By Kishali Pinto-Jayawardena –

Kishali Pinto-Jayawardena

Amendments to Sri Lanka’s Criminal Procedure Code permitting the police to detain suspects up to forty eight hours are now apparently on their way, the justification being that the law needs to be more stringent to curb the exponential rise of crime in Sri Lanka today. Taken together with the recently gazetted Rules relating to the Appearance of Attorneys at Law at Police Stations by the Inspector General of Police (IGP) under Section 55 of the Police Ordinance, some interesting issues arise for discussion.

Increased detention of suspects

In some respects, the pending amendment to increase the period of detention may not cause much comment. The Criminal Procedure Special Provisions Act first passed in 2005 and then further extended for a period of two years in 2007, extended the period of detention of suspects up to forty-eight hours in relation to certain special offences (abetment, conspiracy, murder, culpable homicide not amounting to murder, attempt to murder, kidnapping/abducting with intent to secretly and wrongfully confine, etc.

Though the extension of this law should have been done following its lapsing, this was not effected due to an extraordinary lapse on the part of the Ministry of Justice. This resulted in confusion worse compounded in Parliament, as this columnist recalls, when the main opposition quite rightly objected to a retrospective application of the special provisions law. From all relevant newspaper reports, it appears that the currently contemplated amendment to the Criminal Procedure Code is being pushed through in consequence thereof.

This 2005/2007 Special Provisions law provided that suspects arrested and detained under its provisions shall be afforded an opportunity to consult an attorney-at-law of his choice and to communicate with any relative or friend of his choice during the period of such detention. Though the pending amendment to the Criminal Procedure Code (based on the Special Provisions Law), has not been made available to the public, it appears that this provision of legal counsel to suspects will be continued.

Rules relating to treatment of lawyers

The Rules relating to the Appearance of Attorneys at Law at Police Stations gazetted by the IGP on May 18^th 2012 is a related development. They emerge out of litigation arising from the abuse and humiliation of an attorney-at-law by a senior police officer when the attorney accompanied his client to a police station some years ago. These Rules specify that every lawyer entering the precincts of a police station for the purpose of representing and watching the interests of his client is entitled to be treated cordially and courteously and should be afforded a fair and patient hearing. Physical force, abusive language and intimidating conduct on the part of the police officer are forbidden. Surrender of a suspect by a lawyer shall be recorded as such.

A committee of officials, comprising a senior state law officer (as chair), the President of the Bar Association, the head of the legal division in the Department of the Police and a serving member of the National Police Commission, will be monitoring and facilitating the due and proper observance of these Rules.

Basic problems as to the root of legal representation unaddressed

Some observations on the above Rules may be in due order. Quite apart from the IGP’s Rules of Procedure being oblivious to modern norms of gender neutral language, there are more substantive concerns. Things have certainly come to a pretty pass in Sri Lanka when we are compelled to legislate in order to ensure the observance of courtesy by public officials, particularly by police officials whose very essence of employment is public service. Will the official gazette be now employed in order to ensure the independence and impartiality of individuals in public office? Is courtesy, independence, impartiality, virtues that need special gazettes to be promulgated in order to ensure observance? Are these matters that could be – or indeed should be – legislated? This is a state of affairs that we should veritably be ashamed of.

Even more substantially, one would have expected the Rules to address fundamental questions that go to the root of effective legal representation for suspects. Foremost among these is the right to confidential legal conferral between a lawyer and a suspect while in the custody of a police officer. This right becomes all the more important if the Criminal Procedure Code is to be amended to increase the period of detention. The essential right that suspects have to confer privately with their lawyers was in fact, denied by the Human Rights Commission of Sri Lanka (see grammatically challenged order of 31/01/2008) in regard to detainees under emergency law. It is imperative that this thinking is reversed.

Essential reforms still remaining

Meanwhile the complacent rationale advanced by some that an increased detention period will not make much difference to now endemic practices of torture by Sri Lanka’s police is flawed in other respects as well. The lack of access to independent medical examinations for detainees remains a serious legal lacuna. Currently, such medical examination is at the instance of the Officer in Charge of a Police Station (OIC). As astute analysis of prosecutions under Sri Lanka’s 1994 Convention Against Torture (CAT) Act would disclose, the delay in the medical examination afforded to an accused has resulted in several acquittals that may have been otherwise prevented.

In general, the superficial explanation or justification given by the government that this amendment will help to check crime does not hold water. Laxity in terms of the detention period during previous years and in relation to serious crimes has had negligible effect. What is needed is the delinking of the police from politicians and its de-militarisation which would involve, as the Lessons Learnt and Reconciliation Commission suggested, an immediate transferral of the Department of the Police from under the Ministry of Defence in order for the Department to function independently as a civilian institution. Serious and substantial reforms to outdated criminal procedure provisions should follow. Only then will this government’s bona fides be shown, at least to some extent.