By Jagath Wickramanayake
Crime has been an unsolved problem since the dawn of human civilisation. There isn’t a single civilisation that isn’t grappling with the issue of crime, and hardly anyone can avoid it in their daily lives. Sri Lanka is not immune to this phenomenon.
To ensure the protection of the people and peaceful society, Police, courts, correctional institutions, and other State institutions are responsible for apprehending, adjudicating, and correcting wrongdoers, within the limits of their power. This might be accomplished by expanding their powers to reduce the number of crime commissions, protecting and preserving the rights of parties in criminal cases by ensuring fair and timely resolution and improving the process of offender and victim rehabilitation and reintegration into society. However, whether the primary agencies of Sri Lanka’s criminal justice system follow the principles of the rule of law in carrying out their duties in order to achieve the aforementioned aims remains a cause of concern.
In the event of a crime, the Police are the primary agency involved in the criminal justice process, with the function of first arresting and detaining the suspect, interrogating relevant people during the investigative process, searching the premises, and finally assisting the court by leading the evidence in the trial. In this process, on one hand, the Police need the freedom to enforce the law as they see fit, while on the other hand, the constitutionally protected rights of citizens should not be violated when they use their power.
Article 13 of the Constitution guarantees the ‘citizen’ certain important Fundamental Rights, including freedom from arbitrary arrest, detention, and punishment, as well as the prohibition of retroactive penal legislation. Article 13 (5) states that everyone is presumed innocent until proven guilty, and it also states that the burden of proving specific facts may be placed on an accused person by law. Article 11 states that no one shall be tortured or subjected to cruel, inhumane, or degrading treatment or punishment.
Police officers serve as the criminal justice system’s gatekeepers. They use their arrest power to initiate the legal process. In general, a person is said to be detained when a State official restricts his or her liberty, including cases where the person reasonably believes that he or she is not free to come and go as they please. The right to personal liberty is one of the most fundamental human rights protected by any civil society because it affects the most important aspects of a person’s physical freedom.
The right to liberty can be traced back to the English Magna Carta (1215) and the Declaration of the Rights of Man and Citizen of the United States (1789). Despite the fact that the Magna Carta only guaranteed certain rights to a specific group of people, it required that any arrest or detention be lawful, and it protected the individual from the excesses of his or her ruler.
The International Covenant on Civil & Political Rights (ICCPR) Article 9 thus states:
- Everyone has the right to liberty and the security of a person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
- Anyone 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.
- Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and should occasion arise, for the execution of the judgement.
- Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, so that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
- Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
- According to Section 33 (1) of the Criminal Procedure Code, if a person commits a non-cognisable offence in the presence of a Police officer and refuses or offers a fake name and address, he can be detained without a warrant.
- As per Section 33 (2) of the Criminal Procedure Code when any person is accused of committing a non-cognisable offence and a peace officer has reason to believe that such person has no permanent residence in Sri Lanka and that he is about to leave Sri Lanka, he may be arrested by such peace officer and shall be taken forthwith to the nearest Magistrate who may either require him to execute a bond with or without a surety for his appearance before a Magistrate’s Court or may order him to be detained in custody until he can be tried.
- Where a person obstructs a peace officer while in the execution of his duty or who has escaped or attempts to escape from lawful custody; under Section 32 (1) (f) of the Criminal Procedure Code