The proposed Code of Criminal Procedure (Special Provisions Act) will lead to an increase in the abuse of power, extortion, torture and custodial deaths. A bill placed before parliament as the Code of Criminal Procedure (Special Provisions Act) of 2012 is dangerous in the present context and is very much likely to complicate the already overwhelming problems besetting the administration of criminal justice in Sri Lanka.
The objections to this bill are as follows:
1. This bill takes place within the context of the 1978 Constitution which has already displaced all the public institutions in Sri Lanka. The adverse impact of the 1978 Constitution on the public institutions is well known to the public in the country. That the policing system in Sri Lanka has been severely politicised and is used for political purposes by the president as well as the politicians of the regime is one of the most common criticisms that has been repeatedly made. It is also a common position that the Attorney General’s Department is directly under political control and is being used for political purposes. It is these two institutions, that is the police and AG’s Department that are being given greater powers under the proposed bill. Giving greater powers to already highly politicised institutions will naturally lead to greater abuse. Thus, the proposed bill, instead of contributing to better performance of the criminal justice institutions will instead contribute to a reduction of their performance. Bringing about a new law to make things worse makes no sense.
2. Under the proposed bill a 24 hour limit for holding persons under police custody will be increased to 48 hours with regard to some offenses. Already the 24 hour rule itself is severely abused by way of the arrest of persons without legitimate reason and by way of torture and ill-treatment. That the only known method of investigating a crime is the use of torture and ill-treatment is well known. The Supreme Court itself has dealt with literally hundreds of cases relating to the use of torture and ill-treatment. The Asian Human Rights Commission daily reports cases of the use of torture at police stations throughout the country. If the period of police custody is doubled it would only mean giving a greater amount of time to torture and to ill-treat suspects.
3. The use of arrest and detention for extortion is well known. The police find the arrest of a person as a means of extracting money for their release. In recent times this habit has increased a great deal and the amount of money demanded is often staggering. It was only recently that two culprits who organised the illegal smuggling of a group of person to Australia were released after arrest on payment of Rs. 26 Lakhs (Rs. 2,600,000). After releasing the actual culprits an innocent person was accused of the crime so as to create the impression that charges had been filed in the case. In another instance a Cambridge graduate who went to obtain a clearance letter was illegally searched and finding that he had Rs. 70,000/= of his own money and several travellers cheques all this was taken by the police and the man was charged for stealing money from the police station. These are two instances and literally thousands of others can be cited. The proposed law will provide unscrupulous police officers unimaginable opportunities to make themselves rich. While, as for the citizens, it will only create new circumstances under which they will be harassed.
4. One of the very strong objections to this new law is that it gives vast powers to the Officers-in-Charge of the stations (OIC). Experience has clearly shown that it is rarely an OIC has enough integrity to be trusted with such power. It is not likely that in the near future the quality of OICs or Crime OICs and other such officers is going to improve. Giving more power to such officers will only increase their propensity to abuse their positions for their own benefit. It is well known that OICs soon after they get their positions begin to build new houses. Under the new law these officers will have many more opportunities for doing such things.
5. A further objection for giving greater powers to the police stations for detaining persons for longer periods is that the system of command responsibility by which officers of the higher ranks, beginning with the IGP down to DIGs, SSPs, SPs and ASPs used to control the conduct at police stations no longer wields such power. It is a common criticism that officers at the stations are led by politicians and others and not by their superiors. And higher ranking police officers themselves are now being more and more suspected of corruption and connivance with the lower ranking officers in the doing of wrongs than ever before. Under these circumstances higher ranking police officers are unlikely to have much control over the day to day affairs at the police stations. Under such circumstances giving these people greater powers will only lead to greater problems.
6. It is also known that the disciplinary processes envisaged by the Police Departmental Orders are no longer followed with any sense of credibility. Higher officers try to hush up complaints against their subordinates instead of attempting to keep the discipline at any cost. When the police stations, without disciplinary control, are given extraordinary new powers and twice as much time to keep the arrested persons it is not difficult to imagine the extent to which the discipline within police stations would further degenerate.
7. Besides the problem of the police officers there is also the complete loss of confidence in the Attorney General’s Department. The newly proposed bill provides that cases may be taken out of the hands of the magistrate and directly dealt with by the Attorney General. Let us take an example to demonstrate what might happen. Let us take the case of Bharatha Lakhsman Premachandra. The obstacles created by the government for the prosecution in this case are well known. Enormous delays have been caused by police officers claiming to be seeking advice from the Attorney General and the Attorney General never giving such instructions. Of course the AG’s Department must be under severe political pressure not to take any action that would jeopardise the freedom enjoyed by Duminda Silva. Now under the new bill things will become much easier. All that the AG’s department will have to do is to make a claim at the Magistrate’s Court that on the basis of the new provisions the case will be taken over by the Attorney General. The magistrate thereafter will have no jurisdiction to deal with the case. Another case, the case of David Amerasinghe at the Pugoda Magistrate’s Court demonstrates this same point. In this case two police officers were accused of killing David Amerasinghe after arrest. They were refused bail by the magistrate. The two officers sought the assistance of the Attorney General by use of their personal links. Then the Attorney General issued a letter releasing the two officers from the non-summary proceedings for murder. The Magistrate, shocked by this unprecedented order asked the Attorney General to reconsider the matter and did not immediately comply with the order of the Attorney General. The Attorney General then went to the Court of Appeal and got a stay order on the proceedings at the Magistrate’s Court and released to two suspects. The matter is now before the Court of Appeal. In the future, under the new bill there would be no ambiguity about the power of the Attorney General and the magistrates will cease jurisdiction the moment the Attorney General makes an application to deal with the matter himself. In all matters in which the government has an interest the suspects could be assured of freedom under the operation of this bill.
In short, the objections to this bill are on the basis of the political abuse of criminal proceedings that are already happening and the new bill will aggravate this situation. The situation of Sri Lanka cannot be compared with countries where rule of law systems strictly operate. In Sri Lanka due to the operation of the 1978 Constitution this system has already collapsed. Under these circumstances giving greater powers of detention to the police and also given more power to the Attorney General to cases out of the hands of the magistrate is dangerous.
The proposed law will not enhance the cause of freedom and will not add to the security of the people. In fact, the insecurity of the people will further increase due to this bill.
The Asian Human Rights Commission supports the call that has already been made for people to oppose the proposed legislation for the reasons stated above.
