By Basil Fernando –
The basic premise of Frank de Silva’s article ‘Proposed change to criminal law – now withdrawn’ which appeared in the Island newspaper recently is summed up in the following paragraph, “The difference is also that the opponents – the HRC and the BASL going by media reports – are conscious only of rights, not of duties. The police are deeply conscious of duties; of duty to the victims of crime and to the community.”
By opponents he means those who opposed the ‘amendment’. This position is an expression of the ideology which prevailed in colonial times. It is opposed to the ideology of the police under a democratic constitution. A democratic constitution does not separate rights and duties in the manner he has done.
The most important idea in a democracy is that the state must PROTECT the rights of its citizens. This protection role can never be abdicated by anyone acting on behalf of the state. Protection means the protection of human rights and nothing else. A policeman who forgets this cardinal principle, fails to act as an agent of the state. A police man/or woman, must be deeply conscious of ‘rights’ and not just about ‘duties’; He or she is not a special agent to protect ‘victims of crimes and community’. He or she is just like any other state officer and required to act within the constitutional frame work.
It is the right of judges to decide who is guilty of commission of crime and the police should not usurp this role which belong to the judiciary. Police must look on victims of crime and the suspects as citizens.
This is why the role of investigating police officers and the role of lawyers are complimentary and not opposed to each other. Both are empowered by the same constitution
In other words, it is not within the police officers powers to place obstacles to lawyers performing their constitutional role.
The lawyers role cannot be taken away by a mere amendment to the criminal procedure. It can be done only by changing the constitution itself.
The police officer who does not understand his or her constitutional role cannot protect the ‘community’; in fact he or she can only harm the community. Violation of rights and failing in the protection role is seriously harmful to the community.
It is this ideology of protecting ‘victims of crimes and the community’ that has led to causing of large scale enforced disappearances in Sri Lanka. It is a dangerous ideology.
That said, the writer does have a right to hold any views, even constitutionally wrong ones. The problem is that he now holds a high role as a member of the National Police Commission (NPC).
He should have qualified his statement by stating that his views expressed in the article are his personal views and does not, in anyway, represent views of any public position he holds.