TO WHOM IS THE LOYALTY OF THE POLICE DUE?

By Dr. Kingsley Wickremasuriya
Senior Deputy Inspector-General of Police (Retired) (kingsley.wickremasuriya@gmail.com) Prologue

“I am not bound to carry out your illegal orders..!” – SSP says to Police Minister and leaves the meeting..! (Lanka enews defense correspondent.

The Lanka-e News of Nov. 18, 2022 reported a rare incident where a Senior Superintendent of Police said to the face of Police Minister Tiran Alles that he is not bound to implement illegal orders, and then left a meeting of the Minister of Police.

According to reports, the incident is as follows. On Tuesday (Nov. 15) in the Ministry of Police, a conference was held under the chairmanship of the Minister of Police and the Inspector General of Police, where all Deputy Inspector Generals, SSPs, SPs, and ASPs of the Western Province were summoned. There, Tiran Alles has said that those holding anti-government demonstrations should be arrested.

Accordingly, Tiran Alles has scolded the police for not arresting the women who went to the United Nations office in Colombo the Monday (14) and not dispersing the protest there and another protest in front of the TID with baton charges. He then asked who the SSP in charge of that area was and told him to get up. Then Colombo South SSP Gayantha Hasantha Marapana stood up.

Senior DIG Deshabandhu Tennakoon ordered SSP Gayantha Marapana to arrest a woman including Hirunika who walked to the United Nations office yesterday (14), but he did not implement the order. And then Deshabandhu bypassed all the SSPs and SPs and ordered OIC Kurunduwatta directly to carry out the order. Accordingly, the women were arrested.

Hence Tiran Alles was very angry with SSP Gayantha Marapana. When SSP Gayantha Marapana stood up, Tiran asked him why the women were not arrested that day and threatened him to leave the police force or wait for transfers if there is anyone who could not carry out his orders. SSP Marapana responded by asking, “what is the charge” and said that he cannot face human rights cases by ordering to arrest the people without charge.

Then Tiran Alles, who turned to the Inspector General of Police, asked, “Why is there no charge? Is opposing the government not a charge?” Inspector General of Police Wickramaratna said that it was not an accusation. Minister Alles who was then angered said that, if he could not carry out his orders, he should leave the police force. SSP Marapana replied that he joined the police as an SI and became an SSP not by executing illegal orders and that no police officer is bound to execute illegal orders. He then left the Minister’s conference.

Duties and Liabilities Under the Police Ordinance

It was in 1866 that an Ordinance to provide for the establishment and regulation of a police force in Sri Lanka was established. Under Sections three to six, nine, 10, and 59 of the Ordinance, it was lawful for the Minister to make rules from time to time, and when made to revoke, alter, or amend the rules on MATTERS OF POLICY.

But the Inspector-General of Police and such other Deputy Inspectors-General of Police, Superintendents, Assistant Superintendents, inspectors, and other officers as may be necessary under (Sections 20,21,24,55,56, etc of the Ordinance), on the other hand, were vested with the powers of ADMINISTRATION OF THE POLICE. Accordingly, the Inspector-General of Police “may from time to time, subject always to the approbation of the said Minister, frame orders and regulations for the observance of the police officers who shall be placed under his control as aforesaid, and also for the general government of such persons, as to their places of residence, classification, rank, and particular services, as well as their distribution and inspection, and all such orders and regulations relative to the said as police force as he may deem expedient for preventing neglect or abuse, and for rendering such force efficient in the discharge of its duties.”

So, while the Minister was responsible for making rules on matters of policy, the administration of the Police under the Police Ordinance was vested in the hands of the Inspector-General of Police. These were the clear lines of the Chain of Command drawn under which the Police operated under the Ordinance, until Independence.

Then in 1947, the Soulbury Constitution provided a parliamentary form of government for Ceylon and for a Judicial Service Commission and a Public Service Commission that contained all the basic principles and procedures necessary for the Rule of Law. But the United Front Government that enacted a new constitution severed the link to the British crown, depriving the judiciary of its independence and the power of judicial review, two of the most important conditions for the rule of law.

Minority rights were safeguarded by Article 29(2) of the Constitution but on the advice of Sir Ivor Jennings, its unofficial constitutional advisor, the Board of Ministers decided not to incorporate a Bill of Rights. But with the promulgation of the DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA on May 22, 1972, the CONSTITUTION became the SUPREME LAW of the country. It was Sri Lanka’s first republican constitution and its second since independence in 1948.

