——————–The justice system of Sri Lanka: What a damn mess——————
A Bill entitled Prevention of Organized Crime was gazetted on 24 January 2003. There was hardly any publicity to the Bill and thus there was no public debate on the matter. The speaker presented it to the Supreme Court for opinion on constitutionality and two citizens objected to the bill on various grounds. The court while recording the same agreements for the same amendment by the counsel representing the state held that that Bill does not conflict with the Constitution. The court among other things held that,
“The equality clause in our Constitution is applicable only to equals. The present Bill deals with a separate group of people who would come within a different category. Members of an organized criminal group cannot be said to be similarly circumstanced as the other petty offenders.”
Obviously such division of people into equals and not equals does not have any basis in law or morality. On 11 April, The Island reported that the President had intervened and objected to the bill stating that
“a democratic legal system could not tolerate a situation which encouraged unsafe convictions in the criminal justice process. Normally the more serious the possible outcome, the more stringent are the safeguards for the accused. The proposed legislation seeks to significantly dilute due procedural process and the rights of the accused to a fair trial.”
The same report mentioned a government spokesman saying that the Bill will be withheld to allow public debate.
The Asian Human Rights Commission states that the result of this Bill will be the encouraging and rewarding of torture. The Bill gives in to the pressure of some law enforcement officers who have been demanding greater freedom to be tough in order to deal with increase of crime. Sri Lankan police have a reputation for having caused tens of thousands of disappearances in the South and the North, and for using severe torture during criminal investigations. However, there has been much international and local outcry against such gross abuse of human rights.
The proposed law, which abrogates vital provisions of the Criminal Procedure Code of Sri Lanka for crimes coming within the preview of the Bill (Sections 36, 37 and 38), removes vital safeguards against torture and self incrimination made available to persons. These safeguards recognized in the Constitution are denied from persons brought under the provision of the Bill. The Constitution does not make any provision for such abrogation. Such abrogation also clearly violates Sri Lanka’s obligations as a party to the International Covenant on Civil and Political Rights and the Convention against Torture.
In the place of abrogated provisions the Bill introduces a new provision by which the possibility of torture is much increased. The Bill allows a person to be kept in a police station for seven days instead of 24 hours as it is now. The amount of torture that takes place within 24 hours is well known. What might happen when that time is increased to seven days is frightening to contemplate. Without doubt, deaths in police stations will increase. Already there are many cases of extreme torture leading to death or grave injuries within 24 hours of custody. One victim, Gerald Perera, a completely innocent man, was so tortured that the Supreme Court thought it fit to award over sixteen lakhs (Rs.1,600,000, over US$16,000) in compensation. It is also frightening to imagine the situation of women suspects, given what has happened in several cases in much shorter time. What comes to the imagination of some policeman when women are at their mercy has received a lot of publicity recently, in several cases.
The Bill also limits the normal safeguards by limiting the powers of the magistrates. All discretion of the magistrates is removed for making interim orders. There is no justification for such limitations except distrust of the magistrates’ capacity to make appropriate orders as required by circumstances. Given the limitation for legal access, the persons who would be most affected would be the poor.
The Bill also removes some of the safeguards relating to fair trial. These provisions limit the discretion of High Court judges who will conduct the trials. The normal safeguards against self-incriminating statements are removed, making statements made under torture admissible. The provision that if a statement is made to an officer not below the rank of Assistant Superintendent of Police (ASP) under article 30 of the Bill is no safeguard at all. Under Emergency Regulations only officers above the rank of Superintendent of Police could issue orders for burials. This did not prevent tens of thousands of disappearances. All gross violations of human rights involve a breakdown of proper supervision by high-ranking officers. If they had the determination to ensure discipline in the police, the present situation would be a different one. Thus, article 30 will perpetuate the prevailing bad practices. The remark this April by Justice Mark Fernando in Gerald Perera’s case, regarding the Inspector General of Police, applies equally to all other high ranking officers:
“A prolonged failure to give effective directions designed to prevent violations of Article 11 (Torture), and to ensure the proper investigations, may well justify the inference of acquiescence and condonation (if not also of approval and authorization).” (SCFR. 328/2002 – Gerald Perera Vs. Sena Suraweera (Inspector) and eight others)
The proposed bill fundamentally alters criminal law and procedure in Sri Lanka. Without the core provisions contained in sections 36, 37, and 38 of the Code of Criminal Procedure it virtually overturns the entire code and makes it an insignificant piece of legislation. This is a consequence of making sections 25, 26, 30 and several other provisions of the Evidence Ordinance inapplicable to offences coming under the Bill. The Criminal Procedure Code and the Evidence Ordinance are two fundamental laws in the criminal jurisprudence of Sri Lanka. If this Bill becomes law these two documents will be worthless. The trick introduced in this bill is to make these basic laws applicable only to petty crimes. Thus, a new logic is introduced: in petty crimes you have more safeguards, but for more serious crimes, less safeguards.
This discarding of basic laws by way of Emergency Regulations and anti terrorism laws has caused serious chaos in the justice system of Sri Lanka. Even Premadasa Udugampola, whose name was associated with the rather unhappy collapse of law in the period known as the Time of Terror — beeshanaya — was able to say that everything was done according to the law. In fact, the law was changed and what was otherwise grossly illegal and immoral was made a law. The basic philosophy behind that approach was stated in parliament by Ranjan Wijeratne, then Minister of Defense: “We are in the process of cleaning up the local mafia. That is why we want the Emergency extended for a little more time to finish up all this also. You cannot do these things under the normal law.”(25-1.90)
Ultimately, this Bill seems to give police officers permission to freely engage in torture and make convictions easy by displacing rules relating to fair trial as too high a standard to be observed in dealing with serious crimes. This mentality which also prevailed in making of Emergency Regulations since 1971 was the cause for the much-lamented degeneration of the justice system, particularly the police system. A senior counsel, Daya Perera, President’s Counsel, described this situation at a conference held in April thus: “Criminals don’t treat the Police even as equals, but as an inferior strata that can be dealt with as such. It’s only a question of price” (The Island, 14 April).
The failure to prevent serious crimes is the result mainly of the collapse of the policing system. There have been some attempts at serious measures to deal with that situation. The Torture Prevention Act (Act No 22 of 1994), which prescribes a 7-year minimum sentence for torture, is one such measure. At last some prosecutions under that Act have started, though no one has been convicted under it yet. The implementation of the 17th Amendment is yet another very important measure to achieve the same objective. The appointment of the National Police Commission (NPC) has paved the way to have an authority over the force police to deal with all matters relating to the police, including maintenance of discipline. One of the constitutional functions of the NPC is to lay down a complaint procedure to receive, investigate and redress complaints against the police.
The impact of all these measures can be lost if the proposed Bill becomes law. If that happens, crime will increase, as the most important aspect of decreasing crime is to break the police and criminal nexus. Without breaking this nexus, it is not possible to achieve the ostensible aim of the Bill, which is to eliminate serious crime. In fact, it can be seen that the Schedule of the Bill, which lists organized crimes, is entirely arbitrary and leaves out grave crimes involving a degree of organization only manageable by the state and police, such as causing of mass disappearances, torture, and other gross violations of rights.
AHRC calls upon everyone to work to prevent this Bill from becoming law. Silence on such laws in the past has led to so many disasters. This must not be allowed to happen again.
Asian Human Rights Commission – AHRC, Hong Kong
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Asian Human Rights Commission – AHRC
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