That merry-go-round of denying legal counsel to suspects

• Sunday, December 17, 2017

Amidst the routine ‘celebrating’ of annual International Human Rights Day, a Bill to amend Sri Lanka’s Code of Criminal Procedure Act (CPC) on the vexed question of giving suspects in police custody the right of prompt access to legal counsel gazetted in mid-November, quietly escaped scrutiny.

A sorry trajectory of bad amendments
Ironically, if these proposed amendments had been brought by the former Rajapaksa administration, they would have given rise to a storm of protests amidst muttered and dark warnings of the Rule of Law at risk. Rather than actually secure a most important and basic right of access to legal counsel for those most vulnerable, the amendments actually undermine the right. At each and every point in the trajectory of the successive amendments on this issue from 2016, the privilege afforded to the police is sought to be entrenched. This time around, it is the same.

Late last year, the Government proposed an amendment to the CPC, along with a badly crafted Counter-Terror draft law, which gave suspects in police custody the right to independent legal counsel only after the police interrogations were completed and statements recorded.

As was pointed out in these column spaces at the time, this amendment reversed earlier progressive constitutional precedents. In cursus curiae of the Supreme Court from the mid-nineties onwards, enlightened judges had recognized the fact that torture is most often inflicted by law enforcement officers on suspects at the earliest points after arrest and stressed the need for adequate safeguards in that regard.

Promises have not been honoured
As I observed; ‘long before glamorous notions of constitutional rights gripped our collective imagination, these same rights had been secured without much fanfare by Sri Lanka’s appellate court judges in relation to accepted criminal procedures.’ On its part, the Human Rights Commission of Sri Lanka issued a sober caution in respect of the 2016 amendment, stating that ‘many instances of torture as well as cruel, inhuman treatment of suspects at police stations occur between the period of arrest and the conclusion of the recording of their statements.’

A new version of the amendment gazetted in early March this year was also flawed as it stated in unreasonably broad language that such access may be denied if it ‘impedes’ ongoing investigations. A further version followed in April with similarly problematic aspects. Responding to growing public apprehensions, the Government assured that the Bill would be comprehensively overhauled. But contrary to these undertakings, what has been gazetted in November basically takes the contents of the earlier amendments and recasts the same in amended words.

The November Bill states that access to legal counsel should not ‘affect’ the investigations being conducted. What the legal meaning of ‘affects’ may be is anybody’s guess. In this instance, the discretion is left to the undoubtedly perilous hands of an OIC who may act as he or she wishes as the freedom to do so is not legally constrained in narrow terms. When such access is delayed, the decision is subject to review by a senior police officer not below the rank of a Superintendent of Police. In this version, a lawyer is not allowed to be present when a suspect is being interviewed by the police and his statement is recorded.

The unwise conferral of broad powers

Further, the gazetted amendment (similar to its predecessor drafts) gives discretion to the officer-in charge (OIC) of the police station to delay an attorney-at-law access to a suspect if the OIC had ‘reasonable grounds’ to believe that this may lead to the destruction of evidence of or interference with or cause harm to evidence or cause any threat or harm to any person who may be acquainted with the facts and circumstances of such offence.

The list of grounds to delay access also include belief on the part of the police that such consultations with lawyers may lead to the alerting of any person involved in the offence or may hinder the identification, location or recovery of any property, utensil and so on which has been obtained or used in the committing of the offence. These are provisions which seem perfectly proper and reasonable in any functioning Rule of Law system. However in a thoroughly degraded policing system such as what unfortunately prevails in Sri Lanka currently, there are peculiar dangers that arise when specific laws confer broad powers such as these on police officers.

And when I say ‘degraded’, it is with full recognition of the precise meaning of that term. Such an assessment does not come from unsubstantiated reports or vague rhetoric or for that matter, from recent reports that senior police officers are enraged en masse by the command ‘from high’ that their phones should be ‘tapped,’ as scandalously indicative of the internal breakdown of institutional integrity as this may be. Instead these conclusions stem from years of meticulous documentation of endemic practices of torture by law enforcement agencies under Governments of all shades and party colours, which have indeed been condemned by Sri Lanka’s judiciary at the highest levels.

The unseemly tug-of-war must stop

The point here is that, this systemic breakdown traces itself to a malfunctioning prosecutorial and criminal justice system. A singular example is the lack of convictions under Sri Lanka’s Convention against Torture (CAT) Act despite being one of the better drafted laws in this country.

As documented on a case by case basis, the acquittals of torturers when they are (even rarely) brought before the court is due to manifold failures in the prosecutorial and legal process, laws delays being one factor.

Moreover, the lack of awareness on the part of judges in the judicial process also impacts adversely on strong outcomes. So in a context where there is little effective legal deterrent to torture in police stations, amendments such as these must be entertained with the utmost care and caution. But little wisdom is evidenced in this unseemly tug of war with one draft amendment succeeding another but all bad in varying degrees.

It is almost as if giving suspects this basic right will lead to an utter breakdown of the criminal justice system, which is preposterous to say the least.

Draft amendments such as these, once passed into law, may be very differently used in practical terms by an administration inclined to aggrandize its power. There is little question therefore that allowing political loyalties to blind criticism of what is unquestionably bad in law leads to unfortunate consequences for the citizenry as a whole.

That reality must be recognized in all its dangers. Attempts to gloss over the same should be fiercely opposed.