The police, judiciary and rule of law in Asia
The police, judiciary and rule of law in Asia
Basil Fernando, Executive Director,
Asian Legal Resource Centre
This paper is based on actual experiences of policing and the rule of law in Asia in recent times. The views expressed are based on extensive consultations that have been carried out by the Asian Legal Resource Centre (ALRC) in many parts of Asia, and that have brought together participants from most countries in the region. The discussion is also informed by the provisions in article 2 of the International Covenant on Civil and Political Rights (ICCPR). It is an attempt to place the discussion on policing in Asia within the framework of state parties’ obligations under the ICCPR provisions. The paper proceeds on the assumption that people in traditional democracies find it extremely difficult to understand what occurs in the name of the rule of law and policing in countries falling outside the category of traditional democracies. The difficulties in understanding suggest the experiential differences of people coming from these different backgrounds. It is presumed that these two experiences are fundamentally different and that serious difficulties in understanding are inevitable. A worthwhile discourse between people from these two backgrounds can take place only with an appreciation of these difficulties. The classification of “North” and “South” suggests a territorial division. The classification of “traditional democracies” and “others” suggests historical, social and political differences, pointing to the development of institutions for the rule of law, and policing in particular.
The reference above to “recent times” is intended to limit the discussion to the present day and avoid entering into other debates, such as that long before the rise of what are now known as traditional democracies, there had prevailed vibrant models of democracies in other places. For example, the political model of Asoka’s time in India during the third century BCE is rightly This is a revised version of ‘Police and the rule of law in Asia’, published in held to be a rich period of democracy under the conditions of that era. Without in any way undermining the importance of such discussions, this paper will concentrate on the realities that people in Asia are now experiencing in terms of the rule of law and policing.
A caution also needs to be made regarding the use of terms that, in these two contexts, may have different meanings.1 For example, a police officer may be described as a law enforcement officer. However, a reference to law need not be part of the description of a policeman in some jurisdictions. For instance, in post-Pol Pot Cambodia, there is little law in existence by way of legal enactment.2 Thus, the activities of police officers are not guided by laws. Police officers improvise their role and duties according to circumstances and the policy guidance given to them from above. Even in circumstances where comprehensive laws exist, as in Sri Lanka, these laws can be suspended without much difficulty. Police officers can be required to engage in massive killings, as when, for example, they were called upon to effect the disappearance of a large number of people (officially estimated at 30,000).3 Moreover, in all Asian countries, police officers are expected to use coercion, including torture, in criminal investigations. Furthermore, the gap between definitions contained in legislation and the available possibilities of enforcement is often so wide that, if one goes by the legislation only, it can lead to serious difficulties.
In most instances, the concept of order is not understood as order according to the law, but rather as order with or without the law.4 Thus, keeping Chia Thye Poh in detention for 26 years without trial was not considered illegal in Singapore.5 Anwar Ibrahim of Malaysia is now in prison on the basis of a trial condemned as unfair all over the world. Such acts are justified on the basis of keeping order, and law enforcement officers have to carry out these orders irrespective of the legal issues involved. The military coup in Pakistan in 1999 was also justified on these grounds, and law enforcement officers are now expected to act on the basis of this assumption. The justification for torture in many Asian countries is also based on the view that it is necessary for maintaining order. What follows from this situation is that the rule of law is often sacrificed under the pretext of maintaining order. Police officers are thus seen more as order maintenance officers than as law enforcement officers. Thus, I believe that the starting point for a meaningful discussion on the rule of law and policing must be the attempt to distinguish between order enforcement officers and law enforcement officers. The main differences are as follows: 1. The central issue in law enforcement under the rule of law is the criminal investigation: the effort to prove that crimes have been committed through the submission of evidence. Order enforcement, however, does not require investigations or proof according to the law. This distinction has huge implications for the understanding of policing functions.
