27 September, 2020

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Law Enforcement Vs. Human Rights & The Wijeyadasa Amendment

By Somapala Gunadheera

Somapala Gunadheera

Somapala Gunadheera

A news item in the Island of the 3rd instant highlights a controversy that has arisen with the publication of a Bill proposing to introduce a new section to the Criminal Procedure Code to deprive suspects’ access to lawyers until their statements were recorded, thus withdrawing the rights already guaranteed by the State under rules made by the Inspector General of Police in accordance with the Police Ordinance. The proposed Section 37A(1) states, “any person who has been arrested and detained in custody, shall have the right to retain and consult an Attorney-at-law of his choice at his own expense, after the recording of his statements in terms of the provisions of subsection (1) of the section 110 and prior to being produced before a Magistrate.”

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Justice Minister Dr Wijeyadasa Rajapakshe

Justice Minister Dr Wijeyadasa Rajapakshe, PC, has emphatically stated that the government would go ahead with the proposed amendment to the Criminal Procedure Code meant to deprive lawyers an opportunity to meet their clients before the police recorded their statements. He has alleged that in their anxiety to protect the interests of the suspects, both the HRCSL and BASL had turned a blind eye to the suffering of the victims, overlooking the difficulties experienced by law enforcement authorities fighting crime as well as ordinary law abiding citizens. Of course no one can shut out legal assistance before a suspect arrives at a Police station, unless he is suddenly arrested.

In a letter addressed to the President, BASL President Geoffrey Alagaratnam has pointed out, “The Protection of Victims of Crime and Witnesses Act No. 4 of 2015, grants an aggrieved party a right of representation at the police station from the inception. However a suspect’s right to be represented will be limited by the proposed Bill resulting in unequal treatment”. The HRCSL has alleged that there had been many instances of torture as well as cruel, inhuman treatment of suspects at police stations between the period of arrest and the conclusion of the recording of their statements. Dr Deepika Udagama, the Chairperson of the HRC, has warned, “Depriving suspects under arrest and detention of access to their lawyers, until the conclusions of their statements, will result in a greater risk of suspects being subject to torture, cruel and inhuman treatment as well as illegal arrest and detention by errant police officers. The passage of the new Bill will hinder the efforts of the Government which has expressed its determination to stop torture in Sri Lanka.” Practically however, the dangers feared by HR activists cannot be completely eliminated by seeking legal assistance as no such assistance is available overnight.

The conflict has put law enforcement and human rights between the horns of a dilemma. Allowing legal assistance to a suspect before he makes his statement leaves room for what he says to be tinkered to suit the dictates of the law under professional intervention. Denying such right leaves him helpless against the well-known tyrannies of law enforcement. However, in normal practice, it is the affluent that engages lawyers when they are facing Police action as suspects. The poor have no wherewithal to protect themselves under the finer points of the law. Thus the proposed amendment is unlikely to make any difference to the man in the street.

However the objections raised are very real and the challenge before the law-makers is to device a method by which justice could be dispensed, without compromising either interest. They have to find a way of ‘having the cake and eating it’. As far as I see it, this objective can be achieved without resort to complicated legislative amendments, by a physical adjustment in the process of recording the first statement of a suspect. The adjustment calls for an interrogation cubicle somewhat similar to the confessional chamber of the Roman Catholic Church.

There is an aperture between the cubicles in which the suspect and the interrogator sit. Whenever a lawyer is retained he sits with the interrogator and submits objections to the latter, without being heard by the suspect, as and when he finds the interrogation unlawful. At the end of the interrogation the lawyer can place on record his objections, if any, for the consideration of the tribunal that would finally hear the case. If no such record is submitted, it will be presumed that the examination of the suspect was done according to law. This procedure will be called for only in rare instances where counsel is retained by suspects. Even in other instances, it would be prudent to follow the practice in some foreign jurisdictions by separating the suspect and the interrogator into two adjoining cubicles with a connecting aperture. This would prevent body contact, which is a frequent allegation against law enforcement by force.

