Sunday Times 2
Problem in judicial interpretation of Rights Law
Former Inspector General of Police Frank de Silva in his book ‘Police & Rights’ has raised issue in regard to the problem in the interpretation of the Rights Law. I quote him from page Xii of the Book: “Rights Law is often judicially construed in a manner somewhat removed from its original intent. Interpretation then becomes artificial particularly when there is a strict construction of the premise for rights, which is sterile in effect. Police are also often confronted with divergent interpretations of their action under rights law. These deviations from a single norm are seen from a practical police perspective. Such judicial construal does not offer a consistent direction for Police action, nor pave the way to the normative purpose of rights law.”
He also asserts that the problem is not in the law but in its interpretation. He cites many instances when an arrest, though deemed in violation in FR law, stands good when conviction is entered in the same case under criminal law.
Dr. de Silva is backed in his assertions by Prof. G L Peiris in his foreword to the book. I quote him: “The analysis of such police action in relation to rights raises further concerns. The issue is then capacity in police action, an ability vested in police action, to advance and secure rights. Much case law has been cited by the author where the composite nature of the impugned action is not taken into account. These opinions have the effect of deterring effective police action and decision, a tendency hardly conducive to positive advancement of rights, and law and order. Many of these judicial decisions are slanted heavily to the negative aspect in rights determination. They pay little heed to the positive and prospective potential in police action.”
I attach much significance to this aspect that Dr. de Silva has touched on, and wish to elaborate on it. ‘Rights Law’ in the book refers to Fundamental Rights in articles 10-14 of Chapter 3 of the Sri Lanka Constitution. Fundamental Rights, however, are subject to restrictions laid down in article 15 of the Constitution. I make this clarification because there are other rights conferred on all persons by law, mainly the Right of Private Defence, defined and its application explained in sections 89 to 99 of the Penal Code:
“Sec. 89. Nothing is an Offence which is done in the right of private defence.
Sec.90. Every person has a right, subject to the restrictions contained in section 92, to defend…
Firstly: His own body, and the body of any other person, against any offence affecting the human body.
Secondly: The property, whether movable or immovable, of himself or any other person, against any act falling under the definition of theft, robbery, mischief, or criminal trespass.”
Powers of arrest and the attendant powers are conferred on the Police under the Right of Private Defence law, the Criminal Procedure Code and other legal enactments. In the case of the police they not only have a right, but are duty bound to act under the law. When these powers are lawfully invoked by the police, FR cannot override it because of the restriction in article 15 (8) of the Constitution which reads : “the exercise and operation of the Fundamental Rights declared and recognised by articles 12 (1), 13 and 14 shall, in their application to the members of the armed forces, police force and other forces charged with the maintenance of public order, be subject to such restrictions as may be prescribed by law in the interest of the proper discharge of their duties and the maintenance of discipline among them.” Restriction of a right under the law surely is not a ‘violation’ of the right.
The attitude of the judiciary to disregard both, the criminal law under which police action is initiated and the restrictions in the FR law, and to blindly determine violation of rights per se, has given rise to a ‘FR Spring’, and many accused persons in criminal cases, obviously on the advice of their lawyers, take a ‘run on the blind side’ to seek refuge under FR law. The rank and file in the police referred to this phenomenon as an ‘FR Tsunami’! The conflicting determinations by the judiciary in the criminal justice system on the one hand and the FR law on the other hand, remind of R L Stevenson’s famous story, The Strange Case of Dr. Jekyll and Mr Hyde.
(The writer is a retired Senior Superintendent of Police)