Closing of Guantanamo bay – what does it mean for us?

| by Dr. Ruwantissa Abeyratne

( December 13, Montreal, Sri Lanka Guardian) As his first major executive exercise after taking the oath of office as the 44th President of the United States, Barack Obama signed executive orders on 20 January 2009 closing the prison at Guantanamo Bay, Cuba. Although this has not yet taken effect, it has been reported that the US Government is still pursuing the physical closure of the much-maligned U.S. prison in Guantanamo Bay to be executed as quickly as possible.

Picture from Global Security

One might well wonder how the United States came to occupy a part of Cuba. Cuba gained independence through the Treaty of Paris on 10 December 1898 and commenced as an independent nation on 1 January 1899, under United States occupation. The Military Governor, General John Brooke adopted an exclusionary policy, shutting out Cubans from administrative positions and government office and disbanding the Cuban army. However, the American military administration also developed Cuba and its infrastructure by building schools, roads and bridges and modernizing Havana, the Capital whilst at the same time expanding and deepening its harbour. The overall philosophy of the Americans was to eliminate Afro-Cubans from politics and incorporate the country into the United States economic, cultural and educational system.

Guantanamo Bay, which indents Southeast Cuba is one of the largest and best sheltered bays in the world. Its strategic importance, being in close proximity to the Windward passage between Cuba and Haiti that links the Caribbean sea and Panama to the Atlantic Ocean, was recognized by the Americans during the Spanish American war in 1898. Therefore, by a treaty, signed in 1903, a 45 square mile portion of land in the bay was taken over by the Americans who established a naval base which is now fortified militarily an includes a US airbase. It is primarily used as a US naval training base in the Caribbean and has been the subject of post revolution Cuba since 1959, which, under Fidel Castro has threatened to seize the base.

As an aftermath of he events of 11 September 2001, Guantanamo Bay has also been used as a detention centre of the United States. It is reported that the detainees currently held as of June 2008 have been classified by the United States as “enemy combatants”. The United States Supreme Court, in the landmark case of Hamdan v. Rumsfeld handed down its decision on 29 June 2006 - that detainees were entitled to the minimal protections listed under the Common Article 3 of the Geneva Conventions, which is the only article in the Treaty applicable to non international combatants.

Article 3 describes minimal protections which must be adhered to by all individuals within a signatory's territory during an armed conflict not of an international character (regardless of citizenship or lack thereof): It also provides that noncombatants, combatants who have laid down their arms, and combatants who are hors de combat (out of combat) due to wounds, detention, or any other cause shall in all circumstances be treated humanely, including prohibition of outrages upon personal dignity, in particular humiliating and degrading treatment. The Supreme Court also recognized the entitlement of the Guantanamo detainees to hearing by a regular constitutional court, together with the fact that it is only a decision of such a court that could apply to them. This condition is a part of Article 3.

It is reported that, as part of his decision President Obama announced on 21 January 2009 that he was suspending the existence and functioning all ongoing military tribunals and that the detention facility would be shut down within the year.

Journalists Karen Deyoung and Peter Finn of the Washington Post have reported that, since President Obama’s order, legal and national security officers, hitherto barred from visiting the camp, have discovered that information on individual prisoners was “scattered throughout the executive branch” and that the files are incomplete. .

If this report is accurate, the news is disturbing at best to democratic societies. Guantanamo Bay represents to us the fundamental probe into our conscience of the legality of arrest and detention of suspects who threaten the security of a nation. In our own context, we have several judicial pronouncements which lay down the law equitably and justly. In the Veeradas Case of 1985 Justice Fernando, considering Article 13(1) of the Constitution of Sri Lanka, which provides that no person shall be arrested except according to procedure established by law and that any person arrested shall be informed of the reason for his arrest,. held that if the circumstances gave rise to a reasonable suspicion that a cognizable offence was being committed, arrest of a suspect was justified.

In the same case, Justice Kulatunge, cited Section 35 of the Code of Criminal Procedure which provided that any private person may arrest any person who in his presence commits a cognizable offence or who has been proclaimed as an offender, or who is running away and whom he reasonably suspects of having committed a cognizable offence, and shall without unnecessary delay make over the person so arrested to the nearest peace officer or in the absence of a peace officer take such person to the nearest Police Station. Kulatunge J. further held that an arrest by a private person on the ground of the commission of a cognizable offence would be lawful only if the act which constitutes such offence is committed in the presence of such person. If, after a suspect who is so arrested is handed over to the Police, the assessment of the available evidence shows that there is no reason to believe that he has committed an offence he is entitled to be discharged. Kulatunge J. qualified the statement by observing that the subsequent discovery of the absence of evidence would not necessarily make the arrest by a private person unlawful for it were so, no private person would take the risk of arresting a person under Section 35.

Kulatunge J. derived further support for his views from Section 72 of the Penal Code which provides that nothing is an offence which is done by a person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be justified by law in doing it. He was therefore satisfied that notwithstanding the subsequent exoneration of the Petitioner by the Police leading to his discharge by the magistrate, the officials who arrested the suspect had acted in good faith in arresting the Petitioner and making him over to the Police.

Arrest cannot lawfully be made on vague general suspicion. In the 1988 case of Piyasiri v. Fernando, a case which decided on the legality of arrest by the Police of Customs officials (on suspicion of bribery while on duty), who were returning from duty at the Colombo International Airport, Soza J. held that Article 13(1) embodied a rule which has always been regarded as vital and fundamental for safeguarding the personal liberty in all legal systems where the Rule of Law prevailed. He cited the International Covenant on Civil and Political Rights (1966) which provides in Article 9(2) that any one who is arrested shall be informed at the time of arrest of the reasons for his arrest and shall be promptly informed of any charges against him.

Although the fundamental right guaranteeing freedom from arbitrary arrest and detention is sacrosanct, the issue has to be considered subjectively, as indeed legislation in Sri Lanka has envisaged by allowing the arrest of a person under circumstances wherein the person arrested could arouse reasonable suspicion in the mind of the person arresting him. In the Veeradas case, the Supreme Court evaluated the rights of the Petitioner under the prevailing situation in the country where Sri Lanka was under Emergency Regulations and applicable laws admitted of a wider discretion being vested in the Police in the matter of arrest and detention. In Joseph Perera v. Attorney General, a case which discussed the legality of arrest by the Police of persons having subversive literature in their possession at a public meeting of a revolutionary group, Justice Wanasundera held that the powers of a police officer under the Emergency Regulations are in addition to and not in derogation of his powers under ordinary law:

In the early case of Muttusamy v. Kannangara Justice Gratien held that whenever a police officer arrested a person on suspicion without a warrant he should inform the suspect of the nature of the charge upon which he was arrested. In a later case, Gratien J. reiterated his strong judicial view that a person must, as a general rule, tell another whom he is arresting, the reason for the arrest.

In a later decision, Justice H.N.G. Fernando C.J. observed that it is only if a person is informed of the ground for his arrest that he would be able to rebut the suspicion or to show that there is some mistake as to identity. Therefore, any person who arrests another without a warrant must be persuaded of the guilt of the accused or have reasonable grounds for suspecting the guilt of the person so arrested.

The foregoing precedent clearly establishes that there is a rich judicial tradition in Sri Lanka which justifies legal arrest and detention according to the law, while militating against arbitrary arrest and detention.

The author, has written this article in his personal capacity and views herein should not necessarily be attributed to any of his affiliations.