12:00 AM, February 02, 2013 / LAST MODIFIED: 12:00 AM, February 02, 2013

Straight Line

'Pepper gas' and civil liberty

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Muhammad Nurul Huda

Coercive actions by police, in particular the recent use of "Pepper-spray," have given rise to much controversy. Rights activists have termed it as a serious violation of democratic rights. In fact, the coercive nature of policing is what sets the police apart from any other agency within society and what creates the ambivalent relationship between society and its police. Traditionally, society has made legitimate coercion a state monopoly which has been exercised by police, and this monopoly is threatened by attempts to devolve order maintenance or patrolling functions to private security companies, or even to members of the public engaged in anti-crime patrols in their own area.
There is a clear recognition within society that some form of coercion is necessary, yet any society which is thoroughly imbued with the concepts of individual liberty and personal rights will insist on the minimum necessary level of coercion, and rigorous safeguards against any abuse of coercive powers.
In many nations, police are the sole organised, armed body permitted to use force against the civil population, and as such, have a potential for great power within society. The safeguards and restraints put on the use of this power, and the higher level of accountability of police than any other organisation is indicative of both the uniqueness of police power and the restrictions incumbent upon it in a free society
Human experience indicates that noble sentiments alone are too weak to control those whose ambitions, greed, aggression and anger give way to threatening and damaging activity on either a small or a grand scale. From insurgency to simple theft there are requirements for laws and for some form of enforcement of those laws. The principal instruments of enforcement in most countries are the police and the judicial processes.
There is a continuing effort to ensure that the system created to protect civil liberties does not become an instrument of bondage. In addition, there are activities to see that the manner of control and the nature of the system's work in relation to containing crime and disorder does not take away those basic freedoms enshrined in domestic and international laws.
Experts are of the considered view that it should be both possible and desirable for coercive power to be mixed with discretion, particularly in respect of protecting civil liberty. Securing of the balancing of human liberty with adequate control of human indiscretion is a democratic necessity.
The reality on ground is that the rule of law, in its application to the criminal process is primarily concerned with the protection of the rights of the accused persons and not of the victims. In upholding civil liberties of the citizens, a basic principle of criminal jurisprudence is: "Let ninety nine guilty persons be acquitted but not even one innocent person be convicted."
It would appear that the rule of law and its criminal jurisprudence are unequivocally in favour of the offenders, the criminals, the law breakers and the accused persons. One could say that the dice from the very beginning is loaded against police effectiveness. One may be led to believe that police effectiveness and civil liberties can hardly co-exist in a society governed by the rule of law. One could go further and say that the society is constrained to sacrifice police effectiveness at the altar of civil liberties, and that is the desirable course.
In our democratic dispensation citizens would expect much of their police. The police have to negotiate a delicate balance. They have to secure human rights and at the same time exercise the lawful powers given to them by governments in the name of the people, to protect the people and their institutions.
Laws have been promulgated which give police wide powers to deny human rights, in some cases even the most basic civil liberties. Thus, police authority can be abused in a democratic polity. Such authority would actually snuff out more freedom than it protects. The main problem lies in control.
Under circumstances as above, the government in its earnestness to uphold civil liberties, has to ensure that those who are chosen to exercise the power and authority of police officials are carefully selected for their human qualities, properly trained to perform their difficult duties in an ethically correct manner and, very importantly, to be led and directed by persons with high qualities of human excellence.
When police is seen to be at the service of human liberty public support will be forthcoming to a greater degree. It is thus important that police officials are enabled to address their minds to this phenomenon. In fact, social actions and influence of police could be brought to bear in significantly preventing crime and disorder.
We may take note of the reality that where individuals or groups are exposed to great inequality of treatment or rendered victims to denial of human rights and civil liberties generally, they may resort to anti social or criminal behaviour. Therefore, police with a developed social awareness will have better opportunities for prevention of crimes and maintenance of social order.
Our police need to develop a demeanour which embodies an instinct or a perception for human liberty and dignity. Being witness to human beings, often in degrading and degraded situations, they are exposed to the influence of cynicism. They have to avoid becoming indifferent, however difficult that may be, if they are to develop and retain proper judgment of and appreciation for the rights and dignities of all.
It is desirable for police officials to acquire a general consciousness of concepts of democracy, justice, fundamental freedoms and human rights. But this in itself would be insufficient if police practice were not pervaded, and directed in accordance, with this consciousness and knowledge.
The writer is a columnist of The Daily Star.

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