By Basil Fernando
Police brutality is very much a normal part of the abnormal way of life that exists in Sri Lanka just as attacks by wild elephants have become an usual part of life for people living in remote villages. How that came about has a history of its own and it is the same regarding the police.
It is not just the people who say that the police have become quite a wild lot. The Inspector General of Police (IGP) himself has said so while giving details about what is happening within the policing system. In a report dated December 31, 2021, which became well known after the events of May 9, he exposes a failed system including how people who are not qualified have been put into high ranking positions such as the officer in charge of a police station due to political reasons. He reveals many details about the sad state of affairs of the premier law enforcement agency.
The system has completely lost credibility. The issue of importance is whether there is any way out. Is substantive reform of the policing system a possibility?
It would be very hard to convince anybody that such reform is possible. Many questions will be asked. One is “Who is going to make the reforms?” That is the most difficult question to answer. There does not seem to be any will on the part of the government in power to have a better system of law enforcement. The present system suits its purposes although sometimes it does not even do that. The events of May 9 were a clear signal that the police did not intervene even to protect the houses of the ministers or members of parliament of the ruling party. That is notwithstanding the present style of policing that serves one purpose for the government, which is to unleash brutality on people engaged in legitimate protests. Events of the last few weeks have seen how the police were engaged in the arrests and filing of false reports against people who were protesting against some of the worst deprivations they have suffered in their lives. The photographs of policemen trying to threaten people waiting in queues for oil or gas with pistols in hand were seen by the public.
People want reforms
As to who wants police reform, the only clear answer is that the people want it but they have no belief that there is a way to bring about reform.
How did such a situation come about? From the time the police as an institution was initiated in the latter part of the 19th century and for many decades thereafter, there were tenuous efforts to build a policing system that was capable of enforcing the law within the framework of the rule of law. On the one hand, taking all steps necessary to enforce the law within the framework of Criminal Procedure Code and on the other hand, safeguarding the rights of the people including those who are subjected to arrest and detention within a framework of the rule of law were ideas that were implanted in Sri Lanka during the formative years of making of a police service.
However, this initial attempt took place within the framework of control by a colonial power; there were limitations which several police commissions understood and by the time of gaining independence, there were proposals for more radical reform for a civilian policing system. But for various reasons, this approach was not followed by governments that came to power after independence.
The key reason for the policing system developing into the pathetic situation that it is today comes after the 1972 and 1978 constitutions. One main error that was made within the constitutional framework itself was to displace the fundamental principle of the rule of law as a foundational principle of the legal system. This happened due to political reasons.
The cornerstone of a republic
The cornerstone of any republic is the notion of the rule of law. A republic differs from a monarchy specifically on this premise. As Thomas Paine, the American writer and revolutionary who inspired a generation of people at a time when basic constitutional ideas were developed in the United States, stated, in the United Kingdom, the king is the law. However, in the United States, the law is the king.
What is really wrong with the policing system is that it lacks a guiding principle to keep its organization together. That guiding principle can be nothing else except the principle of the rule of law.
Thus the policing system is a system that is not based on a solid principle nor is it a system run on the basis of a set organizational system run by a leadership that is committed to the fundamental notion of the rule of law.
Until the constitutional framework is changed to reinstate in unambiguous terms that the foundational principle of Sri Lanka as a republic is the principle of the rule of law, there is no way to prevent the policing system being an abnormality and a crude reflection of the worst aspects of brutality and the use of force against the people.
The courts have made many judgements against the fundamental violations of human rights by the police. There had been criticisms by international and local organizations regarding the failure of the policing system. However, these have not made the policing system any better because if the constitution itself has created a situation of lawlessness, then it is not possible to expect proper law enforcement agencies to function within civilized norms in carrying out their official duties.
Even the protestors, while they complain about the use of police brutality, have not yet taken up the issue of substantive police reform as a major aspect of political reforms that are required. There is frustration and demoralization but such reactions have not been expressed by way of a demand for a radical police reform that will reinforce the principle of the rule of law within the policing system itself and within the country as a whole.