The book 'Human Rights and Policing' authored by Tassie Seneviratne, Senior Superintendent of Police (Rtd) is a welcome addition to literature on Police. Much of the earlier books on policing have a limited focus which does not project beyond the narration.
This account of Tassie's official life and work is interesting and readable. The coverage is extensive over time, extending to all corners of the country. Honesty and unimpeachable integrity were the hallmarks of his character and personality. A sense of tenacity and commitment to the task given to him were an outstanding feature of his temperament and disposition. Certain other aspects of his career were equally striking. Often the author experienced the inspiring manner in which other policemen and officers in charge of stations rallied round in times of crisis. Sinhala, Tamil and Muslim names intermingle freely without a second thought.
The value of the book however is, as I see it, in its use as a base document for the study of more serious issues relating to Policing and Human Rights. The many incidents driven by police action reflect certain special characteristics in police action. In contemporary language this police action are just acts of the Executive. The implication now is that these acts are merely executive and administrative actions, without more. The manner of their performance is in terms of the law enacted for the purpose. The recount of these instances of police action, in graphic detail, in their varied contexts, reveals that police action is not of a mere repetitive or mechanical nature. Description of police action as mere executive action is insufficient to comprehend the diversity of issues which the book reveals.
Only a few of these matters of concern will be discussed, here.
Nature of police action
A particular nature of police action emerges. Police action has a quasi-judicial character in its exercise beyond its executive form. Police action entails engagement between two parties. Inherent therefore is the deployment of judgmental decision, albeit of a quasi-judicial nature, in policing these instances cited by the author. Illustration is expedient. Page references in the book are shown in brackets. Thus the 'rape case' (142) over which the author was sanctioned for failing to arrest the offender, involved a form of judicial decision the author took on judging the matter between the two parties. His decision did not warrant further action.
Determining police action judging between two contending parties is in fact an everyday exercise, too numerous to be recounted in the book.
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| Tassie Seneviratne presenting his book to former Inspector General of Police Ana Seneviratne. |
At the same time public order situations which requires as much judgmental action between opposing parties. Instances recounted in the book relate to political aspects which confront police action. The confrontation police had with Neale de Alwis MP (9) in fact involved two different parties, the relative interests of either were judicially determined when police action was taken. Likewise the instance of the Batepola priest who had the backing of William Silva MP (13) grew to serious proportions for breach of peace. The judicious interposition of police action between the two parties avoided what might have been an explosive situation.
But current legal thought and judicial determination which speak of separation of powers and fundamental rights together with violation of rights by police executive action do not recognise a quasi-judicial component in police action. The author himself does not make an express claim for a concept of police action in its inherent wider scope. His allusion to such idea is only incidental. This is the value of the book, that a wide array of police action, presented in this manner, affords a base for identification of underlying principles. Determination of violation of rights by police action is facile when the amplitude of scope in police action is out of the way.
The incidents recounted in this book reflect yet another dimension, to the reach and capacity of police action. This is a legislative facet to the exercise of police action. The instance of police shooting at the Peradeniya University campus in 1976, referred to as the Ronnie Gunasinghe case (97) bears this out. Police action involved a legislative determination of ground reality. Skolnick commented that 'Crime does not look the same on the street as in a legislative chamber. The application of the legislative law to the reality of crime therefore involves judgment'. The context on the ground needs to be determined in a 'legislative' construction of ground reality by the officer in situ. The sequel to the Gunasinghe case saw another view tendered before the Commission of Inquiry by a superior officer who was only speaking (98) in the abstract. This incident recounted by Tassie serves to illustrate the legislative facet of police decision in action.
Another dimension to the legislative determination before application of the law bears reference. Niederhoffer commented thus: 'the intention of the legislature was that the law should apply to the activities of certain kinds of criminals, not all violators.' It is further a matter of experience that enforcement of the laws in terms of the statute without discrimination would even result in commonly accepted activities of law abiding citizens being impaired. Relevance of the general law needs to be determined in legislative manner before action.
These composite characteristics of police action, though an everyday feature of police action, project a meaning beyond conventional executive and administrative formulation. Rights issues are determined however within the squared framework of executive versus judicial arrangement. Neither the law when administered, nor the writings of legal scholars advert to such idea of police action of greater scope. A notion of a special characteristic of police action has only to be gleaned through the volume of relating literature.
