Overview

Sri Lanka has been plagued with accusations of Human Rights violations for many decades. Abuses of pretrial detention methods are among the leading complaints such as arbitrary arrests, prolonged periods of pretrial detention, and on some occasions the use of various torture methods. However, the constitution of The Democratic Socialist Republic of Sri Lanka, Chapter 26 of the Code of Criminal Procedure, and, more specifically, the Code of Criminal Procedure (Special Provisions) Act, No. 2 of 2013 provide certain protections for the people. The Sri Lankan armed forces defeated the LTTE (the Liberation Tigers of Tamil Eelam) in May 2009, bringing an end to the 26-year long conflict. The LTTE, which was designated as a terrorist organization by the FBI, fought for an independent Tamil state in Sri Lanka. Suicide bombings, assassinations, and aerial attacks were some of the tactics used by the LTTE. The government fought back not only through armed confrontation but also with new legislation and detention procedures. The laws and detention procedures would give the arresting body more independence when conducting interrogations and collecting intelligence. However, the Prevention of Terrorism Act (PTA), introduced to combat terrorism, negates some of the protections granted by the aforementioned legal articles. The PTA was first introduced in 1972 to give authorities broader power to search, arrest, detain, and question individuals with suspected links to terrorist organizations. Since then the PTA has come under heavy scrutiny as a tool used to violate fundamental rights.

General Status of Rights in Sri Lanka

The judicial branch in Sri Lanka has a system similar to the United States; the Supreme Court is the supreme law of the land, followed by the Court of Appeal, the High Court, District Courts, and Magistrate Courts. Most of the prosecutions are handled in the Magistrates’ Courts by an officer in charge of a police station. However, cases may be appealed to higher courts in which district attorneys and state counsels will conduct the prosecutions. – World Factbook of Criminal Justice System, Sri Lanka. The Sri Lankan constitution provides for the safeguard of fundamental rights. However, some of these safeguards have been compromised due to the 26-year long conflict and the government’s attempts to secure the island. Among the highly criticized and debated adaptations are the 18^th amendment to the Constitution of Sri Lanka and the Prevention of Terrorism Act (PTA). The annual country report on human rights by the United States Department of State declared that Sri Lanka has “serious human rights problems [,which] include torture and abuse of detainees by police and security forces; poor prison conditions; arbitrary arrest and detentions by authorities. Defendants often faced lengthy pretrial detention, and an enormous backlog of cases plagued the justice system. Denial of fair public trial remained a problem, and during the year there were coordinated moves by the government to undermine the independence of the judiciary.” Amnesty International has claimed that the judicial system of Sri Lanka has been compromised due to the 18^th amendment, which removes the limit of the re-election of the President and to propose the appointment of a parliamentary council that decides the appointment of independent posts like commissioners of election, human rights, and Supreme Court judges. Amnesty International claims the amendment has led to the “removal of checks and balances protecting the separation of powers.” Amnesty International describes the 18^th amendment, passed in 2010, as giving the “president the power to appoint and remove: the Chief Justice and judges of the Supreme Court; the president and judges of the Court of Appeals; the attorney general and members of the Judicial Service Commission, which is the body responsible for appointments, transfers, dismissals, and disciplinary control of judicial officers.” (Source: Amnesty International Report 2014/15). There is a growing concern that the 18^th amendment would lead to a lack of judicial recourse for human rights violations committed by the executive branch. Individuals arrested or detained have fundamental rights guaranteed by the constitution, however, individuals arrested under the Prevention of Terrorism Act (PTA) do not have the same procedural rights. Some of these differences include the necessity of a warrant and the period of detention, which under the PTA can be up to 18 months. The country report on human rights by the United States Department of State found “confessions obtained by coercive means, including torture, are generally inadmissible, except in PTA cases, [in which] defendants bear the burden of proof, however, to show that their confessions were obtained by coercion.” The rights granted by the Constitution and those granted by the Prevention of Terrorism Act can be found in detail below under Domestic Laws Governing Pretrial Detention.

