• Aggrieved parties cite violation of Drug Dependant Persons (Treatment & Rehab) Law/presumption of innocence/grounds for arrest, cops acting ultra vires in regard to Judiciary’s powers 
• HRCSL concerned with Yukthiya’s incongruity with justice, tells Prez/Alles to reform law enforcement institutions, probes reports of cruel, inhuman, degrading treatment of youth during searches  

A group going by the name “The People Aggrieved by the Yukthiya (Justice) Operation” comprising people who have been affected by the ongoing islandwide anti-drug and -organised crime operation Yukthiya, yesterday (8) sought the Human Rights Commission of Sri Lanka’s (HRCSL) intervention in the form of a set of guidelines for the Police in order to prevent the illegal and unethical acts said to be taking place under the said operation.

Noting that the Yukthiya operation should not be allowed to abuse the law and undermine the rule of law, which the group said would result in serious risks to the people’s safety, they stressed that the HRCSL should immediately intervene to address these concerns, thereby protecting the fundamental rights (FR) of citizens. Their letter addressed to the HRCSL read: “Acting in a manner that violates the basic principles of the Constitution and of the criminal law is an unfortunate situation, and is a serious undermining of the rule of law. Therefore, we request the HRCSL to issue the Police with the necessary recommendations and guidelines to conduct the said operation in a manner that is democratic and just and protects the existing law and citizens’ FR, as per the powers vested in the HRCSL.”

In this regard, the Committee for the Protecting the Rights of Prisoners (one organisation that is a part of the said group) Chairman, attorney Senaka Perera, told The Daily Morning: “The idea of the Yukthiya operation is good. We also believe that crimes and drug rackets should be combatted. However, this operation should be taken to the right track. It should be conducted in a lawful manner. There is a Constitution, a Code of Criminal Procedure and also a Police Ordinance. If these laws are not adhered to, that poses a threat to the people’s lives and rights.”

He further said that the group’s demands are based on a number of instances of human rights violations that have taken place during the Yukthiya operation. Among them are the Police in many cases not acting in accordance with the Drug Dependant Persons (Treatment and Rehabilitation) Act, No. 54 of 2007 when referring persons for rehabilitation, many arrestees being labelled as offenders by the media despite the constitutionally recognised “presumption of innocence” principle, the issuance of statements that imply that arrestees’ properties have been confiscated without having sought court proceedings regarding such properties, demolishing buildings without having obtained the necessary court orders, and having previous cases and being out on bail being considered as criteria for arrest. What is more, Perera expressed concerns about the Police taking decisions about matters that should ideally be evaluated by the Judiciary, which he said sometimes seem to go beyond the Police’s powers. With regard to sending those addicted to drugs for rehabilitation too, Perera pointed out that the Police seem to be taking decisions at their own discretion, thereby disregarding legal provisions that require the intervention of a medical professional when dealing with an addict.

Meanwhile, in a communiqué issued in this regard yesterday, the HRCSL expressed its concern with respect to the “Yukthiya (Justice)” anti-drug and anti-organised crime operation implemented by the Police and the Ministry of Public Security. 

The Commission called upon the President and Defence Minister Ranil Wickremesinghe, the Minister of Public Security Tiran Alles, and the Government to pay more attention to the current approach to law enforcement and instead focus on meaningfully reforming the law enforcement institutions to enable them to ensure public security while maintaining the rule of law and respecting the people’s FR. 

The Ministry is reported to have announced that over 20,000 suspects have been arrested under the operation in just two weeks, i.e., 17-31 December 2023. 

“Preventing organised crime and the trafficking of dangerous narcotics is an important objective. However, the Commission has received a number of complaints concerning torture, cruel, inhuman or degrading treatment, and arbitrary arrests and detention associated with the operation. The operation has accordingly become associated with reports of widespread injustice, making its title a misnomer,” the Commission noted.

The Commission reiterates that every person has a FR to be free from torture, or cruel, inhuman, or degrading treatment or punishment under Article 11 of the Constitution. This right is absolute and inalienable and may not be restricted under any circumstances. 

