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In a nation where an Inspector General of Police (IGP) was once held responsible for the grievous torture of a suspect (but nevertheless continued in office until the winds of political change forced him out), it is little surprise that this week, an ostensibly unassuming police spokesman was found by a majority opinion of the Supreme Court, to be personally liable for violating the right of an attorney-at-law to exercise his constitutional right to practice his profession.

Police behaviour in domestic violence cases

The facts of this case were a tad different from the harsh recriminations deservedly heaped on the miscreant IGP’s head at the time. Nonetheless, the finding against the police spokesman, then Headquarters Inspector of the Negombo Police Station as well as a subordinate officer by a consensus of two Justices (Janak de Silva J with K Wickremesinghe J agreeing with Chief Justice Padman Surasena dissenting) raises some interesting questions.

In issue was a case replicated in hundreds if not thousands of instances across the land where a lawyer accompanied his client, a victim of domestic violence and her grandmother to an inquiry at the Negombo Police station. This was after his client had pleaded with him to accompany her, saying that the husband from whom she was seeking a divorce, belonged to a prominent business family and that she feared intimidation by the police.

By that time, an action on domestic violence had been filed by the wife at the Magistrate’s Court and an interim protection order had been issued, preventing the husband from threatening her, preventing him from entering her temporary residence to where she had fled after leaving him and preventing him from ‘using any compulsion by telephone.’ At the inquiry, the lawyer alleged that the police had infringed his constitutional right under Article 14(1)(g).

A lawyer’s right to ‘fairly represent’

He had been deprived of the opportunity to fairly represent his client through a series of actions by both police officers. This was firstly by the subordinate asking him to go out of the room where the inquiry was held and keeping the wife (alleged victim) and the husband (alleged abuser) only inside, consequent to which it was alleged that attempts had been made to coerce her to return to the marital home.

That included stating, (in an aside which would have been funny if it was not so unmeasurably coarse), that she would ‘become a redundant coin if she fails to do so.’ The lawyer stated that he had been so treated despite the police officer being informed of the interim protection order issued by the Magistrate against the (alleged abuser) husband. Thereafter, the Headquarters Inspector (now the police spokesman) had summoned the parties to his room.

Again, the lawyer had been asked to leave with the two police officers keeping only the two affected parties inside the room. Renewed attempts by the police officers to ‘reconcile’ the estranged husband and wife followed. The lawyer and the victim’s grandmother were then called back to the room. It was alleged by them that after they were summoned, the Headquarters Inspector had proceeded to abuse the lawyer.

The majority opinion

That was by cursing the legal profession as a whole and saying that such problems arose only when lawyers and parents get involved, (to paraphrase in far kinder language, the far more rude colloquialisms employed). Though the police officers denied that such language had been used by them, the majority preferred to roundly disbelieve the denials, reminding that the fact of abuse was corroborated by the victim and her grandmother.

That behaviour showed ‘an abject lack of appreciation of the emotions of a victim of domestic violence’, Janak de Silva J stated, warning that the conduct reflected a ‘totally misguided perception of the role of an Attorney-at-Law.’ Very clearly, it was opined that upon the police officers being apprised of the interim protection order issued by the Magistrate against the husband which the lawyer categorically said that he did, they ‘should not have proceeded with the inquiry.’

The majority had ‘no hesitation’ in rejecting the claim of the police officers that the victim had chosen to be alone in the inquiry room with her allegedly abuser husband. That version was ‘inconceivable’, it was said, given that just ‘two days prior’, she had obtained the interim protection order against him. ‘She was kept…against her free will’ and without her lawyer representing her, it was pronounced.

Minority finds no violation of rights

The majority thus held that the fundamental rights of the lawyer-petitioner before Court had been infringed, ordering that the police officers personally pay compensation as well as costs. Coming to a contrary view however, the Chief Justice pointed to the fact that the lawyer-petitioner’s primary complaint against the police was that they were continuously trying to compel his client to return to the marital home despite the interim protection order.

But the ‘mere fact’ that the police did not accede to that request cannot lead to an infringement of his rights, he said. The language allegedly used by the respondent (then) Police Headquarters Inspector against the lawyer-petitioner could not have ‘prevented him from representing his client at the inquiry…’ the Chief Justice asserted.

‘In as much as the Petitioner is assertive of his fundamental rights, one needs to understand that the 2nd Respondent would also be free to express his views…’ he said. Additionally, it was stated that ‘the fact of a police officer requiring to interrogate a person in the absence of an Attorney-at-Law, in my view, cannot be taken as an infringement of the fundamental right of such Attorney-at-Law to engage in his lawful practice.’

The Police Rules 2012

The Chief Justice goes on to elaborate that statement by referring to instances where ‘serious crimes’ are committed and where investigating officers are required to interrogate, conduct inquiries and conclude investigations expeditiously. Reflecting on those judicial sentiments however, it must be remarked that the context of the fundamental rights challenge in issue was very different in character.

That is assuming but not conceding that the presence of a lawyer can be dispensed with even in regard to ‘serious criminal offences.’ This reflects a long standing if not acrimonious dispute between those in the criminal justice system who advocate that the police must have a free hand to ‘interrogate’ and rights practitioners who argue otherwise, pointing to systemic impunity that has corroded the justice system.

The Police Rules 2012 published in the Gazette on 18.05. 2012 which govern the conduct of police officers towards Attorneys-at-Law in police stations, featured prominently in both the majority and minority opinions.  Emerging from a notable instance of police officers overstepping the line, these Rules have led to several decisions in the past decade finding violations of Article 14 (1)(g).

Provocative divergences between the majority and minority

The Rules mandate inter alia, that attorneys have to be treated ‘cordially and courteously’ and be given a ‘patient hearing’ by police officers, which is observed more in the breach as it were. Judicial reprimands have led to little change in police behavior or conduct. Referencing the instant case, the Chief Justice reminded that the Rules do not ‘give an Attorney-at-Law, an entitlement to be present right through when the investigators interrogate such persons.’

His observation that, ‘one should always weigh the consequences of such serious crimes, their investigations against the rights of persons under arrest and strike a smooth balance between them’ may perchance be generally unexceptionable. However, it should be agreed that the circumstances in issue involved a civil matter. These are discussions that merit more considered reflection elsewhere.

Certainly the divergence if not differences between the majority and minority opinions in this regard poses provocative questions for analytical legal teaching and academia in Sri Lanka, if such still exists.