By Basil Fernando –
The name Kondaya is now a household name, following the tragic Sadewmi case, the abduction, rape and murder of a little girl of around 4 years. Discovery of the dead body led to an uproar not only in her village and the neighbouring villages but throughoutthecountry. There was a demand for immediate inquiries and for prosecution and also for vengeance.
As usual the local police failed to make any arrests for some time and instead began to float stories that were reported in the media, and various people were named as possible suspects. The first was the father and the grandfather in the same family, who happen to be the males in the house.
So, simply because they were male, the police developed a suspicion that they might have done this, and before any evidence was collected, their suspicion was transmitted to the media and the media gave it to the whole nation. These days it is not only the whole nation; because of social media and the Internet, it was also discussed in the Sri Lankan circles outside Sri Lanka.
The next suspect was a young boy, who happened to have a computer and Internetfacilities, and on that basis he was suspected as the possible culprit. Again, the police suspicion was taken as fact and proof, and theinformation was leaked to the media, and again the same kind of publicity greeted the local village, the country, and the Sri Lankan circles abroad.
In the case of Kondaya, the DNA results have themselves proven and confirmed and he was positively identified as the person who could have not committed this crime. And so, the boy was also released, after many days in custody, and after being tortured.
Later, someone else was charged. And now the trial is over, and he has been found guilty of the charges by a high court.
The story does not end there. In fact, at this point, a series of new stories begin to emerge. The Kondaya and the boy both sought legal advice and they filed fundamental rights applications against the police officers who illegally arrested, detained, tortured, and also gave massive media publicity, blackening their names in the local community and wider.
Next, we hear that there is a case against both persons and the police have filed criminal charges, try to manipulate them by using the powers of arrest for the purpose of trying to obstruct the proceedings in the actions that they have filed against the police.
Against Kondaya, according to media reports, the charges that the police have alleged and the offences that the police have allegedis that somebody likeKondaya was seen to be in aposition thatwould have been likely to have committed an unnatural offence against an animal. Again, with this, Kondaya began being portrayed as a person who will do any type of offence.
But, the worst was yet to come. Just few days back, the people in Gampaha Minuwangoda, and other villages, witnessed a completely new phenomenon. Two police officers were walking behind a carriage on which loudspeakers were tied,and someone was talking to the villagers through the loud speakers with the message that the police have got information that Kondaya has joined a gang of criminals who intend to abduct children, and that therefore there is a big danger of children being kidnapped. So, parents and adults were being warned that children must be kept inside the houses at all times and the doors and windows should be shut at all times. The police cautioned that due to the heavy heat, families are likely to keep their windows and doors open. However, they should understand the danger and that despite the heat, windows and doors must be kept closed.
Now, what evidence the police have, of this particular person being a part of a criminal gang, planning such criminal activities, has not been revealed. Besides, even if there were any allegations of the sort, the duty of the police was to investigate and to act within the procedures described by law and to bring the matters to court and act only in the manner that they are supposed to act within the rules that are well established. The suspects that are facing investigations have a right to protection, and thisprotection includes the protection of theirreputation. In any case, there is no law that authorises the police to go about making such announcements through loudspeakers,labelling any accused as a serious criminal. The policemen that engaged in such activity, obviously with the knowledge of thesenior officers of theirpolicestation, were clearly acting against basicrules of law and decency.
But, what is more worrying is about the possible consequences of such announcements.
One of the following thingscould happen to Kondaya in the following days.
He could be attacked by mobs or even be killed by mobs because, naturally, people will be very angry with anybody who is engaged in an organised manner seeking to abduct their children. Nothing offends parents and adults more than such types of crime.
The second possibility is that it may be said that Kondaya was arrested, and then he tried to escape, and in the process policehad to use force and in that process he was injured and killed. Such stories have been commonly reported in the recent past.
The third possibility is that a group of criminals can be indirectly mobilized to go and attack this suspect and to either injure him or murder him. And, it will be said that the mobs attacked this person who was killed.
The result of this announcement is that if any one of these things were to happen to Kondaya, nobody will care. They would think, at last, a menace to society has been removed.
Anxieties created on people, particularly, on the security of their children and in them adjusting their minds to the elimination of such persons even through illegal means. This experience we have had, in terms of both the suppression of the JVP rebellions and the LTTE and other groups in the North and the East. Mental conditions can be created within which otherwise normal and reasonable peoplecan tell themselves that under these circumstances if some extraordinary action is taken, even if these actions violate basic laws, it is okay, given the dangers that are posed to their person or to the society at large.
