Basil Fernando, Director, Asian Human Rights Commission & Asian Legal Resource Centre, Hong Kong
This edition of article 2 (‘Use of police powers for profit’, vol. 8, no. 1) deals with the way in which police in various countries in Asia abuse the criminal justice process and their powers of arrest and detention to make a profit and harass individuals for petty reasons rather than investigate crime.
Police officers are given two important powers. These are the powers of arrest and detention within the framework of the law. Proper use of these powers requires a commitment to abide by legal principles relating to their exercise. It also requires knowledge of the law and application of the law with fairness and respect for the rules of social conduct. That is because arrest and detention seriously infringe the liberties of arrestees and detainees. Therefore, criminal codes lay down stringent criteria that restrict police officers to particular times and circumstances that these powers can and should be used.
Law enforcement officers must be satisfied that an arrest is justified. This means that there should be a reasonable suspicion that the person has committed an offence. Reasonable grounds exclude arbitrary reasons for arrest. What is arbitrary is contrary to what is reasonable. To arrest without reasonable grounds is illegal and a violation of human rights.
Trade of justice
The use of arrest and detention for the purpose of making money can be described as the trade of justice. The beneficiaries of this trade are not just the police but also many intermediaries, including lawyers, prosecutors, brokers and often judges. Many persons get involved on some legal justifications, but really to make a profit from the supposed investigation of crime.
From who is the money obtained? The complainant pays to have the crime investigated. The accused pays to escape prosecution or sentencing. Oftentimes the accused has nothing to do with a crime, but the charges against the person have been fabricated to earn some cash. Other people also are dragged into the trade. Family possessions are sold and women pressured to provide sexual favours in order to get preferential treatment for their husbands or brothers in police or prison custody.
The trade of justice usually aggravates all types of human rights abuses. Not only is fair trial denied, but torture is routine, often just for the purpose of getting the cash that’s been demanded. Sometimes it is actually used and sometimes its threat alone is sufficient to get payment from families desperate to save their loved ones. The identification of the police as torturers makes it even easier for them to extract money from the public because citizens learn that the only way to do business with such officers is to give them whatever they want.
There is no way to complain about the trade in justice. In most parts of Asia there are no mechanisms for complaints against police at all. Those that do exist are manipulated so that finally nothing comes from them, no matter how much effort a complainant puts into the complaint in a vain attempt to extricate himself from the problems he has met with.
Constructing lawless policing
Several states in Asia tacitly sanction the abuse of arrest and detention for profit. States with the duty to stop abuse of police powers do not uphold the duty. Instead they allow the abuse to continue unabated and to spread. They create the impression among their populations that illegal policing is perfectly normal.
The reasons as to why some states allow abuse of police powers for profit are complex. Police who act only within the law and refuse to do anything illegal may not serve ruling regimes’ interests very well. It may be better to retain or construct a system that does not function within a legal framework. Police corruption may also be vital in order to maintain corruption in other parts of the system to the advantage of politicians, army officers and others holding onto the reins of power. The more corruption exists in the police, the less of a threat that they are to other corrupt parties, including the bureaucracy and courts. In this police corruption is not a problem specific to policing but a symptom of a much bigger malaise affecting the entire political system.
To build a lawless policing system in some settings may take only a few years, in others, decades. One of the most important steps in this process is to displace whatever traditions might have existed within the system to ensure that officers act according to the law and observe strict codes of discipline and conduct. Instead a new type of institutional consciousness is developed that the basic laws relating to policing and also the rules of conduct and discipline can be safely ignored. When there is a general idea that there are no laws or rules binding police to their tasks, corruption spreads quickly.
Another landmark in the development of such a system is that high-ranking officers lose their effective authority over local police stations. This authority can be lost in many ways. It may be that over a long period of time lower-ranked police come to realize that the political system does not place or no longer places a high premium on disciplined policing, and even that this sort of policing is to be discouraged. Many will learn this through appointments based on political allegiances or other personal contacts, rather than promotion through merit. They may feel that they owe their positions to these individuals and understand that their role is not to threaten the overall scheme, but rather to protect people who are using power to personal advantage. When this happens, the police hierarchy breaks down as officers take their orders not from superiors within the force but from outsiders to whom they owe more binding allegiances. Once the system reaches this point, even officers that may not have supported corruption enthusiastically feel obliged to get involved.
