The criminal justice system of Sri Lanka is in decline. Across the country numerous reports document that illegal arrests and detention continues to happen indiscriminately. The Asian Human Rights Commission (AHRC) has issued several hundred urgent appeal cases over the past decade regarding illegal arrests and arbitrary detention in locations across the country. Most, if not all of the cases, demonstrate that state authorities have acted illegally when arresting and detaining civilians. Indeed, in most of the cases, the state agency did not supply the victim with a reason for the arrest. This is a serious violation of Sri Lanka’s legal code and departs from both domestic and international standards regarding arrest and detention. Although the right to a fair trial is guaranteed as a fundamental human right within Sri Lanka’s Constitution, state authorities, particularly the police, have shown little respect for these constitutional provisions.
Torture during arrest
In almost all of the cases reported to the AHRC, the arrestees were tortured at the time of the arrest. Obscene language and threats were often used. Many of the arrestees were subjected to degrading treatment in public, despite the fact that the arrestee had not shown any objection to the arrest, or made any attempt to harm the officers involved. These actions are in direct opposition to the procedures established by domestic and international law. Indeed, these legal codes expressly state that arrest can only be made in accordance with appropriate legal procedures.
Using firearms
The AHRC has reported a series of cases over the past few years where police officers shot the arrestees before or during the arrest. Inevitably, this resulted in a number of extrajudicial killings. It was clearly reported that the arrestees who were shot at did not object to their arrests or move to intimidate the police officers. This amounts to a clear disrespect of civilian liberties and the basic human rights of the Sri Lankan people. According to the Criminal Procedure Code, police officers are not permitted to use their weapons while they are in the process of arresting a person, unless there is credible evidence that the arrestee has committed a crime that can be punished with the death penalty. However, the incidents mentioned demonstrate that police officers have shot innocent people even though the arrestee was not obstructing the arrest procedure in any way.
Custodial deaths
There have been numerous cases in the past few years where arrestees have been killed while in custody of the police. In many cases, the police took the arrestee to an isolated location and killed the person in question. These victims did not have access to a fair trial. Often the police will excuse such actions by issuing a communiqué stating that the arrestee attempted to attack the officers and was shot in self-defense. It is difficult to understand how a handcuffed person poses any threat to a police officer, yet the police maintain this explanation.
Arrests of substitute perpetrators
The AHRC has observed that the Sri Lankan police demonstrate disrespect for procedural law and regularly violate the liberty of innocent people. The police have adopted a practice where they respond to a complaint by searching for a suitable ‘substitute perpetrator’ to prove that they have taken care of the complaint. In abandoning their fundamental responsibility to investigate, they do injustice to both the complainant and the substitute perpetrator who is unwittingly accused of the crime. The substitute perpetrator is often tortured by officers coercing these civilians to admit to crimes that they have not committed. This process is an ad-hoc, illegal procedure which has been adopted into mainstream police use.
The denial of legal representation
The AHRC has reported numerous cases in which detainees have not been allowed access to legal representation. In one case, when a lawyer visited the police station to meet with his client, he was subjected to torture by the police officers at the station. The issue was raised in the Supreme Court in 2011 and a circular was issued by the Inspector General of Police (IGP) detailing the guidelines that officers must abide by with respect to legal counsel. These guidelines have not been respected.
Emergency regulations and illegal detentions
In the past few years, the AHRC has reported a number of serious cases involving arbitrary, prolonged detentions. According to state officials, the majority of these detainees are being held under suspicion of involvement with terrorist organizations. However, it has often been reported to the AHRC that these detainees were arrested in mass while protesting publicly against the government. Suspects are often arrested under the Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979 (PTA) and Emergency Regulations (ER). The emergency regulations allow state authorities to arrest innocent people who have not committed any crime, on the vague suspicion that they might be involved in a crime in the future.
The government of Sri Lanka has used emergency regulations to arrest and detain thousands of innocent civilians. During the civil war, state authorities arrested more than twenty thousand innocent civilians. At no point were the exact numbers of the arrested and detained revealed, nor were family members allowed access to the detention centers where their relatives were being held.
Civil rights and international human rights organizations have repeatedly called on the Sri Lankan government to release lists of the arrested with details of the length of detention and reason for detention, but the state has continuously failed to do so. The detention centers where people are held are unknown, and although people are occasionally released, the state has refused to reveal the exact number of people detained within the detention centers.
The arbitrary arrests and detentions of thousands of people in unknown locations have resulted in chaos ruling the country. Moreover, those who seek justice for the abductions, disappearances and extrajudicial killings of their loved ones are unable to gain closure.
Detainees prosecuted with illegally recorded confessions
The AHRC has reported several cases in the past year where detainees have been tortured by officers. After the suspect is tortured for several months, or years even, they are forced to sign blank or forged documents. The blank or forged documents are then used as a confession and presented as evidence that can be used to prosecute detainees in the High Court. In some cases, the suspects were threatened with death if they did not sign, or promised release if they did sign the papers.
No prison visits allowed
The state has repeatedly requested permission for detainees to communicate with their relatives and loved ones. Even when members of Parliament have requested permission to visit the detention centers, they have been refused. The only prison that allows visits is Welikada Remand Prison, where visitors are allowed once a month.
Denial of medical treatment
The AHRC has issued several Urgent Appeals regarding cases in which detainees were tortured and suffered physical injuries as a result of the torture. Even though these injuries necessitated medical attention, the police refused to provide medical treatment to detainees. In one case from 2011, a detainee who was in a critical medical condition was brought to a nearby hospital. Despite the detainees’ request for medical treatment and advice of the doctor to admit the detainee for treatment, he was brought back to the prison.
Police officers are reluctant to take detainees to a hospital for medical treatment since they fear that the physical evidence of their torture will be recorded. Many detainees have died in custody after their gunshot or other wounds went untreated.
Maintaining proper arrest records
The AHRC has recorded numerous statements of detainees who were arrested and only produced before a court several days later. The fact that these detainees were not told the reason for their arrest and the subsequent detention is a clear violation of their fundamental rights enshrined within the Sri Lankan Constitution. Indeed, the Constitution states that detention of a person for more than 24 hours without appropriate indication as to the crimes committed is a violation of the arrested person’s rights. Yet, police officers often keep detainees at the police station or detention center, but purposely do not record the particulars of the crime or information regarding the detainee in any official records. Usually, the information is recorded a few hours before the detainee is produced before the Magistrate. This practice violates the rights of the detainees.
President’s directives of 2005
The behavior of state officers, as documented by the AHRC, violates the basic rights of civilians at the time of arrest and detention. Furthermore, the actions of state officers are in direct violation with orders from the President issued in 2005 where he spoke about safeguarding the basic rights of civilians at the time of arrest and detention.
A number of actions should be taken in order to ensure that civilians’ basic liberties are not violated at the time of arrest. A notice should be issued to the arrestees’ next of kin. The identity of each arresting officer, including their name, rank and police station should be included on this notice. A special investigation unit should be established with the mandate to investigate the cases of detainees who have been arrested and detained under the PTA. Adopt a policy of quickly holding and finishing criminal trials for those detainees who have been detained for prolonged periods of time. Impose and follow through on the provisions of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Act, No. 22 of 1994 (CAT Act). Enact an act on codifying the rights of the arrestees at the time of arrest and after the arrests. Enact a law pertaining to procedures regarding the handling of firearms by law enforcement officers, including officers involved in criminal investigations. Repeal the PTA and strengthen the administration of Sri Lanka’s criminal justice system.
