By Basil Fernando –
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The basic premise of Frank de Silva’s article ‘Proposed change to criminal law – now withdrawn’ which appeared in the Island newspaper recently is summed up in the following paragraph, “The difference is also that the opponents – the HRC and the BASL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.
De Silva / October 23, 2016
I think promotion of “rights” of anyone typically leads to a litigious society. An example of this is the USA. What happen in the end most cannot afford lawyers. That means they have to forego rights.
Another side of “rights” is an 8 year old wanting gender correction surgery. Another example is an underage child wants to divorce his parents.
Instead of rights its better to infuse a culture of duty and responsibilities.
In this kind of culture each person and group inherently know its duties and responsibilities. It indirectly protects human “rights” anyway.
Most eastern traditions are responsibility oriented. The Japanese for example will commit suicide if they feel they have not done a good job.
That is an extreme but that sort of culture is something that work will in Sri Lanka.
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Susruta / October 27, 2016
“Instead of rights its better to infuse a culture of duty and responsibilities.”
There are familiar societies where rights are denied and people live and die stunted and choked by the duties imposed and infused from birth in the name of religion, custom, tradition and of course, birth and many such.
To those who inhabit those comfortable layers of society either from birth or by co option into the highs and have benefited lifelong from those who slave and fawn upon them, the new world is a corrupt degeneration due to the talk of rights. The seeming concern for the lost goodness and culture gets its vehemence mostly from the loss of the comfort and order that was taken for granted on the back of others’ bondage to duties.
The peasant, the labourer, domestic workers, minorities, children and wives- even mothers – are beginning to be conscious of their rights too and this is disturbing to many.
I have seen many a grandmother who is proudly amused by her 4 year old grandson on holiday from abroad, demanding why? about almost anything asked of him but is unfailingly enraged when any serving villager dares to contradict or question her.
Mr De Silva produces a number of howlers with his choice of examples and generalisations.
In our country it is possible to grow old and big in many positions without ever having learnt to reason critically in the light of evolving ideas of freedom and equality. A culture of compulsory obedience, impatience with requests for explanation and above all the inbuilt ethos of exclusivity that reserves equality to “us” have made us insensitive to the impoverished lives of those who are outside our circles.
The duties, he speaks of, of the police are no more than the obverse, as Basil points out, of the rights of people, that need to be protected from rights-stealers and deniers in all areas including officialdom. Without those rights, the police have no justification and will be no more than predatory agents of whoever pays them.
The reference to hara-kiri is interesting and alarming. Surely we must examine how such extremes originated – Are they not in a continuum with bowing and scraping and falling down at the feet of superiors and propertied elders? Instead of romanticising these we must imagine the oppression that began such abuse of fellow human beings. The poor man who performs hara-kiri is no hero, he is a victim to be pitied as much as the one who bows and scrapes.
Are we really unhappy if we lose these expressions of “traditions of responsibility”?
Basil has drawn our attention to a serious problem in the ethos of our top guardians. We must urgently reconsider recruitment philosophies: Are success in rugger or boxing and an indifferent degree sufficient qualifications to become a guardian of the rule of law? Should it not be at least balanced and leavened with women and men who impress by their capacity for thought and by their understanding of the evolution of our society?
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Marrikar / October 23, 2016
IDEOLOGY IS A KILLER.
educate your senses and emotions.
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Adrian / October 23, 2016
‘The most important idea in a democracy is that the state must PROTECT the rights of its citizens.’
This highlights a lapse. The rights should also include ‘responsibility’, as such wherever the rights cause arise, it must be accompanied by ‘responsibility’ clauses as well. If not, there is insufficient balance for democracy.
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