Why AG should not play investigator’s role

Who is accountable for the Police function?

This is a question I have been asking the National Police Commission ( NPC) since 2015, but I am yet to receive a reply.

The Police function is an essential component in the rule of law and is the most important link in the Criminal Justice System. Hence the question as to who is responsible for the Police function is of paramount importance.

Prior to the appointment of the NPC, the Inspector General of Police was held accountable for the Police function. But now with all powers for appointments, promotions, transfers and punishments being vested in the NPC, its silence on the question of accountability is beyond comprehension.

It is a universally accepted fact that authority and accountability cannot be separated. Former IGP Dr. Frank de Silva in his book, ‘Police Role in Sri Lanka’, has this to say in this connection: “In plain common sense, too, authority and responsibility are but one, the two together, each the obverse of the other.”

While the question in regard to accountability for the Police function remains in this state of affairs, the confusion is more confounded by the Attorney General assuming the Police function and directing investigations. I refer to a recent news release from the AG’s coordinating officer: “AG directs IGP to submit explanation before 10th for noncompliance with his advice to invoke the process in interdicted HC judge Gihan Pilapitiya case.”

In regard to investigations by the Police, the AG can advise only if his advice is sought. He cannot direct investigations. Furthermore, the function of the AG is that of prosecutor, and one can describe it as quasi- judicial because he determines whether there is sufficient evidence to maintain a charge. When he takes upon himself the task of directing investigations, there becomes a conflict of interests, because he will be judging his own investigation.

When the AG ‘directs’ investigation, the AG must take responsibility for any inadequacy of the investigation that may transpire later in courts. But the AG neither takes responsibility nor holds himself accountable for the action. Any problem arising later, the AG will simply pass it on to the Police!

The question of arrest and remand is part of investigation, and, therefore, is a matter for the investigating police officer to decide whether to arrest, when to arrest and whether to remand or not, all depending on the best course of action in the best interests of the investigation, but no other considerations.

I can elucidate the position of a Police investigator with a case in point: When I was the Officer in Charge of the City Vice Squad ( CVS) in 1974, I had occasion to detect A.R.M. Mukthar for persistently printing and publishing matters connected to horse racing. It was known that accused Mukthar was a person who hobnobbed with the highest in the land. He was arrested along with his workers and other bookie magnates who were in his premises to collect ‘Race Sheets’.

The investigation necessitated remanding Mukthar and the others arrested with him as three more accomplices wanted in the chain of complicity, were evading arrest. There was tremendous pressure to have Mukthar released from remand but the Magistrate Hugh Moraes could not be moved.

At this juncture, I was summoned by Justice Ministry Secretary Nihal Jayawckrama and told that representations had been received by the Prime Minister to the effect that:

A medical certificate has been issued stating that Mukthar was suffering from palpitation of the heart and that his condition was serious.

Mukthar’s family has been long associated with Mrs. Bandaranaike’s family and should the worst happen to him in custody, it would greatly embarrass her personally.

In no way, however, should the investigation or the case be impeded.

The Secretary reiterated that the operative condition was ‘ c’ and asked me if Mukthar could be released within that condition.

I explained that his release at this stage would impede the investigation as three suspects were still evading arrest and that his release now would impede the investigation. He then told me that he would leave the matter in my hands.

Neither the AG, nor the IGP, nor any superior officer was brought in.

Back at the CVS, I was met by Alawi Moulana, a stalwart in the then ruling party. He told me that they had seen the highest in the land, “but Madam refused to interfere”, and pleaded that I do something to help them. I used this opportunity to get out of the sensitive situation and gave the names of the three wanted suspects to have them appear at the CVS. Within two hours, the three suspects were brought to the CVS and I had Mukthar released on bail.

In the court case, Mukthar was convicted of the charge.

Getting back to the question of accountability, the Acting IGP has to be congratulated for the stand he has taken on the unwarranted order of the AG.

(The writer is a retired SSP.

He can be contacted on Seneviratnetz@gmail.com)