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The police blowing the whistle

12 Sep 2021

  • The complications with police officers testifying against their fellows
By Sumudu Chamara In an imperfect world, no system or institution can be 100% perfect, and there is no way to make a system or an institution free of flaws. What we strive to achieve most of the time is to transform the systems and institutions that govern our lives in line with accepted standards, to be able to serve their purpose. This needs supportive actions to address any inadequacies. Sri Lanka’s chief law enforcement agency, the Police, has been a national-level topic of discussion on many occasions in the recent past due to many reasons. However, more often than not the discussion is centred on complaints, as the relationship between the Police and the public is not in an optimal state, and there are grave concerns about how the Police enforces the law. The situation is the same with regard to the Police’s role regarding the Easter Sunday attacks, the most disastrous incident Sri Lanka faced after the war that ended in 2009. There are countless allegations and doubts pertaining to the manner in which the Police acted before the Easter Sunday attacks took place, especially since the intelligence services and the Police had received intelligence prior to the attacks, and yet failed to take proper action to thwart it. The Presidential Commission of Inquiry (PCoI) appointed to look into the Easter Sunday attacks had also identified in its final report that negligence, dereliction of duties, and lack of proper communication and co-ordination on the part of law enforcement agencies and the then-administration are some of the main reasons that led to the failure to prevent the attack. In a new development, The Morning recently reported that certain senior police officers are scheduled to testify as witnesses for the prosecution in the cases filed with regard to the 2019 Easter Sunday attacks, a move that attracted mixed responses from various parties. Police to testify for prosecution Even though the necessity can be justified on the basis of the gravity of the matter in question, this situation raises the question of what type of precedent is set by having police officers testify against their colleagues. The police officers in question are to testify for the prosecution, in addition to former State Intelligence Service (SIS) Director Senior Deputy inspector General of Police (SDIG) Nilantha Jayawardena. According to Presidential Secretariat Director General of Legal Affairs Attorney-at-Law Harigupta Rohanadeera, the indictments filed by the Attorney General (AG) regarding the Easter Sunday attacks have stated who these witnesses would be, although he did not reveal the names of these police officers who are to testify for the prosecution specifically. As The Morning has reported before, SDIG Jayawardena is to be a witness for the prosecution in the cases filed against former Inspector General of Police (IGP) Pujith Jayasundara and former Defence Ministry Secretary Hemasiri Fernando, while Jayawardena is also scheduled to appear as a witness for the prosecution in the main trial in connection with the Easter Sunday attacks. The PCoI, in its final report, recommended that the AG consider instituting criminal proceedings against SDIG Jayawardena under suitable provisions of the Penal Code in connection with the Easter Sunday attacks. Intel and terror attacks The information about getting police officers to testify came about in a context where certain high-ranking police officers have expressed concerns about holding the Police accountable for its alleged failures in preventing the Easter Sunday attacks. Last month, SDIG (Western Province) Deshabandu Thennakoon opined that it is not fair to blame police officers for not being able to thwart the Easter Sunday attacks, as preventing a terrorist attack based merely on intelligence is not an easy task. Adding that the Easter Sunday attacks are not the only such attack that could not be prevented despite having received intelligence in Sri Lanka’s history, he pointed out several incidents to support his claim. Speaking of the death of former Sri Lankan President Ranasinghe Premadasa, he said that the former’s death took place in a context where intelligence had been received that there was a conspiracy to assassinate Premadasa. He also said that Premadasa had been instructed not to leave his residence, and that his security detail had also been informed of the threat. Recalling the terror attack on former President Chandrika Bandaranaike Kumaratunga, SDIG Thennakoon further said that in that case also, intelligence had been received that there was a conspiracy to assassinate Kumaratunga, and that Kumaratunga had also been advised to refrain from attending a certain meeting in light of these threats. SDIG Thennakoon noted that in the said cases, the police officers who were in charge of their security were not punished. He added that during the war period, many attacks could not be prevented despite the receipt of intelligence, and that such is the nature of terrorism. He noted that when those incidents happened, police officials were not blamed. He further claimed that it was unreasonable that the PCoI’s final report had recommended a disciplinary inquiry against him, adding that even though his name had been mentioned in the report, the name of the officer who was in charge of covering his duties while he was on leave since 17 April 2019, had not been mentioned in the report. In this context, SDIG Thennakoon questioned the fairness in holding him accountable for the alleged negligence of duty. Meanwhile, former Human Rights Commission of Sri Lanka (HRCSL) Commissioner Ambika Satkunanathan had tweeted about this matter. “In a supposed democracy, the Police appeal to Buddhist clergy to influence the Government to escape legal consequences for their (in)action. Illustrates influence of Buddhist clergy/Sinhala Buddhist nationalism on the Government, politicisation of Police, and sense of impunity and entitlement of the Police.” Police testifying against police There are several well-known incidents in the world history where police officers testified against police officers, especially in cases pertaining to corruption, and some of them, such as former New York Police Department (NYPD) detectives Robert Leuci and Francesco Vincent Serpico, have gained a name for the wrongdoings they exposed. In the period between late 1960s and early 1970s, Serpico served in Brooklyn, the Bronx, and Manhattan as a plainclothes police officer engaged in looking into racketeering. Even though he came up with credible evidence of police corruption in the NYPD