Reform of a police system rotten at the top

“Within a rule of law system, the only kind of punishment that is allowed is the punishments that are authorized through the operation of due process, through the orders given by the judiciary itself.”
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By Basil Fernando

(December 09, Hong Kong, Sri Lanka Guardian) The problem of policing is very much at the forefront of discussion these days. It would not be of much use to delve into details of all the accusations that are made against the police, which are usually being repeated all the time. It is better, rather, to go into the core issues of solutions, if there is a solution to this problem at all.

The central problem with the Sri Lankan policing system is to do with the very top of the profession itself. The policing system is a hierarchical system that is run from top to bottom. The problem of policing in Sri Lanka today is a problem that remains at the very top. The officers from the rank of the Assistant Superintendent of Police, (known as ASP’s,) to the position of the Inspector General of Police, (known as IGP) are the persons who bear the responsibility of running the policing system. It is this top ranks that is really the problem of policing in Sri Lanka, and without dealing with these top ranks, talking about a better policing system for the future is a futile exercise.

Politicization means internal corruption at the top

What is wrong with the very top rank of the police in Sri Lanka? Generally, it is named by one word: politicization. However, it is misleading to go purely by this word, because it may place the entire blame for the policing system on the politicians themselves. The politicization however, is not just a matter of politicians exercising power over the police system, but it is also the subjugation of the police hierarchy itself to the dictates of the politicians. Thus, the internal corruption which has happened within the police top ranks, in subordinating and subjugating of themselves to the dictates of politicians needs to be examined.

The subordination of the position of the police top ranks to the politicians is not something done purely by dictates of obedience. It is not just a question of a dictator dictating terms to the police to an extent that the hierarchy is in no position but to obey the dictator. Instead, the Sri Lankan problem is one of compliance of the police hierarchy to the demands of politicians with the view of winning favours for themselves in the process.

Seeking Favours

The favours that the police hierarchy seeks from the politicians are, first of all, the positions themselves, where they are willing to accept positions of higher authority, superior positions in the organization for themselves, not through a process of seniority, or better qualifications by way of performance, but purely on the basis of certain favours that they would win through politicians at the higher levels. Winning favour of the president, prime minister or other senior politicians, by developing various kinds of acquaintances with these politicians, and creating the impression that if they are given these positions, they will carry out the demands of these politicians, without being bothered as to the legality of such demands, or the ethical and other considerations, is at the heart of the matter.

There are negociations which takes place among politicians of higher ranks, and the police of higher ranks, where they create an understanding with each other, that the considerations other than what is proper to the profession and particular to a profession that is bound with the deep notions of the rule of law, but other considerations will be binding on each other, in the process of keeping their positions. This is what is rotten with the policing relationship with the high ranks and the top politicians in Sri Lanka. If the Sri Lankan policing system is to be brought out of the present downfall it can only happen by undoing this process of deep political compromises that exists between the top-ranking police and the politicians who wield power.

Often, the blame for various kinds of police misdemeanours and wrongs are placed on the subordinates. When criticisms take place, often, a few lower-ranking officers are made scapegoats, and some public punishments may be given to these lower-ranking officers, thereby creating an impression that something is done about what is wrong with the policing system. However, the present problem is not primarily about lower-ranking police but about top-ranking police, and therefore the problem of discipline within the policing system needs to be dealt with by restoring discipline within the top ranks of the police system itself.

Two major criticisms- violence and extortion

There are two major criticisms against the Sri Lankan police. These are, firstly, the widespread use of torture, which is also associated with extra-judicial killings, which in the past, also took the form of large-scale disappearances. Thus, the phenomena of the use of violence within the policing system, by way of torture on any person who is arrested, from a petty thief up to anyone else, who may be subjected to various kinds of violence, for political reasons, the threat that runs through is the acceptance of the right to engage in violence both on physical and mental levels on arrested persons by arresting officers and those who are responsible for detention. Thus, the question of torture within Sri Lankan police is not just a question of the misdemeanours of some errant officer, but about the very philosophical notion of the right of the police officers to engage in violence for the purported purpose of maintaining law and order. There is thus a very fundamental contradiction with the Sri Lankan system in the acceptance of the right of police officers to engage in physical and mental violence in order to do their duties, which is to maintain law and order.

This contradictory position goes back to the very history of the exercise of authority within the country from ancient times, through colonial times to modern times. One aspect of dealing with the policing system must necessarily to be examine this notion of the right of use of violence by police officers and other law enforcement authorities, as persons who are being allowed to exercise that function.

Punishments not authorized by judiciary

Within a rule of law system, the only kind of punishment that is allowed is the punishments that are authorized through the operation of due process, through the orders given by the judiciary itself. These may be punishments by way of imprisonments, fines, or on some occasions, even a death sentence. The issue of the death sentence, though controversial, for the present purpose, we could confine to the issue of decisions that have been arrived at through a legal process, followed through the due process of fair trials, and arrived at by rational process of judges, which are allowed, also, in the process of appeals. Now, that is not the way the right of use of violence is used within the Sri Lankan system. From the moment of suspicion to the moment of the final outcome of a case, the law enforcement officers are being given the right to use violence. This issue needs to be dealt with if there is to be any reforms within the policing system in Sri Lanka.

Appearing rough to make extortion possible

Associated with this, is the use of the policing for extortion purposes. The whole process of policing is associated with enormous possibilities of extortion. The power of arrest, which is an enormous power over the liberties of individuals, is also associated in Sri Lanka with the possibility of torture, or even extra-judicial killings by the police. The fear that is generated around this issue can create opportunities for enormous forms of bribery and corruption. Associated with this is the tradition of fabrication of charges on persons. Even an innocent person has the right to fear from the moment of arrest that he may be subjected to serious charges purely by officers who may fabricate evidence against them. In recent times, there has been a spate of such cases, brought either by the misuse of anti-terrorism laws by making accusations of terrorism which carry very serious consequences for any persons who may not even have the remotest connection to any such charge. Another area exploited for this purpose is charges relating to possession of drugs, and other offences which carry serious punishments, including offences which are non-bailable.

All these areas are very seriously exploited against innocent citizens. There is also the impression that such is being done all the time. When the actual fact of such deeds, accompanied by enormous impressions of these matters exists, there cannot be a confidence in the proper law enforcement functions of the police. These are the type of issues that the policing system is faced with under the present circumstances. Any talk of police reforms which does not address these fundamental issues will not meet up with the requirements of a genuine reform.

-Sri Lanka Guardian