Focus on Rights

Playing politics with public funds and public servants

By: Kishali Pinto Jayawardene

At a time when election fever is, as customary, rising frenziedly among those "brave and good representatives" of the people, political wannabes and their cohorts, perhaps it is time to remind us of an interesting incident that took place in early 1997 at a meeting of Samurdhi Niyamakas in Matugama.

Thudugalage Don Ranjith Deshapriya who had been a Samurdhi Niyamaka since 1995 was invited to come for the meeting by a letter signed by Anil Moonesinghe, Deputy Speaker and Member of Parliament for Kalutara.

When the meeting presided over by Mr. Moonesinghe got underway, all were informed that they had been asked to come there for the purposes of canvassing support and "other organisational matters" connected to the election campaign of the PA candidates at the Pradeshiya Sbaha elections.

So far so good, one would say. After all, what could be more natural than this, that Samurdhi Niyamakas could be used for the purposes of electioneering for a particular party. In the best Sri Lankan traditions, they had been chosen on party loyalties, thus, they could operate henceforth only on those self same party loyalties.

But, things were to take a different turn. At the meeting, Mr. Deshapriya undoubtedly operating on an irresistible impulse, decided to disagree with the uniform command laid on them and declared that the candidates put forward by the PA were not the "best candidates" within the PA and that "therefore, he was unable to go to the people and canvass for them".

Responding, Mr. Moonesinghe reprimanded the unruly and assuredly ungrateful Mr. Deshapriya, pointing out that he along with the other Samurdhi Niyamakas had been appointed on his recommendations and that "therefore it was the duty of all of them to act according to wishes" Mr. Deshapriya was also reminded that he was the only person who spoke against the wishes of the party and that others who might have shared his sentiments, kept silent knowing the consequences that they would have had to face.

Some three months later, Mr. Deshapriya was informed that he had been suspended from the post of Samurdhi Niyamaka with no reasons given. Again, all of this is in the ordinary course of things. It is from here onwards that things got "curioser and curioser", as the immortal Alice in Wonderland would have it.

Mr. Deshapriya went to court, affirming certain principles that had become as rare as the dodo to a blasé Sri Lankan people used to any atrocities committed in the name of party politics.

His argument, wonderful in its simplicity was that Mr. Moonesinghe who was a politician could not dictate terms to him as to how he could behave, that he had been the only Samurdhi Niyamaka from that division who had been dealt with in this manner, that he had been singled out and victimised because he expressed his opinions at the meeting and that his suspension was a direct result of the ill will that Mr. Moonesinghe had begun to bear towards him.

His argument before the Supreme Court was accepted by a three member Bench of the Court in September this year. In its short judgement spanning a mere six pages, the Court affirms basic norms of conduct to be obeyed by all political parties, particularly during electioneering times.

The question was simple - can persons paid out of public funds, collected directly or indirectly from citizens of all shades of political opinion, be used to advance the interests of those of one political persuasion alone? In this case, Samurdhi Niyamakas were persons performing what was described as "the major poverty alleviation programme of the government" However, it was expressly required that they should perform in a manner devoid of politics. They were officers engaged in rendering services to the public, for which they were paid out of public funds. As such, they could not be commandeered to work for one political party.

"…the use of resources of the State, including human resources, for the benefit of one political party or group, constitutes unequal treatment and political discrimination because thereby an advantage is conferred on one political party or group which is denied to its rivals" the Court ruled.

This prohibition would definitely apply to public funds being paid directly to one political party and not to others.

It would also make no difference whether such payments are made directly to individuals or indirectly by diverting equipment, facilities of the State to the benefit of one political party.

For Sri Lankan politicians used to subverting State resources when in power for their own purposes at all times but particularly during election time, this judgement can only come as a rude shock. In this case, Mr. Deshapriya was paid compensation of Rs. 75,000 to be paid, mind you, not by the State but personally by the persons responsible for his unjustified suspension, including Mr. Moonesinghe and various subordinates who actually carried out the suspension order. A clear warning was issued as to why this kind of action was unacceptable. Mr. Deshapriya was discriminated against because he expressed his dissent and because his political opinion differed from Mr. Moonesinghe's.

This was moreover in the context of a forthcoming election.

"Not only was free competition among beliefs thereby stifled but the profession of a particular opinion was punished by the virtual deprivation of livelihood. Democracy without dissent is a delusion. Democracy can never prohibit lawful dissent. Indeed, a fundamental characteristic of true democracy is that it not only protects dissent and tolerates it, but genuinely cherishes dissent, recognising that it is only through a peaceful contest among competing opinions that the ordinary citizen will perceive the truth.", the Bench comprising Justices Fernando, Wadugodapitiya and Gunesekera declared.

Praiseworthy sentiments indeed that all politicians and heads of state institutions including the state media would do well to keep in mind during this pre-election period.

Behind the police stick

To curtail police abuses, they must be exposed. Shortcomings in the police, causes for such shortcomings and suggested remedies have been put forward in these columns too.

In times of political turmoil, however, the police are often faced with a 'no-win' situation with criticism becoming destructive rather than creative.

