To what purpose are laws made if not to ensure and sustain behavioural regularity. The law as designed is to ensure that the collective will expressed as rules of conduct predominate personally systematised schemes of behaviour. Thus the law must - in all facets of human activity - maintain its normative values by constantly asserting its authority and dominance over human desires and capacities, not subordinating itself to the notional determination of what is considered expedient or desirable by any person or group of persons which may invariably detract from its assertive characteristic of maintaining its normative boundaries. Yet, the law cannot on its own sustain this distinctive quality without the activities of certain individuals exercising authority on account of powers conferred on them by the law, operating certain systematised schemes to accord efficacy to the normative structure.

The purpose of this article therefore, seeks to ascertain the extent to which the law has been able to assert or has asserted itself against authorities who by conferment by this same law, exercise certain powers which imbue them with legitimacy in sustaining the law’s predominant qualities in the legal realm. If the object of the law is to erect restraints on the path of those to whom it is intended, then does the law compel authorities to resist the endearing and sometimes irresistible compulsion to subordinate its prescriptive requirements in substitution for what they consider appealing and justifiable in given circumstances? To conduct an objective analysis to these questions, it is imperative to consider the object of the law operating as a legal restraint, and also of its ability also counteract any violation to its authority. It must be noted that the law in asserting its normative authority is distinctively clothed with a unique counteractive quality that enables it not only to affirm itself, but, also to maintain and consolidate its normative boundaries. It may be asked then: To what purposes are powers limited? Why is it considered necessary to delimit the actions or tendencies of certain persons exercising authority on account of powers bestowed upon them by the law? Clearly, the fundamental object of such delimitations is to prevent overindulgence which itself may be disruptive to the normative and institutional order intended to strengthen the sanctity and authority of the law. If this assertion holds true, then the central question of whether or not the police are subordinate to the law arises for determination. Police authority: whither from? The duty of the police in enforcing the law, maintaining order, protecting life and property, etc. is trite knowledge and would as such not merit any elaborate or extensive explication. The central question is: In the exercise of his statutory powers of arrest, detention, seizure, prosecution, etc. is the police officer subject to the law, the executive or his superior officer under whose directions he operates? In other words, is the legitimacy of a police officer’s conduct acquired by virtue of orders executed under directions of his superior officer or by virtue of the authority derivable from the law which imbues him with powers to perform certain tasks?

First, it must be noted that police authority is not derived from a set of certain disembodied or indeterminate rules; nor are the police the originators of their own powers. Rather, their powers and its corollary of legitimacy are conferred on them by the Legislature, the elected representatives of the people, who acting in pursuance of seeking effective regulation of society has granted to them certain powers required for sustaining internal cohesion and order. It may therefore be argued, for example that an individual is subject to arrest for a normative violation because such individual has on behalf of his elected representative mandated the police with such authority to so cause his arrest in consequence of his violation.

However, a fundamental principle remains inviolable; being that the exercise of police authority is subservient and subject to a higher cause: the liberty of the individual. The liberty of the individual is considered supreme, overriding all considerations, and unless the individual engages in conduct that detracts from the normative authority of the law, his liberty is considered hallowed ground, far removed from the purview of police interference.

What if the individual commits a normative violation? Surely, this arena has constantly engendered susceptibilities, submitting the liberty of the individual to fits of passions and emotions, goaded by a wilful disregard to the authority of the law to counteract itself. In his article The 1992 Constitution, Challenges and Prospects [1993-95] RGL VOL XIX, Pg. 31, Justice Adade, a Supreme Court judge draws a striking scenario which is as telling as it is insightful. He wrote:

“You are driving along a street in Accra. You see a man handcuffed, naked to the waist, followed by three hefty police officers wielding batons, and a sizeable crowd, some shouting yile, yile (beat him, beat him). This man must obviously have done something, and is being marched to the nearest police station. But this man, in the circumstances I have described, is in no position to do any harm to anybody; he cannot run away, he cannot strike anyone. Indeed, he is helpless and harmless at that stage. And yet, edged on by the shouts of yile, yile and to show that “they are they,” so to speak, the police take turns kicking and slapping this man and even baton-charging him, believing that the public are enjoying this display of sadism…”

The scenario, which is a “common occurrence” excites sobering reflection and invokes deep underlying legal considerations. First, it is evident from the scenario that a normative violation has occurred, investing the police with lawful authority to interfere with a hitherto hallowed ground of the offender. In other words, his [the offender] liberty which granted him unhindered freedom of movement truncates forthwith in consequence of his violation, thereby ceding its predominant authority to the powers of arrest conferred on the police. Yet, his arrest having been effected, his dignity remains non-subjugated, nor are his corollary liberties which are a subset of his truncated liberty; they remain intact, and he could assert them with equal force as though he had not being arrested.

It is must however be noted that in granting to the police the powers of arrest, the law also confers on them such authority to use reasonable force when necessary to restrain a violent offender while not detracting from him, his dignity as an individual. Therefore, if the officers in the given scenario were satisfied of, or suspected a commission of an offence, and in exercise of their powers of arrest required reasonable force to restrain the offender, and has by the use of such force so restrained the offender, the use of the force which is a creation of the law ceases forthwith upon quelling the resistance put up by the offender. Any other force expended after the restraint constitutes three separate violations to the normative structure of the law. First, it constitutes an unlawful trespass to the offender by expending such force disproportionate to the given situation. Second, it detracts from the individual his dignity which the law considers as inveterate or inviolable. Third, it subordinates the authority of the law by substituting personal notions of punishment for the objective, determinable mode of punishment which is a prescription of the law.

