Sunday Times 2

‘Almustafa when asked to speak on Crime and Punishment answered saying “……….. You cannot separate the just from the unjust and the good from the wicked;
For they stand together before the face of the sun even as the black thread and the white are woven together.
And when the black thread breaks, the weaver shall look into the whole cloth, and he shall examine the loom also.
Khalil Gibran – “The Prophet”

The maintenance of law and order is the essential function of government. Conceptually and functionally government and order are related. Not only is the legitimacy of government in a large part determined by whether it maintains order, but order is the criterion for determining whether a government can exist. In ancient India too, there was the recognition that for ‘the wise conduct of life’(‘niti’), an essential foundation is security(Ryder – “Panchatantra”, translated from the Sankrit). Towards this, the core contribution of the police is the maintenance of an orderly, predictable process of community life. Public safety is the bedrock on which all social processes rest. The police are the cutting edge of government (Bayley – Patterns of Policing).

The Police have been defined as people authorized by a group to regulate interpersonal relations within the group even by the application of physical force. Police are not distinguished by the actual use of force but by the fact that they are authorized to use it (ibid).

The modern day police perform a multitude of tasks, from law enforcement to mediation. Overall the average police officer is called upon to play a variety of roles. Society has increasingly continued to entrust the police with new responsibilities. These responsibilities have grown in scope and complexities with time. Modern governments have tasked the police to deal with matters ranging from aliens to cats marooned on trees, drug addicts to drunken driving. (Whitaker).

The police function has become an admixture of elements of control and social support. Police play a major role in the social delivery system of a free society. To perform this role effectively, police personnel need to be trained to respond to the social, psychological and physical needs of people. Other than the functions, the character of the police has also to be decided on. “Are they to be enforcement technicians or social engineers, are they there to bring people into compliance with the law or are they also teachers of the virtue of the law”?

For the purpose of clarity the functions of the police have to be identified.
As set out in the Police Ordinance they are;

• Preventing all crimes, offences and public nuisances,
• Preserving the peace,
• Apprehending disorderly and suspicious characters,
• Detecting and bringing offenders to justice,
• Collecting and communicating intelligence,
• Promptly obeying and executing all orders and warrants lawfully issued by any competent authority.

From a ‘management’ point of view the functions are;
Primary (Line)

• Prevention and detection of all crimes and offences,
• Investigation of crimes and offences,
• Prosecution of crimes and offences,
• Road traffic management and control,
• Maintenance of public order,
• Maintenance of internal security,
• Provision of first line emergency services.

Secondary (Support)

• Coordination and Administration,
• Personnel and Human Resources,
• Finance,
• Logistics.

The character (the persona) of the police will have to emerge from the deliberations of the reforms process.
When police reforms are undertaken one has to bear in mind these foregoing definitions and concepts.

Context
Policing in Sri Lanka is a legacy of British colonial rule. The British established a Police Force in Sri Lanka, then Ceylon, by enacting the Police Ordinance in 1865. It is this Ordinance with amendments over the years which even today provides the legal underpinning for policing in Sri Lanka.

Today there is much ado about the rise in crime, serious road traffic accidents, the mishandling of public demonstrations by the police, their interventions with disastrous consequences in law and order situations and their lack of capacity and expertise in investigating corruption and fraud allegedly committed by members of the previous regime.

Not so long ago questions were asked as to whether there was rectitude and propriety in policing. Concerns were raised over the abuse of political authority and power and corruption in both political institutions and the police. The perception was that political power and authority were being used to harass, demoralise, intimidate and subjugate police officers to make the police force a tool of the political party in power; that the police itself was corrupt, subservient and venal, and that police officers misused their power, authority and position resulting in nepotism, favoritism, violation of human rights and the formation of a police politician, police criminal and police businessman and other unsavory nexuses.

Similar questions had surfaced in the 1960s, 1970s, 1990s, and 2000s, though they were of a milder nature when compared to the issues today. For instance, in 1946 the controversy was over the appointment of three London Metropolitan police officers. The Commissions appointed in 1965, 1978, and 1995 found that ‘political interference’ in the functioning of the police had a serious debilitating effect on the police force. They proposed measures to insulate the police from such ‘interference’. Their recommendations in the main were to give the IGP a status similar to that of an SC Judge or the Auditor General in respect of security of tenure and to set up an independent commission to handle appointments, promotions, postings and transfers.