The country was officially designated “The Republic of Sri Lanka,” which came to be known as “The 1972 Republican Constitution.” The Sri Lankan Constitution of 1972 changed the country’s name to Sri Lanka from Ceylon and established it as an independent republic. The country was officially designated “Republic of Sri Lanka,” leading to this constitution being known as “the 1972 Republican Constitution” paving the way for Sri Lanka to become a republic.

When Sri Lanka joined the UN in 1955 ratifying all the main UN International Human Rights Conventions on the immutable republican principles of REPRESENTATIVE DEMOCRACY assuring all Peoples, FREEDOM, EQUALITY, JUSTICE, FUNDAMENTAL HUMAN RIGHTS, and INDEPENDENCE OF THE JUDICIARY, Sri Lanka became a signatory to Article 21 of the ICCPR and the International human rights law that lays down the obligations of the Governments.

‘The Covenant of Human Rights deals with such rights as freedom of movement; equality before the law; the right to a fair trial and presumption of innocence; freedom of thought, conscience, and religion; freedom of opinion and expression; peaceful assembly; freedom of association; participation in public affairs and elections was among those. Human rights on the other hand are rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status.

Everyone is entitled to these rights, without discrimination. Accordingly, the Constitution came to guarantee the following Fundamental Rights under Chapter III of the Constitution :(a) Freedom of thought, conscience, and religion (b) Freedom from torture (c) Right to equality (d) Detention, and punishment, and prohibition of retrospective penal legislation (e) Freedom of speech, assembly, association, occupation, movement, etc.(f) person of conscience and religion, including the freedom to have or to adopt a religion or belief of his choice. (g) No person shall be subjected to torture or cruel, inhuman, or degrading treatment or punishment (h) All persons are equal before the law and are entitled to equal protection of the law. (i) No citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth, or any one of such grounds:

Further, (j) No person shall, on the grounds of race, religion, language, caste, sex, or any one of such grounds, be subject to any disability, liability, restriction, or condition concerning access to shops, public restaurants, hotels, places of public entertainment and places of public worship of his religion. (k) No person shall be arrested except according to the procedure established by law. Any person arrested shall be informed of the reason for his arrest. (l) Every person held in custody, detained, or otherwise deprived of personal liberty shall be brought before the judge of the nearest competent court according to procedure established by law and shall not be further held in custody, detained, or of liberty except upon and in terms of the order of such judge made in accordance with the procedure established by law.

The list continues:(m) Any person charged with 5 an offense shall be entitled to be heard, in person or by an attorney-at-law, at a fair trial by a competent court. (n) No person shall be punished with death or imprisonment except by order of a competent court, made in accordance with the procedure established by law. The arrest, holding in custody, detention, or other deprivation of personal liberty of a person, pending investigation or trial, shall not constitute punishment. (o) Every person shall be presumed innocent until he is proven guilty.

The result was that ALL THE ORGANS OF GOVERNMENT were required to respect, secure, and advance the Fundamental Rights declared and recognized by the Constitution. The Oath of Allegiance to this Constitutional requirement, a person appointed to any office referred to in Chapter IX of the Constitution was required to enter upon an Oath of Office set out in the Fourth Schedule and Seventh Schedule to the Constitution of the Republic before such a person enters upon duties of his office. The Oath simply is an undertaking that the person referred to will perform the duties and discharge the functions of that office (a) in accordance with the Constitution of the Democratic Socialist Republic of Sri Lanka and the law; and (b) that person will uphold and defend the Constitution of the Democratic Socialist Republic of Sri Lanka.

This is a constitutional obligation applicable to ALL THE ORGANS OF GOVERNMENT under the Supreme Law of the Constitution, be they a Minister or individual Police Officer. So, this was the main constitutional obligation that came to be addressed when the Ministry of Public Security and the Police under their auspice drew up their Vision & Mission Statements. Making Sri Lanka the Safest & most secure, and Peaceful Nation is the Vision of the Ministry of Public Security ((http://www.pubsec.gov.lk/hon-minister/) ” and its Mission is to Formulate and Execute Policies and Strategic Plans to ensure Public Security through a Strong Multi-stakeholder Mechanism to create safer SRI LANKA by reducing crime, ensuring the safety of public and building trust in partnership with our Community.

The responsibility of the newly established National Police Commission https://www.police.lk/page_id=8508) on the other hand is to transform the Sri Lanka Police Force into a disciplined, credible, and community-responsive service by entertaining and investigating complaints from members of the public or any aggrieved person against a police officer or against the Police Force and to provide redress under the provisions of any law enacted by Parliament to upgrade Human Rights, Public Accountability for the Rule of Law and respect for the Rule of Law.

