Hulftsdorp Hill : by Mudliyar

By Mudliyar

The Police-lawyer dispute deepens
By Mudliyar
The gradual erosion of the law and order situation is today quite evident with the two arms of the law in conflict. Often heated arguments between police officers and lawyers have ensued in Court but they were confined to the inner walls of a Court House in the past. Senior Police Officers who prosecute know the limitations of both the Police and lawyers.

The Police in the past were aware that the Constitution guarantees the rights of the individual that ought to be upheld even if the rights of the community were affected. But, this attitude took a backseat when during the 1988-89 insurrection period, the Government decided to protect the police as they were the main instruments of power that protected a Government which had become weak. With the extraordinary powers vested in them under Emergency Regulations, the Police believed that lawyers were a great hindrance to the enforcement of their authority.

The Police-lawyer dispute was resolved to a certain extent in 1989 when the then Police Chief Ernest Perera issued a circular to all officers of the Police Department. The circular said: "… I would like every police officer to extend to Attorneys-at-law who have occasion to interact with the Police Stations and in Court Houses their utmost courtesy and assist them to fulfill their obligations to their clients."

But the situation today has deteriorated We pointed out how a lawyer was treated at a Police Station by the OIC when the lawyer demanded the release of his client who had been held in custody without any charge. Representations made by the lawyer to the Bar did not result in any action being taken against the OIC.

It is common now for some police officers to treat lawyers with contempt.

Recently Dharmathilake Gamage, an Attorney-at-law practising at the Colombo Magistrate Court, appeared at the Kotahena Police Station, on behalf of his client to settle a dispute involving a money transaction. A certain police officer has become notorious for transforming a simple money lending case into cheating or criminal breach of trust after which a complaint is made and the man who borrowed the money is brought to the Police Station and threatened, coerced and eventually cajoled to settle the dispute by paying the money borrowed in instalments. Mr. Gamage's client was brought to the Police Station on the basis of an earlier settlement that had been drawn up by this police officer.

When Mr. Gamage tried to explain to the Police Officer that the matter was not a criminal offence but merely a money lending transaction, the complainant allegedly started abusing Mr. Gamage in the presence of the Police Officer. When Mr. Gamage went out of the Police Station, the complainant's son allegedly used foul language at him. Mr. Gamage then went back to the Police Station and complained to the OIC. Though the Police could have immediately apprehended the offender, they did not do so for reasons best known to them alone. The offender was a friend of the Police who were not happy with Mr. Gamage being at the Police Station trying to explain the legality of the complaint.

After the complaint of Mr. Gamage was recorded, there ensued a battle between the Kotahena Police and the Colombo Magistrate Court's Lawyers' Association. The Magistrate who had been informed of this incident questioned the Kotahena Police to ascertain why the suspect had not been arrested and produced before him. The Police thereafter filed a report in Court and requested the Magistrate to issue a warrant for the arrest of the accused. They changed their stance and became the champions of the rights of the accused.

f abusing an Attorney-at-law, had abused a Police Officer the resultant position would be that a medical officer would testify in Court that the injuries the suspect had on his body were not due to assault but due to a fall on the hard surface or jumping from a moving vehicle. But if the abuser had hurled abuse at an Attorney-at-law then the provisions of the Criminal Procedure Code and the Police Ordinance are applied to the letter. Whatever the legal position of such an arrest, every practitioner at the Magistrate Courts knows that even a person who commits the most trivial offence is produced in Court and bailed out. The provisions in the Criminal Procedure Code as to the arrest of those suspected of a non-cognisable offence are rarely adhered to.

The Police do not as a matter of practice file reports to arrest suspects. The procedure for the arrest of a suspect is quite simple. You proceed to his abode at anytime of the day or night and arrest him. Or if the suspect is evading arrest the immediate next-of-kin is brought to the Police Station and kept at the Police Station until the suspect surrenders.

When the Magistrate refused to grant a warrant on the basis that this was not the practice the Police should resort to in apprehending a suspect, the Police went back to the station and did nothing to bring before Court the suspect who abused the lawyer at the Police Station. Emboldened by the Police action, the suspect in the meantime made every possible effort to influence or threaten the complainant to settle the matter amicably. He seems to have all the influence in the world, while the lawyer cries for justice.

Later the suspect appeared at the Police Station with a lawyer. It was at this stage that the suspect was permitted to make his statement to the OIC himself and then left the Police Station without any problems. The police again brought forth the provisions of the Criminal Procedure Code. They said that the complaint made by the lawyer was a non-cognisable offence and such offences are normally compounded in Court.

If a person breaks your hand or stabs you without cutting an artery or a vein the charges that could be brought against him may be of a non-cognisable offence. It will be pathetic if a Police Officer who is summoned to the scene of offence, refuses to arrest the accused on the basis that he was not sure whether the offence was of cognisable or a non-cognisable nature.

But in reality the Police react quite differently. They arrest a person and treat him brutally at the Police Station and inform the suspect about the nature of the offence, whether he has committed that is, whether it was cognisable or a non-cognisable. But if they choose to, the Police could also be as meek as lambs and become true defenders of the rights of the people.

In the Gamage case, under no circumstances, would the Police change their stand and when the suspect came to the Police Station they applied the Criminal Procedure Code which permit them not to arrest such a suspect without a warrant to the letter. They conveniently and purposely ignored Section 6 of the Bail Act which erased the anomaly relating to the arrest of a person who had committed a non-cognisable offence. When the lawyers of the Colombo Magistrate Court heard that the suspect had been sent home with a pat on the back they were naturally agitated.

When it came to violation of the rights of the lawyers and the people it is the Colombo Magistrate Court's Lawyers' Association which lead from the front. They rarely brought matters to the notice of the Bar Association. They wanted to deal with any problem themselves.

The Association through its President immediately got in touch with Interior Minister John Amaratunga, a lawyer himself, and brought up the issue. One telephone call from him to the DIG Bodhi Liyanage settled the issue. The accused who had even tried to influence every person in the dispute in his favour had to surrender himself to Court through his lawyers.

The police for the first time played their cards fairly and squarely and agreed with the position of the complainant's lawyer and moved for an identification parade.

The members of the Colombo Magistrate Court's Lawyers' Association (CMCLA) felt that the efforts they made to vindicate the right of lawyers and restore the glory of the profession bore fruits. The Police were made to feel that they cannot bend the laws to suit their whims and fancies.

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