PERIOD OF DETENTION IN CUSTODY

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