Report No. 152
2.3. Role of the Law.-
Of course, such supervision and overview can be supplied by the law. And, indeed, it is one of the essential functions of the law to create and maintain an apparatus that will function as the retraining a element against oppression, malpractice, abuse and corruption, particularly in situations of sensitivity. Where the situation is one of temptation, the law will act as a brake on the vice of greed. Where the situation is one of passion, the law, by its sanctions, tries to control the surge of passion.
Where the situation is one of exploitation or oppression, the law must try to construct a barrier to stop the on slaught of the evil mind. It is in this respect that the invisible, but omnipresent influence of the law has a role to play. And it is for this reason that the law should try to supply the deficiency that the peculiarity of the situation may give rise to.
This is not to say that passing a good law is, in itself, enough to cure all evils. Good legislation is only the beginning, but is a good beginning. In the context of arrest (with which this paragraph is concerned), the legal framework should be such as to supply the restraining influence which is needed because of the weakness of human nature. This means (apart from other things) that the law of arrest should itself be kept under constant review.
In the "law of arrest", one has of course, to include: (i) the statutory provisions that give power to arrest, (ii) the kind of persons empowered to arrest, (iii) the safeguards provided in law in relation to arrest and detention, and (iv) connected matters, including, in particular, the subjective and objective factors that must exist before the power of arrest can be exercised. All these need consideration and we would discuss then at the appropriate place.