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Equal access to justice
Where should it begin to ensure human rights?
By Jayakumar Thangavelu
We shall have to repent in this generation
Not so much for the evil deeds of the wicked people,
But for the appalling silence of the good people.

- Dr. Martin Luther King
I had the privilege of addressing about 100 Inspectors on “Investigation techniques to minimize violation of human rights” at a police training programme conducted by the United Nations Development Programme (UNDP) in early July this year .

When I asked these officers their opinion of human rights, especially the aspect of torture, their observations were:
That they had to resort to use of force to solve cases due to the following reasons:-

Sense of shame and loss of face if they fail to solve the case by recovering the weapon of the offence or the fruits of the crime, where there were several eyewitnesses testifying against the suspect.
Lack of resources - personnel/vehicles, equipment etc. to pursue investigations;
The period of custody of 24 hours being insufficient.
Pressure from superiors to solve the cases, with the implication that the consequences of non-compliance or failure to successfully complete investigations within the time limit would result in unfavourable reports to their personnel file or other strictures, which would adversely affect their career prospects.

After listening to their response, I posed the question whether they had ever carried out acts that could be classified as torture, or whether they had heard of torture being perpetrated on members of the privileged classes such as politicians, the rich and persons of high standing in society, notwithstanding accusations or evidence to believe that such persons had been concerned in murder, sometimes multiple murders, fraud involving millions of rupees, rape and other such serious crime;

whether force had been used on such persons to extort information or evidence relevant to the crime committed;
whether force, or physical intimidation had been used to obtain information on the weapons used for the murders or to trace the stolen/defrauded loot.
The answer was negative.

When I asked them whether I was incorrect in saying that in almost all the instances of torture in police custody, the victims were the poor, the destitute and the defenceless, they sheepishly admitted it was so.
The irony of the situation is that torture had been directed against the weakest sections of society – the sections that needed the highest protection from the state.

At the end of my address I shared with the participants my experience as a criminal investigator where I successfully investigated and obtained convictions, amongst other serious crimes, the convictions for crimes committed by the insurgents of the North East as well as the South, after obtaining valuable information from the suspects themselves and without threats or physical intimidation or abuse. I also explained to them the in-depth training we received in the Criminal Investigation Department on investigational techniques. They then identified lack of training on investigational skills as another key factor for perpetration of torture.

In my experience of 37 years in the Police Department, (of which more than 20 years had been as a CID investigator), I found that the principal cause for torture on suspects appears to be the absence of legal representation when a suspect is produced before a magistrate at the very first instance. It should be noted here that I do not emphasize access to legal representation whilst in police custody as there is no provision in the current law to entitle a suspect in police custody to have recourse to legal representation.

Although the criminal law is founded on the cardinal principle of “presumption of innocence” as enshrined in Article 13(5) of the Constitution, Article 13(3) provides that any person charged with an offence shall be entitled to be heard, in person, or by an attorney-at-law at a fair trial by a competent court. However Article 13(3) is silent on legal representation whilst in Police custody and this Article has been interpreted to mean that suspects are entitled to legal representation only in court.

However notwithstanding the above, since there is no express legal or departmental regulation that prohibits suspects being afforded the opportunity of legal representation whilst in police custody, the police are free to exercise their discretion selectively and subjectively, and without being faulted, as to which suspect could be given this privilege.

My past experience has shown that it is invariably the privileged class that is afforded such concession. More curiously many of the people falling into this category, even though they may have committed the most heinous crimes, enter private nursing homes before being taken into custody and remain there until the appropriate court grants them bail. Thereby they avoid the distress of even brief confinement in police cells or remand.

In contrast, in the case of the less privileged, not only is physical intimidation the norm during questioning, but especially where injuries have been inflicted on suspects during such investigations, the injured suspects are held incommunicado and produced before the magistrate, not in open court, but in the magistrate’s bungalow, after adjournment of court.

This is done because if suspects are produced in open court, the suspects have the opportunity to complain directly, or through a lawyer of the trauma and physical abuse they have been subjected to and the Magistrate could also note the injuries and call upon the police to explain. To ensure that there are no lawyers present when such suspects are produced at the bungalow of the magistrate, a macabre cat-and-mouse game is enacted where the suspect’s relations and lawyers are given misleading information as regards the time and the particular magistrate before whom the suspect is to be produced.

