By Basil Fernando –

Basil Fernando

In last week’s article, we discussed the recommendations of the United Nation’s Committee against Torture. The Committee has recommended the state party establish an independent body tasked with the investigation of complaints against law enforcement officers, one that is independent of police hierarchy. In this week’s article, we will discuss a few more recommendations of the Committee, in particular those relating to improving the due process rights of detained persons, the need for stopping the practice of arrest without a warrant authorised by a Magistrate, the duty of the Prosecutor’s Office, i.e. the Attorney General’s Office, and the Judiciary itself, to supervise criminal investigations and thereby contribute to improvement of the justice system.

The Committee has noted that several due process rights recognised internationally have not yet been enshrined in national legislation. For example, the right to inform the next of kin about the arrest is not enshrined as part of Sri Lankan law. One may recall the instance when the Saliyawewa Police Station arrested a young boy of 15 under suspicion that he had stolen a gold necklace. The boy was tortured.

He was made to sit on red anthill for about 20 minutes, and thereafter he was hung from a beam at the Police Station and beaten up. The next day the police discovered the actual culprit who had stolen the necklace. Then, the police apologised to the boy’s family about the wrongful arrest and for treating the boy inhumanely, even worse than a criminal.

Initially, police took no trouble at all to inform the family of the arrest and the reason for such arrest. When the mother heard of the arrest through other means, she went to the Police Station.

However, she was not even allowed to talk to the boy. She spent the whole night near the Police Station and left the Police Station only when the gates of the Police Station were closed and locked.

This story reveals the complete misconception about the powers of arrest on the part of the police officers. These powers are given only for the purpose of investigating a crime and such investigations need to be done while respecting the rights of the individual being arrested and the rights of the family to which he or she belongs. Arrest does not imply forcible “stealing” of a person. The arrest does not give the police the rights to violate the sacred rules relating to family relationships.

The arrest of this boy shows that the police, at the early stages of the arrest, want to keep the whole episode a secret. They wanted to assure for themselves complete secrecy so that they can do whatever they like with the person they have arrested. Implied in this behaviour is an ingrained belief among the police that an arrested person is a play-thing in their hands. The belief is that they can do whatever they like in the process of what they believe is an attempt to discover the truth.

However, the law does not give the police such rights. What the law allows is to take the arrested person with the primary duty of protection of the person thus arrested. At the point of arrest, the arresting officers take upon themselves the duty of protecting the person they have arrested. The arresting process is not an activity of a predator against its prey. It is, in fact, an activity of officers who represent the state engaging in a responsible duty that implies complete protection of the individual.

The protection of the individual always implies respect for the rights of the family to which he belongs. The deepest social link of any individual is his family. When the state deals with an individual it must always respect the rights of the family and there are very good reasons to explain this obligation to respect the family at the moment of any arrest. When the next of kin is informed of an arrest, the family has an opportunity to be engaged in doing what it legitimately do on behalf of the arrested person.

For example, if the police informed the family of this boy’s arrest, the family could have immediately intervened to inform the police about where the boy had been throughout the relevant period, including during the time the alleged incident of the theft had taken place.

If the police were in possession of this information they could have compared it to whatever they had assumed or suspected and thereby guided themselves rationally to find out what really happened.

If that process had taken place, the subsequent events, like getting the boy bitten by ants and hanging him from beams and then assaulting him would not have happened. The boy would have been released within a short period when the police would have found, on the basis of information received from the family and others, that the police suspicions were unfounded.

By the police wanting to maintain secrecy regarding arrests, what is revealed is the intention on the part of the arresting police officers to hurt the arrested person for the purpose of getting a confirmation of their suspicions. Here, what the police do is not a rational activity; it is in fact criminal activity. An intention to hurt any individual is impermissible.

This is the reason for the Committee to insist that there is something missing in Sri Lankan law, in there being no legislation to the effect that the next of kin must be informed about an arrest of a person. Many decades of discussion on this issue clearly shows that the Sri Lankan government and its authorities are fully aware of this obligation. Previous governments have tried to overcome this problem through letters and circulars issued by the President himself, instructing the police that they should inform the family when the arrest of any person takes place.

However, these letters and circulars are not legally binding. On an important issue such as this, the bill must be drafted by Parliament and through a legal enactment be passed in the Parliament as law. Why have Sri Lankan governments avoided making such legislation? It cannot be merely oversight. It has to be part of a design. The design is that the police officers can torture a person in their custody. Thus, such a practice has government approval. And the approval has been given by way of an omission in passing a law.

Added to this obligation is the right of a lawyer to be present and to represent an arrested person any time during the arrest. This issue came up as a matter of controversy when a devious attempt was made through a Gazette notification. This Gazette notification stated, “a lawyer could be present only after the end of an interrogation and after a statement has been recorded”. This, devious design, was defeated for the time being, by way of a protest in the media and by responsible organisations. However, it has not been given up altogether.

And this fact shows the government has a design to deny this all-important right of legal representation during arrest. It may be a design of a few persons but since it is done in the name of the government, it becomes a design of the government. The question is why does the government conspire to deny due process rights to Sri Lankan citizens.

This question arises even more sharply with respect to the well-established practice of arrest without warrant. That an arrest should take place only on the basis of a warrant issued by a Magistrate, except in the case of a few well-recognised circumstances, is a fundamental idea embedded in common law. However, this has been undone by way of entrenched practices in the Sri Lankan context.

In fact, the boy in the case we have mentioned would not have been arrested at all, if a warrant had been sought for his arrest through a Magistrate. The Magistrate would not have found any reason at all to justify such an arrest. And this is the reality in thousands and thousands of instances of arrests that have been made and continue to be made on completely baseless grounds. Such arrests are usually followed by a period of detention. All of this could be avoided by introducing the universally recognised principle of allowing arrests only on the basis of a valid warrant of a Magistrate.

Again questions arise: why have Sri Lankan governments desisted from granting this basic right to Sri Lankan citizens? Why is the government engaged in a conspiracy to deny such a basic right to the Sri Lankan people? These are questions that need to be asked and discussed by all those who are concerned with the rights of citizens.

The UNCAT Committee recommended that the government should make legislation on these issues and it is up to the people now to demand from the government that the Committee’s recommendations be respected and implemented.