Columns - FOCUS On Rights

Reflections on democracy and dictatorship

By Kishali Pinto Jayawardene

What is particularly worrying about the prevalent environment surrounding arrests and detentions ostensibly on national security grounds is its shadowy nature. This is exemplified in this week's arrest of Sudar Oli editor N. Vidyadaran who was allegedly manhandled when being arrested by a group consisting of not only police officers but also men in civilian clothes while attending a relative's funeral.
Given the nature of what transpired, it was reasonable to conclude initially that he had been abducted and not actually arrested. It was only some time later that the government issued a clarification that he had, in fact, been arrested purportedly in connection with the recent LTTE air raid on Colombo. If so, then this clarification raises more questions than it answers. In what way were men in civvies involved in the arrests? Were his relatives informed of his arrests and was he given the reason for arrest? If he was manhandled as alleged, was this called for given that he was attending a funeral and surely could not be said to have posed an actual threat to the arresting officers at that time?

Adhering to minimal legal procedures in arrests

These are some of the basic questions which yet need to be asked given the nature of what transpires in these cases. Very few of us would quarrel with the government's need to arrest, detain and investigate individuals who are suspected of being involved in terrorist acts. Yet, there are procedures laid down by the government itself that need to be adhered to when making such arrests even under emergency regulations. These procedures are clearly inadequate to prevent abuse. However, even as minimal as they are, there appears to be no observance of their stipulations.

For example, in terms of Presidential Directives issued on 7 July 2006 in relation to arrests and detentions under Emergency Regulations which are still prevalent to all intents and purposes, an arresting officer should identify himself to the arrested person and give reasons for arrest. Moreover the person arrested or detained should be allowed to make a statement in the language of his choice and then asked to sign the statement; if he wishes to make a statement in his own handwriting it should be permitted. Further, the Directives state that when a child under 18 years or a woman is being arrested or detained, a person of their choice should be allowed to accompany them to the place of questioning. As far as possible, any such child or woman arrested or detained should be placed in the custody of a Women's Unit of the Armed Forces or Police or in the custody of another woman military or police officer.
These Directives titled Protecting Fundamental Rights of Persons Arrested and/or Detained are heavily relied upon by government spokespersons in their reports to international fora. However, in all practical effect, they are of no authority. If indeed, they had been observed in the case of the arrest of Mr N. Vidyadaran for example, would there have been any reason for confusion or terror on the part of his family and others in regard to his whereabouts or whether in fact, he had been arrested or abducted?

The negation of the authority of the HRC

The Directives also specify that the police and armed forces shall inform the Human Rights Commission (HRC) of all arrests and shall assist and facilitate the Commission in the exercise of its powers and duties to ensure the fundamental rights of those arrested and detained.

Even more categorically, prevalent law stipulates that the HRC must be notified of all arrests and detentions under emergency (Section 28(1) of the Human Rights Commission of Sri Lanka, Act No 21 of 1996) within forty eight hours and the place at which such person is being held must also be informed. All subsequent transfers must be notified to the HRC. Sanctions are imposed for failure to adhere to these duties; offenders may be liable, after a summary trial by a magistrate, to imprisonment for a period not exceeding one year or to a fine not exceeding five thousand rupees or to both such fine and imprisonment. Here again, this condition is not observed in practical terms. No punishments have been imposed on offenders under these provisions and they remain a dead letter. Indeed, it would be appropriate to say that the HRC itself has been rendered a dead letter in more ways than one.

Police detention without judicial scrutiny

This shadowy environment of arrests and detentions is further aggravated by the fact that extensive periods of preventive detention in police custody are permitted under the emergency regulations (up to one year) and the Prevention of Terrorism Act (up to eighteen months). There is no effective judicial scrutiny of such detentions and the possibility for innocent individuals to be arrested and detained in 'places of detentions' rather than in prisons and for reasons other than national security are extremely high.

Are we now in a position where the forces can arrest and detain persons in this country devoid of the observance of stipulated legal/regulatory procedures and justify the same by giving reasons which may or may not be contrived and which may or may not be valid?

Conversion of democracy to military rule?

In the long run, it is blindingly obvious that contempt shown for such basic safeguards in relation to life and liberty rebounds to the tremendous discredit of the government itself. Each time such delinquencies occur, the happiest (we could safely bet), is the LTTE who will be that much more justified in their denunciation of the 'racist Sinhala State.'

Even from a standpoint of strategy therefore, the government should redirect its armed forces and the police to observe its own procedures in the carrying out of arrests and detentions and impose sanctions on offenders. There is little doubt that much of the pressure now being brought to bear on Sri Lanka by the international community will decrease to that approximate extent if there is actual change shown in policies as opposed to rhetoric. And here, we are talking of the most minimal of safeguards. If even these cannot be observed, then we might as well directly convert the current (at least even in theory), systems of democratic rule, to open military dictatorship and be done with it. There would certainly be a measure of relief in this rather than the Janus-faced policies presently being followed.

 
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