Moreover, when suspects are taken to the magistrates’ bungalows, the magistrates are understandably disinclined to have suspects, who are mostly with criminal background, to be brought into their private dwellings. The police use this opportunity to their advantage, and leaving the suspects in vehicles on the road, only take the reports before the magistrates and obtain the magisterial orders thereon. Thus the police avoid the magistrates noticing the injuries, or preclude the suspect complaining to the magistrate of any ill treatment.

Another reason why suspects do not complain to a magistrate, even in the rare instances where they are produced before one, is because after the magistrate orders remand, the suspect is handed back to the police to be taken to remand jail. Under these circumstances the suspects naturally entertain fears that they will be subjected to further harm of a graver nature, if a complaint of ill-treatment is lodged with the magistrate.

Producing of suspects in magistrates’ bungalows assumes graver concern when innocent persons, are remanded without being given an opportunity to be heard either in person or through a lawyer. The moment an innocent person, especially a youth, is unjustly incarcerated even for a single day, he loses all confidence in the legal and judicial system and develops hatred, contempt and bitterness towards the establishment in particular and society in general. This is one of the foremost reasons for youth to rebel and resort to anti-social behaviour.

A further controversial issue has been the production of suspects for examination before Medical Officers. In several instances where suspects have complained of torture, the police have held that the suspects were subjected to a medical examination before being remanded and that the medical examination revealed no injuries. The police contention has been refuted by the victims of torture, who have alleged that they were never produced before a doctor.

A case in point is when the Attorney General recently directed me to interview and re-record the statements of five doctors of whom, the doctor who first examined the victim reported not observing any injuries whereas the other four doctors, who examined the victim subsequently, found grievous injuries on the victim.

When the first doctor was questioned in minute detail he admitted that he could not say with certainty that the youth whom he examined was in fact the youth purported, by the police, to be the suspect taken into custody for the crime committed. This is because he, the doctor, did not ascertain the identity of the suspect he examined, by checking his identity card or by taking his fingerprints on the Medico-Legal Examination Form, for record and for future comparison, if a question as regards identity arose. The prevailing situation as regards misrepresentation of identity exists because there is no compelling requirement in the Medico-Legal Examination procedure to make it mandatory for a doctor to have a record of the identity of the examinees produced before him.

Suggestion to alleviate prevailing conditions
As discussed earlier there is no legal provision under Sri Lankan law to enforce legal representation at a police station though the facility is available in most developed countries.

Since the Sri Lanka Police lack the hi-tech resources and advanced technical skills available to their counterparts in the developed world, it would be a reasonable requirement for the Police to have exclusive custody of the suspect, for their initial investigation without the interference of lawyers for a maximum period of 24 hours, or 48 hours as the case may be according to the recent amendments to the Code of Criminal Procedure Act.

However, the thrust of my contention is that after the police complete their investigation and just before they produce the suspect before a magistrate, the suspect should be granted access to a lawyer, who could explain, to the magistrate, the suspect’s case (for example if the suspect has a irrefutable and obvious alibi) and/or the ill-treatment he had been subjected to.

Since magistrates are averse to suspects being brought into their residences it would be prudent to have an acting magistrate available in court after adjournment of court. I suggest that Colombo be identified for the pilot project where one acting magistrate could act, after adjournment of court, on behalf of all the magistrates in Colombo. This could be extended to other parts of the country improving on the shortcomings that may surface in the pilot project.
To ensure legal representation, it should be mandatory, that the police should be required to inform the relevant magistrate by fax, details of the suspect arrested and at least six hours prior to their production before such magistrate, the time they would be produced before the magistrate.

Arrangements must be effected to have such information exhibited at the relevant magistrate’s court. This would grant an opportunity for friends or relations of the suspect to retain a lawyer to interview and represent the suspect when the suspect is produced before the magistrate.

