From "silent enim leges inter arma"
[Cicero, Pro Milone]
To "Quis custodiet ipsos custodes?"
[Juvenal]
From the time Cicero argued that 'laws were silent during armed conflict' inroads into individual liberty had been sought to be justified as being essential for the protection of the community at large.
The point was reached when horrific violations of human rights of individuals purportedly in the interest of the State shocked the conscience of the world into setting down rules for armed conflict and prisoners of war as well as limits to the derogation of the protection of individuals’ rights and liberties.
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| Frank de Silva presenting a copy of his book to former Attorney General C.R. de Silva at the book launch on Thursday |
The legislative and executive arms of the State under the supervision of the Courts became the custodians and protectors of individuals’ rights.
The water began to get muddied when forces of terror, using allegations of racial discrimination or economic repression as justification, targeted organs of State and assassinated political figures, compelling resort to extraordinary powers being given to the enforcement agencies and the deployment of squads of law enforcement officers as "security" personnel for individual politicians and senior officials.
It would be otherwise than human for the politician and the officials who control the executive to develop some personal rapport with those officers who protect them and their families from terrorists.
Who then are to be the 'guardians of civil liberty' from abuse by the guards themselves?
Was it the Legislature that enacted the protective safe-guards,?
Or the executive that controlled the coercive agencies of the State,?
Or the Courts?
Frank has analysed the operation of the 'supervisory control' making very pertinent and often unrealized observations, using his legal knowledge and long experience as a Police Officer where he reached the pinnacle of the Police Service in very turbulent times to place the perspective of the officer exercising the powers entrusted to him/her for the protection of the community.
Frank points out those who come before the Courts in search of redress do not always 'come with clean hands' and how the Courts in the endeavour to provide redress and recourse to those genuinely grievanced by executive action have on occasion failed to spot the charlatan.
Frank also questions whether the procedure followed for the resolution of issues that arise in a Fundamental Rights application, is adequate to ensure that the right for an officer not directly concerned in the allegation made by the petitioner, but becomes involved as consequence of an issue that arises during the Court proceeding?
Frank asks the pertinent question 'Who supervises the exercise of the powers of the Courts'? Is it the Full Bench of the pinnacle Court? Can one Bench of the Court overrule the decision of another?
Frank points out that a Police officer may in the execution of his duty be required to make a 'split second decision' on the situation as he perceives it and that subsequent analysis with hindsight in the environment of a Court may not take all the relevant parameters into account.
If there is either manifest or even probable want of good faith in the decision making perhaps the officer should be held accountable. To do otherwise would result in the officer 'looking over his shoulder' to ensure no adverse consequence to himself, rather than acting to protect the member of the community who may be at risk.
The primary function of inquiring into the impugned decision should be the responsibility of the executive and the Court to intervene only where there is either a failure to hold an inquiry into the decision or a fundamental flaw in the process of inquiry that warrants a Court holding the State accountable for the failure.
Sunil de Silva,
Former Attorney General,
Crown Prosecutor |
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