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Proposed amendments to the Code of Criminal Procedure: Out of sight, out of mind

By Ambika Satkunanathan

On 8 October 2021, the Government gazetted the Code of Criminal Procedure (Amendment) Bill. This introduced a new section – Section 144A – which allows the magistrate to dispense with in-person attendance in court of a person in custody for specified reasons. The reasons for which personal attendance can be dispensed with include instances of threats to the person’s life and health-related reasons. It also includes other reasons, which will erode the constitutional rights of Sri Lankans to liberty and protection from torture, such as if:

  • The public reaction to the alleged offence “is likely to give rise to breach of peace”
  • There is likelihood the person will obstruct proceedings

The application for personal attendance to be dispensed with can be made by the Attorney General (AG), the Officer-in-Charge (OIC) of the relevant police station, or the superintendent of the prison where the person is held.

Making state violence the permanent normal

Custodial violence at police stations and prisons in Sri Lanka is systemic and normalised. Since January 2020 to date, there have been 49 cases of police violence in which individuals were victims, and five incidents of group violence. Ten cases of deaths in police custody and five in prison custody. Thirteen deaths in prison custody as a result of riots, which led to 123 persons being injured, and three cases of torture in prison.

The systemic nature of custodial violence in Sri Lanka is not a secret, as it has been documented in decisions of the Supreme Court of Sri Lanka and reports and recommendations of the Human Rights Commission of Sri Lanka (HRCSL). Arbitrary arrests are also quite common. The manner in which arrests are conducted, as described by the Supreme Court in Channa Pieris vs. Attorney General, is the perfect illustration of the blatant disregard for due process which has been normalised. The court found persons “were not arrested under a procedure established by law; they were arrested on grounds of vague suspicion, in circumstances that showed a reckless disregard for their right to personal liberty, so that their right to be brought before a judge was particularly urgent”.

In this context, when protections against torture should be strengthened, the proposed amendments serve to weaken existing protections and provide yet another means through which the Police and prison authorities will be able to conceal custodial violence.

For instance, the grounds on which the magistrate is empowered to dispense with in-person attendance are broad and predictive, i.e. the request made by the Police, prisons, or the AG is based on what they think could happen, which is deemed adequate justification to deprive a person of constitutionally guaranteed protections. Moreover, the proposed amendment does not set out objective criteria on which the magistrate has to base the decision, which means a decision on what might indicate a person will “disrupt proceedings” could be shaped by subjective understandings of the context and personal prejudices.

The proposed amendment includes certain provisions the Government will likely point to as checks to ensure there is no custodial violence, such as requiring the magistrate to visit the person within 48 hours, within “calling the case”. However, the provision does not explicitly require the magistrate to visit every time the case is called. Given there are hundreds of cases called daily in a magistrate’s court, is it likely that a magistrate would visit within 48 hours every time the case is called, particularly if there are many persons who have been deprived of their right to be produced in-person in court?

Furthermore, the Bill does not mention the maximum period in-person appearance can be dispensed with on such grounds. Therefore, if in-person attendance is dispensed with for weeks or even months, the person is likely to lose the protection of judicial supervision, which is worsened by the lack of a specified remedy if the magistrate fails to undertake the visit.

The infallibility of the criminal justice system: A myth

The inadequate nature of existing protections is illustrated by Supreme Court decisions which highlight the vulnerabilities detained persons face, even when magisterial oversight exists.

The Police play a critical role in the erosion of existing safeguards by using surreptitious means to avoid producing the person in court. One of the common methods used is producing the person at the home of the magistrate, as described in Withanachchi vs. Cyril Herath and Others. In this case, the court deplored the practice of “producing” suspects at judges’ residences, which it pointed out was a “common” practice used by police officers “to prevent lawyers from representing a party…and to prevent any application on behalf of a suspect being made”.

In Ekanayake vs. Herath Banda, the court found that, “while the petitioner was outside the residence, the magistrate came up to the vehicle” to see her, which the court found to be violative of her right to be brought before a judge enshrined in Article 13 (2) of the Constitution. The court further stated that, “production does not mean being shown or exhibited to a judicial officer, nor does it connote mere physical proximity: ‘Production’ requires at least an opportunity for communication, and this has been denied to the petitioner. She was thus denied the opportunity to make a prompt complaint of her arrest on 11 September 1989, the failure to inform her of the reason for arrest, and the torture inflicted on her on 13 September 1989”.

The grave harm that can be caused to detained persons by unquestioningly assuming the infallibility of judicial oversight of detention is demonstrated in Kodituwakkuge Nihal, Police Sergeant Kotalawala, and Others where the Supreme Court said: “The last part of the Magistrate’s order of remand made on 6 March 1994 and his entry made on the top margin of the warrant of detention, make it clear that when he made that remand order, the petitioner was not present before him physically; otherwise they carry no meaning and are unnecessary. We are unable to find any provision of law granting sanction for a magistrate to make such a remand order which is capable of so insidiously eroding the liberty of the subject. The seriousness of this matter compels us to direct the Registrar of this Court to bring it to the notice of the Chairman of the Judicial Service Commission for such action he deems appropriate.”