So therefore, if the law grants to the police officer certain powers, and if in the exercise of such powers he commits a violation to the law so as to affront the liberty of the individual, what lies in the exalted office of such officer that the law cannot counteract itself against in sustaining its authority? In other words, if the individual has on behalf of his elected representative granted to the police officer the authority to enforce the law, and if in pursuit of such enforcement he commits a violation to the dignity of the individual, and the law is unable to assert itself against the officer, what would restrain the offending officer to subordinate himself to the authority and dominance of the law?

If the law cannot assert its authority against people it invests with executive powers, but is able to assert with greater force its authority over the individual, is that not a progressive withering of the law’s inherent counteractive trait? The object of constitutional rule is to create limitations so that powers conferred on certain persons for the regulation of society do not themselves become destructive to the purpose they are intended to promote. Therefore if the liberty of the individual which the constitution grants to him becomes the object of intense abuse and adulteration, without the law being able to reassert itself, then the much touted era of rule of law and unbridled adherence to democratic principles espoused by the government remain not only a sham, but a covert attempt to belie reality by a dry and meaningless exposition of the tenets and principles implicit in the doctrine. The exercise of police discretion: a tendency towards arbitrariness. It would be foolhardy for any person to argue that the law incorporates in clear detail every imaginable or foreseeable feature of human activity or interaction. In fact, the realities of administration makes it absolutely impossible for the law to delineate all foreseeable combination of facts warranting enumeration in clearly outlined prescriptions, every other action of an authority in all given situations. If it were so, the law would not only be a body of incongruous and convoluted set of prescriptions, but it would render itself also as a set of unattainable, unrealistic rules intended to regulate an “illimitable” irregularity.

That is why the law confers discretion, trusting in the repositories of such discretion to use good judgment so that they do not prevail over the authority to which they are subordinate. The exercise of discretion by a police officer is therefore central to an effective and realistic performance of his statutory duties; yet, his discretion presents the most challenging and exigent test to liberty, considering the wide operational latitude inhered in the exercise of the powers. To arrest the susceptibility of discretion lending itself to arbitrariness, the powers are subject to higher overriding principles. These are the principles of fairness and reasonableness. Although the principle of reasonableness appears to be the guiding principle to the exercise of discretion, the amorphous and indeterminate notion of what constitutes “reasonable” in a given situation has always provided the police with legal barricades even when their actions have raised public eyebrows. Nonetheless, with no definite authority on how reasonable an exercise of discretion ought to be, there exists a consensual confluence of opinion on what ought to be considered reasonable. Thus, in the exercise of his discretion, a police officer is mandated to incorporate into forming a decision, things he ought to take into consideration, and refrain from or resist taking into account things he ought not to take into consideration. If therefore, an officer takes into account things he ought not to have considered, or refuses to take into account things he ought to have considered then we may say that the officer has exercised his discretion unreasonably. Suppose police officers on night patrol notice a speeding saloon car with four occupants, and which upon directions to stop, they ignore such order and speed past, it is imperative on such officers, given the said circumstance, to pursue the said vehicle in furtherance of their suspicion having been aroused by the failure to stop. However, if after a frantic chase, the police are unable to catch up with the speeding car, it would be an unreasonable exercise of discretion for any officer to shoot or attempt to shoot at the occupants, or to resort to any such shot merely because they failed to stop, unless the conditions necessary for them to form an opinion as to whether they have committed a felony are predominantly clear. In such a situation, a duty is imposed on such officers to take into account certain considerations: the possibility of a dying person being on the vehicle, the possibility of fear of physical abuse arising from their initial failure to stop, the possibility of the occupants being revelers seeking the thrilling effects of a red-hot chase, etc. If however, an officer disregards all such considerations and purports to shoot because of a manifest disregard to his authority by failure to stop, when overriding considerations for them concluding that the occupants could be felons is minimal or virtually absent, then the said officer would not only be guilty of acting unreasonably, but would also be liable for the consequences of his action.

In the same vein, if in dispersing a riotous mob a police officer shoots into an unarmed crowd, thereby killing or injuring people, he is equally guilty of acting unreasonably, such that his thin excuse of acting pursuant to his duty of protecting life and property should not avail him when an equal duty is imposed on him to use proportional force relative to the situation.

Conclusion

The examples are unending. However, one dominant principle remains unquestionable. The exercise of discretion is intended to effectuate realistic administration; yet it should be reasonably exercised so that it does not constitute an inimical threat to the liberty of the individual. The concept of the rule of law does not consist in merely espousing its principles. It rather consists in making the predominant and supreme quality of the law meaningful, so that persons possessed of executive power become subject to the counteractive attribute of the law. In the absence of this, the law would not only cede its authority and influence to police law, and nor only would police law prevail over fundamental principles, but we would continually be subjected to the hollow and meaningless trumpeting of rule of law and democratic principles by political apologists masquerading as social commentators in an era where absolutism lies under the veneer of responsibility.

The writer is a student of Law @ KNUST, Kumasi.

eoacheampong@yahoo.co.uk