THE CURRENT SRI LANKAN LAW RELATING TO ARREST OF SUSPECTS

Ø  The current Sri Lankan law relating to arrest of suspects is aligned with the fundamental principles and standards adopted by international treaties regarding to the protection of rights of suspects, But is it true?

Ø  An arrest is the act of depriving a person of their liberty usually in relation to the purported investigation or prevention of crime and presenting (the arrestee) to a procedure as part of the criminal justice system.

Ø  Prof. G.L. Peries said,  “An arrest generally made upon a warrant”.

Ø  Who is the suspect?

A person thought to be guilty of a crime or offence.

Ø  Sri Lankan Courts widely interpreted term of “arrest”

·         Namasivayam v. Gunawardhana (1989) 1 Sri L. R. 398

“The use of force to arrest a suspect is unnecessary and is simply enough to obey a police officer’s rising”.

·         Sirisena v. Perera (1991) 2 Sri L. R. 97

“In the criminal offense and the person who did not go to his freedom of movement and obstruction by the police if it is to be arrested before the law”.

Ø  The relevant provisions regarding an arrest in Sri Lanka

·         Article 13(1) of the 1978 Sri Lankan constitution

·         Section 23 to section 43 of the Code of Criminal Procedure No. 15 of 1979

·         Section 65 of the Police Ordinance No. 16 of 1865

·         Section 6 of The Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979

·         The Public Security Ordinance No. 25 of 1947

·         Regulation no. 2(1) of the Prevention of Terrorism Regulations 2011 of No. 4

Ø  According to the codified law how to arrest a suspect in Sri Lanka?

·         Article 13(1) of the 1978 Sri Lankan constitution – “No person shall be arrested except according to procedure established by law. Any person arrested shall be informed of the reason for his arrest”.

·         Section 23 of the Code of Criminal Procedure No. 15 of 1979

23(1)- “In making an arrest the person making the same shall actually touch of confine the body of the person to be arrested unless there be a submission to the custody by word or action and shall inform the person to be arrested of the nature of the charge for allegation upon which he is arrested”.

23(2)- “If such person forcibly resists the endeavor to arrest him or attempts to evade the arrest, the person matting the arrest may use such means as are reasonably necessary to effect the arrest”.

23(3)- “Anything in this section shall not give a right to cause the death of person who is not accused of an offence punishable with death”.

Ø Arresting a suspect without a warrant Article 32(1) mentioned few restrictions. There are;

·         Who in his presence commits any breach of peace

·         Who has been concerned in any cognizable offence or against who a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been so concerned etc.

·         In Muththusami v. Kannangara 52 NLR 327, Coreya v. Queen 55 NLR 457 and Sanjeeva v. Suraweera (2003) Sri L.R. 314 the court was emphasized this restrictions.

Ø  What are the fundamental principles and standards adopted by international treaties regarding to the protection of rights of suspects in Sri Lanka?

·      International Covenant on Civil and Political Rights

Article 9 emphasized,

1). Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

2). Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3). Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment.

4). Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

5). Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

Ø  Universal Declaration of Human Rights (UDHR)

·                     Article 9 emphasized, “No one shall be subject to arbitrary arrest, detention or exile”

Ø Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)

·         Article 10(1) emphasized, “Each State Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment”

But …

This is not enough for protection of rights of arrested suspects

Because…

Ø  Section 6(a) of The Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979 says Any police officer not below the rank of Superintendent or any other police officer not below the rank of Sub-Inspector authorized in writing by him in that behalf may, without a warrant and with or without assistance and notwithstanding anything in any other law to the contrary -

Arrest any person;

AND;

Ø  According to the Regulation no. 4 of the Prevention of Terrorism Regulations 2011 restrict arrested suspects rights and powers of magistrate.

So above regulation is unsuitable with Articles 9 and 14 of ICCPR

Conclusion

Ø  The current Sri Lankan law adopted many international treaties and standards.

Ø  But some statutes and regulations are unsuitable with those international standards.

Ø  Because those regulations are overlap with our code of criminal procedure.

Ø  We can precedent European Convention on the Transfer of Proceedings in Criminal Matters Article 27 to developing our law.

Ø  So we think the current Sri Lankan law relating to arrest of suspects is aligned with the fundamental principles and standards adopted by international treaties regarding to the protection of rights of suspects. But it is not sufficient.

FROM - Suranga Bandara Senevirathna

Saranga Bandara Senevirathna