Kishali Pinto Jayawardene
Public distrust of this administration’s attacks on civil rights is best evidenced by the bizarre sequence of events that took place this month over the extension of the Criminal Procedure (Special Provisions Act. First enacted in 2005 (Act No 15 of 2005) and thereafter extended in 2007 (Act No 42 of 2007) up to 2009, this law caters to a special category of offences including murder, kidnapping and rape. Among other things, it allows for an extended period of detention of forty eight hours within which a suspect can be held in police custody as opposed to the ordinary twenty four hours.
Government’s lapses sought to be covered up
The rub was that, according to all reported accounts, the 2009 gazette providing for yet another extension of this law up to 2011 had not been placed before Parliament at that time. Consequently, when the law was sought to be routinely extended for a further period of two years in 2011, the opposition protested that the 2009 extension of the law had not been approved by Parliament. Therefore, there was no law, as such, to further extend in 2011. At last reading of relevant newspaper accounts, un-contradicted statements by relevant government spokesmen ranged from plainly puzzling explanations to the overtly ridiculous. At one stage, the public was informed that even without such a law, the police can still detain suspects for forty eight hours.
Then again, we were informed that Parliament need not be circumscribed by a time limit for granting approval. The 2007 law specifically states in Section 7(1) that it will be in operation for a period of two years commencing from the thirty first day of May 2007. It then goes on to stipulate that the Minister may extend the law for a further two years by gazette, provided that the extension was done within one month prior to the expiry of the law. In addition, the order published in the gazette had to be placed before Parliament for approval. Importantly, even the notification specifying the date of parliamentary approval had to be gazetted ((see sections 7(3 and 4)). All this had apparently not been done in 2009.
Now we are being told that even though Parliament had not approved this extension within the entirety of this two year period (two years from the end of May 2009), there is no impediment to Parliamentary approval being given in September 2011, even if, on the best of that argument, the two years had completely passed. However outrageous this may seem to the commonsensical mind, those wishing to defend this argument may point to Article 75 of the Constitution which expressly stipulates, inter alia, that Parliament shall have the power to make laws, including laws having retrospective effect. But the question is a larger one that is centred on how we wish to be governed. Is this, to put the matter in a nutshell, good governance?
Going to the core of how legislation is passed
Examining this tangle is important for reasons that go beyond mere nitpicking on parliamentary processes. On the contrary, this goes to the core of how legislation is passed in Sri Lanka today. It exemplifies our lamentable disregard for mandated legislative processes. We have seen more and more evidence of this in recent months. For example, the delay in gazetting controversial regulations under anti terrorism laws was sought to be explained by an airy pronouncement by the former Attorney General that a Presidential statement as sufficient. Ultimately the regulations were backdated when they were issued. This kind of reasoning disturbs the Rule of Law in a most fundamental sense.
It also raises unnecessary perturbation. To emphasize the point with which this column commenced, the recent uproar over the Criminal Procedure (Special Provisions) law is a good barometer of public mistrust of the government’s actions. This was, after all, a law that had been in place since 2005. Its extension should have been routine. However, the government’s attempt to extend this purported law soon after the replacement of the emergency regulations with equally obnoxious anti-terrorism regulations led to reasonable suspicion that this was yet another insidious attack on civil liberties. Speculative media reports and public opinion was pregnant with this apprehension. All this need not have been the case if some element of care and caution had been followed in the first instance. Where does responsibility lie for this sort of mishap or sheer carelessness? In other countries, ministry officers would have resigned from their posts if such serious lapses had been disclosed. In Sri Lanka, this is manifestly not the case.
We do not need a permanent law of this nature
At a different and more substantive level, talk that this Special Provisions law should be made permanent raises considerable disquiet. All our experiences through the decades have shown us that extending periods of police detention only aggravate abuse. As far back as in 1946, the Soertsz Commission pointed out that the practice of taking a suspect directly to a police station and keeping the suspect in extended detention without magisterial supervision was an encouragement to torture and CIDTP.
Even under the ordinary law, the requirement that suspects ought to be taken before a magistrate within twenty-four hours of arrest is almost uniformly disregarded. In Gerald Perera’s case for example, an innocent and hard working employee was kept in detention beyond the upper limit of twenty four hours at the Wattala police station and mercilessly assaulted during that time leading to renal failure, on the mistaken assumption that he was a common criminal in the area who bore the same name. In finding a violation of Article 13(2) rights, Sri Lanka’s Supreme Court warned with good reason that ”continued detention at police stations creates opportunities for ill treatment as well as false allegations of ill treatment.” (Sanjeewa, Attorney-at-Law, on behalf of Gerald Mervin Perera v. Suraweera, Officer-in-Charge, Police Station, Wattala and others  1 Sri LR 317).
Further, it is a basic principle of criminal law that the interrogating authority and the custodial authority should be separate. This is reflected in the ordinary law which states that throughout the period of remand, the suspect should be in the custody of the Superintendent of Prisons, not of the police. Thus “the law sees to it that custody of the suspect during the period (when the investigation is underway) is entrusted not to the police but to a ‘neutral’ official”, (R v Sugathapala (1967) 69 NLR 457 at 460). Our law also lacks other safeguards such as pre and post medical examination, monitoring of conditions of detention and hours of interrogation. It is not sufficient merely to stipulate access to a lawyer during the period of extended detention.
Making a law that provides for extended periods of police detention (even if in special cases) permanent will only entrench current patterns of abuse by custodial officers. It is certainly hoped that this option will not be resorted to. It is reported that the Justice Minister has assured that there will be an attempt to obtain agreement from party leaders as to the impugned extension of this temporary law. Perhaps such a compromise measure will be the best approach on the face of it.