SRI LANKA: Lawyer’s right to visit client in police custody should be guaranteed

Dear Friends,

The Asian Human Rights Commission has received the information regarding the case of Mr. Mohanathas Iyathurai (40), resident of Kopay Police Division in Jaffna, who was arrested by police officers attached to the Terrorist Investigation Department (TID) of Sri Lanka Police. Not only was he arrested illegally, but his lawyer was also not allowed to meet him to discuss court proceedings. This is a clear violation of rights guaranteed under the Sri Lankan constitution, as well as President Directives and guidelines established by the Human Rights Commission of Sri Lanka.

Case Narrative:

According to the information received by the Asian Human Rights Commission, Mr. Mohanathas Iyathurai (40), of Kali Kovilady, Kopay, Jaffna lives in Jaffna District. He is a single labourer, living in his parental house with his two aunts.

During the internal conflict in Sri Lanka’s Northern and Eastern Provinces, Mohanathas was among the hundreds of youth forcefully recruited by the Liberation Tigers for Tamil Elam (LTTE). At the cessation of the conflict, Mohanathas underwent rehabilitation under the supervision of the Sri Lankan military. He was released after his training, and he started his life as a peaceful citizen and lived with his relatives in his parental home. Ever since then, there is no record of him committing any crime or being involved in any violent or illegal activity.

However, in early June 2016, his residential house was surrounded by Army officials while he was not at home. Mohanathas was then arrested on June 22 by police officers attached to the Police Unit at Bandaranayke International Airport of the Terrorist Investigation Department (TID) when he was about to depart for India. He was not informed of the reasons for his arrest, and he was detained at the TID detention center at Colombo.

Protesting his illegal arrest and detention, his brother filed a fundamental rights application at the Supreme Court of Sri Lanka, to get Mohanathas released.

After filing the application, Mohanathas’ attorney Mr. Lakshan J S Dias sought police permission to visit his client for professional purposes. The lawyer made the request exercising his and his client’s constitutionally guaranteed rights under the Article 14 of the Sri Lanka Constitution. The police initially informed Mr. Lakshan that he could visit Mohanathas at the 2nd Floor of the same building. But on arrival at the Terrorist Investigation Department (TID) of Police headquarters, he was asked to produce a letter of permission.

On 24 May 2017 Mr. Lakshan submitted a letter to Terrorist Investigation Department (TID) of Police headquarters seeking permission to visit his client. He was then told that the TID needs to confirm Mohanathas’ willingness to meet his lawyer.

After repeated reminders, Mr. Lakshan still got no further response from the TID, which led him to make a complaint on the violation of his client’s rights to the Human Rights Commission of Sri Lanka (HRCSL), National Police Commission (NPC), Inspector General of Police (IGP) and the Bar Association of Sri Lanka (BASL).

When Mohanathas was questioned by his aunt whether he has told the officers that he is not willing to meet his lawyer, he vehemently denied that. He repeatedly informed his relatives that he wants to meet the lawyer and proceed with his case. Further, he gave written approval by way of letter to his lawyer to visit him.

Apart from the constitutional guarantees allowing clients to meet lawyers, the Sri Lanka Human Rights Commission (HRCSL) has given clear guidelines to all law enforcement agencies and the authorities who are responsible for maintaining the detention centers, to protect and respect the rights of the lawyers to visit their clients. Further they have been clearly guided to provide the necessary facilities to the lawyers who are visiting clients at the detention centers.

This is also guaranteed by the Presidential Directives on arrest and detention of suspects under Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979 (PTA) of Sri Lanka

Later, when this case was taken for argument at the Supreme Court, the Attorney General representing the state informed the court that they have taken steps to release the detainee from the TID detention. On that ground, it was informed that there was no reason to proceed with the application. Mohanathas’ relatives then agreed to withdraw the application.

However, it is a fundamental human right of every citizen of Sri Lanka to be represented by anAttorney-at-Law.

Furthermore, in a decided case in the Supreme Court of Sri Lanka, it was very clearly stated that, the Inspector General of Police (IGP) as the head of the Police Department has come to a settlement to provide all the facilities to lawyers who are visiting police stations and places where the detainees are kept. This settlement was later published in an extraordinary gazette notification of the state.

The gazette notification further exclusively states that there shall be established a four member Special Committee consisting of (i) senior officer of the Attorney General’s Department not below the rank of Additional Solicitor General who shall be the ex-officio Chairman of this Special Committee; (ii) the President of the Bar Association of Sri Lanka; (iii) the Director Legal of the Sri Lanka Police Department; and (iv) a serving member of the National Police Commission. If this committee was established and functioned actively, then such violations could be stopped.

Suggested Action:

Please send letters to the authorities listed below expressing your concern about this case and requesting an immediate investigation into the allegations of not respecting the lawyer’s right to visit his client in police custody. The officers involved must also be subjected to internal investigations for the breach of the department orders as issued by the police department. Further, please also request the National Police Commission (NPC)and the Inspector General of Police (IGP)to have a special investigation into the malpractices of the police officers for abusing their powers. Lastly, request for the urgent implementation of a committee to look into such matters, in accordance with the gazette notification.

To support this case, please click here: SEND APPEAL LETTER