( January 29, 2013, Colombo, Sri Lanka Guardian) Human rights activists, political groups and the legal community have expressed apprehension regarding the bill passed in Parliament which would allow the police to detain suspects arrested without a warrant for up to 48 hours (from the current 24 hours) prior to producing her/him before a magistrate; greatly increasing the likelihood of torture and abuse of detainees taking place routinely at police stations.
This new law, known as the Code of Criminal Procedure (Special Provisions) Act stipulates that suspects arrested without a warrant could be detained for 48 hours in the case of 15 offences.
The significant increase in the time spent in police custody by a person arrested without a warrant cannot be justified on the grounds that the police need more time for investigations when abuse and death of persons in police custody are well documented.
With torture techniques seemingly being the foremost tool of ‘investigation’ used by the police to conduct criminal investigations in the place of forensics and other methodologies, suspects are systematically beaten until they confess; the 48 hour detention law can only aid in this type of “investigations”. In a recent press release, the Human Right Commission of Sri Lanka reported that the highest number of complaints received by the Commission related to police abuse and brutality.
Thus, unless the police are adequately trained in proper investigative methods and encourage to use those methods in keeping with accepted human rights standards, not only is the introduction of the 48 hour detention law unnecessary, but downright dangerous and a serious threat to personal liberty.
Originally, the law permitting the police to detain a person arrested without a warrant for 48 hours before producing her/him before a magistrate was introduced in 2005. However, the Act remained in operation only for two years till 2007. The justice minister was required to extend the period of operation again till 2009 on a gazette notification in keeping with the criteria laid down in the original law. It was not extended after the law lapsed in 2009. In 2011, the Ministry of Justice’s attempt to seek parliamentary approval for the extension of this law was unsuccessful as, at that time, the law had already lapsed.
In an application challenging the constitutionality of the above Bill, the Supreme Court decided that Clause 8 of the Bill that seeks to detain a person for 48 hours after being arrested without a warrant is inconsistent with Article 13(2) of the Constitution and therefore has to be approved in Parliament by a two-third majority.
According to Article 13(2) of the Constitution, every person held in custody, detained or otherwise deprived of personal liberty shall be brought before the judge.
Sri Lanka is bound to protect the rights including personal liberty guaranteed under the Universal Declaration of Human Rights (UDHR) and International Covenant on Civil & Political Rights (ICCPR). Both instruments state that no one shall be subjected to arbitrary arrest or detention and no one shall be deprived of his personal liberty except on such grounds and in accordance with such procedure as are established by law. The ICCPR further states that anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or be released.
Any attempt to justify such a legal provision by the claim that the police need more time
to conduct investigations can only fail when confronted with the glaring problems relating to police investigations which have clearly resulted in raising serious questions about the justice system. Extending the period of detention in police custody can hardly contribute to effective police investigations if the police are not given the basic training and the tools for carrying out credible investigations.
If the authorities are seriously committed to improving the criminal justice system of Sri Lanka, action must be initiated to ensure that the police conduct investigations in a lawful, fair, impartial and effective manner.
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