The inadequacy of existing judicial oversight of detention is further demonstrated by the experience of persons in remand custody under the Prevention of Terrorism Act (PTA) who were taken out of the prison at which they were held to other locations, both authorised and unauthorised places of detention, for interrogation by arresting authorities, such as the Terrorism Investigation Division (TID) and Criminal Investigation Division (CID). This is enabled by Section 7(3) of PTA which allows a police officer conducting an investigation under the PTA to have right of access to the person and the right to take the person “during reasonable hours to any place for the purpose of interrogation and from place to place for the purposes of investigation”.

The maximum period for which a person can be detained once s/he is taken out of remand is not specified in Section 7(3). Despite a person being taken out of prison custody only after obtaining an order from the magistrate court, persons taken in this manner have been subjected to horrific torture, as described in the testimonies below:

“After they remanded me, they took me back to their custody for 74 hours, with permission from the Magistrate Court. They tortured me so badly…after four days I was produced to the JMO (Judicial Medical Officer). Ten days after they took me from prison, they brought me back to (the) Kalutara Prison.

“The CID then again took me (for the second time) into their custody. They took me and my wife out (from remand) and obtained our confessional statements. They tortured me again when they took me into their custody (from remand). After four days, they took me to the JMO and brought me back to (the) Kalutara Prison on the same day. I had fresh wounds on my hands.”

As another person stated: “I was remanded in CRP (Colombo Remand Prison) on XX/XX/2007. Then in 2009, (the) Harbour Police came and took me from remand. They kept me with them for a month and a half or two-and-a-half months. They put me in a cell. They beat me to tell the truth. They showed me a person and asked me whether I could identify him. When I said I didn’t know, they beat me again. Then they asked me to sign something. When I asked what it was, they said it was a document to be given to the prison, since I was brought from their custody, in order to return me, I had to sign it. So, I believed them and signed. Later, I learnt that it was a confessional statement. That’s how they added another case to me, with that confession.”

Torture was enabled by the fact the persons were not produced before the magistrate neither when the investigating authorities obtained the order nor before they returned the person to prison custody. The vulnerability of detained persons to be subject to torture is increased by the absence of a requirement to conduct a physical examination and record visible injuries, both before persons are taken out of prison custody and prior to being returned to prison custody. This practice also raises questions related to accountability, because, if a person who is taken out of prison for interrogation is brought back to the prison after having suffered severe torture and the impact of torture results in death in prison, the prison authorities would be liable, as the death has taken place in their custody.

Amending 60 laws: One step forward, how many steps back?

The Minister of Justice announced that as many as 60 laws need to be amended and “modernised” to be part of the “progressive law system he plans to implement in the future”. Yet, the proposed amendment to the Code of Criminal Procedure erodes critical constitutionally guaranteed rights.

Although the Bill requires arrangements to be made for such persons to make representation and observe proceedings via audio-visual means, this does not address the loss of protection from torture, because if the person is able to speak with the judge only from within a place of detention, then the person will not be able to freely and without fear make any complaints of torture to the judge.

The importance of producing a person before a magistrate has been consistently reiterated by the Supreme Court, as in Channa Peiris vs. Attorney General and Others, where it stated that the “right to be produced before a judge will be beneficial to the person arrested and conducive to a person seeking his liberty, only if the ‘production’ is real and not technical, as, for instance, when the person is kept in a motor vehicle outside the judge’s house while the police officer alone meets the judge and obtains his order”.

If a person is on trial, not being able to attend the trial in-person violates the person’s right to a fair trial. In this context, empowering magistrates to dispense with the requirement to produce a person in-person could potentially lead to a violation of the person’s right to liberty, protection from torture, and right to a fair trial.

Rather than make provision for not producing a person in court due to issues related to health and safety, which is already dealt with adequately in practice, the intent seems to be to avoid producing people like Hejaaz Hizbullah. This is because every time these persons are produced in court, their appearance receives media coverage and puts the spotlight on state action that led to their incarceration and the unjust nature of it. Particularly with the increased use of social media, court appearances have become a form of advocacy to remind the public of the plight of the detained and incarcerated persons, and demand justice, sometimes even leading to public protests, which will be used as justification not to produce persons in court.

In the case of Hejaaz, the failure to produce will elicit outrage given his profile. However, if persons from disadvantaged socioeconomic circumstances, who lack competent legal representation, are not produced in court, it will likely not even be known, thereby exacerbating their vulnerability to being subject to rights violations.

The proposed amendments seek to make everyone forget the detained and incarcerated exist.

Out of sight, out of mind.

(The writer is a human rights lawyer and former Commissioner of the Human Rights Commission of Sri Lanka [HRCSL])