PERIOD OF DETENTION IN CUSTODY
From 24 to 48 – lengthening hours and pruning freedom
In March, Aruna
Roshantha (42), a labourer at a brick factory
in Mugunuwatawana, Chilaw, resting near his brick kiln during
his lunch break was
randomly picked
up by a cop and
taken to a police
van parked nearby. He
was asked about a person who
the police said was allegedly selling illicit liquor in the area. He said he had no knowledge of the said person.
His denial enraged the police. He was
beaten up, hauled into the police jeep
and was taken to an isolated location, where he was stripped naked and whipped with
cables by the policemen in uniform. Later, he was
taken to the Chilaw police
where he was forced by the cops
to place his
finger prints
on five empty bottles. Soon after he did that — in order to avoid further
torture — the police
sent him home. The following
day, he was admitted to the Chilaw hospital for complications from torture and was treated for four days.
A senior police
official visited Roshantha
at hospital to obtain a statement on alleged torture;
however, the inquiry led nowhere.
Looming danger is that torture,
already rampant in
police cells would further aggravate, courtesy
a new Bill now being mooted by
the Justice Ministry with the blessing of the Bar Association of Sri Lanka. However the proponents of the Bill and
its backers appear to
think it is a necessary evil – or else that
it would have little
impact on custodial torture
which even they concede is widespread.
Selected list of crimes The new Bill, which is expected to
be tabled in parliament, will amend
the Criminal Procedure Code in order to allow police to detain
suspects for 48 hours,
instead of
the 24 hours specified in
the current provisions.
The proposed
Bill would allow police to detain
suspects for 48 hours
in a selected list of crimes
that include murder, culpable homicide, attempted murder, kidnapping, abductions, theft, robbery with
attempts to cause grievous harm, armed robbery, etc.
The extension of
the detention period of suspects in police
custody was first effected under the Code of Criminal Procedures (Special
Provisions) Act No.42 of 2007. The Act, which was effective for two years, expired on May 31, 2009. Two years later in September 2011, the Justice Minister sought to
extend the Special Provisions Bill of
2007. However, Wijedasa Rajapakshe, President’s Counsel and parliamentarian objected
to the extension of
the Bill on the procedural grounds
that an Act which had
lapsed could not be extended.
Paradox
Paradoxically enough, Wijedasa
Rajapaksa, PC, is now the President of the Bar Association of
Sri Lanka (BASL)
which has extended its support for the proposed
Bill.
Asked about his volte face, Rajapakshe
said his objection to the previous attempt by
the Justice
Minister to extend the Bill was
made
on procedural grounds.
“An Act cannot be
extended after it lapses. Later, the Justice Ministry consulted the BASL on this. Our delegates met and
decided to extend our support for the Bill in order to combat the rising wave of crimes.”
Asked about the
potential abuse by the police of the provisions granted
under the
proposed Bill, he said BASL shares those concerns. He
however said, “not
all police are crooked.”
“The police
are combating crime for the betterment of
all of us. Therefore it is our duty to help.” He said the IGP, at the request of the BASL would send to police stations islandwide, a
circular to the effect that rights of the lawyers be respected within the police stations —
and that lawyers be allowed
to look into the requirements of suspects.
However,
there
are
others who
are sceptical and
fear that the new Bill would provide a carte blanche for the police
to torture suspects.
Activists say reasons
are
dubious
“We are not
convinced about the
need
for this Bill,” says J.C. Weliamuna, the convener of
Lawyers for Democracy.
“There is no basis for the new Bill. Custodial torture is endemic in this country and
this would worsen the situation,” he warned.
We are walking backward, he
said, referring to the fact that, in general, countries worldwide are
reducing the duration that a suspect could be detained by
the police.
He said, though the Ministry of Justice states that the new Bill would be applicable for only a list of
selected crimes, “corruption would surely be out of that list.”
“What do they identify
as grave
crimes? What I understand
is that most of those crimes listed for further detention are normal
and dealt with under the normal
law. Already, terrorist suspects are held for longer durations under detention orders even
without this Bill. “This new act would only give rise to custodial torture,” he reiterated.
“The problem lies
in the way our police
investigates crime. They start investigations only after they arrest a suspect. But in other countries, they investigate and
then arrest,” he says, “We should reject this Bll” he stressed.
Another legal luminary, President’s Counsel Srinath
Perera calls for strong
safeguards to be effected if the new bill is to be made a
law.
He admits police
— under certain
extreme circumstances —
could find that they could not complete investigations within 24 hours.
“If the police
feel they need more time to complete an
investigation, they should within the first
24 hours produce the suspect before a magistrate and
spell out as to
why they need an
additional 24 hours.”
“The magistrate should also question the suspect in
order to ascertain whether
he has been subjected to extra judicial
methods during questioning by
the police and
the statement by the suspect should be recorded,” says Srinath Perera, PC.
Then the magistrate should
be able
to decide whether the police be allowed to detain
the suspect for a further
24 hours.
Therefore, according to PC Perera, it
should not
be a “blank cheque of 48 hours.”
He also stresses the need for further clarity in the provisions, in
order to avoid abuses.
“Assuming that the suspect was
produced before the
magistrate within the first 10 hours of his arrest and the magistrate granted
additional 24 hours,
then
the additional 24 hours should be counted not from the time that the magistrate decided that police could detain the
suspect for an additional 24 hours,” he says.
Otherwise, police would
take the suspect before the magistrate and
would obtain a blanket 48 hour detention order, even before questioning him, averred
Srinath Perera.
He also stresses that the lawyers
and the relatives of the suspect should
be allowed to visit him while he is detained in
a police station, and that lawyers
should
have
the freedom to
look into the requirements of the suspect.
Some others are overwhelmingly cynical about the
proposed new Bill.
“According to the current law,
the police could detain
a suspect only for 24 hours, but
in practice, how long do police keep suspects in
detention without producing him before a magistrate?” asks Chitral Perera of human rights group, Janasansadaya.
“There are instances when the suspects have
been held for over two-three days without being produced before a magistrate,” he adds.
He says laws are abused and
none of the major crimes,
ranging
from the recent wave
of abductions, murder and
ransom taking place have been investigated.
“Of course, when a major incident happens, the newspapers would make it the headline story, but soon the interest dies out. “How many of those crimes
have
been investigated?” he questioned.
“How many convicts who had been sentenced to
death
and long prison
terms are released from prison?” he went on to ask.
“I doubt whether the
police would investigate those crimes,
not just 48 hours but
even if 48
years
are given,” he said.
“My feeling is that this new law is being mooted to
please the police at the cost of our fundamental
rights,” opined a dejected Perera.
By Ranga Jayasuriya
LAKBIMANEWS-
24June 2012