For the “Equal Access To Justice” project of the United Nations Development Programme and the Legal Aid Commission to be effective and meaningful, access to legal representation must be available when a suspect is produced in the very first instance, before a magistrate. The prevailing concept of providing free legal assistance to the needy, does not address the issue where, under the circumstances described above, the chances are greatest, especially in cases of torture, that grave injustice is caused the very first instance the suspect is produced before the magistrate, where the risk of remand of a totally innocent person is real and the probability of injuries going unnoticed is high.

The proponents of free legal assistance to the needy envisage a mechanism where contributions under this scheme would come in only when the suspect is charged in court. But by the time a suspect is produced in court, he has already been through the trauma and injustice perpetrated during the initial period of incarceration.

Once arraigned in court, the process reduces to a formality of the accused being found guilty or innocent. The infringement to a suspect’s human rights has already taken place before a suspect is charged in court. If the proposed “Equal Access to Justice” system provides for access to legal aid as described above, such a system would be an effective deterrent to human rights abuses.

Therefore the concept of Equal Access to Justice should necessarily begin at that very inception of the procedure – else it would be a matter of too little being done too late.

It would be prudent for legal aid lawyers to be available in the court of the acting magistrate after adjournment of court, to give legal assistance to the needy. Such presence will also facilitate the handing over of the suspects directly to the prison authorities, who should be required to be present at the acting magistrate’s court. This procedure will address the problem where suspects are handed back to the police, to be taken to remand prison.

As regards examination of a suspect by medical officers, the medical officers should be required to denote the Identity Card particulars, where available, of the suspects examined in the Medico-Legal Examination Form and the medical officer should be required to obtain, on the Medico-Legal Examination Form, the left thumb impression (or in the case of mutilation of left thumb, the right thumb or any other accepted physiological feature), which could be used at a later date to ascertain whether the suspect was in fact the person who had been originally produced for examination.

Apart from the above, the importance of training the Police in investigational skills is another key factor, which will contribute to the reduction of the chances of perpetration of torture in obtaining information from the suspects.
The examples and arguments presented above make it obvious, that if excesses by law enforcement officers are to be discouraged, the concept of Equal Access to Justice should necessarily begin from the first instance the suspect is produced before a magistrate, else such concept will have little or no effect in upholding the human rights of suspects taken into custody.

‘Information can be elicited without torture’
The writer joined the Police Department as a Probationary Sub Inspector in 1968 and was absorbed to the Criminal Investigation Department in 1972 where he served for more than 20 years and received his promotions up to the rank of Senior Superintendent of Police.

During his tenure in the CID he investigated all types of serious crimes both locally and internationally. Amongst the cases investigated, of significance were those committed by insurgents, not only from the North-East but also from the South. As regards the North-East insurgency cases, under investigation by the writer, a senior member of the group gave information as to where Rs. 3.1 million of the Rs. 8.1 million robbed from Neerveli Bank was buried. Subsequently at the trial, he specifically mentioned that of the officers, who conducted the investigations, the writer was one who conducted his investigations without assault or duress. In a separate case the writer apprehended three armed members of the North-East insurgent group, who were fleeing after a bank robbery in Chenkalady in 1977 and recovered the loot. At the ‘voire-dire’ inquiry the suspects did not complain of assault while they were in the custody of the writer. The suspects were found guilty and sentenced to five years rigorous imprisonment.

As regards the southern insurgency, a principal suspect, who confessed to the writer of murders, robberies and abductions and who was in police custody for more than two weeks in 1987, summoned the writer as a matter of urgency one evening. The suspect told the writer that though he had confessed to the writer about the many crimes committed, he had withheld a vital piece of information and that this had troubled his conscience.

The suspect then informed the writer of an impending attack on a military installation close to Colombo. The information given concerned an attack that took place the very next night, where the Kotelawala Defence Academy was attacked and nine soldiers killed and their weapons stolen. The same night, the Katunayake Air Force Base too was attacked. Two insurgents were killed in this incident.

In all the instances, the suspects gave the information on a voluntary basis. The writer would like to point out that he was also never subjected subsequently, by the organizations concerned, to any intimidation or threat arising from his investigations.

The writer wishes to place on record that the events described amply illustrate the point that, culpable and admissible information vital to the case can be elicited from suspects without the use of force.

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