An unpleasant reality of the conflict that has prevailed in this country for decades is that suspects are presumed guilty virtually before they are tried for any offence.
Some may still profess amazement at this summary dismissal of a time honoured principle of English Evidentiary Law that had been held sacrosanct by Sri Lanka's judges during saner times. Familiarly, as way back as in 1936, the Court noted that 'the presumption of innocence renders it necessary for the prosecution to establish all the elements which constitute the offence before the accused need make any endeavour to bring himself within the exception relied on' (Nair vs Saundias (1936) 37 NLR 439).
Presumption overridden by emergency laws
It was also a fundamental part of this presumption that confessions given to police officers should not be admitted under any circumstances given the very high probability that such statements are induced or threatened by torture and other physical or indeed, mental stress. This prohibition, as stipulated in our ordinary law, was so great that confessions given even where a police officer was present in the vicinity were shut out. Yet, however strict the law may have been in these years, now the effect of this has been rendered as naught. In the 1978 Constitution itself, the presumption of innocence though laid down in Article 13 (5), is expressly stated, (by virtue of Article 15(1)), subordinated to emergency laws.
For years, emergency regulations under the Public Security Ordinance (PSO) No 25 of 1947 (as amended) have allowed the admissibility of confessions given to police officers above the rank of an Assistant Superintendent. To make matters worse, the burden of proving that the confession was made under threat is, by virtue of Section 16 of the Prevention of Terrorism Act (Temporary Provisions) Act No 48 of 1979 (as amended) (PTA), laid on the accused.
Unfair burden laid on a suspect
The combined effect of these provisions on the presumption of innocence of any suspect, beggars imagination. We are to imagine therefore that a suspect who is arrested by the government's law enforcement agencies and kept for months in largely incommunicado custody with only occasional and all too brief appearances before judicial officers (who are, in any event, not very interested in the question of whether they have been tortured or not), are expected to prove that the confessions given by them was made under threat?
Though the law provides for the Court to hold an inquiry into whether a confession was voluntary or not, does the context allow for such a question to be determined fairly and equitably?
In one individual communication submitted against Sri Lanka under the Optional Protocol procedure to the ICCPR by a suspect who alleged that he had been tortured and his confession extracted from him, the UN Human Rights Committee pointed out that 'Even if, as argued by the State party, the threshold of proof is "placed very low" and "a mere possibility of involuntariness" would suffice to sway the court in favour of the accused, it remains that the burden was on the author.' (see Nallaratnam Sinharasa v Sri Lanka, CCPR/C/81/D/1033/2001, adoption of views, 21-07-2004).
The Committee was sceptical of the willingness of the courts at all stages to dismiss the complaints of torture and ill-treatment on the basis of the inconclusiveness of the medical certificate, specially one obtained over a year after the interrogation and ensuing confession. Then again, the courts' inference that the author's allegations lacked credibility by virtue of his failing to complain of ill-treatment before its Magistrate was found by the Committee to be manifestly unsustainable in the light of his expected return to police detention.
The Committee concluded that the State party had violated the Covenant and called for an amendment of Section 16(1) of the PTA. However, the only response by the government has been, (in view of the GSP Plus issue), to enact the International Covenant on Civil and Political Rights Act No 56 of 2007 (the 'ICCPR Act'). Section 4(1)(f) of this Act reproduces the prohibition set out in the Covenant's Article 14(3)(g) relating to the accused not being compelled to testify against himself or to confess guilt.' Yet this provision too is rendered of no effect when set against the emergency laws. Section 4(1)(f) of the 'ICCPR Act' is therefore just another nugatory provision in yet another bad law.
Does the context allow a fair determining as to whether a confession is voluntary?
In the Sinharasa case, (as in very many others), the two main issues which weighed the scales against the accused in respect of his pea that the confession was extracted from him by torture were firstly, the inconclusive nature of the medical certificate and secondly, the fact that he had not complained to the Magistrate when brought before him. However, numerous cases documented in the Supreme Court itself have involved the direct collusion of medical officers with torture perpetrators. Indeed, the Sri Lanka Medical Council itself has taken action in respect of these complaints. In these circumstances, what credibility could be attached to a medical certificate when the entire weight of the State's might is levelled against an individual? Then again, if we go to the second issue about the magisterial inquiry, hereto there have been several cases where the magistrate himself or herself has been pulled up by the Supreme Court for failing to diligently inquire into the well being of a clearly tortured suspect who is brought before the bench. In this context therefore, using these two factors to determine that a suspect's confession is voluntary, (almost always the common practice in cases of this nature), are cast in doubt.
Inevitable violations of justice
This prevalent practice of arbitrarily detaining suspects, keeping them incommunicado with the intent of inducing confessions and bringing them to trial in circumstances that make a guilty verdict almost inevitable, amount to violations of justice in regard to which our consciences should be outraged. While it is to be conceded that the State faces constraints in fighting terrorism, making use of bad laws for this purpose achieves nothing but tremendous collective anger. The United States found this out to the cost of its administration's downfall recently. Unfortunately it appears however that Sri Lanka will never learn. |
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