By Frank de Silva, former Inspector General of Police, Sri Lanka
Law and order, a common aphorism, comes apart when the two pull in different ways. The concurrence of law with order is disturbed when law does not promote order. The problem is expressed thus: “Lawlessness and injustice was systematically engineered by the best legal minds in the country over a long period” says lawyer Kishali Pinto- Jayawardene, Sunday Island 17th July 2011 p. 3.
This statement rings loud as it speaks out what has been said in private for long. This assertion throws the spotlight equally to the criminal law and police action for law and order. The criminal law and its application to the police task are the subject of this article titled Police Law, to determine how the law applies to the police.
The inquiry here is whether objectives of law and order and justice are engineered or manipulated in the criminal process. Equally relevant is the criminal law itself whether the provisions and the workings serve the objective of law and order. Many of these questions arise probably from the fact that there is no concept of ‘police law’ to focus on these problems.
There is instead law relating to the policing task, by way of procedure, evidence and the nature of crime. The Police Ordinance establishes the police force; its task is to be discharged by the relating law. The latter taken together constitute the criminal law which frames police action. The criminal law changes are in the main determined by law professionals.
Incoherence in law
Incoherence and inconsistency mark much of this law relating to police. These negative features if not engineered, were at least acquiesced in for long by the legal minds. Thus the law for adjudication as the means, by which the criminal law metes out deterrent punishment for law and order, is considerably afflicted in this sense. Adjudication of crimes requires the best evidence. Criminal law provisions often preclude best evidence. At the same time there is inconsistency and want of coherence which inhibit best evidence. Illustration is expedient.
Statements of witnesses recorded by police are of little worth in terms of the criminal law. These statements of witnesses recorded by police can be used only to contradict, not to corroborate the evidence of witnesses in courts. This is the law. The single evidential basis held good for one not for the other is plainly illogical. This inconsistency is perhaps legally consistent and does not defeat legal purpose. Even when these statements were later required to be signed by witness by amendment in 1973 which revoked the earlier prohibition on taking the signature, the same want of logic and consistency in the law was persisted with. No change was made to institute these statements as good evidence.
Even thereafter when these statements of witnesses recorded by police, in 1973 and later in 2005 constituted good evidential basis to frame indictments, the limitation on its use in summary cases was continued without change. Thus the same recording of witnesses’ statements by police though not of substantive worth for summary cases is acceptable as evidential basis in non-summary cases. The irrationality of the law is stark. That is one matter. More serious is the result that the community, aware of this limitation through peers or even legal advice, engages in the practice to distort their evidence as influenced. The criminal law is then a serious brake on the process for receipt of good evidence for adjudication.
Whatever the policy considerations which imposed these limitations on the use of statements recorded by police, these need not hamper magistrates whose task is due adjudication. The statement of the complainant admissible in corroboration is used as much to contradict complainant. The different legal standing then of statements of complainant and of the witness, both recorded by police, is incomprehensible.
Incoherence in the law is plainly manifest. The objective could hardly have been law and order in the arrangement of these laws.
Confessions are the other source of best evidence. Confessions in general have a universal appeal if not in law. “And shall you punish those whose remorse is already greater than their misdeeds? Is not remorse the justice which is administered by that very law which you would fain serve?”1 Criminal law does not encourage confession to crime as important to criminal justice administration. Instead rules deter confession. The prohibition on admission inhibits receipt of this good evidence. Confessions to police are not admissible in terms of the Evidence Ordinance. Such prohibition constitutes a fundamental rule of evidence. A confession made to the magistrate is admissible. This provision is rarely used, given the formalities which precede the recording and the procedure later before that confessionary statement is admitted at trial. Rarely is it that confession to magistrate leads to recovery of evidence, an aspect vital to investigation.
Confessions by definition, as it were, are that made instantly and spontaneously. The etymology of the word confession indicates its statement with the deed, than later. Confessions made later in afterthought are calculated, more probably not voluntary confessions. In the latter case many other influences can weigh against confession made on one’s own volition. Confessions to police can be voluntary. In fact admissions to police nearly amounting to confessions have been accepted in court in many cases. A principle of criminology, apart from moral considerations, is that spontaneous declaration of guilt and wrong has a corrective effect on the offender.