Domestic Laws Governing Pretrial Detention

Constitution

The Constitution of the Democratic Socialist Republic of Sri Lanka was promulgated in 1978. Under the Constitution of Sri Lanka, “sovereignty is in the people and is inalienable. Sovereignty includes the powers of government, fundamental rights, and the franchise.” The constitution further provides protections by declaring that fundamental rights “shall be respected, secured and advanced by all the organs of government, and shall not be abridged, restricted or denied.” 4(D). Chapter three of the constitution highlights the fundamental rights in more detail. No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Chapter 3 Section 11. No person shall be arrested except according to procedure established by law. Any person arrested shall be informed of the reason for his arrest. Chapter 3 Section 13(1). Every person held in custody, detained or otherwise deprived of personal liberty shall be brought before the judge of the nearest competent court according to procedure established by law, and shall not be further held in custody, detained or deprived of personal liberty except upon and in terms of the order of suet. Judge made in accordance with procedure established by law. Chapter 3 Section 13(2). Any person charged with an offence shall be entitled to be heard, in person or by an attorney-at-law at a fair trial by a competent court. Chapter 3 Section 13(3). No person shall be punished with death or imprisonment except by order of a competent court, made in accordance with procedure established by law. The arrest, holding in custody, detention or other deprivation of personal liberty of a person, pending investigation or trial, shall not constitute punishment. Chapter 3 Section 13(4). Every person shall be presumed innocent until he is proved guilty: provided that the burden of proving particular facts may, be placed on an accused person. Chapter 3 Section 13(5). The arrest’ holding in custody, detention or other deprivation of personal liberty of a person, by reason of a removal order or a deportation order made under the provisions of the Immigrants and Emigrants Act or the Indo-Ceylon Agreement (Implementation) Act, No. 14 of 1967, or such other law as may be enacted in substitution therefore, shall not be a contravention of this Article. Chapter 3 Section 14(7). Restriction: The exercise and operation of the fundamental rights declared and recognized by Articles 13 (5) and 13 (6) shall be subject only to such restrictions as may be prescribed by law in the interests of national security. For this paragraph includes regulations made under the law for the time being to public security. Chapter 3 Section 15(1). Restriction: The exercise and operation of all the fundamental rights declared and recognized by Articles 12, 13(1) 13(2) and 14 shall be subject to such restrictions as may be prescribed by law in the interests of national security, public order and the protection of public health or morality, or for the purpose of securing due recognition and respect for the rights and freedoms of others, or of meeting the just. Requirements of the general welfare of a democratic society. For the purposes of this paragraph “law” includes regulations made under the law for the time being relating to public security. Chapter 3 Section 15(7).

Chapter 26 of the Code of Criminal Procedure

The code of criminal procedure provides the rights an accused has as well as the duties and responsibilities of the individuals involved with the criminal process. The code of criminal procedure also contains a “Tabular Statement of Offences.” The table includes information for each offence such as if the arrest requires warrant and if offence is bailable. Below are some of the relevant pretrial rights found in the code of criminal procedure. Release of Accused if evidence is deficient – “If upon an investigation under this Chapter it appears to the officer in charge of the police station or the inquirei that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate’s Court, such officer or inquirer shall if such person is in custody release him on his executing a bond with or without sureties as such officer or inquirer may direct to appear if and when so required before a magistrate’s Court having jurisdiction to try or inquire into the offence.” – Part V Chapter XI Section 114. Procedure when investigation cannot be completed within 24 hours – “1) Whenever an investigation under this Chapter cannot be completed within the period of twenty-four hours fixed by section 37, and there are grounds for believing that further investigation is necessary the officer in charge of the police station or the inquirer shall forthwith forward the suspect to the Magistrate having jurisdiction in the case and shall at the same time transmit to such Magistrate a report of the case, together with a summary of the statement, if any, made by each of the witnesses examined in the course of such investigation relating to the case. 2) The Magistrate before whom a suspect is forwarded under this section, if he is satisfied that it is expedient to detain the suspect in custody pending further investigation, may after recoiuing his reasons, by warrant addressed to the superintendent of any prison authorize the detention of the suspect for a total period of fifteen days and no more… If at the end of the said period of fifteen days proceedings are not instituted the magistrate may subject to subsection (3) either discharge the suspect or require him to execute a bond to appear if and when so required. 4) During the period that a suspect is in the lawful custody of a superintendent of prison, a court may upon an application in that behalf made by the police officer in charge of a police station authorize such or any other police officer to have access during reasonable hours to such suspect for the purpose of the investigation. The court may on an application in that behalf being made by an officer in charge of a police station authorize him or any other named police officer to take the suspect in the company of an officer of the Prisons Department from place to place (other than to a police station) if in the opinion of such court such action is considered necessary for the purpose of the investigation…” – Part V Chapter XI Section 115. Notification of the charge – Part VI Chapter XVI. General information including the accused persons entitlement to a copy of the first information – Part IX Chapter XL.

