Street justice and the rule of law

By Kishali Pinto Jayawardena

The outpouring of amused acclaim by some and outright if not unholy glee by others at the sight of ministerial thug Mervyn Silva and his murderous acolytes being cornered and given a classic taste of their own medicine by the staff of Rupavahini Corporation is good testimony to the abysmal state of the rule of law in Sri Lanka today.

Here we have an incident which should, in any normal situation, have led to consternation in any country with a functioning democratic system. Instead, the spectacle of a person holding ministerial rank being verbally and physically assaulted consequent to his storming the offices of a government institution, has led to joy that is quite proportionate to the utter frustration that decent citizens feel today when such uncouth personages are encouraged and nurtured by the political hierarchy to set the law unashamedly by its ears.

The fact that such treatment was meted out to this ministerial thug by none other than the enraged staff of the state broadcaster rather than the staff of a private broadcaster or for that matter, the staff of a private newspaper house (both of which also, have been threatened by this repulsively miniscule thug) is pure poetic justice, the taste of which is undoubtedly very sweet to those who had been at the receiving end of his barbaric behaviour.

Police Actions in the case
The extent to which the police in this country have become the lackey of politicians is well illustrated in the follow up to this incident, as exemplified in no other than the magistrate's reprimand to the police for requesting that the accused in this case be remanded for less than the fourteen day period which would have been the automatic consequence if an ordinary person had been accused of this very same offence. Let alone implication in a justifiable case of assault, the number of instances where the police have framed false cases against persons for a multitude of reasons, including due to anger in lodging complaints against the police in legal fora, have been well documented.

But let me make myself clear; this is certainly not to say that each and every police officer is corrupt. On the contrary, police officers who try to do an honest job of work in the current scenario are defeated at each and every level, by his or her own superior officers and by the politicians with their hired thugs and underworld goons. Often, they are demoted or transferred out. Is this what Sri Lanka's police service deserves?

The Role of the National Police Commission
Some months back, while speaking at a roundtable of senior police officers, lawyers and members of national human rights institutions in South Asia hosted by the New Delhi based Commonwealth Human Rights Initiative (CHRI), I pointed out that the blame for crippling the 17th Amendment to the Constitution, (meant to restore some extent of the public respect that the Sri Lankan police enjoyed earlier), needed to be shared equally by the Government as well as the opposition, most notably the United National Party (UNP) and the Janatha Vimukthi Peramuna (JVP).

The National Police Commission (NPC) should have played a leading role in effectively disciplining the police force. The constitutionally appointed members of the first NPC did engage in some commendable steps such as the interdicting of police officers indicted for torture and preventing the political transfer of police officers during the pre-election period. But the NPC was deprived of public legitimacy in its second term by the unconstitutional appointments of its members by President Mahinda Rajapaksa in 2006. And the continuing crisis with the non implementation of the 17th Amendment is of low priority with the Opposition as well as with the Government.

Incidentally, it needs to be stressed that the Chairman of the present NPC was the former secretary to the Ministry of Labour when the current President was the Minister which, while possibly not rendering him disqualified for the job, does tend to suggest an element of impropriety, particularly when it is the President himself who made the appointment. It is also pertinent that this NPC has the current President of Sri Lanka's Bar Association in its membership, thus saying a lot for the way in which the Constitution is regarded by the very individuals who should give its provisions, the highest sanctity.

The actions of the NPC in its second term have borne out the fears that appeared to be justifiable when its members were unconstitutionally appointed. This second NPC has not been as horrendously bad as the Human Rights Commission of Sri Lanka, which is not only ineffective but also actively antagonistic in response to reasoned critiques and which has recently been justifiably downgraded in its accreditation status by the International Coordinating Committee of National Human Rights Institutions. However, the current NPC has nothing very much to show for its existence, despite more and more instances of police abuse, ranging from political partiality such as in the Mervyn Silva case as well as far more serious instances of misbehaviour that is all prohibited in general terms by the Establishments Code as well as in the Departmental Orders of the Police Department itself.

Passing the Blame
Reportedly, the NPC's Public Complaints/ Investigations Division had received a total of 1216 complaints during January to July 2006 ranging from police inaction, misuse of power and partiality. Some 382 of the complaints had reportedly been inquired into but the results of such investigations and the consequences attaching to the police officers found to be guilty of action not befitting their office has not been disclosed to the public.

The NPC needs to answer the question as to whether disciplinary action in these cases will continue to remain in the hands of the IGP 'in accordance with applicable departmental procedures" (as stated previously in a public statement by this body) or whether more effective action will be recommended in terms of the applicable law. Leaving the matter in the hands of the IGP will be to no purpose as has been well demonstrated in the past. This is just a convenient façade for no action.

Indeed, according to reports some time back, the NPC has chosen to critique the Attorney General for filing only few indictments against police officers despite thousands of complaints having been received. Yet, this again is a case of passing the buck. While the Attorney General's responsibilities ought to be the subject of measured and strict scrutiny, nonetheless, this does not excuse the NPC from its own responsibilities. For example, where prosecutions failed, the United Kingdom's independent Police Complaints Commission (IPCC) proceeded with suitable disciplinary control against the relevant police officers. In contrast, what has the NPC done or even recommended to be done, even though this is the body that is constitutionally vested with the powers of appointment, promotion, transfer, disciplinary control and dismissal of all officers other than the Inspector General. (Vide 17th Amendment, Article 155G (1) (a)?

The Consequences of Street Justice
This week's incident at the offices of the Rupavahini Corporation illustrates what happens when people have no faith in the law and order machinery and take control of the situation themselves. While we may feel a measure of joy at the timely comeuppance of a political thug, street justice does not bode well for the rule of law.

At least now, the due rigour of the law should be evidenced in regard to ministerial thugs, their equally repulsive offspring as well as their underworld acolytes.