For example, whenever there is an outbreak of violence leading to injury to persons, loss of life and damage to property, the media blame the police for not foreseeing it and taking timely action to prevent it. When a catastrophe is prevented - and none would see or feel what would have happened - the police are bashed for over-reacting and inconveniencing the public.

"Using a sledge hammer to kill a fly" has been the comparison in some sections of the media when the police should have been commended.

Police powers

Legislators in their wisdom have conferred on the necessary powers of the police to protect citizens. The police are duty bound to use these powers when the need arises. It is true that at times, the exercise of these powers restricts the rights and freedoms of individuals.

People are expected to co-operate with the police in such instances to maintain the checks and balances imposed by law in the larger interest of society.

It will be in the best interest of the public to be educated on the following provisions of law lest they be misled and used as human shields by mischief-makers.

Sec 56 of the Police Ordinance: It is the duty of every police officer to use his best endeavours and ability (among other stipulated duties)

a) to prevent all crimes, offences and public nuisances;

b) to preserve the peace;

c) to apprehend (arrest) disorderly and suspicious characters.

Sec. 78(1) of the ordinance: Officers of police not below the grade of Sub-Inspector may, as occasion requires, direct the conduct of all assemblies and processions in any public place, prescribe the routes by which and the times at which such processions may pass, and direct all crowds of twelve or more persons to disperse when they have reason to apprehend any breach of the peace.

All officers of police shall keep order in all public places, and prevent obstructions on the occasions of such assemblies and processions, and in the neighbourhood of places of worship during the time of public worship, and in any case when the roads, streets, or thoroughfares, or landing places may be thronged, or may be liable to be obstructed. They may also regulate the use of music in the streets, when the same shall be allowed.

When these powers and duties are read with Sections 89-99 of the Penal Code (Right of Private Defense) it is clear that the police are not only empowered to use such force as is necessary, but duty bound to do so when the situation demands.

It is also to be noted that what matters is the genuine belief or reasonable suspicion on the part of the police officer in regard to the breach of peace and not the assertion of the suspect. Remember there can always be a Babu infiltrating any procession or assembly especially into high security zones whatever the intentions of the organizers of demonstrations. Only fools rush where angels fear to tread!

Destructive criticism

Police abuses are too often outweighed by frivolous police bashing on the part of some sections of the media acting with extreme political bias. There is also an aspect of deliberate provocation by mischief-makers to force the hands of the police to use force and then cry foul with a view to gain cheap political mileage, thus frustrating police attempts to preserve the peace.

Such destructive criticism can lead to serious consequences, given the important role of the police in the social fabric.

Non-use of aggressive police to protect the public when the need arises could expose the police to greater risk.

This has happened too often, especially during post-election violence, when the police in a beaten down state bashed from all sides, become indecisive and just look on when the country is burning.

Police indecisiveness due to such frustrations and uncertainty, seems to nullify any action even if it is taken on good grounds. Reluctance to present facts and justify police action is another malaise that is eating into police morale. This is more pronounced when police higher-ups become shilly-shally over political repercussions instead of justifying police action before courts. I could best illustrate the two lines of thinking with a case study:

In 1979, a complaint was received by the Kompanna-veediya Police that former senator M.D Kitchilan was abducted and wrongfully confined in a mosque in the area to force him to sign a document involving trusteeship of a mosque. The police were obliged to rescue Mr. Kitchililan but they were attacked with bricks and stones.

There were two shootings – one accidental and the other voluntary. Political pressure from two contending parties was very strong. The then DIG Colombo assessed the political situation and allegedly took the position that both shootings were accidental. Thus he wanted the Kompannaveediya OIC to stick to this version. The OIC, T.K. (Tikka) Jayasingha, who ordered the second shooting, would hear none of it and stood his ground firmly.

He presented the facts exactly in the manner they took place, and the court held that death was due to justifiable shooting by police.

For quite some time after that, unruly elements in Colombo stopped trifling with the police.

Had the police given a different story and there was evidence to say that the shooting was voluntary, the police would have been in serious trouble, with unruly elements winning the day and police morale hitting the rock bottom.

During my sub-inspector days I had the experience of being charged in courts on over a dozen occasions, consequent to the use of force. In 1964, the charges related to the murder of Somapala alias "Madavia," Somay of Dematagoda and attempted murder of Dharmadasa alias "Choppe" of Maradana. Sub-Inspectors Sarath Bore-lassa and C. Sivasubramaniam were the co-accused with me. O.I.C Crimes, Inspector H Y de Silva, of old C.I.D fame, O.I.C Maradana, the legendary Inspector E. Egodapitiya; and acting S.P. Colombo Eleric Abeygunawardene, always beaming with confidence, who later became IGP, backed us in the face of tremendous pressure against us from the "firebrand" politician, Vivienne Guna-wardene, who was then in the government.

In all the cases, courts held that the use of force was justifiable. Our legal expenses were reimbursed.

We learnt a lot at the expense of our prosecutors and the police service earned public and media appreciation in those good old days and we walked the streets with our heads held high.