By Basil Fernando –

Basil Fernando

There are many reports in the media that Government Members of Parliament are sending lists to the Police to arrest persons. This habit has been revived after the events of May 9th and the days that followed. Now the media reports that thousands of arrests have been made and that hundreds are in detention.

First of all, this is a completely illegal practice. It should be the victims of grievances or persons who are witnesses to a crime that has the right to complain to the Police and to get their statement recorded. Parliamentarians or anyone else who is not a witness in terms of the prevailing law in Sri Lanka has no right to send some list and expect the Police to act. That amounts to interference with justice which is itself a criminal offense.

When such a list is submitted, the expectation of the person who submits it is that those named persons will be arrested, detained and prosecuted. If the information contained in any such complaint including a list submitted to the Police is untrue it is an attempt to misuse the process of law in order to achieve an illegal objective. It also amounts to misleading Police officers who will be involved in the arrest as well as inquiries. This too is a crime punishable in Sri Lanka.

When the Police accept a list of this nature, they too are violating the law. There is no legal right recognized under the Criminal Procedure Code or any other law in Sri Lanka which gives power to anyone who submits such a list. At the same time, the Police officers who acted on such a list are also violating the law and if without detailed information of a crime, they arrest persons, that is a serious violation that not only violates the criminal law but also the Constitutional law. Sri Lanka’s Constitution guarantees the right against illegal arrest and illegal detention.

While all these things are of importance, there is something much more sinister in this practice of submitting lists and also accepting such lists by the Police. On several occasions in recent history, we have seen the disastrous effects of such a practice.

Immediate occasions that come to mind easily are the arrest of many innocent persons after the 1971 Janatha Vimukthi Peramuna (JVP) led attacks on Police stations. Panicking due to the situation, authority was given to the Police and the military to arrest persons indiscriminately. What happened as a result demonstrated how such a license to arrest is misused in Sri Lanka. Many people who had grievances against each other sent lists of persons as being involved in the insurgency and immediately without any inquiries, these persons were arrested. The arrest in such circumstances often led to torture for the eliciting of more information and killings and the disposal of persons. Thus, Sri Lanka’s first experience of large scale enforced disappearances happened during this time and that was to recur over and over again in the decades to come.

In the second conflict with the JVP, this habit was carried out in a much larger scheme. The commissions of involuntary disappearances which were appointed by Chandrika Bandaranaike Kumaratunga’s Government listed tens of thousands of such cases. Most of these people who were arrested and thereafter subjected to torture and killed and their bodies disposed were not involved in any way. Even if some did, there was no legal authority for the Police or the military to arrest, detain, torture, kill and dispose of dead bodies. Once again, the habit of utilizing an unstable situation in order to settle private grudges or to eliminate political opponents were more the reasons for these arrests and what followed than the suppression of what was called terrorist activities. The Police officers who were given to each of the Government MPs to guard their houses were used in order to arrest, detain and dispose of these persons. It was during this time that the submissions of political opponents by the Government MPs with the view to have them assassinated were used on a very large scale.

The collection of lists also took place during the suppression of the Liberation Tigers of Tamil Eelam for several decades. The excuse of there being a war was used in order to justify such a practice.

This practice of arresting persons for political reasons as reported in the media is a revival of this dangerous and horrible practice.

This should be stopped as soon as possible.

Following are some of the measures that could be taken in order to stop this practice forcefully:

Firstly, the Government should issue orders and instructions to all Police stations ordering that this habit of accepting lists of persons from Members of Parliament or those who act on their behalf, directly or indirectly, should be stopped. It should be instructed that all arrests and detentions should take place only in terms of the provisions of the Criminal Procedure Code that is after proper complaints have been recorded about a commission of any crime and evidence as to the individual suspected of have being involved in the commission of any of these crimes by way of independent evidence.

Secondly, the submitting of such reports with the view to harm another person and also to get an officer to misuse its function in order to do an illegal act which is a crime recognized in Sri Lanka should be used against any Member of Parliament or anyone else acting on their behalf.

Thirdly, if anyone is arrested as a result of such a list, the Police should report to the Magistrate in their first report that the reason for the arrest is a list that has been submitted by a particular Member of Parliament or his/her agency. The Police are bound to make truthful reports to Magistrates as otherwise that will amount to the misleading of the Magistrate in order to get an order which would amount to an offense. The misuse of the courts in this manner is itself a serious offense.

Fourthly, the national Human Rights Commission (HRC) should take this matter of Members of Parliament submitting reports for arrests with the Inspector General of Police and other persons of the higher ranks of the Police and devise ways to ensure that the revival of this practice which has in the past led to extremely serious consequences should be stopped forcefully. The HRC should also supervise as to how far this practice is spreading and take other measures in order to hold both the persons who submit lists and the officers who act on these lists to be prosecuted.

Fifthly, the members of Opposition political parties should immediately develop a strategy to counteract this measure and to ensure the protection of the people.

Finally, those who are engaged in public protest in particular should take the revival of this dangerous habit as a threat not only to those directly affected by such but also as one that has a potential to be used against all those who engage in peaceful protests about the grave wrongs that are taking place in the country. Thus, the agenda of those who are engaged in a struggle to enhance democracy, the rule of law and human rights should demonstrate their determination to have the revival of this practice suppressed as soon as possible.