The consensus was that the reform of policing and the police was imperative.

The way forward
For the reform journey, we need to be mindful of the hedgehog concept and the flywheel analogy. While infusing the entire reform process with the brutal facts of reality, we need to develop a simple yet deeply insightful frame of reference for decisions (the Hedgehog), then build up and breakthrough. The transformations sought will never be conjured up in a single action.(the Flywheel). (Jim Collins – Good to Great).

The hedgehog concept, is derived from Isaiah Berlin’s essay the “The Hedgehog and the Fox,” based on an ancient Greek parable. Berlin extrapolating from the parable divides people into two basic groups: foxes and hedgehogs. In the tussle between the fox and the hedgehog the latter always wins. The hedgehog, whenever attacked by the fox, rolls itself up into a little ball of sharp spikes pointing in all directions. The fox retreats and thinks up a new line of attack. Whatever the new tactic of the fox the hedgehog continues to ward off the attack with its simple defense. This takes place as “foxes pursue many ends at the same time and see the world in all its complexity. They are scattered or diffused moving on many levels,……..never integrating their thinking into one overall concept or unifying vision. Hedgehogs on the other hand simplify a complex world into a simple organizing idea, a basic principle or concept that unifies and guides everything.” (Collins – Good to Great).

The flywheel analogy is one in which you have to get a giant flywheel, rotating as fast and as long as possible. What gets it going to the point at which its own momentum works in your favor is not the one big push; on the contrary it is each and every one of the pushes, big and small adding up; their overall accumulation. It is the accumulation of energy, applied in a consistent direction, which gets you there.

Keeping this in mind:
Commit the police to perform police functions by the effective engagement of its body of officers only for maintaining, in the broader sense, law and order.

Remove obstacles to the proper carrying out of its tasks by placing all departmental resources, human, material and financial under the Head of the Department(HOD). The administrative authority of the HOD and ‘his’ directing and supervisory staff that was diminished by the creation of parallel and superordinate authorities should be revested in them by removal of the latter.
Transform the police from a regime police to a democratic police. From a ‘majoritarian’ police to a plural society multi – cultural police. The guiding principles should be to;

• protect democratic political life by acting in a manner that protects such life,
• operate in terms of the principles of democratic governance including accountability and transparency,
• ensure effective and efficient service delivery for safety, security and justice,
• maintain proper police conduct,
• endow the professional skills and conditions of service required to deliver the high standards of service expected.

Establish the operational independence of the police by;

• leaving policy implementation in the hands of the Inspector General,
• making the selection process of the IG non – political and based purely on integrity, merit, competence and seniority, by law,
• giving the IG a fixed term with security of tenure. Though the IG is responsible to a political head, the Minister in charge of the police, through the ministry Secretary, for the discharge of his duties, the IG’s removal should only be on proven non -performance/misconduct/ill health,
• making the undue influencing of or the undue interfering with the carrying out of the police primary and secondary functions as set out above a punishable offence.
• Vitalize policing by
• professionalizing the police by recognition of the specific expertise required, the capacity for its exercise and the status afforded to the discharge of the expertise in action. The minimal indicators of professionalization are: (i) recruitment according to specified standards, (ii) remuneration sufficiently high to create a career service and compete with the private sector, (iii) formal training and supervision by superior officers. Other features of professionalization would include (a) functional specialisation of personnel, (b) use of modern technology, (c) neutrality in law enforcement, (d) responsible use of discretion and (e) a measure of autonomous self – regulation,
•  re-engineering and re-structuring the Department. Redesign the organizational structure by doing an activity analysis, relationship analysis and decision analysis. Introduce appropriate ‘software’ for the efficient and effective carrying out of the primary and secondary functions of the department,
• revamping the criminal justice system to facilitate crime prevention and control and order maintenance. Among other measures, recognise that sentencing and punishment as a means of crime control has only minimal relevance; recognise that the disposal of cases other than stipulated (through the judiciary) renders the process yet more apposite; understand that the term “laws delays’” is a euphemistic term which hides the malady beneath, a conflict of interests, public and private interest. It may also denote that much of the court procedure and that the criminal adjudication process is abrasive of community relationships and disrupts coherence in the community. Introduce alternate dispute resolution.

