropriate in every case. Careful consideration should be given to whether drawing
attention to aspects of the trial might put the witness at greater risk.

Longer-term Measures to Protect Witnesses

(a) Procedural Protection: Procedural witness protection measures may need to be
implemented through legislative amendment of criminal procedure laws. Specific
legislative provisions are required in order to specify who is eligible for procedural
protection, how the prosecution or defense should apply for such protection,
whether and under what circumstances a judge should conduct a hearing to decide
upon an application, and the nature of the protection available. Procedural
protection measures can be controversial if they are prejudicial to the defense (e.g. by
denying the defense the right to confront a witness) and should only be used where
strictly necessary. Before making a decision, a court should give the defense the right
to be heard as to why procedural protections are not appropriate.

Procedural protection measures include provisions that give a court power to:
allow for pre-trial detention or a custodial sentence of the alleged perpetrator;
issue a restraining order to prevent the alleged perpetrator from coming into contact
with victims and witnesses;
order non-disclosure to the accused and his/her lawyer of any records that identify
the witness until a reasonable period prior to the trial. This may include the power to
assign a pseudonym to the witness;

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 hear testimony from witnesses who require protection as early as possible during the
proceedings;
conceal the witness during trial (e.g. by videotaped examination of the witness prior
to trial; placing the witness behind a screen at trial; the use of voice modification
technology, or examination of the witness by the judge in chambers or by closed-
circuit television);
control the questioning of witnesses to prevent intimidation or harassment during
the proceedings. The judge may also be given power to sanction threatening
behavior by issuing a warning or by imposing a fine or custodial sentence;
temporarily remove the accused from the courtroom during certain testimony;
close court sessions to the public;
redact (or remove sensitive information from) court documents; and
order non-disclosure of the identity of the witness to the public and/or expunge from
the public record of the court any information that could identify the witness.

Examples of procedural protections can be found in UNMIK Regulation 2001/20 in

Kosovo and in the Law on Protection of Witnesses under Threat and Vulnerable
Witnesses (2003) of Bosnia and Herzegovina.

Other administrative and legislative measures will also be required. For example, courts
will need to develop administrative procedures for the storage of sealed court records.
Supplementary criminal laws with penalties for failure to comply with procedural
protection measures must be enacted. Legislation requiring prison officials and law
enforcement agencies to inform victims or other witnesses of the release of the
perpetrator at the end of his/her sentence may also offer further protection.

Careful consideration should be given to the resources required for implementing

procedural witness protection, particularly where new technology is involved. Police,
prosecutors, judges and lawyers will require training on the substantive, procedural and
operational aspects of witness protection. These costs may be prohibitive in countries
emerging from conflict and not sustainable without donor assistance.

(b) Formal Witness Protection Programs: Witness protection programs are usually
coordinated by police. They may involve relocation of the witness to another city, as
well as allocation of a new identity and provision of other assistance (such as new
housing and employment) to witnesses after a trial. Formal witness protection requires
legislation to establish who qualifies as a witness, the procedures to assess risks, and
safeguards regarding physical and informational security while the witness is
participating in the program. A model witness protection bill was drafted by the UN
Office for Drug Control and Crime Prevention in 2000 and is available in the
Compilation of Resources Section below.

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In some cases, such as Kosovo, witness protection has extended to cross-border
relocation. International relocation is normally reserved for the most serious of cases,
given its costs, impact on the participant and level of cooperation required between
states. It can either involve resettlement of a witness to another country and/or
placement of that person in a formal protection program in the receiving country.
According to Art. 24(3) of the UN Convention against Transnational Organized Crime
and Art. 32(3) of the UN Convention against Corruption, States Parties can enter into
agreements for cross-border relocation in relation to witnesses who give testimony
concerning offences covered by the respective Conventions. lxxxviii International relocation
is usually based on regional or bilateral agreements to cooperate on witness protection,
or on more informal memoranda of understanding concluded directly between police
forces or other law enforcement agencies in the countries concerned.

Additional Considerations in Implementing Witness Protection

Police investigations in countries emerging from conflict may involve improperly and
illegally coerced statements from witnesses, and confessions from suspects, in violation
of international standards and national laws. The police or interrogator (or, in some
countries, the investigating prosecutor or judge) may have fabricated witness and
suspect statements. Suspects may be detained and charged with crimes in order to be
forced to pay the police or prosecutor a bribe to gain release, as part of a larger extortion
scheme, or simply at the behest of a powerful warlord whom the witness has offended.
This makes independent investigation crucial to achieving justice for detainees. An
essential precondition is the existence of a sufficiently numerous independent and
functioning defense bar. When defense attorneys are able to speak with witnesses
proposed by the prosecution, corrupt practices, false claims or poor investigation are
more likely to be exposed. Defense attorneys and those witnesses proposed by the
defense may also face intimidation, coercion, or risks to life and wellbeing simply
because they challenge the government's case or testify against the police or other
government actors. These issues should be considered when deciding whether
protection measures are effective in promoting justice, particularly in a country
emerging from conflict that is in the process of rebuilding its justice system.