The problem is that it makes no difference at all to complain about all these matters to the higher authorities or to the police. The people have gotten used tothe belief that it is futile to make suchcomplaints, because unless thereisheavy political pressure, as in the Embilitpitiya case, there would not be any investigations into this matter. That is the impression that has been created throughout the country about how the premier law enforcement agency works.
In one way, there is nothing to be surprised about such behaviour, because 29,000 persons who work today as policemen were those who were recruited in 2006, purely from a political point of view, as mostly reserved police officers, i.e. the lowest ranking police officers. Neither were such persons subject to any interviews, nor did they undergo the normal one-year programme of training, which is given to other police officers. Most of them do not have a strong ability to read or write, and are certainly devoid of critical faculties, even to basic levels. Police work requires high degree of critical faculty, because, very serious judgements have to be made by these officers, which affects the individual liberties of human beings.
A basicprincipleis already established in common law, which was reported by one of the greatest authorities on British law, A.V. Dicey, who is also credited with coining the term rule of law, which has now become oneof the most common terms used throughout the world.
He described that, by then, in England, a practice hadbeen established that arrest is illegal, per se. Arrest can be justified only if thereis an investigation on the basis of reasonable grounds that a persons mayhave engaged in the commission of crime. Only then, he or she could be arrested, for the purpose of such investigation.
The second ground that is allowed as an exception to the general rule, which is against arrest, is that a person can be arrested to carry out a sentence meted out by the judiciary.
A V Dicey goes further to state that it is established law in Britain, in the mid-19th century, that it is the duty of the magistrate who, if they, find that person has been arrested outside those two grounds, will criminally punish those who arrested such a person.
Further, it is the duty of the magistrate to see that the victim who has been illegally arrested is compensated. That is the basis of the law, which was introduced to Sri Lanka through our penal codes, criminal procedure code, and our constitutional law.
Exact quote is as follows:
“The right to personal liberty as understood in England means in substance a person’s right not to be subjected to imprisonment, arrest, or other physical coercion in any manner that does not admit of legal justification. That anybody should suffer physical restrain is in England prima facie illegal and can be justified (speaking in very general terms) on two grounds only, that is to say, either because the prisoner or person suffering restraint is accused of some offence and must be brought before the Courts to stand his trial or because he has been duly convinced of some office and must suffer punishment for it. Now personal freedom in this sense of the term is secured in England by the strict maintenance of the principle that no man can be arrested or imprisoned except in due course of law i.e. (speaking again in very general terms indeed) under some legal warrant or authority and, what is of far more consequence, it is secured by the provisions of adequate legal means for the enforcement of this principle. These methods are twofold; namely, redress for unlawful arrest or imprisonment by means of a prosecution or an action, and deliverance from unlawful imprisonment by means of the writ of habeas corpus”. [Introduction to the study of the law of the Constitution, 10h edition, London, Macmillan, 1959, with an introduction by E C S Wade Q.C., pp. 207-08]
However, today this most important principal, on which the freedom and the liberty of the individualrests, is being flouted, in the most casual manner. How can good governance be established in a society like this? How can the officers win the confidence of the people, when the situation is such?
The new IGP appointed has been put in an unenviable position. He has to take steps to correct the heavy load of problems inherited from the past. These problems include the 29,000 police officers out of a total cadre of 80,000 police, who are basically not qualified to do their job?
Furthermore, the practices established in flouting the law when making arrests and detention and also illegal killings entrenched in the system need to be eliminated. Will the new IGP beup to this task? The people will soon talk about it and his term of office will be judged partly on this basis, i.e. whether a significant reform was initiated during his term. (Naturally such a process cannot be completed within a short time.)
Next, it will be judged on the basis of whether the IGP had the cooperation of the government to achieve this task, particularly by allocating necessary resources, in order to engage in significant reform.
It is not only the IGP who will be judged on this issue, of course. The entire country’s legal system will be judged on this issue. If the legal system does not prove it is up to the task, of making a fundamental change, then what is implied is that the Sri Lankan society is heading towards even worse form of peril than what it has witnessed in the years that followed the 1971 rebellion right up to the 9th of May 2009.