Comment: Every person injured in protests leaves behind a trial of bitterness

The last few days have seen bitter times in the republic island of the Maldives. The cost of living has risen heavily, causing thousands to come out on the streets in protest. Street protests are not new to the Maldives; only this time around, the anger is directed against a democratically-elected government rather than a dictatorial regime. This means that irrespective of whether the protests are lawful or not, the police response needs to be lawful.

But the police treatment of demonstrators under the new government has been well below mark. Although MPS is unarmed, excesses committed by police officers, through means such as tear gas, police baton, arbitrary arrests and detention, has been a recurring matter of concern. In October 2010, the Maldives police were alleged to have reacted with excessive force against journalists covering the demonstrations by the main opposition party, the Dhivehi Rayyithunge Party (DRP). In the ongoing ‘cost of living’ protests, the police were alleged to have arrested over 300 people (though the majority were released subsequently) whereas over 75 people were reportedly injured in the span of 10 days of protest.

Notwithstanding the veracity of such claims, it is clear that crowd control is going to remain a challenge for the police. What then are the principles governing public order management?

The starting point for policing public protest is the presumption in favour of facilitating peaceful assembly (Article 21, ICCPR). Public protest is an important democratic activity and peaceful intentions should be presumed unless there is compelling evidence that those organizing or participating in a particular event will themselves use, advocate or incite violence. This places both positive and negative duties on the police (Keeping the Peace: Manual of Guidance, UK).

The negative duty means that the police must not prevent, restrict, or hinder peaceful assembly except to the extent allowed by law. Positive duty entails safeguarding the right to peaceful assembly. In case of a threat of disruption or disorder, the law allows police officers to use force but only when other ‘non-violent means have been tried and proved ineffective’. In other words, force must be used as a last resort.

Once the decision of using force has been taken, the guiding principle is the minimum use of force. This means that any use of force must be reasonable in the circumstances. But what does reasonable mean? As per international law and best practices, reasonable has come to mean the following:

One, the use of force must be proportionate to the lawful objective to be achieved and to the ‘seriousness of the offence’. In any public gathering or protests, the lawful objective is only to minimize chance of violence and not to disperse the crowd.

Second, the use of force by the police must be lawful: necessary for a purpose permitted by law such as self-defense, defense of another, to prevent crime, to protect life, or unlawful action. For this, it is important for the police rules or regulations of any country to provide guidelines on specific circumstances under which the police may carry firearms, warnings to be given before firearms are to be discharged, reporting system whenever officials use firearms in the performance of their duty etc. Such guidelines are important by way of minimizing arbitrariness in police action.

There is little information on whether the MPS has formulated such rules on crowd control. Notably, this is a theme missing in the otherwise comprehensive Strategic Plan 2007-2011 of the Maldives Police Service.

Whenever use of force is necessary, it is the duty of the police to respect and protect human life, minimise damage and injury, provide assistance and aid to those injured and ensure that a relative or close friend of the injured or affected person is notified at the earliest possible opportunity.

Following these guidelines on the ground, however, can be difficult. Determining the import of terms such as ‘seriousness of offence,’ ‘ineffectiveness of non-violent means,’ or even the time of intervention are all, ultimately, matter of discretion. Much depends on the judgment and understanding of the officer on ground. These difficulties are real, but it is precisely to address such challenges that post-incident accountability assumes significance.

For this, the police are required to follow safeguards at the time of use of force such as identify themselves as police, give a clear warning of their intent to use force firearms, and allow enough time for the warning to be observed unless it places the police at risk or creates risk of death or serious harm to others. The use of firearms mandates additional safeguards such as submission of an incident report to the competent authorities (UN Code of Conduct for Law Enforcement Officials, Article 3). Although firearms have not been used in the Maldives in a long time, such safeguards are of equal value even in other forms of force used such as tear gas in this instance. Moreover, to avoid and reduce arbitrariness of officers while in action, the decision to use force must be taken by senior office, adequately trained into making sound judgments.

Often, the police complain that such measures are difficult to follow and situations generally can turn so quickly that not enough room is left for following the standard. However it is exactly these kind of situations for which the police need to equip and train themselves. Training in fact needs to orient police officers to the basic requirement of minimial force and minimal damage rather than the obvious tendency of grave harm. The accountability for actions cannot be avoided and in fact the police should be more open to scrutiny which alone will help build its capability of managing public disorder; and also boost its public image as a force willing to work within the confines of law.

It is, therefore, crucial that the government/MPS conducts an inquiry into the protests to determine whether these guidelines were followed. Every person injured in protests leaves behind a trial of bitterness. This is hardly conducive to gaining trust and confidence of the people, something that the MPS is striving hard to achieve (as is reflected in their Strategic Plans). Officers will do well to remember that their actions in these formative years of democracy in the island will most likely set the tone for its relationship with the community. As such, the development of a comprehensive system for managing public order that accords with international standards is a priority. Legislation that governs the management of public order by the police, and builds a co-operative relationship between the police and the public, is needed.

Navaz Kotwal and Devyani Srivastava work with the Access to Justice Programme, part of the Commonwealth Human Rights Initiative.

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