in 1967, what actually helped him expose police corruption was his contribution to an article by The New York Times in 1970. He was the first police officer in the history of the NYPD to report and testify publicly against systematic, widespread corruption. Testifying before the famous Knapp Commission, or the Commission to Investigate Alleged Police Corruption – a five-member commission appointed to investigate corruption in the NYPD – Serpico said that he was subjected to frustration and anxiety due to his attempts to report corruption. He added: “The problem is that the atmosphere does not yet exist, in which an honest police officer can act without fear of ridicule or reprisal from fellow officers...Police corruption cannot exist unless it is at least tolerated at higher levels in the department. Therefore, the most important result that can come from these hearings is a conviction by police officers that the department will change...In order to insure this, an independent, permanent investigative body dealing with police corruption, like this commission (Knapp Commission), is essential.” Even though it is said that some police officers find his actions (against the Police) questionable and controversial, he has been appreciated by the general public. Another such former police officer who gained fame as a whistleblower on corruption in the Police and the US criminal justice system was Leuci. After retirement, he penned novels, short stories, and a memoir based on his experiences in the NYPD. He also lectured about the decline of ethics and morality in several US Departments, such as the Federal Bureau of Investigations (FBI) Academy in Quantico, Virginia. He was a contemporary of Serpico. However, Leuci focused more on the larger criminal justice system, rather than the police department. Leuci found the Knapp Commission’s sole focus on the Police unacceptable, and pointed out that the criminal justice system in New York City was also corrupt. He also expressed unwillingness to be part of investigations that focused only on the Police and expressed willingness to engage in undercover investigations focusing on the entire system. However, even though his efforts were appreciated, his efforts faced challenges due to a series of events that took place during the investigations. Ethics in law enforcement, professional codes As in any profession, there are certain serious concerns with regard to law enforcement authorities reporting information pertaining to fellow officers, according to a study conducted by Louise Westmarland of the UK’s Open University’s Social Policy and Criminology Department, and Steve Conway of the same university’s Policing Organisation and Practice Unit. The 2020 study, titled “Police ethics and integrity: Keeping the blue code of silence”, aims to consider ethics and integrity by studying attitudes towards the reporting of colleagues’ rule-breaking within a UK police force, and also to explore an unofficial code of silence known as the “blue code” – which is alleged to protect misbehaving officers and staff from outside scrutiny or punishment – and the extent to which the seriousness or type of infringements might influence a respondent to say they would report certain behaviours. The study focused on around 1,500 police officers, police community support officers, and police support staff. The study findings suggest a persistence of a reluctance to report some misdemeanours. Out of the 10 scenarios created for the survey, there had been a great certainty around reporting theft of cash. However, respondents had shown less willingness to report a colleague keeping a “found” watch. Accessing the Police National Computer without due authority was seen as relatively “serious”, and covering up for a drunk-driving colleague and use of excessive force were both likely to be reported. The study had also found ambiguities in responses around sexual touching of a colleague in an office setting, even though a lower level of concern had been observed regarding an officer who forms a romantic relationship with a victim of crime met in a professional setting. The respondents had also expressed distrust in the force’s anonymous messenger system, set up for reporting a colleague’s behaviour without revealing their own identity. They had, however, stated that they could treat a whistleblower with respect or caution, depending on the circumstances. The scenarios employed to assess the respondents’ attitudes were categorised based on their nature – i.e. whether a behaviour was against force policy; acquisitive corruption (such as theft); “noble cause” corruption (rule-bending for the good of others); the “blue code” of silence (prohibiting snitching on colleagues); reputation damage (of self or the organisation); and sexual misconduct (related to the workplace or role). The seriousness of the scenarios had been categorised as minor infringements, major infringements, miscellaneous infringements, sex and relationships, and potentially harmful infringements. In conclusion, the study report said: “We felt our respondents were trying to ‘do the right thing’ but it was not always clear to them what this meant. We maintain that some elements of the ‘blue code’ are still clear to see, and our respondents, police officers, and police support staff wanted to engage in the debates around the scenarios we raised. Although both codes can clearly work in tandem, it is revealing to see some of the situations where the Code of Ethics and the ‘blue code’ of silence compete for prominence.” The investigations and court hearing into the Easter Sunday attacks are underway, and if we are lucky, we will see satisfactory results in the future, even though there is no assurance as to when. We will also have to wait to see the resultant outcome of topmost police officers testifying for the prosecution. However, looking into the strengths and weaknesses of any system is what propels it forward, and the Easter Sunday attacks were actually a reminder that several existing systems in the country, including overall governance and enforcement of the law, need to be evaluated. The police force, as the main law enforcement agency, should also receive great attention, as it has been a centre of controversy even before the Easter Sunday attacks, due to allegations of police torture, excessive use of power, and not being people friendly. Therefore, regardless of the results of the ongoing investigations with and into the Police, the entire country can benefit from necessary reforms aimed at strengthening the police force. However, these reforms should not be detrimental to either the police force or the general public.   


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