The hasty passing of laws and emergency regulations particularly with the intention of encouraging law enforcement officers to commit acts which amounts to serious crimes is not an unfamiliar practice in Sri Lanka.
How Sri Lanka became second in the world with regard to committing the heinous crime of enforced disappearances is an example of creating enabling laws to encourage the commission of crimes. With regard to enforced disappearances, emergency regulations removed the universal guarantee for the protection of right to life that magistrates must be notified of suspicious deaths. Emergency Regulations removed this guarantee and instead allowed an officer of a rank not below that of an ASP, the right to grant permission for the disposal of bodies.
In this manner, law enforcement officers were enabled to kill persons and dispose of their bodies without the fear of having a magisterial inquiry into the circumstances of such deaths. No wonder that Sri Lanka has achieved the notoriety for second in the world for enforced disappearances.
A similar law is now being proposed with regard to the right of persons to have recourse to a legal counsel in the event of their arrest, at the earliest point. This is today a universally recognised right. In many countries; now it is an obligation for the police to ensure that a suspect will have the assistance of a legal counsel at the cost of the state itself. For example, in the United States and also in the Philippines, there are special groups of defence counsel whose duty is to represent persons immediately after arrest. In other countries there are legal aid provisions to pay for the cost of such representations. In Hong Kong, every person who is arrested should immediately be given an official sheet of paper in which his or her rights are given in writing. Among such rights mentioned in writing, is the right to take a telephone call, to the family and also the right to contact a legal counsel of his choice.
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Excerpts from “Your Guide to services in Hong Kong” – Hong Kong Police Service
What are your rights if you are in police custody?
1. Seeking legal assistance
• To make private telephone calls to, or communicate in writing or in person with a lawyer.
• To have a lawyer present during any interview with the Police.
• To communicate privately or refuse to communicate with a lawyer claiming to have been instructed by a third person on your behalf.
• To be provided with a list of solicitors publishedy the Law Society of Hong Kong
2. Telling someone that you are at a police station
• To require the Police to try to inform a relative or friend that you are at a police station, and to be informed of the result.
3. Communicating with a relative or friend
• To be given reasonable opportunities to communicate with a relative or friend by telephone.
• To receive visits from a relative or friend. If for an arrested person and detained person, the permission of the Duty Officer for such visits is required.
• To be supplied with writing materials and to have your letter posted as soon as practicable at your own expense.
4. Receiving copies of written record under caution
• To be supplied with a copy of your written record under caution as soon as practicable after the interview.
• To refuse to answer subsequent questions until a copy of the written record under caution has been provided to you.
5. Communication with consulate if you are a foreign national
• To receive visits from or to communicate in private with (i) representatives from the consulate or the relevant authority of your home country or (ii) a lawyer whom such representatives arrange for you.
6. Notification to consulate if you are a foreign national
• To require the Police to notify the consulate of your home country in Hong Kong of your arrest or detention.
• To require the Police to notify the relevant authority of your home country of your arrest or detention, if there is no consular representation in Hong Kong.
7. Provision of food andrink
• To be provided with drinking water upon request while in police custody.
• To be offered three meals a day with drinks.
• Due to a special reason, e.g. religious need or outside the canteen operating hours, etc. food from an outlet or delivered by your relative or friend may be arranged on your behalf subject to the permission of the Duty Officer or an inspector and the inspection of such food.
8. Seeking medical attention
• To be given medical attention if you feel unwell
9. Requesting for release or admittance to bail (applies to persons detained in police custody only)
• To request to be released or to be admitted to bail. (If you are remanded by order of a magistrate, the decision of release or granting bail will be made by the magistrate.)
• To be given medical attention if you feel unwell.
http://www.had.gov.hk/rru/english/images/pdf/Your_Guide_to_Services_in_HK_English_chapter_10.pdf
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All these regulations arose through a long struggle to recognise the rights of persons who are taken into custody by law enforcement officers. The right for a legal counsel is for the purpose to ensure that the suspect is given proper instructions on his rights and also to ensure that the law enforcement agency will not abuse these rights while a person is being interrogated (in fact the civilised use of the term now is ‘interviewed’) and a statement is recorded from him. The basic issue of the right is that the suspect should participate in this interrogation as a free individual not subjected to coercion and in particular not subjected to torture and ill treatment. Further, if he/she makes a statement, he should make it as a free individual of his own volition.
