The spate of attacks on lawyers appearing in cases involving grave human rights violations in recent months appear to show no signs of abating. This week, a lawyer who was appearing on behalf of a torture victim who had died due to the grievous treatment that he was subjected to, was assaulted by a police officer attached to the Negombo police station. Death threats were leveled against him. Days later, his office was burnt down. Some months back, we had a grenade attack aimed at the house of a senior lawyer who, together with the members of his family, narrowly escaped being hurt in the attack.
Then again, another lawyer who had accompanied his client to the Bambalipitiya Police Station was hysterically abused by the Headquarters Inspector who also attempted to assault him. Names of lawyers who appear as counsel for suspects arrested under the Prevention of Terrorism Act or emergency regulations continue to be obnoxiously featured on the website of the Ministry of Defence as representing 'terrorists.'
Deficiencies in the
All this, of course, grievously offends the accepted principle of the presumption of innocence that suspects must have the right of legal representation. The current Code of Criminal Procedure Act does not confer on a suspect, a right of access to a lawyer of the suspect's choice as opposed to the unequivocal rule that once a trial commences, an accused should have the right to legal representation. This lacuna in the rights being afforded to a suspect has, in fact, been critiqued by the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Novak on a recent Mission visit to Sri Lanka. Novak observed that this deprived the Act of basic safeguards preventing torture (see Report of the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Manfred Novak, Mission to Sri Lanka 1-8th October 2007 (A/HRC/7/3/Add.6, 26 February 2008, at para. 36.
Notably however, the Criminal Procedure Special Provisions Act Code Of Criminal Procedure (Special Provisions) Act No 15 of 2005 which was operative for a specified period and futher extended for two years more by Act No 42 of 2007) affords a suspect the opportunity to consult an attorney-at-law of his choice to suspects arrested in relation to a particular category of serious offences. This Act also permitted detention for a period exceeding the ordinary period of wtenty four hours and up to forty eight hours. Yet, its applicability is only in particular contexts.
The government's defence
Aware that the government is on a slippery slope in the matter of justifying such restrictions regarding the rights available to a suspect, unconvincing explanations and assurances have been offered that, though not strictly secured in law, these rights are, in fact, available as a matter of course to suspects. Thus, for example, in a 2002 report of the Sri Lanka government to the Committee against Torture submitted in terms of its reporting obligations under the Convention Against Torture, the government affirmed that "The Police Department does not object to counsel/attorney-at-law representing the rights of suspects detained at police stations, interviewing/advising such suspects prior to their being produced before a magistrate" (see paras.s 36, 37 and 38 of the Periodic Report submitted to the CAT Committee in 2004, CAT/C/48/Add.2 06/08/2004 Second periodic reports of States parties due in 1999).
Yet, in this same response, the government backtracked and stated that there is a need to ensure that police investigators are able to conduct the initial investigation and interview suspects in an unhindered manner. Therefore, (as was said), such interview, (by counsel representing suspects), should not take place prior to the recording of the statement of the suspect. It was observed by the government that this facility helps the suspect to divulge any assault or harassment at the time of initial production before the magistrate. It was also affirmed that counsel/attorney-at-law representing arrested suspects have the right to interview the officer-in-charge (OICs) of the relevant police station any time after the arrest (even prior to the recording of the first statement of the suspect) with a view to ascertain the basis of allegations against his client (suspect) and the date, time and location relating to the production of the suspect before a magistrate.
These explanations however are fundamentally unconvincing in relation to the stark truth that if lawyers do indeed, proceed to interviewing the OIC or any relevant senior officer, he or she would be liable to be chased out of the police station as indeed, was the case that happened to the unfortunate Mr Mohotti at the Bambalapitiya police station.
A shameful order by the Human Rights Commission
The practice of government policy in denying confidential and effective legal representation to suspects particularly those held under emergency regulations was quite embarrassingly affirmed by a recent order of the Human Rights Commission of Sri Lanka, dated 31/01/2008, which found that no violation of rights had occurred as a result of police officers insisting that they should be within earshot of two lawyers who had attempted to confer privately with their clients at the Boosa detention camp. Shamefully, the relevant order states inter alia that no violation of rights had been occasioned and that 'still some international laws and standards have not been incorporated into our law…..further it should be noted that the Sri Lankan government is not bound to follow all international laws and standards." It is therefore moot to question as to what point is served by a Human Rights Commission which acts in this manner despite the fact that the Act under which it functions expressly enjoins it to ensure that government policy and practice adheres to international human rights standards?
Comparative lessons from Guantanamo Bay
Denying even so called 'terror suspects, the right to effective legal representation and all concomitant rights can only be massively counterproductive. And there is much that Sri Lanka could learn from the United States in this respect. Closing Guantanamo Bay by the Obama administration is perhaps the best lesson in this respect to other regimes Strong dissents against the practice of denying basic rights to Guantanamo Bay detainees were heard from the American and British judiciary. In March 2002, the Inter American Commission on Human Rights decided moreover to grant 'precautionary measures' in the case of the prisoners held at Guantanamo Bay and urged the US to determine the status of the prisoners by a competent tribunal and afford them the rights that correspond to that status. It is exhilarating that these injunctions are now being adhered to.
The basic right to independent legal representation must be available as of rights to suspects in Sri Lanka (including those detained under emergency) free of intimidation by the police or by the Ministry of Defence. There is no other choice. In the alternative, we would indeed be living in a police state.