Focus on Rights

Why changing the time limits of detention will be disastrous
The recent proposal to increase the time period whereby any person can be held in the custody of the police from the prevailing twenty four hours to seventy two hours has very dangerous ramifications in so far as the ordinary rights of Sri Lankans are concerned.

This is a cosmetic measure to deal with the phenomenon of crime, in regard to which, the recent Organised Crimes Bill was a classic precursor. The clumsily drafted Bill, (put before the public in 2003), included a provision which permitted a suspect to be kept in police custody for seven days subsequent to production by an SP or an ASP before the Magistrate, who had to be satisfied on reasonable grounds that the suspect has committed or been concerned in the commission of an offence.

While the condition with regard to magisterial supervision was of no practical value, (given the continuing lapses in this regard by magistrates which have been the subject of stern admonitions by the Supreme Court in many instances), the Bill was startlingly problematic in the manner in as much as it did not provide, at the very minimum, for independent supervision of such detained persons.

For example, there was no requirement that there should be medical supervision of such a suspect to ensure that he or she is not being tortured or legal advice to be made available to such a suspect. Neither was there any provision for the intervention of monitoring bodies such as the Human Rights Commission. It was a matter of amazement in the first instance that the Law Commission of Sri Lanka was responsible for the conception of such a law which departed so obviously from basic rules of deprivation of liberty and fair trial. The fact that the draft law permitted confessions to ASPs to be made admissible despite wide international and domestic condemnation of similar provisions in the Prevention of Terrorism Act, was another indication of its extremely retrogressive nature.

The Bill was fortunately held back for further scrutiny following challenges in court and concerns raised by civil rights groups in the country. The Supreme Court recommended amendments to some of its provisions, though inexplicably, such amendments were suggested "in the opinion of the Court", in the context of the court ruling that none of the provisions of the Bill were inconsistent with the Constitution.

These recommendations included the condition that reasons be recorded by the Magistrate as to why, under Clause 11(2) of the Bill, police custody of seven days is authorised for a suspect where the Magistrate is satisfied that there are reasonable grounds to believe that such person has been concerned in the commission of, or has committed an offence under the Act.

Every such order should meanwhile stipulate the conditions of detention and hours of interrogation. An order may also be made that such suspect be examined by a medical officer, if necessary. The Magistrate was also required to take steps to notify the spouse or any family member nominated by the suspect, of the order of detention and the place of detention.

Though these suggested amendments were highly salutary in importing a more acceptable complexion to the Bill in general, it is arguable as to whether they were sufficient to contain the possibility of abuse implicit in the allowing of such an extended period of detention as well as in the allowing of confessions made to police officers.

Continued opposition to the Bill was premised on the basis that it has long been a basic principle of criminal law that the interrogating authority and the custodial authority should be separate which principle is, in fact, reflected in the Criminal Procedure Code. This mandates that throughout the period of investigation, the suspect is in the custody not of the police but of the superintendant of prisons. Thus " the law sees to it that custody of the suspect during the period (where the investigation is underway) is entrusted not to the police but to a 'neutral' official"(see R v Sugathapala (1967) 69 NLR 457 at 460). These objections still remain valid.

The proposal to increase the time limits of police detention is currently on hold due to concerns within the prevalent political establishment itself, which is laudable. However, it is a matter of doubt as to what degree, resistance to this proposal can be sustained despite the fact that the now established strong nexus between police officers at all levels and key underworld figures should be sufficient by itself to shy away from these contemplated changes.

Gerald Perera was just one individual who was killed after he won a Supreme Court case against his torturers and days before he was due to testify against those same police officers in the High Court in proceedings instituted by the Attorney General under the Torture Act. For those of us who knew this man as one of the most unassuming and humble persons of our acquaintance, his death is yet impossible to come to terms with.

The ensuing scenario that comes to mind if increased powers of unrestrained detention are given to police officers who are on speaking terms with drug lords but who can take in a completely innocent man and beat him within a few hours to the point of renal failure, (ostensibly on the basis that he is a criminal), is too incredible to contemplate.

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