The Vision of the police, however, is committed to providing a Peaceful environment to live with confidence, without fear of Crime and Violence, and its Mission is committed to upholding and enforcing the law of the land, preserving public order, and preventing crime and Terrorism with prejudice to none – equity to all (www.poice.lk). So, it is the Rule of Law that the Police in the main and the Ministry of Public Security were constitutionally committed to at least by their Vision & Mission Statements.

The Rule of Law

The rule of law is one of the most important features of a democratic system of governance and a prerequisite for a good democracy. The Rule of law implies that all those involved in the state are bound by the law and are subject to the law. And that all officials from the Head of State to the lowest official should act within the limits of the powers conferred by law. Albert Venn Dicey (1835-1922) is said to be one of the most respected English scholars on constitutional law that has emphatically stressed the importance of the Doctrine of the Rule of Law.

Dicey concluded that: “The twin pillars upon which our system rests are the sovereignty of Parliament and the supremacy of the common law, administered in the ordinary courts independent of the executive over everyone within the realm, whether public official or private citizen.” Aristotle on the other hand is considered to be the original author of this concept of the Rule of Law. Rule of law calls for equal justice under the law for all citizens immaterial of social, political, and economic status. This also calls for total independence of the criminal justice system. In other words when there is a likely case of laws being violated, law enforcement – the police – should move into action on its own.

That is their constitutional obligation. They do not need to wait for orders from the political establishment. That negates the separation of powers.

Conclusions

As widely reported in the media, Senior Superintendent Gayantha Hasanth Marapana had to tell the Minister bluntly on that eventful day, Tuesday November 15, 2022, undefended by his seniors in the Department, where he stood concerning the Rule of Law. It reverberates against yet another story (as reported in the official minutes kept of this meeting) and later reported in newspaper headlines, about how the then Inspector-General of Police, Osmund de Silva (1955 – 1959) responded to the remarks of the then PM, that the Police should have that ’extra bit of loyalty to the Government. Summoning a meeting of OICC Stations by police message to inform them of the PM’s remark, he exhorted them to do their duties impartially regardless and that what they should uphold is the ‘Rule of Law’.

This assertion by the Inspector-General came at a time when there was no Bill of Rights in the Parliament or no Republican Constitution with Fundamental Rights to fall back on. Marapana on the other hand had all these constitutional safeguards to worry about, with the Attorney General’s Department leaning over the police against violations of Fundamental Rights like the Sword of Damocles. So, Marapana’s fear of having to face Rights Cases in court for violating Fundamental Rights is fully justified in the circumstances.

In yet another incident, even as late as 1958, when the Assistant Director of Training (ADT) Fred Brohier asked the question at an interview with some of the those applying for recruitment to the police as to whom a police officer’s loyalty is due, the ADT’s answer in response to various replies given such as: to the Prime Minister; to the Inspector General of Police, etc., was given in very categorical terms: That a Policeman owed his loyalty to no mother’s son, but to the law of the land. He was repeating the same sentiments as that of the IGP Osmund de Silva about the Rule of Law. There were yet others too who followed his example. It was the legendary DIG Sydney de Zoysa who defied such interference by yet another Prime Minster requesting that a certain constable applicant be recruited to the Department even though he did not have the required physical qualifications and yet survived to tell the tale.

A basic constitutional obligation that every policeman has to perform when joining the Police Service is taking an Oath of Allegiance. The Oath simply undertakes to perform one’s duty by the Constitution of the Socialist Republic of Sri Lanka and the Law. In other words, it is an undertaking to uphold the Constitution as the SUPREME LAW of the land – protecting Fundamental Rights under the Constitution. In theory, this is a Noble Concept. But how it works in practice in Sri Lanka is entirely a different story as practiced by different governments since Independence.

The Rule of Law has become something of a lip service rather than a Rule of Law – a Law only in the hands of those who call the shots for their benefit raising the usual question ‘Quis custodiet ipsos custodes’? ‘Who will guard the guards themselves’? in the minds of ordinary citizens. Senior Superintendent Marapana was merely reiterating his constitutional obligations, following in the footsteps of Inspector-General Osmund de Silva and others. The issue he rightly raised with the Minister was one of a basic principle of Constitutional Law and not that of obeying orders blindly, just because it came from a political authority. The message, therefore, is loud and clear: ‘A POLICEMAN OWED HIS LOYALTY TO NO OTHER BUT TO THE LAWS OF THE LAND’. A Post Script A basic constitutional obligation that every policeman has to perform when joining the Police Service is taking an Oath of Allegiance. The Oath is as follows: