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 affected 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.
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 island-wide, 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 Bill" 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 Spinach 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.