A challenge to justice

Friday, 18 January 2013 00:15 - - {{hitsCtrl.values.hits}}

Three years after the end of the war, the Government will seek Parliamentary approval next week for a Bill that empowers the Police to hold suspects arrested without a warrant for certain offences, in detention for up to 48 hours, after a previous attempt to extend its validity failed.

It was reported that the Code of Criminal Procedure (Special Provisions) Bill was first enacted in 2007 and extended for two more years in 2009 by a Gazette notification, but without the mandatory Parliamentary approval.

When an attempt was made to extend its period of validity in 2011 for the third time, it failed, as Opposition members opposed it on the grounds that the proper procedure involved in extending the validity of the Bill was not followed. However, Justice Minister Rauff Hakeem has reintroduced the Bill, which will be taken up for debate on 22 January.

The Code of Criminal Procedure (Special Provisions) Act allows for persons arrested without a warrant to be detained up to 48 hours, and also allows the Attorney General to forward indictment directly to the High Court in special cases where murder, attempted murder, kidnapping, rape, and offences committed with the use of explosives or an offensive weapon or gun. If passed this time it will be permanent.

The move could be viewed as the Government, which made a hue and cry over the ending of Emergency, now preparing to dial back its stance on arbitrary arrest and detention as well as reducing due procedure for legal rights. As has been pointed out many times before, the danger of such regulation is that it can be randomly used by an extremely politicised system to subjugate civil rights.

The Government has defended the move by pointing out that at times the Police needs more time for investigations and that detention needs to be approved by an ASP or higher official as well as approved by a Magistrate Court to be applicable.

Even in a perfect system where the Police can operate independently, the legal power to hold a suspect up to 48 hours without a warrant would be frowned upon. But in a country where Police independence has been systematically eroded and custody deaths and torture reports are not uncommon, such a step would surely be an alarming development.

If a person is under suspicion for a crime, then the Police must investigate and based on evidence, obtain a warrant for the arrest. The suspect must then be allowed representation by a lawyer and the case presented before court. This is a time-honoured policy that is followed by democracies around the world. Allowing for arbitrary arrests without proof and due procedure would be undermining the entire justice system of a country and is unconscionable in a time of peace. It is also open to political victimisation.

Other countries manage to keep their streets clean without such harsh laws. Then why is it that Sri Lanka must repeatedly resort to such dangerous tools?

Overloaded courts, lack of transparency, delayed systems of justice, intense politicisation, prolonged investigation, and reduced access to legal representation are all pitfalls in Sri Lanka’s judicial system. As a country striving for development, the Government needs to understand the importance of a fair and transparent legal system as the foundation for sustained peace and growth, especially in the aftermath of the impeachment.