The contents of this edition
Over many years of work the Asian Legal Resource Centre and its sister organisation the Asian Human Rights Commission have gathered an enormous amount of evidence on the widespread abuse of police powers of arrest and detention for the making of profit. For this edition of article 2 we have selected several cases to illustrate, including from Bangladesh, Sri Lanka, the Philippines and Pakistan.
The case of Abdur Razzak from Bangladesh illustrates how innocent people can be dragged into cases about which they know nothing by officers using their powers of arrest and detention while being fully aware of their innocence. The case described here cost the families of the victims dearly, as shown in tabulated form. Among the payments, the largest went to the officer in charge of the police station where the accused were held. The most important player in the abuse of powers of arrest and detention for profit making in many parts of Asia is this officer in charge. It is this officer who best enables the officers who are under him to work and make money with impunity. And as shown in this case, this officer also may benefit the most. Station chiefs in many parts become powerful allies of local politicians, underworld figures and others who share in the proceeds from lawlessness. Therefore, studies of the profit making of the police should pay close attention to the role of these officers.
The case of Sugath Fernando is now very well known in Sri Lanka. In this case the sale by a policeman of a stolen vehicle to the victim set in motion a chain of events that ended in Sugath’s daylight murder, while sitting in his truck next to his son. Along the way, the case included repeated incidents of intimidation and coercion, assault and torture. Sugath tried to fight the system through the mechanisms available, but these failed him completely. His reward was death, which by now is a common reward for such persons in Sri Lanka. His wife and family are on the run, being hunted by officers of the same police station who had her husband killed. Her pleas for protection have fallen on the deaf ears of the authorities. Her lawyer and others rendering her assistance too have been threatened, and the lawyer’s office burned down. A Senior Superintendent of Police later told the lawyer that, “Even I cannot protect you.” Interventions from the international community with the Sri Lankan government, including from the UN Human Rights Committee, have all come to naught. When an entire system has become lawless and lawless officers receive the patronage of the ruling regime, talk of protection becomes irrelevant.
In the case of Felix Villamil Jr. a man in the custody of police in the Philippines was held in detention after a prosecutor signed his release order because the police had not had enough time to get the money that they wanted from him. He was kept on so as to negotiate payment. His family members made a down payment but when the demands increased to computer parts and a car in order to divide the spoils among investigators, their agents and court staff, he pulled out of the deal and was exposed to constant threats and demands, and was forced to move. His avenues for making of complaints and getting redress are all but none.
The case of Hazoor Buksh Malik in Pakistan vividly demonstrates how callous a police system that exists for its own sake can become. Police arrested Malik for not carrying his ID card, and after three days of illegal attention and assaults one of them acting on a grudge cut off his penis. Not only did the police commit this horrendous act, but they also left the young man to die and then when he survived covered up the crime with the help even of a government minister, demonstrating the extent to which Pakistan has become a country in which impunity rules supreme, no matter how criminal or illegal the act. Despite national and global protests none of the perpetrators in this case have been prosecuted or even lost their jobs. When crime investigators and criminals are the same can anything else be expected? Can anyone in Pakistan succeed against the police?
An article on Burma also gives an overview of policing there, and cites many cases in official reports, including the law reports, to point to similar abuses of police powers and impunity prevailing in that country.
Taken as a whole, what this edition of article 2 demonstrates is that any serious attempts to uphold human rights require careful scrutiny of the profit-making motive and opportunities for profit in national jurisdictions. This should be a top priority for international and local human rights agencies and researchers. Human rights can easily become a fashionable talking shop when in Geneva or New York, or when taught in prestigious universities in Europe, North America and elsewhere. There may be all sorts of seminars and conferences and resolutions on human rights. However, for the people in the stories recounted in this publication, what comfort do all these bring? It is time for the people talking about human rights in such places and forums to come to terms with reality, lest their human rights discourse become irrelevant to people in countries around the world who are caught up in the savage trade of justice.