The killing of five members of a single family at Delgoda over a land dispute, a subsequent mob attack in which three houses in the neighbourhood were burned, followed by the shooting of two alleged suspects whilst in police custody, which killing has been declared by a magistrate as justifiable homicide, has been subjected to considerable discussion in Sri Lanka.
The Asian Human Rights Commission, last week wrote an open letter to the Honourable Speaker and the Members of Parliament calling for a parliamentary debate with a view to developing a comprehensive plan of action to deal with the lawlessness that has developed in the country and acknowledged by everyone (Please refer to http://www.ahrchk.net/statements/Open Letter to Honourable Speaker
). Todays statement aims at three alarming points of view expressed in the present debate which if left unchallenged can in fact lead to a worsening of the situation. The three points of view referred to are (a) that the collapse of the rule of law has reached a point that is too big a problem for the Sri Lankan police to deal with within the framework of the rule of law, (b) that the police must resort to dealing with the problem by hook or by crook and (c) that magistrates accept police versions of justifiable homicide without question.
The holders of the view that the maintenance of the rule of law and the curbing of lawlessness is too big a problem to deal with are many. They include the present and the former Inspector Generals of Police, a section of the media and the political establishment as a whole. The present Inspector General of Police is quoted thus:
..In April this year Police Chief Victor Perera declared that the Police may even have to go beyond the law to combat crime.
Addressing the news conference he said, they would maintain law and order by hook or by crook
.. We will not be deterred by those who are involved in these acts, whether they are from the underworld or persons with big names. We are also armed with weapons.
We will not back down in fear of their weapons. Though you dont have weapons we have sufficient number of weapons and also a cadre of about 77,000 to 80,000. For us the place doesnt matter
..
The Sunday Times, May 27, 2007 Cops and Killers: Who reigns
Dealing with all great or grave problems depends on the perspectives of those whose duty it is to deal with them. The perspective that crime can be dealt with ‘by hook or by crook’ is in itself self defeating. It shows that the chief of the law enforcement agency does not have a perspective through which the problem of increased lawlessness can be dealt with. The moment that law enforcement officers think of dealing with lawlessness by hook or by crook or by weapons, they have already abandoned the rationality of their institution and opted for dealing with crime irrationally.
No law enforcement agency has a legitimate right to act irrationally. The term, by hook or by crook itself belongs to the terminology of the criminals. To believe that criminals can be destroyed only by methods similar to their own is to abandon all the basic legal and philosophical premises on which modern criminology is based. (To declare that they will act by hook or by crook is also a statement of arrogance that no holder of a legitimate post is entitled to take). The very basis of the rule of law is that no one is above the law. This would mean that law enforcers themselves are not above the law.
There is a vast difference between the primitive methods of war lords who use gangs in order to suppress other gangs considered enemies of law and order. In that primitive state (unfortunately such a state prevails even now in countries where the rulers rule in a primitive manner), all that is needed for a gang activity to be legitimised is for the holder of the political power to sanction that activity. However, in any society which has reached the state of being based on rule of law the law enforcement officers cannot behave as a gang. The leaders of the police are not legally entitled to give orders other than those allowed by law and they are also legally obliged to treat the illegal acts of their subordinates in a similar manner as those of others. Thus, there is not one law for the police and another for everyone else. The law is the same for all. A murder remains a murder if someone is killed with the intention to kill. The intention being good or bad does not make any difference to the fact that murder is just murder. The police are not legally entitled to engage in acts which are otherwise crimes for what may be thought of as good intentions; for example the intention to maintain law and order.
What all this talk about dealing with the problem ‘by hook or by crook’ implies is the failure to admit that it is the weaknesses of the institution of policing in Sri Lanka that has made lawlessness possible in the country. The problem is not one of the increase of criminals, but rather the degeneration of an institution for various factors, which of course cannot be blamed on the people in positions of authority in the policing institutions at the moment. What the present authorities can be blamed for is that they are unable to act professionally to state to the government that the professional conditions necessary to deal with the law and order situation do not exist any longer within the policing system in Sri Lanka. Instead they have allowed themselves to become gangs for a government that does not provide the necessary resources for the premier law enforcement agency to become one that is professionally equipped to deal with crime.
It is simply plain commonsense that those who can do things ‘by hook or by crook’ themselves become crooks. It is not possible to do things that crooks do without becoming a crook oneself. Can the premier law enforcement agency in the country allow anyone of its members to become a crook? The very moment this type of expression and the implied perspectives become part of the premier law enforcement agency, the cause of the maintenance of law and order is lost. If a police officer is allowed to behave as a crook what limits can the Inspector General of Police place on such crookery? If to deal with criminals a policeman acts as a crook what is there to stop such an officer from doing so for his own benefit? By adopting the philosophy of ‘by hook or by crook’ the police leadership has only opened a Pandoras box that should always remain closed. The possibility of a policeman becoming a crook should be avoided at all costs if the integrity of the institution is to be preserved.
Equally alarming is the manner in which the magistrates declare that deaths are due to justifiable homicide only after listening to the police version of the events. This virtually makes the police privileged persons before the magistrates. If a citizen was to go before a magistrate and claim that he killed a person who entered his property in self defense, will a magistrate immediately declare this to be an act of justifiable homicide? If this becomes possible there will be murders everywhere and the magistrates will have to take the words of those who did the killing at face value and declare all such murders justifiable homicide. On the other hand if it is only the police who can make such declarations the consequences will not be different. In recent times the claims of killings in self defense have become an almost daily occurrence. Is this one more application of the philosophy of by hook or by crook?
If you kill a criminal and then add a story which may not be altogether true it is not difficult to adjust to the by hook or by crook philosophy. If the magistrates do not call for complete inquiries into all murders and leave the final verdict regarding the death to the trial courts, the magistrates may have no way to escape from the by hook or by crook philosophy, and thus deviate from the rule of law.
Over a period of ten years the Asian Human Rights Commission has pointed out that the problem of law enforcement in Sri Lanka is primarily the failure to invest in the development of an efficient, modern law enforcement agency in the country. Other countries which have made that investment deal with criminal elements in a much different manner and the citizens are not forced to live in bewilderment of criminals or law enforcement officers who behave under the philosophy of by hook or by crook. The political crookery that uses anarchy and chaos for political and economic gains of the power holders also prevents the investment in law enforcement to make the institutions of law enforcement viable institutions that can find rational solutions to the prevention of crime within a framework of law without resorting to crookery. Abandonment of the limited institutional reforms sought through the 17th Amendment has enormously contributed to the further degeneration of the rule of law situation in the country.
It is the task of the citizens of Sri Lanka including its parliamentarians to challenge the view that allowing the policing institutions to degenerate to the point where it can act outside the law can be the solution to lawlessness. Not to challenge the by hook or by crook philosophy will imperil Sri Lankan society more and more. Sri Lanka does not need crooks to enforce the law. It requires professionally competent people with integrity that can create a modern machinery of law enforcement. For that considerable investment has to be made and there is no way around this.
(For further information on AHRC statements please refer to the following: Sri Lanka: IGP is not above the law
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