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Latest comments

  • 7
    0

    All citizens of Sri Lanka know how statements are “recorded” by police.

    In many cases, the recording is in a language which the arrested person does not know, and/or, he/she is not allowed to read it.

    The arrested person is compelled to say in his statement, what the police want him to say, not what the arrested person wishes to say.

    How police “persuade” arrested persons to say what THEY want, in his/her statement, is well known.
    The “methods” of “persuasion” have been investigated by many UN Rapporteurs.

    It is surprising that the Minister comments on the “difficulties experienced by law enforcement” which necessitates a recording of a statement, BEFORE consulting/without the direction of, an attorney, and, after private consultation with him.

    This does not occur in democratic countries, where the arrested/accused person, also has the right to “remain silent”, in addition to the services of an attorney.
    In some countries, if the arrested person cannot afford/is unable to obtain the services of, an attorney, the state provides one.

    Does the minister want to “establish” a “police state”?.

  • 0
    0

    This is why white Vans were a better option.

  • 5
    0

    Somapala Gunadheera

    RE: Law Enforcement Vs. Human Rights & The Wijeyadasa Amendment

    “any person who has been arrested and detained in custody, shall have the right to retain and consult an Attorney-at-law of his choice at his own expense, after the recording of his statements in terms of the provisions of subsection (1) of the section 110 and prior to being produced before a Magistrate.”

    These are licenses to kill, legally.

    White van are not needed. Get the confession by force, and get the suspect to commit assisted “suicide”.

    Then dispose of the body, with IGP’s permission.

  • 7
    0

    I know nothing about law. I heard how a 17 year old boy made naked took photos and threaten by police to accept the charge for raping molesting and killing a Montessori girl without doing the DNA test.This incident happened very recently.May be about one year ago. I am not quite clear whether police is made more free by this law. How could we assure the behavior of police today. We know we were to enforce Capital Punishment at that time. Really that boy was brave not to accept that serious charge. We cannot forget this. In my case I am helpless in this country. I lost all my assets without my fault. Even today I am facing extreme injustice.

    I have a son of 17 years. I observed how people are afraid to to talk on current issues. Even today our voices are not heard by any one.

  • 2
    0

    Human rights work where humans are living and not in countires where only animals dominate.

    what Sri lanka needs is Presidential orders to get rid of Drug dealers as rodrigo duartes does or white vans. Even a few white vans are not sufficient.

    Anything else will preserve the rights of criminals over the rights of the decent society.

  • 3
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    Depriving the accused or suspect of legal representation before police interrogation is clearly a violation of justice. Every civilized country allows the suspect to get a lawyer even before he opens his mouth. Police atrocity and ignorance of the rights of the accused are major factors in favoring legal representation. It is silly for the Minister of Justice to argue that it jeopardizes the victims’ rights.

    • 2
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      Depriving the accused or suspect of legal representation before police interrogation is clearly a violation of justice. Every civilized country allows the suspect to get a lawyer even before he opens his mouth

      This is wrong ideology. If the suspect is innocent, why he has to be scared for police questioning. It is far better, shooting at them because they are the suspects.

      They are not decent countries they are dumb countries probably politicians were drug lords and those drug lords needed these laws.

  • 1
    0

    The Minister had demonstrated his lack of knowledge of the practice of the police in Sri Lanka and the suspects’ rights. Every suspect has a right to remain silent. What the police is going to do if the suspect refuse to open his mouth. They are going to beat him and the Minister is suggesting that the beating should be done in the absence of any witnesses.
    Why the Minister is not considering that at times the suspect him/herself is a victim. What is more brutal is police brutality and not what the people do outside the police stations.
    This is a country where the police can bring the hairdresser into their station and could torture him for not giving a free hair cut to the HQI and you suggest that he has no right to have a lawyer there. Who is the victim here? Not HQI.
    With all due respect to you Minister, I think you have proved any shadow of doubt that this is high time for you to step down from the Minister’s seat and take up the job as IGP!

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