A.V. Dicey rises from his grave
It appears from the news reports that the rule of law seems to have hit the rock bottom due to police inaction in apprehending criminals with records of political patronage. This is not a new phenomenon but has been in existence in Sri Lanka since the 1970s but never had it reached its lowest ebb as it is now.
Public confidence in Police administration has been completely eroded due to the lack of discipline and professionalism within the Police. It has failed to serve its cardinal duty of upholding the rule of law.
As history records, the Vivian Gunawardene incident at Kollupitya Police Station proved the extent to which a politician could wield influence to promote an errant Police office as a reward for his loyalty to his political master.
|Public confidence in Police administration has been completely eroded due to the lack of discipline and professionalism within the Police
If late Prof. A.V. Dicey were to visit Sri Lanka from his grave, he would find that it would be better to return to his grave as no one cares about his constitutional theories on the importance of upholding the rule of law.
There has been a spate of crimes involving, treasure hunting, death under Police custody, high value robberies such as at the Colombo Museum, killing of leading journalists, Buddhist priests, serial killings (Kahawatta phenomenon) and strange beggar-related crimes.
What do all these incidents manifest? Is there a wider social dilemma behind all these crimes? How do the four principles of punishment such as deterrence, reparation, retribution and rehabilitation contribute to a society with a low crime rate? Is there a belief in the criminals that they could get away scot free from the law enforcement net using political influence? Do the penal institutions in Sri Lanka failed in its mission of reforming the prisoners?
Has the media glorified criminals by providing space for stories of criminal behaviour of some politicians whose misdeeds are shown on television in an apparent effort at showing one’s influence in the society?
Is there a lacuna in Police training methods at Police Academy? How did this phenomenon come into existence? Was it due to the 30-year terrorist war that gave Police a free reign on anything to do with law enforcement? No doubt police psychology too needs revamping through holistic training methods at Police academies.
Death under Police custody
A number of cases involving death while under Police custody seem to have gone into abeyance except for the Angulana case. There were other cases where justice has not been properly served.
The discipline in the Police force in Sri Lanka has now gone from bad to worse as Government policy towards indiscipline in Police has not been as effective as it should be.
Death under Police custody is a serious crime as all individuals, once under Police custody, must have the constitutional right of defending himself through a lawyer and the Police must produce the suspect before a Magistrate within the stipulated time.
The Police cannot be a law unto themselves by resorting to extrajudicial practices and concocting stories to save them from their irregularities. All citizens are equal before the law and the Police cannot convert the Police station to a court of law.
It is the Judiciary that would decide the culpability of a suspect in accordance with the law.
The primary duty of the Police is to apprehend criminals in a professional manner and produce the suspects before the Magistrate. Police interrogation is an art and every Police officer must be well versed in the art of interrogation. If proper interrogation tactics are deployed, there would not be a reason for resorting to physical abuse of suspects to extract a confession.
The law does not recognise physical abuse and torture of suspects and it is a crime even though the suspect is a notorious criminal.
There are international conventions and Police officers must first be educated on the law, human rights and other international conventions that prevent suspects being abused.
Even excessive force applied in apprehending a suspect is considered a crime. There have been cases in foreign countries where the Judiciary has taken note of excessive force especially with racial overtones (arrest of suspects with Negro background in the US). Lack of education and Police reward systems also contribute to this phenomenon of death under police custody.
17th Amendment must be resurrected
One way of curbing crime is to reform the entire Police force. Pressure on Police officers take a variety of forms ranging from a promise of career advancement and a preferential treatment in service matters if the demand is yielded to and a threat of drastic disciplinary action and disfavoured treatment in service if the pressure is resisted or confronted.
Rule of law cannot be upheld without discipline in the Police force. The Government must also reconsider the 17th Amendment where the National Police Commission played a key role in Police promotions.
It was an independent commission without partisan political bias.
When there is a non partisan decision-making body vis-à-vis promotions, Police officers are prevented from being forced to salute people with dubious credentials who walk among VIPs. This is an ideal measure to re-establish the lost prestige of the Police service.
Let there be rotation of Police personnel who have been tasked with VIP duties so that the officers will not get entrenched with political influence. When a Police officer is regularly exposed to an influential person, he could disregard duty and subject himself to the whims and fancies of the influential figure for various perks and other rewards indirectly.
Money and other favours are strong incentives for a Police officer to change his role as a Police officer to a Police stooge. A Police officer afflicted with the current economic crisis would not only accept such incentives but start venerating the VIP. The cost of living has skyrocketed and anarchy would set in if the situation is not arrested.
The Vira Dharma Commission Report on the Police Services of India had clearly identified that “the threat of transfer and suspension are the most potent weapon in the hands of the politician to bend down the Police to his will. We have been told in several States about the frequent transfer of Police personnel ordered on direct instructions from political levels in Government, in disregard of the rule that the transfer of the personnel concerned fell within the normal domain of the supervisory ranks within the Police. We are aware of an instance in which the Inspector General of Police himself was transferred to an inconsequential post under the State Government immediately after he had shown his reluctance to issue orders for the transfer of a large number of Police personnel as desired by the political leadership when he felt that the transfers were not justified on normal administrative grounds.”
It is therefore imperative that the 17th Amendment to the Constitution needs to be resurrected as not only the Police but the Elections Commissioner and other institutions also play an important role in society. This would enable the Government to regain its much desired credibility in the eyes of local and global audience.
If the Government is genuinely interested in attracting foreign investors, it should first show the whole world that rule of law is upheld and that Judiciary and other institutions of democracy work without any political interference.
(This writer is a freelance journalist and a political lobbying and Government relations consultant.)