Review;

• the adjudication of fundamental rights cases. The existing process impedes the law and order objective. Problems arising from the determination of law and fact have to be obviated. One such measure for doing so is for rights cases brought against police officers to be processed through a Human Rights Commission prior to action being filed in Courts,
• the denial of admissibility of confessions made to a police officer though corroborated in material particulars,
• the right to silence of an offender.

Incorporate;

• community participation at the policy making and policy implementation levels,
• the peace officer alongside the police officer as a single officer,
• external regulation, oversight and ‘audit’ of policing at the ministerial and departmental levels.

Enact a new ‘Police Act’ embodying inter alia;

• a vision,
• a mission,
• a service orientation,
• current doctrines.

A peek at police structures and the oversight of the police.
Police forces are set up by ‘rulers’, by ‘society’, by ‘communities,’ inter alia, to contain crime, preserve the peace, maintain public order and internal security. As discussed above they have to regulate behavior, by even going to the extent of using physical force . To achieve the foregoing objectives, as indicated in the earlier paragraph, the police have to carry out the line (primary) and support (secondary) functions described earlier on. To enable the carrying out of those functions, systems and structures have to be established. In Sri Lanka the organizational model is that of departmentation by territory as well as by function. To illustrate, the North Western Range is an example of departmentation by territory and the Road Traffic ‘Range’ is an example of departmentation by function. The former represents the vertical threads of the organizational cloth and the latter its horizontal threads, the weft and the warp.

According to Bayley this systemization and departmentation takes many forms. Viz:

• a single policing system with centralized control and operation – Singapore,
• single with centralized control and decentralized operation – Sri Lanka,
• multiple autonomous – England,
• multiple coordinated, i.e. that is where there are many forces with only one force having jurisdiction over an area,
• multiple uncoordinated, i.e. that is where more than one force has jurisdiction over an area,
• multiple coordinated forces with one force having limited concurrent jurisdiction over the same area – Canada,
• superordinate units which assists, standardizes and coordinates: in England these include – regional crime squads and Her Majesty’s Inspectorate of Constabulary; the USA – the Law Enforcement Assistance Administration (LEAA).
• In certain cases Crimes/Offences/Functions are ‘nationalized’, as in the National List of the 13th Amendment, in Sri Lanka.

As to the ‘oversight’ aspect, of control and accountability and the mechanisms of control and accountability, they can be either internal or external, i.e. located either inside or outside the police force. They can be central, regional or local; political, bureaucratic or community.

Control by external bodies could be exclusive, that is only controlling the police such as police commissions or police authorities or inclusive, that is controlling other organizations too, such as the judiciary. Control could also be divided, for example, order maintenance by one ministry and criminal investigation by another. Control could also be joint.

With respect to internal control, the explicit variety could be hierarchical – superior / subordinate, through disciplinary processes, through collegial responsibility, peer supervision, training in rectitude, etc. On the other hand what may be termed internal implicit control would take the form of associations, vocational sense, rewards, promotions, pay and community contact. (Bayley).

The nub of oversight, control and accountability is the bringing of police behavior into conformity with the requirements of society being policed. As to what forms are chosen would depend on factors such as the prevalent political culture, societal values and the homogeneity/heterogeneity of the state and the society concerned.

Conclusion.
When contemplating police reforms especially of a structural nature or agitating for them, one has to be mindful of the conditions prevailing in the country which have a bearing on safety and security both in respect of the state and society. For the reforms to be a success, questions such as, – “is the regime under threat from collective violence”?, – “what is the philosophy of the encapsulating political system”?, “what are its values and culture”?, “what are the societal values”? – have to be asked and answers obtained. In other words, – “one has to be conscious of what is happening, one has to be careful not to mistake the symptoms for the malaise and one should not stir things up; one should let hidden forces and emotions emerge naturally so that they resolve themselves naturally and do not emerge as unspecific and chaotic energies which strike and hit any available target.” (The Tao of Leadership).

“The relation between police and society is reciprocal – society shapes what the police are, the police influence what society may become.” (Bayley – “Patterns of Policing”). Thus a prominent goal of the contemplated police reforms should be to infuse ‘Giri’ and ‘Ninjo’ into the police and into society, ‘Giri’ connoting “duty and the obligations of conscience” and ‘Ninjo’ “empathetic sensitivity to the needs of the other.”

(My thanks to Dr T.P.F. de Silva, IGP (retd.) and Dr M.M.K. Wickramasuriya, Snr.DIG (retd.) for their input.)

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