Sunday Times 2
When a police officer’s rights are violated
In his book “Police & Rights”, former Inspector General of Police, Dr Frank de Silva, has laboured hard to elucidate the manifesting issues in regard to Police Action to Promote Rights. In this attempt he has cited an abundance of legal authorities to back up his assertions.
Several eminent scholars and lawyers have commended it for its pioneering nature, endeavour to advance rights, and for the practicalities and realities enunciated, under which the Police Force must act. It is a worthy tribute to the Police Force that gave him the opportunity to serve it with dedication and distinction. My experience in the Police Force has spurred me on to enter the trail opened by Dr Frank de Silva in a small way. The issues that interest me are several. Due to space restrictions I propose to deal with one issue at a time.
Sanctions against Police Officers
I quote from page 61 of the book. “In SL, Rights law operates even to impose sanctions of a penal nature, by way of fine or other penalty, following a finding of violation of rights from the impugned police action. Penalties of a heavy order and figure have been imposed on individual police officers who were found to have violated rights. These took effect by way of sentence and exemplary punishment. The quantum of fines imposed is inordinate, an amount that cannot be paid out of their known income. These penalties are determined by the Supreme Court in SL which has the sole jurisdiction over these rights issues. The procedure prescribed is an affidavit procedure, which considers the evidence submitted only by way of affidavit.
“In other words, there is no due processing of the evidence as obtained in conventional judicial adjudication, with cross examination of evidence and witnesses. This abbreviated course of action is appropriate to determinate liability of the State and for the grant of compensatory awards to be paid by the State. The adoption of this abridged process to impose sanction and penalties and fines on individual officers, tantamount to criminal sanctions, is inappropriate. The impropriety is also in the process which does not allow for due consideration of the evidence before imposition of sanctions of a penal nature. No charge is held out to the police officer, no opportunity is given for the officer to plead before such sentence is imposed. The police officer is represented by the State attorney who represents the State. The individual police officer is in fact unrepresented when personal liability and penalty is imposed on him. The police officer can even claim that his own rights have been violated through such process!”
Then he goes on to explain the resulting confusion of the law and process. The last line quoted above is a gross understatement. It is not just a question that the individual police officer can even claim that his rights have been violated through such process. Where can he make such claim when it is the Supreme Court that has violated his fundamental right?
It is the principle of natural justice “audi alteram partem” that has been denied to him. Natural justice is another name for Common Sense justice. Rules of natural justice are principles ingrained into the conscience of man – “audi alteram partem” is one of the most cherished and sacrosanct principles of law from as far back as civilisations are known. It is now a universally accepted principle of fundamental justice or equity in most legal systems.
In accordance to this principle, notice must first be given to the party in precise terms without ambiguity. It should apprise the party determinatively the case it has to meet. The principle includes the rights of a party or his lawyers to confront the witnesses against him, to have a fair opportunity to challenge the evidence presented by the other party, to summon one’s own witnesses and to present evidence and to have counsel, in order to present one’s case properly. When the historic document in this regard was made at Runnymede in 1215, the first statutory recognition of this principle was enshrined in the “Magna Charta” (the Great Charter of English Liberties). In the celebrated case of Cooper vs Wandsworth Board of Works [(1863) 143 ER 414] the principle was thus stated: “Even God did not pass sentence upon Adam, before he was called upon to make his defence. “Adam”, said God, “where art thou, hast thou not eaten of the tree where I commanded thee that thou should not eat?”
Since then this principle has been chiselled, honed, and refined, enriching in content. Judicial treatment has added light and luminosity to the concept, like polishing a diamond. But not so for the forlorn Police Officer, who is not only carrying out his legitimate duty, but duty he is bound to carry out.
The writer is a Retired Senior Superintendent of Police