The liberty of people and combatting crime

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:

1.   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.
2.   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.
3.   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.
4.   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.
5.   Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

The right to liberty of the person, as enshrined in international human rights documents, does not provide complete freedom from arrest or detention. Deprivation of liberty is a legal form of State control over those under its jurisdiction. Instead, the right to liberty serves as a fundamental guarantee that any arrest or detention will not be arbitrary or unconstitutional. In general, any loss of liberty is only permissible if carried out in line with a procedure defined by domestic law. One of the main dimensions of the right to liberty is the right to be free from arbitrary arrest and detention.

The law governing the arrest and detention of suspects, as well as the search of premises, is governed by Chapter IV of the Code of Criminal Procedure Act No. 15 of 1979. Making an arrest, according to Section 23 (1) of the Code of Criminal Procedure Act, means that the Police officer should touch or confine the body of the suspect unless there is a submission to the custody by word or action, and detain means keeping the person in Police custody. Today, however, arrest and detention do not always imply confinement in a Police station; instead, stopping a person anywhere and interrogating him without any reasonable reason or ground may amount to an arbitrary arrest and detention, resulting in a violation of the Fundamental Right guaranteed by Article 13 (1) of the Constitution.

One of the rights provided by the Constitution is the right to be promptly notified of the reasons for arrest. It safeguards individuals’ privacy from certain forms of unreasonable inferences made by law enforcement agents. Nonetheless, it does not give a general/unlimited constitutional right to privacy for persons, causing the basic aims of criminal justice to be obstructed. The Code of Criminal Procedure Act has provisions to defend the aforementioned privilege. Hence, Section 23 (1) requires that the individual subjected to arrest be notified of the reasons for his or her arrest.

The phrasing in Section 23 (2) ‘…reasonably and necessary to affect the arrest…’ is very subjective to the circumstances. It protects against legitimately abusing and exceeding the assigned power. However, according to Section 28, the apprehended individual may not be put under more constraint than is required to prevent his escape. Section 23 (3) further states that anything in this section shall not give a right to cause the death of a person who is not accused of an offense punishable by death. However, the relevant authorities appear to have misused this clause, resulting in several suspects dying while in Police custody.

Another right provided by the Sri Lankan Constitution is the right to be brought before a competent court as soon as possible. The Criminal Procedure Code has various regulations requiring the suspect to be produced without delay. A person apprehended on suspicion of any crime shall not be imprisoned for longer than 24 hours, according to Section 37 of the Criminal Procedure Code. However, according to Section 115 of the Code, if there is a need for further investigation, the Magistrate may prolong the detention time for 15 days, taking into account the request submitted by the Police officers. With the amendment to the Criminal Procedure Code in 2013, the initial detention time, 24 hours was increased to 48 hours in the event of cognisable offences.

Article 11 of the Sri Lankan Constitution stipulates that no one should be tortured or subjected to cruel, inhumane, or humiliating treatment or punishment. These Articles might be read to suggest that law enforcement agencies cannot employ any physical or psychological force, against the suspect/accused in order to persuade them to confess or provide information about the specific crime. The rights protected by the aforementioned articles are closely connected to Police functions such as eliciting statements (interrogation) from suspects/accused in a criminal issue.

As a result, an arrest must be made in accordance with the law and the constitution. If an arrest is performed without such authority, the person arrested has the right to act in self-defence. However, Article 92 of the Penal Code of Sri Lanka provides that if a person in uniform acts in good faith against another person, the other person does not have the right to private defence. Then, under Section 52 of the Penal Code, what is meant by “good faith” is defined. It is to behave with caution and consideration.

Furthermore, to effect a lawful arrest, the officer arresting a person must identify himself as well as his official authority. When there is no emergency, the Police officer must be in uniform to convey the identification of his official authority to the person being detained. If there is urgency, the officer may arrest the individual without being in uniform. In such cases, to minimise needless opposition, at least one officer among the arresting officers may be dressed in uniform in order to recognise the authority to arrest.

Another critical issue to address is whether an arrest should be undertaken with or without a warrant. Arresting someone without a warrant for a non-cognisable offence is against the law, however, there are several exceptions.

1.   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.
2.   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.
3.   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

According to Section 32 (1) of the Criminal Procedure, a Police officer may arrest any person who, in his presence, commits any breach of the peace, has been involved in any cognisable offence, or against whom a reasonable complaint has been made, credible information has been received, or a reasonable suspicion exists of his having been so involved, without a warrant or an order from a Magistrate. It further contains seven more grounds for a Police officer to conduct an arrest without a warrant or an order.

The power and authority vested in a Police officer under the aforesaid provisions of law was dealt with by the Supreme Court in many cases where there were complaints that by misusing such power the Police violated the Fundamental Rights of people. One such case was searching Anura Bandaranaike’s house without a search warrant by Police, during the time he was a parliamentarian of the United National Party (UNP) and his own sister was the Executive President of the country.

The reason for carrying out a search of his residence at Rosmead Place within the High Security Zone, as stated by Police, was that the respondent Police officers had “reasons to believe” that Bandaranaike was keeping another parliamentarian who was a murder suspect. Police officers in defence relied heavily on the provisions contained in Section 125 of the Evidence Ordinance which states that a Police officer shall not be compelled to say where he got the information as to the commission of any offence.

