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The triangle of tension
Publication Date : 23-06-2012
The discerning citizens need to know the tension which exists within a modern democratic state between society, its law and its police: each in some way determines the other two, yet is at the same time dependent on them. The law may be viewed as a set of rules within which society operates, and to change the rules is to change society: the law determines society. However, the rules of society also contain a set of procedures, the rules for both creating and amending legislation and electing a legislature for changing these societal rules: hence society determines the law.
Society not only needs law, but also a means of enforcing the law -- the police. Police in a modern society have not only lawful authority to enforce the law, but a virtual monopoly in enforcing the law. Three factors combine to render the police the most effective means of control in society: the lawful power of the police; the structured, organised nature of the police organisation; and the fact that no other entity in the state has anything like the same general powers.
Other law enforcement agencies like Customs, Tax Office, and Public Health may have stronger powers than police in specific circumstances, but all lack the patrolling omnipresence and wide general powers of police. In some circumstances, specialist law enforcement agencies need the presence of police for their actions to be lawful: security agencies may find evidence of espionage, but lack the power of arrest, and public health investigators may lack power of forcible entry.
A free society needs, ultimately, to have its police acting for the benefit of all its members: the power of the police is too great for control to be entrusted to any single arm of government, and likewise too great to allow the police themselves total autonomy.
The relationship between the law and police is complex. While police must enforce the law, they must enforce the law as it is, and may use only those powers granted under the law so to do. However, police work is largely discretionary: although the law gives police powers, it does not make the exercise of these powers mandatory -- the law customarily says "any officer may arrest" rather than "any officer must arrest."
The judiciary has a role in the supervision of the exercise of police powers in those cases which result in a prosecution, but must also decide solely on the case before it at the moment, rather than on a pattern of behaviour. For example, a court considering the legality of a search procedure can hear evidence only of the particular search involved in the case before it.
The relationship between police and the law, where police must work within the law and under the law in order to uphold the law, is sometimes uneasy.
Police powers are clearly set out in the law, and include, under various forms in various jurisdictions, powers to stop, question, search, detain for the purpose of search, arrest for an offence, admit a person to bail or refuse bail pending court appearance, seize property, order a mechanical inspection of a motor vehicle, etc. Improper use of police powers may arise from police exceeding their powers or abusing their powers, two very different actions, and viewed very differently by the courts.
Police are seen by society as representative of the law itself. As such, they are in the front line for criticism when the public fear an increase in crime. While police have an appreciation of the rules of evidence and procedure, and recognise a need for fair procedures, in some cases the public may see rulings with regard to crucial evidence as legal hairsplitting and contrary to the need to put the facts as fully as possible before the court.
The law provides considerable discretion to police officers. There is no legal obligation on police to carry out a search or arrest a suspect just because the conditions authorising such a search or arrest are met. This means that officers on patrol have some choice of whom they question, if indeed they question anyone, or how they deal with offences they discover themselves.
However, in dealing with incidents where there is a complainant or independent witness, the needs and wishes of these individuals must be taken into account. Discretion needs to be properly exercised otherwise police officers run the risk of either dealing lawfully but unfairly with individuals or sections of the community, or pre-empting the decisions of the judge and jury rather than acting as prosecutor.
Discretion in the power of arrest means that there is no obligation on the officer to arrest, but failure to do so decides the issue in favour of the suspect. The question arises whether or not this is a proper exercise of police discretion, and there are unpalatable consequences of both arrest and failure to arrest.
Although modern policing in democratic countries is moving towards the concept of community service and many chief officers are proud to call their organisation a "Police Service," the police are still a force as an agency of social control. When called upon to affect an arrest, and by their nature as armed, uniformed citizens authorised to coerce, the police are a force, even though that force is unequivocally directed towards the service of the country.
The unease in the relationship between police and society is perhaps encapsulated in this force/service dichotomy, where the community desires the services of police and is uncomfortable with force being used against it, yet the powers of police are a necessary evil in dealing with the criminal part of the community. A similar relationship exists between police and the law itself, whereby all a police officer's powers and all constraints on police action come from the law: the law gives authority to police with one hand, while restraining them with the other.
A society, its police and its law are all inextricably interdependent, yet with a dynamic tension between the three which restricts each with regard to the other two. The power of the people and the rights of the individual rely heavily on the maintenance of this dynamic tension.
The writer is a columnist of The Daily Star.