LAW, ORDER AND THE POLICE - 2 | You and the Law

Sept. 3, 2013

The approach taken by Officer, Goodman, J, to resolve the case of Mr. and Mrs. B is instructive. In that case the husband and wife are having a civil discussion about an outside sexual liaison allegedly entered into a year ago between Mr. B and Miss Nice. Discussion moves to the level of argument. Argument degenerates into "cussing and fighting". At the very top of their voices, threats are made as to who will kill who. And the action spills over from the bedroom into the yard. Expectedly, as happens in our country where more than 50 per cent of the labour force is unemployed, a massive crowd gathers in the alley outside the home.

Police Officer, Goodman, J, enters the picture. On the facts of the above, has either of the parties committed a criminal offence? Can a case for "breach of the peace" or "creating a public nuisance" be made out beyond reasonable doubt? The good-thinking officer does not stop to ponder on this. Uppermost in his mind is not the bringing about of order through the instrumentality of the law. Instead, his concern is how to achieve lasting domestic reconciliation, that is to say, order between Mr. and Mrs. B by means other than to resort to the law and punishment through the court system. So, rather than caution both as to their rights and, then, take them in for questioning with a view to prosecution, the officer enters the yard and persuades the parties to return inside their house. He quietly accompanies them. Half an hour later, the spouses re-appear, embracing each other. The officer has brought about domestic order by means other than the force of law.

In fact, this case study and the others examined in last week's YOU AND THE LAW are not imaginary; they are real life situations. They constitute a small percentage of positive actions accomplished by police officers in the performance of their duties, which have been made known to this Column from time to time. Thus, the officers in question merit high commendations. And, the roles played in last week's case studies by the Minister responsible for Youth Affairs, as well as the C.I.D Chief and Nurse R. and her driver, should be greatly applauded. They all deserve their flowers now, not later.

Finally, two points need to be made. The first is that, in our view, most of the colleagues of Officer Goodman, J, might probably have acted differently. Cause might have been found to charge one or the other, or both, of the parties with some category of disorderly behavior. But, we must hasten to add that this course of action would not have originated in the character or personality of the Charging Officer. It would have been taken as a matter of course because of the ideology of policing which has shaped the thinking and conduct of police officers in respect of their understanding of the purpose of the law and, thus, their approach to the maintenance of order. The Police Force, like the military and security forces generally, is an institution of command where members are trained to carry out commands to the letter, rather than to the spirit. There is no room for creative thinking on the part of subordinates. So, for the indiscretions of the rank and file, blame the ideology in the final analysis, not the policeman!

Our current policing ideology originated in laws passed in the period immediately following the legal abolition of slavery. In March 1837, one such Act set up a Rural Constabulary for the island while, six (6) months later, another established a Police Force for the town of Roseau. The "powers and authorities" given these law officers over the civilian population were extraordinary. The Roseau policeman was empowered "at such hours of the day and night, as may be directed by the Police Magistrate, to visit different parts of the town of Roseau and the precincts thereof, for the purpose of keeping the peace ... and preventing and detecting, apprehending and bringing to justice all persons found guilty of felonies, larcenies, misdemeanors and trespasses, as well as all rogues, vagabonds, idle and disorderly persons, and to suppress all tumults, riots, brawls, outrages and disorders, and all other offences of any kind whatsoever ... and to lodge all such persons as may be taken into their custody at the watch house or apartment allotted for that purpose within the police station, till their several offences be inquired into and determined." The Police Magistrate functioned as a Chief of Police, with the powers of a Justice of Peace. Three years later, in 1840, a Unified Police Force along the lines of that of Roseau, was established for the island as a whole.

You may know that these enactments were directed not at the island's minority white population, but specifically against the 15,000 or so black men and women who were then entering the new wage-labour society as free men. As slaves, they had in law and custom been treated as "children of a lesser God". Emancipation notwithstanding, the Colonialists willed that the relation between planter and labourer and between persons with white skin and those with black was to be maintained. And a Police Force was thought to be the principal agency to do so. So, its members were propagandized, that is to say, "brainwashed", with a negative concept of the "humanness" of the newly emancipated blacks, namely, that they constituted a class of persons who were primitive, barbaric and less than human, and whose every activity ought, therefore, to be suppressed, rather than that, like other segments of society, they now had rights and freedoms which ought properly to be protected and defended. The intention of the legislation was clear: Perpetuate the ideology of enslavement in an environment of freedom in law.

Of course, police legislation has since been elaborated. The Police Act, Chap. 14:01 which came into force in December 1940, and which has been amended on a number of occasions thereafter, has pointed the way forward. But the ideology of policing has in substance remained the same. The majority 'vieux neg' population, as in the days of enslavement, continues to be perceived not as a subject fit for respect and protection but, instead, as an object of suspicion, to be controlled. Needless to say, such an ideology is drastically out of touch with the realities of the revolution in human rights. And we are confident that our police officers and, thus, our people stand to benefit enormously from its re-direction away from the past.

The other point to be made concerns the relation between "law" and "order". It is our view that they are not a joint concept, as is suggested by the linking of both words in a single phrase, namely, 'law and order'. Each is a separate concept, independent, and with its own logic. A dominant objective of all societies is social order, that is to say, the harmonious interaction between citizen and citizen, on one hand, and between the State and its citizens, on the other. That is the end for which human society strives. Further, the main means, in other words, the dominant instrument by which the objective of social order has long been achieved is the law. Expressed differently, the law is a means to an end. And that end is order. Notably, it is not the only means to bringing about order. Law was not there in the beginning, but was introduced at a particular stage of the development of human society. And, more recently, much focus has been placed on non-law instruments for the attainment of order. In our jurisdiction, the practice of "mediation" in civil proceedings is one such instrument. In that sense, Police Officer Goodman, J, by impliedly recognizing the distinction between law, on one hand, and, order, on the other, and in a sense distancing himself from the current ideology of policing, may be held to be miles ahead of his league. What do you think?