The Supreme Court declared that Bandaranaike’s Fundamental Rights had been violated by Police having searched his residence without a warrant from courts when there was no credible information of a commission of a crime by Bandaranaike, and emphasised that the privilege afforded under Section 125 of the Evidence Ordinance should not be exercised in an errant manner. The Supreme Court in the judgement specifically referred to the background of Bandaranaike stating that it is done not to accord any special privilege to him before law but to demonstrate how the Fundamental Rights of even a person of such standing are liable to be violated by errant executive and administrative action.

In another case Chilaw Police arrested six couples spending the night in a guest house and produced before the Magistrate on charges under the Brothels Ordinance. The Magistrate almost mechanically made order to remand them as the Police requested them to be remanded. One such person challenged the arrest in a Fundamental Rights Application before the Supreme Court.

Justice Dr. Shirani Bandaranayake, directing the State and the respondent Police officers to pay compensation to the petitioner for having violated his Fundamental Rights, stated that there was no evidence of commission of any crime under the Brothels Ordinance as under Brothels Ordinance, there should have been evidence that the petitioner had either managed or assisted in the management of the brothel. Justice Bandaranayake in the judgement expressed her concern over Magistrates issuing orders of remand mechanically, simply because the Police want such orders made. Justice Dr. Bandaranayake specifically stated in the judgement that ‘remanding a person is a judicial act and as such a Magistrate should bring his judicial mind to bear on that matter before depriving a person of his liberty’.

As per Section 35, any private person may arrest any person who commits a cognisable offence in his presence, or who has been proclaimed as an offender, or who is fleeing and whom he reasonably suspects of having committed a cognisable offence and shall hand over the person so arrested to the nearest peace officer or, in the absence of a peace officer, to the nearest Police station, without undue delay. A peace officer may re-arrest such a person if there are grounds to suspect that he is subject to the requirements of Section 32.

Moreover, Section 42 of the Criminal Procedure Code states that if a person in lawful custody escapes or is rescued, the person from whose custody he escaped or was rescued may immediately pursue and arrest him in any place, either within or outside the jurisdiction where he was so in custody, and deal with such person as he might have done on the original taking. Also, a Police officer can access space without a warrant, if to avoid the person being arrested an opportunity to escape. As per Section 25 of the Criminal Procedure Code, if ingress to such place cannot be obtained under Section 24 it shall be lawful in any case for a person acting under a warrant, or in any case in which a warrant may issue but cannot be obtained without affording the person to be arrested an opportunity to escape, for a peace officer to enter such place and search therein, and in order to effect an entrance into such place.

While making an arrest, Police personnel have the authority under Section 27 of the Criminal Procedure Code to break open any doors and windows for the purpose of liberation. Any person authorised to make an arrest may smash through any exterior or inner door or window of any location to free himself or any other person who has legitimately entered for the purpose of making an arrest and is being detained there.

At this juncture, it is crucial to highlight that in the case of preventive custody, the provisions of the Code of Criminal Procedure Act do not apply. Preventive detention occurs when a person is detained because they pose a threat to the State. Section 5 of the Public Security Ordinance No 25 of 1947 empowers the President to impose restrictions required to safeguard public security when a State declares an Emergency under Section 2 of the same law. Section 5 (2) (a) indicates that regulations issued under Section 5 (2) may allow someone to be detained for preventative reasons. As a result, in such cases, anyone might be held for preventative purposes.

Emergency Regulation No. 17 of the Public Security Ordinance provides for the lawful detention of a person on the order of the Secretary of Defence in order to prevent him from behaving in any way detrimental to national security or the preservation of public order.

In addition to the Emergency Regulations, the Prevention of Terrorism Act No. 48 of 1979 acknowledges the legality of a person’s preventative detention. If a person commits any of the offences listed in Section 2 of the Act, or if the Minister of Defence in the nation has grounds to fear or suspect that any person is involved in any unlawful activities under this Act, the minister may have that person detained.

However, a logical issue arises as to whether this form of unrestricted legislation can be established by the Legislature because such laws themselves constitute violations of people’s rights recognised under the rule of law.

In conclusion, there is no doubt that arresting, detaining, and questioning a person without any legitimate cause or justification is an arbitrary arrest and detainment that violates the basic human right provided by Article 13 (1) of the Constitution by way of a Fundamental Right of a person. In such an arrest or detainment which is not lawful, a person may within one month, file a complaint with the Chief Justice or file a Fundamental Rights petition in the Supreme Court. If a complaint is submitted within one month after a violation of a Fundamental Right to the Chief Justice, a Supreme Court Judge, or the Human Rights Commission, a Fundamental Rights petition can be filed with the Supreme Court even after one month has passed.

The person who has been wronged can seek the assistance of the Legal Aid Commission if he or she is unable to seek legal advice owing to financial constraints. However, it is important to note that a mere complaint to the Supreme Court is sufficient to initiate proceedings against such a violation of Fundamental Rights.

Accordingly, it is evident that there are still a significant number of actions that can be taken against an unlawful arrest or detention of an aggrieved party. However, in order to protect the victims, it will be necessary to further enact new laws and tighten existing ones. Most importantly, it will allow the law to find solutions to a problem that arises from the abuse of the law itself!

(The writer is a President’s Counsel)