“Police officers responsible for investigating crimes and apprehending suspects must, at all times, respect this right, which requires that suspects be treated with dignity. The Commission is disturbed to learn of reports of cruel, inhuman, or the degrading treatment of persons, including young persons, during search operations conducted by the Police. The Commission is accordingly taking steps to inquire into such reports. These reports are particularly egregious”.

The Commission has received over 200 complaints of torture in 2023 alone. Additionally, perpetrators of torture continue to hold office despite recent pronouncements by the Supreme Court (SC) finding them responsible for torture and ordering them to pay compensation to victims. On 21 December 2023, the Commission wrote to the Attorney General (AG), encouraging the prosecution of these officers. In his response to the Commission dated 28 December 2023, the AG assured the Commission that necessary steps have been taken by the AG’s Department where the SC has directed steps to be taken with respect to persons responsible for acts of torture.

The Commission further emphasises that every person’s right to life is implicitly recognised by Article 13(4) of the Constitution. This right extends to all persons, regardless of their status as criminal suspects or accused in criminal proceedings. 

“However, the phenomenon of custodial and encounter deaths involving the Police continues to be a serious challenge. During the first six months of 2023, the Commission received complaints with regard to six custodial deaths and two encounter deaths involving the Police. Once again, the SC has made important pronouncements on the responsibility of Police officers for the death of persons in custody. For example, in Fathima Sharmila vs. Officer-in-Charge, Police Station, Slave Island and Others, (SC FR 398/2008), the SC found that several Police officers attached to the Slave Island Police Station were responsible for the death of the petitioner’s spouse and ordered these officers to pay compensation to the petitioner. The Commission recently encouraged the AG to consider the prosecution of these officers. On 11 December, 2023, the Commission launched a draft set of General Guidelines and Recommendations to the Police on Preventing Custodial and Encounter Deaths. Yet, days after the launch of the draft Guidelines and Recommendations, the Commission was disturbed to learn of a reported statement by the Minister of Public Security that ‘maximum force’ would be used against drug traffickers, insinuating that such suspects may be extra-judicially executed during Police shootouts”.

The Commission also reiterates that Articles 13(1), 13(2), 13(3) and 13(5) of the Constitution guarantee to every person the freedom from arbitrary arrest and detention, the right not to be deprived of liberty except on the order of a judge, the right to a fair trial, and the right to be presumed innocent until proven guilty, respectively. 

“These FRs form the bedrock of Sri Lanka’s criminal justice system. The overzealous arrest and detention of persons, the seizure and destruction of private property, and the forced search of persons and premises under the guise of combating drug trafficking and organised crime risk the systematic infringement of these FR across the country”. 

“Additionally, there are reports that media personnel are accompanying the Police during searches of private homes and the arrest of suspects, and that video footage of such operations is aired on national media channels. The Commission observes that such action amounts to a serious violation of the right to privacy, and reiterates its advice sent to the then Inspector General of Police (IGP) on the same matter. It recalls that the then IGP issued Circular Number RTM-382 referring to the Commission’s advice and prohibiting the unauthorised dissemination of images and footage concerning the arrest of suspects via the media. The Commission also notes that such violations of privacy may give rise to delictual action against the relevant media institutions as envisaged by the SC in its advisory opinion in SC Reference 01/2008”.

The Commission recalls its recent study on the prison system in Sri Lanka, and its recommendations with respect to addressing the problem of overcrowding in prisons. The spate of arrests and detentions under the said “Yukthiya” operation will no doubt exacerbate this problem. It also stands to undermine progressive reforms currently being contemplated by the Ministry of Justice to introduce alternatives to remand.

The Commission notes that the continued implementation of the ‘Yukthiya’ operation with the professed object of advancing “justice” remains incongruous, given the systemic failure of law enforcement authorities in Sri Lanka to uphold justice and to respect the FR of the people. The primary challenge in terms of justice in Sri Lanka today is its culture of impunity, exemplified by the lack of accountability of law enforcement officers for torture, custodial and encounter deaths, and arbitrary arrests and detention, despite the findings of responsibility by the country’s apex Court.