Confessions are made to many persons such as doctors, community elders, where no threat or duress can be implied and could help adjudication. A realistic basis of evidence and procedure for law enforcement is denied thus in the criminal justice system. The law does however recognise this need, only through exceptions to this rule. Section 27(1) of the Evidence Ordinance provides for information to police admissible when it leads to a recovery of a fact in evidence. Such information must be given by the suspect to the police officer in whose custody the suspect is. Duress is implied here. But voluntary information given by the suspect when not in custody, or given to some other police officer who has not taken the suspect into custody is left open. Further this section 27 exception has been narrowly construed to limit admissibility only to the ‘knowledge’ of that fact and not more. A realistic interpretation was given in the case of Ariyasinghe v. The Republic, which ruled for the consideration of the information, in the context. The ‘fact’ loses its meaning if stripped of the knowledge which led to the finding of the fact. There is thus no incentive to confess to crime; instead admission is even dissuaded by other interests. The law promotes contest and denial than confession.
For practical reasons there are other exceptions to the blanket prohibition on confessions to police. Under the emergency law in security situations and in ‘spot fine’ cases of traffic offences the evidence ordinance prohibition on confessions was disregarded out of necessity. The legal exclusionary principle is then not a firm doctrine, rigid and inflexible in application. Necessity induced some deviation. Significantly, there was no opposition from vested legal interests to these exceptions to the prohibition rule. Perhaps, there was no serious disturbance of their vested interests. An implied exception to the rule prohibiting confessions was in the case of compounding of cases by police. There is, in effect, implicit admission of confession to police not prohibited by law. Compounding of cases is not possible when there is denial and contest on the charge held out.
The rule for prohibition of confessions to police need therefore reconsideration were they are to serve the objective of law and order and control of crime. In fact such confessions should be made admissible where it is sufficiently corroborated in independent particulars. The ensuing dilemma in police investigation for law and order through the law and the courts was expressively articulated in an authoritative statement former Chief Justice of Karnataka India Shri Malimath as Chairman of an All India Commission inquiring into the system of the criminal law (Malimath Report2003 p 88 section 7.4). He concluded that ‘Investigation is the foundation of the Criminal Justice System. It is unfortunate that it is not trusted by the law and the courts’. This statement is revealing as to the inadequate notion and the puzzled state of law development in respect of criminal investigation. Investigation, the foundation of criminal justice, is undermined at its very base, the statement implies. This raises further questions, how then was criminal justice administered for so long. On what evidential basis does court place no trust in the investigation? Does evidence avail this distrust? Does not the law itself need review to clear the confusion? The manner of law development in India as a fundamental question applies as much to the local situation.
No prompt action
Prompt action to promote law and order is barely a concept in criminal law. Process is the important consideration in criminal law. But prompt action is critical when breach of peace is threatened. Delayed processing with time through courts stirs the problem further. Process however has its own contradiction or dialectic, exploited often for reasons other than law and order. The process, often termed due process, is that which has been engineered for other ends. Manipulation of the process in this respect by the best legal minds may reflect on the judiciary and the courts, as they permitted the space for the untoward exploitation of the law process. Prompt action avoids much that is untoward.
Thus the need for prompt action to prevent breach of peace, instead of deferred action through courts, was recognized by the Basnayaka Police Commission 19702 which made recommendations to require the police to act immediately and report the action to court. The result was other than recommended, to process these cases through newly established Primary Courts. Court action then takes its own course. Further, recourse to primary court is not on the very first incipient signs of possible breach of peace. Problems go before court only when the dispute has aggravated. Then prospect for resolution is much less. The formal process in primary courts is then a matter of routine, ineffective to keep the peace. In fact much serious crime can be traced to ineffective action to prevent breach of peace. All the instances of horrendous crimes have their origin in a simple dispute which grows into large proportions despite the law, before they erupt.
