Columns - FOCUS On Rights

Calling for a change of policy in arrests and detentions
By Kishali Pinto Jayawardene

The release this week of Sudar Oli editor, N. Vithyatharan after the court was informed by the Colombo Crimes Division that there was no incriminatory evidence against him begs a fundamental question. Where is an innocent person who has been subjected to utterly degrading treatment during and after arrest, (if not torture) expected to seek redress, when the grounds on which that person has been arrested prove to be manifestly inadequate?

Departing from legal rules

Some years back, there would have been an easy answer to this question in the form of a recital of the various legal remedies that, such a person would have been entitled to, including the fundamental rights remedy. After all, it has been held time and time again by the Supreme Court that a person cannot be arrested due to a vague suspicion of involvement in an offence. On the contrary, there must be a reasonable suspicion, objectively established that there are sufficient grounds for arrest. These are ordinary principles of liberty that were, in fact, upheld by our judges under the normal criminal procedure rules long before the fundamental rights chapter of this current Constitution ever came into existence.

But these rules have been departed from with a vengeance in the current scenario. Availing oneself of the fundamental rights remedy in order that theoretically at least, an aggrieved person gets justice for the wrongs suffered, may be still possible but its results and impact are woefully limited. In recent years, except for singular cases such as the Parameswary case and in regard to the mass evictions of lodgers of Tamil ethnicity from their places of temporary residence in Colombo, there has been little successful invocation of the Court's jurisdiction. Correspondingly, the number of applications filed particularly by persons arrested under the emergency laws has decreased.

Vidyatharan's fate symptomatic of other cases

But Vidyatharan's experience is symptomatic of many other cases. And the circumstances in which this unfortunate editor was purportedly arrested is, of course, crucial, to this discussion. He was, as one would recall, dragged away virtually 'kicking and screaming' by unidentified persons while attending a function and for some time, it was not even sure as to whether he was, in fact arrested. It was only quite some time later that the government authorities admitted to arrest.

None of the mandated safeguards during arrest were observed, the minimum of which was to inform him of the reasons for arrest. He was reportedly manhandled during the arrest and perhaps it was only due to the fact that immediate and outraged protests were evident from the members of his family and the media community that he was prevented from being subjected to further degrading treatment or for that matter, torture. And now we are told ludicrously that he has been released due to the fact that he had done nothing self incriminatory. Apparently the most diligent checking of his phone calls and bank accounts had yielded nothing suspicious. So, after two months of trauma during which time, the character assassination as a result of being labelled a 'tiger collaborator' that he was subjected to, was perhaps the most marginal of the wrongs done to him, compared to the predicament that other journalists less fortunate are currently in, he is released.

Vidyatharan's story is in the public sphere due to the fact that he is the editor of a newspaper. But the question is as to how many persons of Tamil ethnicity suffer this same fate in Sri Lanka today, whose stories are quite unknown to the general public?

Wild rhetoric by government figures

Their fate is made worse by the unrestrained and unfortunately wild rhetoric that senior figures in the Mahinda Rajapaksa administration are apt to resort to, by condemning each and every person as a terrorist. The most notable transgressor in this regard is his brother Defence Secretary Gothabhaya Rajapaksa who indeed, in one interview to a foreign news channel, condemned Vidyatharan, going to the extent of stating that those who defend him will have blood on their hands. Similarly, in another local television interview, the Defence Secretary categorized Parameswary, who had, in fact, been released by the Supreme Court due to lack of evidence, as a terrorist.

Undoubtedly, such graphically condemnatory language tends only to aggravate the sense of high insecurity that persons of Tamil ethnicity labour under in this country. When the official policy is such, it makes little sense to rely on the fact that the majority of service personnel who are, in fact, responsible for the recent military victories are not racist by any means. Racism stems not from the actions of military men or women but from politicians. Surely in cases like this, is it too much to expect an apology from the government? Would this not set an excellent precedent by alleviating members of the minority community of their fears? These are not concessions but the necessary acknowledgement of a grievous wrong done to a human being. Nothing more, nothing less.

Calling for a change of policy in arrests and detentions

Is it also too much to expect that cases such as these would lead to a change in policy by the government? Are we being too ambitious in expecting that the most basic of safeguards such as an independent right to a lawyer of a suspect's choice, the right to inform family members about the arrest and the need for a lawyer and an interpreter to be present during interrogations, should not only be explicitly guaranteed both in terms of the ordinary law as well as under emergency law but also actually followed in practice? And what about an equal guaranteeing of the right of any suspect to speedy medical assistance?

It is only commonsense that a firm commitment by the Rajapaksa administration in changing the current legal and practical process within which arrests and detentions occur, particularly in a context where the military mood is on an upswing, can do much to restore the sadly lopsided equilibrium of rights protections in Sri Lanka today. As citizens, we can demand this much surely?

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