Preventing erosion of individual liberties

By Kishali Pinto Jayawardena

The manner in which individual liberties are being gradually eroded in Sri Lanka is truly insidious. One good example is the stipulation that a suspect has to be produced before a Magistrate (having jurisdiction in the case) without unnecessary delay (Section 36 of the Criminal Procedure Code Act, No. 15 of 1979). Section 37 thereof provides that such period shall not exceed twenty-four hours, (exclusive of the journey from the place of arrest to the Magistrate).

For decades, these safeguards had been replaced or rendered nugatory by emergency law superseding the provisions of the CPC Act and permitting incommunicado detention far beyond the statutorily prescribed limit. This is very similar to the rule against admittance of confessions made to police officers, again prescribed under the normal law but which prohibition has now been rendered all but redundant by the emergency laws permitting confessions to police officers above a particular rank and moreover imposes the burden of proving that the confession was given voluntarily, on the suspect, as per Section 16(2) of the Prevention of Terrorism Act (PTA).

In many cases, such a burden is impossible to satisfy as the suspect is in the intimidating presence of custodial officers, most often subjected to torture and in the case of many, compelled to sign confessional statements that are written in a language that they can barely comprehend. Section 16 (2) of the PTA has indeed been declared violative of international human rights standards and particularly Article 14, paragraph 3 (g) of the International Covenant on Civil and Political Rights (no one shall "be compelled to testify against himself or confess guilt") by the United Nations Human Rights Committee in the Sinharasa case (No. 1033/2004 Adoption of Views on 23 August 2004).

The Committee observed there must not be any direct or indirect physical or psychological coercion from the investigating authorities on the accused with a view to obtaining a confession of guilt. The burden should be imposed on the prosecution to prove that the confession was made without duress. In terms of its international obligations under the Covenant, the Sri Lanka government was requested to amend Section 16(2) which request has, however, been unheeded to date.

While the erosion of personal liberties by emergency law has been subjected to extensive scrutiny, the erosion of these liberties in terms of the ordinary law as well, is equally worrying. One recent example was the proposal in the now discarded Organised Crimes Bill that the suspect be kept in police custody for a period of seven days if the Magistrate before whom the suspect is produced was satisfied that there are reasonable grounds to believe that such person has been concerned in the commission of an offence or has committed an offence under the Act. Opposing the Bill, it was submitted before the Supreme Court at that time that the clause violated the constitutional requirement that a suspect must be brought before 'a Judge of the nearest competent Court …….according to procedure established by law'.

The clause consequently was argued to violate the basic principle of criminal law that the interrogating authority and the custodial authority should be separate as reflected in Section 115(2) of the Criminal Procedure Code, which makes it necessary that throughout the period of remand, the suspect is in the custody not of the police but of the Superintendent 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" - R v Sugathapala (1967) 69 NLR 457 at 460). Then again, "it is not unreasonable to assume that the legislature had good cause to provide that the detention of a citizen in the custody of the police beyond a specified period should come within the surveillance of judicial authority." (Kolugala v Spd. of Prisons (1961) 66 NLR, at page 416 per T.S. Fernando J.). This is, of course, the minimum safeguard even though Magistrates have not been known to use these powers of supervision in a stringent manner and have been reprimanded by the Supreme Court for dereliction of duties in that regard.

If the extended period of detention was permitted, (which is moreover not tempered by any provisions protecting the suspect, such as pre and post medical examination, conditions of detention, hours of interrogation or requirement to notify family members), it was contended that the clause would lead to violations. Opportunely, the Organised Crimes Bill was discarded by the then United Front Government. However, the unwarranted relaxations that the Bill sought to permit are gradually being allowed through other means such as, for example, through the proviso to Section 2 of the Criminal Procedure (Special Provisions) Amendment Act No. 15/2005 which (subject to one exception in regard to arrests of suspects in child abuse cases which is separately stipulated) authorizes a police officer not below the rank of an Assistant Superintendent of Police (ASP) to file in the Magistrates Court, a certificate before the expiration of 24 hours after an arrest of a person, if it is necessary to keep such persons in police custody for an additional period of 24 hours (not to exceeding an aggregate of 48 hours). Originally in operation for two years from 2005, this amendment was reportedly extended for a further period of two years last month by Parliament. From this step, it would be yet another small step to further extend the period of custody even in terms of the ordinary law to seventy-two hours and from thence, to seven days. A 2004 Report of a Committee Appointed to Recommend Amendments to the Practice and Procedure in Investigations and Courts (headed by the then Solicitor General and current Attorney General) in fact, recommended that the criminal procedure law be amended to permit keeping a suspect in police custody for seventy-two hours.

Scrutiny of the contents of this Report (which is published in a recent volume of the Law and Society Trust Review, Volume 17 Issue 236 June 2007) is interesting for the many proposals that it advances in regard to changing fundamental postulates of criminal procedure such as its view that the 'right to silence' of an accused should not be adhered to in an 'overly rigid' manner. The Report also proposes the amendment of Section 25 of the Evidence Ordinance enabling confessions made 'voluntarily' to a police officer of gazetted rank, to be admitted in evidence against the accused and suggests that the possibility of video recording of confessions and police interrogations should be considered as an adequate safeguard against ensuring that confessions are made free of coercion.

These are radical proposals that should be subjected to extensive discussion. The need for overhaul of the legal process in order to ensure efficient delivery of justice may be pressing. However, the gradual reducing of individual liberties should be rigorously resisted. If this country, (forlorn hope as it may be), sees a cessation of the war at some point of time, it undoubtedly needs to return to a criminal justice process that affords a tolerable balance for some decent form of civic life.