It is only an extremely naïve person who is able to, in good faith, maintain that there is nothing wrong with our law enforcement machinery. At an advanced level of debate, even senior retired and serving police officers acknowledge that 'there is something wrong', with many linking this to the corrosive politicization of the law enforcement structures.

Differing approaches to 'cleaning' law enforcement

Approaches differ however when looking at how this problem may be tackled. Independent constitutional monitors have been critiqued as affecting the morale of the police force. However, few have been able to suggest an effective counter mechanism in the face of persistent internal failures to bring order to its ranks.

The law and the courts have also wielded little influence. Literal piles of judgments have impressively upheld the value of credible law enforcement during past decades. Police officers have been personally ordered to pay compensation as opposed to the government paying out of the public coffers. Though such judgments have been on the wane since 2006, there are few exceptions. In M.D. Nandapala v. Sergeant Sunil (R 11834) and others (SC (FR) Application No. 224/2006, SCM 27th April 2009, judgment of Justice Shiranee Tillekewardene), the Court professed itself astonished by the systemic disregarding of a victim's complaint of police abuse.

Failure of internal disciplinary processes

Even though the victim's complaint was found to be credible after an internal inquiry, no disciplinary action was taken against the responsible police officer, either by his superiors or by the National Police Commission (NPC). Mandatory steps in terms of the Establishment Code (presentation of charge sheets against the accused officer, the opportunity for the accused officer to submit a reply, and the execution of a final panel inquiry) had not been taken.

The Court, in perusing the responsible officer's service record, categorizes him as one 'who by any expected standard of the Police Force was clearly unfit to continue as an officer' but was 'ultimately and inexplicably promoted.' Political patronage had ensured his continuance in service. This exemplifies the core problem; namely political subversion of the police command structures which results in abusers being rewarded while honourable police officers stagnate.

The NPC's failure

The failure of the NPC to investigate the complaints is meanwhile judicially castigated to amount to an unacceptable 'abdication of responsibility', quoting Juvenal's ancient query (sic, mistakenly attributed to Plato in the judgment), viz; "Quis custodiet' ipsos 'custodes?" or "Who will guard the guardians?"
This failure is illustrative in other respects as well, though not specifically adverted to in this finding. Relevantly, the referral of the complaint had been a few months after the NPC was brought back following the unconstitutional appointments of its Commissioners.

In its second term, the NPC was a pale shadow of its (constitutional) predecessor. Though a Public Complaints Procedure was put into place in 2007, its implementation was unsatisfactory. The NPC is now no longer even in existence with (reportedly) its powers being exercised by the ministry Secretary. The Supreme Court's orders to the NPC in Nandalal's Case interalia, to "publicly set forth effective, practical procedures' that supervise police officers of all ranks, to 'amend the existing scheme for promotions to explicitly counter political and financial influence' and to enhance training in that regard will consequently be of no effect.

Reasons for inefficacy of judicial orders

At one level, there has long been a deliberate policy of the authorities to reject orders reprimanding police officers for abuses. In the 1980's, police officers who were castigated by the Court were thereafter promoted. At another far less scrutinized level however, problems have also been posed as a result of inconsistent judicial attitudes, which we must be honest enough to acknowledge. Studies have been done of differing judicial responses to a particular petitioner at a particular time, depending on a range of factors that have little to do with the law or the nature of the violation. Incredibly, (during 1999-2009) it was asserted by some judges, including former Chief Justice Sarath Silva, that the Court's own findings against erring police officers should have limited relevance in determining their promotions. What then, may we ask, is the value of such jurisprudence?

Continuing need for consistent and strong jurisprudence

Given such inconsistencies, superlatively phrased judicial reprimands to bring abusers to brook in other instances, does ring quite fantastically hollow. There is no doubt that this is a jurisprudential chasm in which we find ourselves trapped and which needs to be bridged in the first instance by consistent and strong decisions upholding constitutional rights. This week's ruling by the Court, (reportedly) reversing a previous order by the former Chief Justice that had prevented the investigation of criminal charges against six police officers including the OIC of the Negombo police, is therefore to be welcomed.

While the enforcement of rulings may still unfortunately depend on a hostile political authority, such judicial consistency will certainly go a long way to changing public opinion as to the logic of the law and of the Constitution in this present state of dysfunction in Sri Lanka.