Rule of Law
Rule of law is the guiding principle for policing in respect of human rights asserts Tassie through 'Human Rights and Policing'. The manner in which rule of law directs action is however not clarified. Rule of law is in itself a problematic issue.
The nature of Rule of Law described by Lord Bingham said: the core of rule of law was "that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of the laws publicly made…and publicly administered in courts.As an ideal this assertion holds well. Writers on the other hand go to the further extreme of analysis (in the economic field in this case) of rule of law; that the search 'would be better informed by assuming anarchy as a starting point rather than a pristine world of complete contracts'
Tassie avoids these larger issues. For the purpose of this book, the term Rule of Law is deployed by him as a practical 'bottom up' expedient. This approach is more meaningful. Thus Osmund De Silva (15) refused to make arrest of TU leaders on trumped up 'information'. Similarly, politician Paul Perera's request to stretch 'suspicion' to justify arrests was resisted on grounds of rule of law.
The 'Rape' case (140) was a more telling example of application of rule of law by police from 'bottom up'. Police disbelieving the complaint of rape had taken no further action. This was construed as failure of duty. Disciplinary action against Tassie followed. Failure to arrest the suspect was deemed to be neglect of duty. The answer to the charge was that arrest was not justified, since the basis of the complaint was, itself, suspect. The rights of the alleged victim needed to be safeguarded under rule of law. The issue was in the idea of 'mandatory' arrest. There was however no plea in defence that a police officer may arrest, the law leaving the decision in a judicial manner with the police officer. There is no compulsion. Inherent here is the space for judgmental decision in the scope of police action. Action by Tassie underscored the practicality of the rule of law principle. Theory and abstraction were not in issue with the officer.
Why then all the confrontation? The book is replete with stories of disagreement, even conflict, following action taken by Tassie. Resistance and opposition came from influential persons, from politicians and from his superiors in the service. At the same time there was support and advice which came the way of Tassie from some of his superiors. The insinuation cannot then follow that Tassie attracted confrontation. The problem therefore is possibly elsewhere.
Police decision
Primarily there is no concept of police decision, within the specific nature of police action, neither in law nor through judicial determination. Consequently the understanding of police action from varied quarters is different, Rule of law does not avail. Attitudes vacillate. There is not even a pivotal point which can balance the opposites. Police action is essentially police decision in action.
Thus the context of action frames the ground assessment of the situation. The Ronnie Gunasinghe incident, discussed above, was faulted on assessments for action made out of context. Police do read much of the 'body language', plainly evident in such situations, when deciding on action to be taken. Rule of law in this country has not even felt the need to expressly recognise split- second decision in police action. Foreign jurisdictions have this feature explicitly written into the law.
Another critical attribute of police action and decision is again the thought of 'sequel to action'. Result of action is an anxious concern with police. Failure recoils back to the task and burden of the police. Police action is not on the case, still less with a case record, as would be with judicial action.
The title of the Book is Human Rights and Policing. Human rights and policing are, in conventional wisdom, in legal literature, two concepts conceived as opposites. The two concepts are antithetical to each other. Police are normally associated with violation of rights. Courts secure rights. Human rights are but an incident within Rule of Law. Rule of law is here equated with rights. All the police action described relate to rule of law, not particularly to rights. Tassie remonstrates against Police acting as 'automaton' (143) which will impair rights of citizens.
He refers to the series of incidents all validated by rule of law. The question is barely posed: Are not all these characteristics of police decision calculated to promote, to advance and to secure rights? The answer given by Tassie throughout the book is a categorical 'yes'. The sound is however muted. The claim for police action to promote and advance rights is even a startling proposition.
The difficulties (235) arise, Tassie says, because facts in the cases are not presented to court, duly. Other reasons are also adduced. Instances are cited. There is however no systematic examination of the setback experienced by police at judicial review. Undoubtedly the Supreme Court has been able to contain the worst excesses of rights violation. The Supreme Court did exert a benign restraint over much that went amiss during certain times. In other instances of less import judicial review presented a dilemma for police action. |
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