In fact in many countries, this right is being interpreted much widely. In many countries the interrogation and the making of a statement by the suspect should be videographed. The reason for such video graphing, is for the court at the stage of the trial to see whether there are any indications of any violence being used on the suspect.
Just last week Minister of Law Order and Southern Development Sagala Ratnayake stated in Parliament that CCTV cameras will be installed in all detention cells inside the police stations. The impression given was that the government is seriously concerned about complaints of widespread use of torture and ill treatment which sometimes result in custodial killings and that this measure of providing CCTV cameras for all detention cells is for the purpose of preventing such use of torture.
However, a proposed Bill for the amendment of the Criminal Procedure Code, ( Amendment of 2016) is a clear demonstration that the government does not have such an intention of prevention of torture and ill treatment of suspects. The proposed amendment contains the following section
“Any person who has been arrested and detained in police custody, shall have the right to retain and consult and Attorney-at-Law of his choice at his own expense, after the recording of his statements(highlighted by the AHRC) in terms of the provisions of subsection (1) of section 110 and prior to being produced before a Magistrate.”
The following two subsections mentions that if the person is unable to pay the cost of the lawyer, such cost will be provided by the Legal Aid Commission. Again, this is a typical Sri Lankan example of a ‘crooked’ way of drafting laws, that is by creating an impression of something progressive, in this case, providing the cost of a lawyer for a suspect, while taking away the substance of the right involved, which is that all interrogations and recording of statements of the suspect should be done with legal counsel afforded to the suspect and without the use of coercive and third degree methods.
From the examination of thousands of cases, we are aware of the prevailing practice at police stations of obtaining forced confessions from suspects. What the amendment suggests is that after such confessions have been obtained forcibly, only then the suspect could avail himself of the right to have a lawyer. By that time, the very purpose of having a lawyer, that of preventing abuse of power by the law enforcement officers, is defeated.
Attack on the rights of the legal profession
This is not merely an attack on the rights of a suspect. It is also a fundamental attack on the rights of the legal profession. The very idea of legal representation is for the purpose of ensuring that the client obtains the protection of law within a framework of rule of law and the due process of law. The notion of rule of law as well as the due process of law abhors the use of coercive methods in interrogations and recording of statements of suspects.
In the past, members of the profession and the Bar Association of Sri Lanka (BASL) have fought for a long time to gain the right of representing suspects while in police custody. It was after many decades of struggle that the Inspector General of Police issued a Government notification under Section 55 of the Police Ordinance (Chapter 53) stated;
“…3. (1) Every Attorney-at-Law, who enters the precincts of a police station established under the Police Ordinance (Chapter 53) situated in any part of Sri Lanka, in his capacity of an Attorney-at-Law for the purpose of representing and watching the interests of a person who is the client of such Attorney-at-Law, shall be treated cordially and courteously and given a fair and patient hearing by the police officers attached to such Police Station, whatever their rank. (2) Every police officer attached to a Police Station shall not at any time during which he is dealing with an Attorney-at-Law present in such police station for the purpose of representing and watching the interests of a person who is his client, use physical force on the person of such Attorney-at-Law or resort to the use of abusive language or any other form of intimidatory conduct…”
This was published in the Government Gazette of the Democratic Republic of Sri Lanka (Extraordinary) No. 1758/36 Friday, May 18, 2012.
A strange justification for this Amendment has been that the lawyers, if they are given a chance to meet the suspects before the interrogation and recording of a statement, may advise the suspect to make false statements. Apart from being an insult to the entire legal profession of which the Bar Association of Sri Lanka should take strong note, the truth is to the contrary. For long years, getting false statements from the suspects by way of the use of torture and ill treatment and by other threats has been the practice of the Sri Lankan police.
Under the circumstances, it is surprising that the Bar Association of Sri Lanka has not yet come forward to defend this hard earned right of the legal profession in Sri Lanka. It is to be hoped that the Bar Association President Geoffrey Alagaratnam PC, and his Bar Council will come forward immediately to express their protest on this issue and make sure that the Government withdraws the words ‘after the recording of the statements” from the said amendment and instead clearly state the right of the suspect for a legal counsel immediately on his arrest.
HRCSL wants the withdrawal of the new amendment to the CCPA
The Human Rights Commission of Sri Lana has clearly and boldly stated its position against this amendment. The full statement could be found, here.
In the “Focus on Rights” column in the Sunday Times, attorney-at-law Kishali Pinto Jayawardena, has also expressed strong objections to the aforesaid amendment the full text of which can be read here.