International Standards
There are a number of international instruments which recognize the need to protect
witnesses from intimidation, threats and harm. These include:

the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of
Power which was adopted by the UN General Assembly in 1985. According to the
Declaration, states should take measures to “minimize inconvenience to victims,
protect their privacy, when necessary, and ensure their safety, as well as that of their
families and witnesses on their behalf, from intimidation and retaliation” (Art. 6(d)).

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 the UN Convention against Transnational Organized Crime of 2000 and its three
Protocols. States Parties are required to take appropriate measures to “provide
effective protection from potential retaliation or intimidation for witnesses in
criminal proceedings” who give testimony concerning offences covered by the
Convention (money laundering, corruption, trafficking in persons, smuggling of
migrants etc) and for their relatives and other persons close to them (Art. 24).

the UN Convention against Corruption of 2003. States Parties shall take appropriate
measures in accordance with their domestic legal system and within their means to
provide effective protection from potential retaliation or intimidation for witnesses
and experts who give testimony concerning offences covered by the Convention
money laundering, bribery of public officials, embezzlement or misappropriation by
a public official, abuse of functions, illicit enrichment etc) and for their relatives and
other persons close to them (Arts. 32, 37(4)).

the UN Economic and Social Council Resolution 2005/20 adopts Guidelines on

Justice in Matters involving Child Victims and Witnesses of Crime. These Guidelines
(in the Annex to the Resolution) contain provisions ensuring that children involved
in the criminal justice process as victims and witnesses are treated fairly and are
subject to special protection, including protection from intimidation, threats or harm.

International Criminal Trials

Experience in international criminal trials for gross violations of human rights has
highlighted the need to arrange for the protection of victims and witnesses who appear
before them. Each of the statutes of the major international criminal tribunals made
provision for witness protection.lxxxviii Witness protection can be particularly difficult
when the court is located in the country where the breaches of international law
allegedly took
place (such as the Special Court for Sierra Leone).

Witness protection in international trials can also be costly, and the best methods are still
being determined by the judges who preside over these international criminal tribunals.
However, according to the UNODC manual “Good Practices for the Protection of
Witnesses in Criminal Proceedings Involving Organized Crime”, there are several
common elements of the protection programs of the International Criminal Court, the
International Criminal Tribunal for the Former Yugoslavia and the International
Criminal Tribunal for Rwanda:

Special witness protection units. These tribunals have special units under the
authority of the court registrar to provide protection to witnesses. This includes physical
protection and security, as well as counseling, medical and psychosocial care and
assistance for victims and witnesses who are at risk because of their testimony.

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 Responsibility for witness protection measures. The special units are responsible for
implementing witness protection measures under the authority of the registrar (non-
procedural measures) or the judge or chambers itself (procedural measures). At the
International Criminal Tribunals for the former Yugoslavia and Rwanda, the units make
independent determinations in relation to the needs of witnesses and the measures to be
used. The unit at the International Criminal Court provides its services in consultation
with the Office of the Prosecutor. The services offered by all of the units are available
equally to prosecution and defense witnesses.
Cooperation of States. The international tribunals do not have territorial jurisdiction
or their own law enforcement capacity, and rely on the cooperation of States to ensure
close protection measures before and during trial. After testimony is given, the units can
arrange for the resettlement of witnesses, including relocation to another country, if
other States have agreed to receive witnesses.

Compilation of Resources:
This Consolidated Response draws from many of the following resources, which are
useful reference tools for policing practitioners. All listed documents with a hyperlink are
uploaded to the INPROL Digital Library.

RESOURCES ON STANDARDS FOR WITNESS PROTECTION

Selected International Standards

United Nations Declaration of Basic Principles of Justice for Victims of Crime and
Abuse of Power (1985)
United Nations Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances (1988)
UN Economic and Social Council Resolution 1989/57 (1989) (implementing the
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of
Power)
Rome Statute of the International Criminal Court (1998)
United Nations Convention against Transnational Organized Crime (2000)
Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their
Parts and Components and Ammunition, supplementing the UN Convention
against Transnational Organized Crime (2001)
Statute of the Special Court of Sierra Leone (2002)
United Nations Convention against Corruption (2003)
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children, supplementing the UN Convention against Transnational
Organized Crime (2003)
Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing
the UN Convention against Transnational Organized Crime (2004)
Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the
prosecution of Crimes Committed during the Period of Democratic Kampuchea (2004)
UN Economic and Social Council Resolution 2005/20 (2005)
Updated Statute of the International Criminal Tribunal for the former Yugoslavia (2007)

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Updated Statute of the International Criminal Tribunal for Rwanda (2007)

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