Towards just policing
The last five decades have shown overwhelming concern for order and stability at the expense of basic civil and political rights.
AN International Conference on Principled Policing was held last week to examine a whole range of issues relating to the role of the police in a rule of law society.
Speaker after speaker acknowledged that the police force is an indispensable, key agency in our criminal justice system.
The men and women in blue help to prevent crime, maintain law and order, conduct investigation of crimes, ensure production before the courts of those on trial and oversee post-sentence surveillance over criminals.
In this age of cross-border crimes, terrorist attacks and the nefarious trade in drugs, arms and human beings, the challenges of policing are indeed immense.
The overworked and underpaid members of the police force undoubtedly put their life and limb on the line so that the rest of us can go about the pursuits of life in peace and harmony.
The police force is, or can become, an important pillar of the rule of law because control of crime and preservation of public order are important aspects of human rights protection.
Police powers are necessary to preserve the social fabric of society and to create an environment in which people can live without fear.
Having said that it must also be observed that the police force is subject to much social censure for the manner it performs its professional roles.
The gist of the problem is that there is an eternal clash between order and liberty.
The power of the police to maintain public order clashes with the citizens’ legitimate demand for human rights. A “one or the other” or an “all or nothing” approach is unwise. A balance between the might of the state and the rights of the citizens is needed.
The approach of the Federal Constitution and other laws like the Criminal Procedure Code, the Police Act and the Evidence Act is to provide for such a balance.
Article 5(1) of the Federal Constitution guarantees that no one shall be deprived of life or personal liberty save in accordance with the law. No person should be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts.
Article 5(2) grants the remedy of habeas corpus if the detention is contrary to the law.
Article 5(3) imposes a duty on arresting authorities to inform the arrestee of the grounds of arrest and to allow him to consult and be defended by a lawyer.
Article 5(4) requires that, subject to some exceptions, every arrestee must be produced before a magistrate within 24 hours.
Article 10 of the Constitution relating to the fundamental right to speech, assembly and association, is meant to provide enough democratic space so that freedom may ring and liberty may soar.
At the same time the authorities are permitted to impose restrictions on specified, permissible grounds in order to prevent disorder.
Parliament is not supreme and the courts have the power of judicial review of legislative and executive acts if they infringe on the mandates of the Constitution.
In addition, there is a Human Rights Commission to blow the whistle on violations of basic liberties.
Regrettably, however, the last five decades have shown overwhelming concern for order and stability at the expense of basic civil and political rights. Many powers of the police and many extra-legal police practices pose grave threats to a regime of rule of law.
Many laws institutionalise departures from human rights ideals. For example, the ISA and a number of other preventive detention laws permit detention without a conviction in a court of law.
Junior police personnel sometimes make insensitive and racist remarks. The problem is compounded by an ethnically imbalanced police force. Citizens seeking to make police reports are given the runaround. There is absence of an independent Police Complaints Board.
There are no remedies available if a citizen’s report to the police or other law enforcement agencies is not investigated and acted upon.
Unlike in the United Kingdom, there is no record here of the judicial order of mandamus to command the police to enforce the law when there is a prima facie case of violation. There are allegations of selective prosecution and political interference in police work.
It is alleged that police arrest first, investigate afterwards. Security laws are often used to rope in ordinary criminals.
Allegations have been made of too many shootouts with criminal suspects resulting in extra-judicial deaths. Prison deaths are not unknown.
There are no time limits to remand terms and no right to an expeditious trial. Lawyers are often not allowed to see their clients. Arrestees who succeed in obtaining habeas corpus are often rearrested immediately.
Violence against and torture of remand prisoners to force them to make confessions is not unknown. Rules on interrogation are often violated.
Illegally obtained evidence can be admitted provided it is not obtained oppressively. Admissibility and legality are not one and the same thing.
In the human rights era in which we are living and with the increasing levels of legal literacy, it is imperative that humanrights awareness should become an important component of police training.
Human rights abuses in any land deserve wordwide condemnation because “injustice anywhere is a threat to justice everywhere”.
Police personnel must also be aware that there are now international remedies available to victims of human rights.
However, one must note that there are some positive signs on the policing front. Some outdated laws have been repealed. Others are being reviewed.
International human rights law is influencing our policing system. Educational levels and professionalism in the police are rising. The Human Rights Commission, against all odds, is continuing to speak up for human rights.
Much has been accomplished. However, what is most imperative is that besides legal changes, new human rights attitudes need to be instilled. > Shad Saleem Faruqi is Emeritus Professor of Law at UITM and Visiting Professor at USM