By Basil Fernando-August 11, 2017
The procedures that should be followed by the police in the investigations into crime are found in the Criminal Procedure Code of Sri Lanka (CPC). Ever since the British introduced the basic procedures for investigations of crime based on their own laws, basic elements of the Criminal Procedure have remained the same. The Code of Criminal Procedure Act No 15 of 1959 together with all the amendments to this act is grounded on the same basic principles of criminal justice. Basic law and procedure are rooted in the traditions of common law.
Judging from the large body of factual details, that have become available through observations into the manner in which many cases are being dealt with, serious doubt arises as to whether in actual practice the Criminal Procedure Code has been replaced by new set of rules adopted to suit the conveniences of those involved, without any direct reference to the procedures set out by law.
In this article we concentrate on one aspect of criminal procedure – the investigations into crime. The police as the prime investigative agency are responsible for investigation into all crimes.
What we observe is that in recent times, the role of investigation is being replaced quite often by the police acting as negotiators and not as investigators.
Let us take a case of a person complaining about abduction, threat of assassination and robbery of valuables which were in his possession. The task for the police if they were acting under the provisions of the Criminal Procedure Code is to record the statement of the complainant and to investigate into all aspects of evidence available about these complaints. The manner in which such evidence should be collected and recorded have all been laid down in the CPC and has been subjected to further elaboration by way of a large body of case law.
What we find however, is that no such gathering of evidence takes place in many of the instances. Gathering of evidence in the manner prescribed by law requires the use of many skills and also knowledge about forensic sciences. The actual investigations that take place in many instances are not conducted by officers who have the competence for such investigations. Besides, the superior officers seem to take the least amount of interest to ensure that the subordinates who work under them do their work in the manner required by the prescribed procedures.
Most likely way the police would proceed can be summed up based on factual details and actual cases.
• There would be a great deal of delay to even get the statements of the complainant recorded by the police. It may take days and several visits to the police stations and often resort to various types of influence to have the statement recorded.
• If there is no pressure exercised, either by way of media publicity or by complaints made to higher authorities, it is very likely that the matter may not get further investigated at all.
• If pressure is exercised, which compels the higher police authorities to inquire into what is happening to the particular complaint, then it is very likely that some people will be immediately arrested and forced to admit that they were the culprits who are responsible for the relevant criminal acts. These people are often selected from those who have some criminal record already or for whatever reason is obliged to the investigating officers of the particular police station.
• Next stage will be to provide an initial report to the relevant Magistrate’s Court, these reports are usually known as B Reports are made on the basis of falsely obtained evidence and the Magistrate is required to hold an identification parade.
• It is very likely that the complainant would be told that the police can show the photographs of the arrested persons, to make it easy for the complainant to identify the culprits. Many persons who are quite afraid to get into a conflict with the police are likely to comply with this request and some may even believe that the police may have arrested the right persons.
• If, the complainant refused the request of the police and would not want to see the photographs the police want to show, the most likely outcome is that the complainant will not identify the persons that the police have falsely arrested. The result would be to discharge the arrested suspects.
• If the complainant is influential enough and resort to complain to higher authorities, insisting on a proper investigation, most likely outcome is that some officers of the higher ranks will want to discuss the matter with the complainant. The purpose of such a discussion is not to ensure a proper investigation but to find another solution ‘to resolve’ the problem. The complainant would very likely be asked what you really want. A criminal complaint is usually made because the complainant wants justice. However, what the negotiating police officers want is not that but for example, whether the value of the lost properties could be given to him or some kind of compensation could be made and the like.
The final outcome at the end in most instances is that there would not be a serious investigation into the actual complaint and the case would not be pursued in the courts as required by the procedure laid down by law.
More and more, the police officers including senior officers act as negotiators and not as investigators – even, allegations of serious crime such as abductions, attempted murder rape and robbery. All these matters are now more and more treated as subjects of negotiations and not of investigations followed by prosecutions.
There are also ideological justifications for this transformation. The justice system is beset with enormous delays. So is it not better to arrive at some settlement and finish the matter altogether? That is the ideological justification often made directly or by insinuation justifying the police role as negotiators.
The result is that the role of criminal justice is undermined in favour of some kind of arbitration relating to criminal matters, where the arbitrators role is played by the police.
The criminal justice approach is designed to punish criminals and thereby to create deterrence against commission of crime. With the transformation of criminal justice approach into arbitration approach, such deterrence is altogether lost. The criminals learn that they could have the upper hand at the negotiating table. Arbitration can become a lucrative business for the negotiating officers. Thus, the entire criminal justice process also gets absorbed into the system of corruption that prevails in the country
The real losers of all this are the judges. Their roles are more and more undermined and the matters that should come before them according to law do not come before them. Instead, it is the police officers who will deal with these matters.
The transformation that is taking place within the criminal justice system in Sri Lanka is a very fundamental one. It is the idea of law itself and the due process of law that is being relegated into something unimportant. Unfortunately, the politicians do not see the dangers involved in this transformation. In fact, they would see this change as more suiting to their conveniences and their schemes.
Sadly, even the legal community and the civil society have so far not made any serious attempt to fight against this transformation, which among other things, will also undermine the legal community itself and the civil society in general.