ven the initiatives for conciliation and mediation were attempts to bring a form of prompt intervention within the criminal law. But the adoption of these proposals by the judiciary was hesitant. Courts even declared that these measures were in usurpation of judicial power vested exclusively with the judiciary, by boards outside the courts. Mediation, and previously conciliation, in fact, was not readily accommodated by courts. Much useful work though is done by these Boards. But it appears that the full benefits of these Boards are not being derived. Their legal provisions are insufficiently utilised. These were the comments made by High Court Judge, that were the provisions of the Act “fully implemented”3 A further statement of the Judge said, “As such it may be said that you [Mediation Board] are participating in the process of administration of justice”4. This statement cuts across a structural divide in the system. A latent principle is innate in this statement of the Judge that settlement of a problem or dispute outside the legal structure by prompt action can be endorsed within the legal framework. Such constructive judicial disposition is rare. It is unlikely that such attitude will just yet receive judicial endorsement.
Less likely is the prospect that the criminal law will invest the police with powers as peace officers to mediate in less serious cases for prompt action to keep the peace. In criminological terms institutionalization of process has its limitations, than informal intermediation, by the police and community elders. Such considerations will not be readily conceded in the current state of criminal law development.
Crime prevention is another of the statutory duties of the police in which the legal provisions are of a formal nature, with means barely effective for the purpose. Much of the stipulations take effect only after conviction. There is little idea of crime prevention immediately when crime has occurred. The nature of such action must deter future crime. Mediation and conciliation, as appropriate, between the parties to the crime, rather than court action, helps resolution of dispute. Settlement of the problem and more importantly restraining acrimony helps build up relations between the disputants and thus with the community. Furthermore, the idea of crime prevention through rehabilitation is at the end of the case following conviction. In fact however mediation immediately on the occurrence of a crime makes for rehabilitation and crime prevention much more effective than when treatment is delayed. This point takes on a sharper relief when the difference between court action and police action is noted. Prof. Tim Murphy said: “Unlike legal adjudication systems, which look back, such bureaucracies produce the future and are oriented to producing the future. Whereas the primary task of adjudicators and of those working around them is to ascertain the law applicable to the matter in hand and to apply it, the fundamental orientation of bureaucracy to law is instrumental and manipulative activity; activity is objective or goal-driven, and if there is a mismatch between goal and law, the law must be changed”5. Prompt action is much more effective than deferred and delayed action.
Compounding of cases by police for prompt resolution of dispute was undermined of its effect by the 1988 amendment, which revoked the effect of the action by laying down now that compounding of cases by police did not amount to an acquittal. The hand of law professionals to devise this change is evident. This was not an amendment to deter further litigation. Meaningful intervention by police was now not possible. Action by police in these instances was reduced to the mere recording of statements and their referral to other authorities. It is useful in this context to note that the comparative provisions for compounding cases in India remained unchanged. Under the Indian Criminal Procedure Code Act No. 2 of 1974 the effect of compounding of cases of acquittal continued unchanged. This amendment served only some vested interests.
Manipulation of law process.
The operation of the law suffered no less through the workings of the system than with the nature of the law. Criminal law process is often skewed up through manoeuvre within the process. Delay is the main means by which this is engineered.
The history of non-summary inquiries offers a striking example of how the process of law is exploited through delay. Non-summary inquiries instituted for a simple preliminary step in law constituted a heavy burden on police work, in terms of time and effort. Serious concerns brought in changes in 1973 to remove this preliminary process from courts with the express purpose of ‘the elimination of unjustifiable expense and delay’. There was stiff resistance to these changes from the affected legal interests. In 1979 non-summary inquires were restored in full order. The political implication of the changes and date were significant, as with conciliation boards. The elite interests of law professionals prevailed. Delays in final disposal of non-summary cases were then legendary. Anecdotal evidence has the instance of a third accused lady in an attempted murder case having gone through three pregnancies during the non-summary proceedings. In 2005 an abbreviated form of non-summary inquiry was instituted, whereby the statements of the witnesses’ were only read over before the Magistrate and questions to the deponents could be addressed only by the Magistrate. The non-summary process has now come back full swing to the original intention of this law. The purpose was only to ascertain whether there is a prima facie case to justify indictment. This was converted by manoeuvre to nearly a full trial. The return to basics has taken perhaps a hundred years.
Manoeuvre in the process of another order came through the change of law in 1994 which made the effect of a second discharge of an accused to one of an acquittal. This amendment had curious ramifications. The reason for the change was to spare the accused the harassment of repeated prosecution. The law reform had in mind the case of a public servant who remains under interdiction till final disposal of the case, an uncertain date as it may well be with recurring prosecution. The intention was praiseworthy on the face of it. Apparently the default was at the hands of the prosecution. There was no consideration however that police evidence can be obtained by affidavit and default so avoided when the 1994 amendment was enacted.
In practical terms however, the change set an unhealthy trend below the surface court proceedings. Discharge order is made, generally, due to absence of prosecution witnesses when proceedings cannot continue. Absence of witnesses is often a contrived exercise, nearly in subversion of process. A manner of manipulation within the process is through a form ‘rotation of absence’ of witnesses. Necessarily this is worked through over a long period of time, to enable the discharge of the accused. Collusion between the parties to the case figured in some way in the subverted process. The Magistrate however had earlier the means to control such untoward practice. His hands were now tied. Subversion of process had very limited scope then. Subversion of process now has freer rein. An amendment to the law to cure the mischief while retaining the authority of Magistrate to avoid anything untoward might have been devised. Significantly, this law change did not consider the provision for evidence of police witnesses to be tendered by affidavit, dispensing with their personal attendance. Repeated discharge orders could have been avoided and the perceived mischief cured. Clearly the law professional reformers of the law had only one perspective.
Laws delay is the euphemism under which problems of delay have been repeatedly examined. In this manner of the surveys, manoeuvre and manipulation to induce delay is judiciously avoided. There are two broad aspects to laws delay, structural and systemic. The criminal justice system straddles across a structural divide, the legal professionals on one side, the executive functionaries like police and prisons on the other side. The respective disciplines reinforce the divide. Thus law enforcement, though a continuing process for law and order, is dislocated at the joint where the matter is handed over by the police to court. Law enforcement is clearly a task of police. There is no corresponding idea of enforcement of the law by the courts. The initial effort by police can be frustrated during the judicial process. Plainly there is no overall objective of law and order which brings the two sides together.
Even within the courts, there is a further divide between judges who uphold the public interest and the lawyers guided by private interests. Much of the dysfunction of courts as low rate of conviction, increasing disposal of cases otherwise than through due process of trial and laws delay are due to this structural division in the system. Systemic problems add to the dysfunction. Postponement of cases, manoeuvre of process and other means and devices are systemic to the malfunction within the system. They are financially induced and are remunerative.
The statement made at the outset, that lawlessness and injustice are engineered by the best legal minds in this country over some time, is true even of the criminal law and to policing for law and order. Inconsistency in the law, incoherence of objective, structural differences of persuasion in the system, systemic dysfunction within the court process, are examples of engineering and manipulation of process which weigh heavy on the police task for law and order.
Police Commissions of Inquiry have over the years engaged in looking into administrative and other incidental matters, rather than these legal questions of grave import. The reason for this may be that the terms of reference and the Commissioners themselves are law professionals and thus have never considered the adequacy of the law itself, the law taken just for granted.
1 Gibran Kahil in ‘The Prophet’1991 page 58, Pan Macmillan 20 New Wharf Road London N1 9RR
2 Ceylon Sessional Paper XXI, p 27, 1970 Government Printer Ceylon
3 Per WT Vicknaraja, The Sunday Observer (Sri Lanka) 24th August 2008 p 10.
4 Ibid p 10, col. 6.
5 Prof. Tim Murphy, ‘The Oldest Social Science?’ – 1997, Clarendon Press-Oxford pg. 58
Source: The Island – 25th and 26th July 2011