Code of Criminal Procedure (Special Provisions) Act, No. 2 or 2013

“The Code of Criminal Procedure (Special Provisions) Act, No. 2 of 2013, had been certified and passed in Parliament on 6 February 2013. The Act had sought to extend the period of detention of persons without an arrest warrant from the existing period of 24 hours up to 48 hours. Generally, the police or any other person with the authority to make arrests would be permitted to do so for not more than a period of 24 hours as according to Section 37 of the Code of Criminal Procedure, 1979. The detention of up to 48 hours, would only apply in instances where the suspect was charged with either of 15 crimes mentioned in the Schedule of the Code of Criminal Procedure. The crimes had included murder, culpable homicide not amounting to murder, kidnapping, rape, theft, offences related to explosives and weapons. Abetment of the crimes mentioned in the Schedule, or conspiracy to abet or commit such offences are also included in the list.” – Ceylon Today The special provision to the code of criminal procedure is: “An act to provide for the extension of the period of detention of persons arrested without a warrant in order to facilitate the conduct of investigations; for dispensing with the conduct of the non-summary inquiry in certain cases; to provide for the taking of deposition of witnesses for the prosecution; and to make provisions for matters connected therewith or incidental thereto.” Included in the Code of Criminal Procedures (Special Provision):

• Period of detention of persons arrested not to be more than twenty-four hours or forty-eight hours.
• Direct indictment in case of offence committed in aggravating circumstances.
• Magistrate to forward record to Attorney-General.
• Proceedings to be terminated within ninety days.
• Sinhala text to prevail in case of inconsistency.

A person arrested without warrant cannot be detained for a longer period than 24 hours, excluding time of travel from place of arrest to the presence of the Magistrate. However, detention period may be extended another 24 hours by the Magistrate for the purposes of conducting further investigation/ Part 2. Proceedings in terms of the provisions of this Act must be concluded within ninety days from the date of commencement/ Part 5. The Magistrate shall read out, or cause to be read out to every witness produced against the accused, in the presence and hearing of the accused, the statement made by the witness in the course of the investigation/ Part 6(2).

Prevention of Terrorism Act (PTA)

“The PTA does not clearly define what constitutes an arbitrary arrest. Under the PTA security forces have sweeping power to search, arrest, and detain. Detainees may be held for up to 18 months. Many detainees continued to be held arbitrarily for prolonged periods without charge, including in irregular places of detention.” – US State Department, Country Report on Human Rights Practices for 2013. “An act to make temporary provision for the prevention of acts of terrorism in Sri Lanka, the prevention of unlawful activities of any individual, group, of individuals, association, organization or body of persons within Sri Lanka or outside Sri Lanka and for matters connected therewith or incidental thereto.” – Parliament of the Democratic Socialist Republic of Sri Lanka, Prevention of Terrorism Act. Part II – Investigation of Offences:

• May arrest, search individual or property, seize documents or things without warrant – 6(1).
• Person may be kept in custody for up to seventy-two hours – 7(1)(2).
• Police officer “shall have the right of access to such person and the right to take such person during reasonable hours to any place for the purpose of interrogation and from place to place for the purpose of investigation; and may obtain a specimen of the handwriting of such person and do all such acts as may reasonably be necessary for fingerprinting or otherwise identifying such person.” – 7(3).

Part III – Detention and Restriction Orders:

• Minister may order the individual to be detained for up to three months, following which he may extend the period in three month increments. The total detention time may not exceed eighteen months – 9(1). The order made may not be called into question by any court or tribunal – 10.
• Minister may invoke restriction on an individual- 11.

International or Multilateral Treaties Concerning Arbitrary Detention

International Treaties and Agreements: Where Parliament by resolution passed by not less than two-thirds of the whole number of Members of Parliament (including those not present) voting in its favor, approves as being essential for the development of the national economy, any Treaty or Agreement between the Government of Sri Lanka and the Government of any foreign State for the promotion and protection of the investments in Sri Lanka of such foreign State, its nationals, or of corporations, companies and other associations incorporated or constituted under its laws, such Treaty or Agreement shall have the force of law in Sri Lanka and otherwise than in the interests of national security no written law shall be enacted or made, and no executive or administrative action shall be taken, in contravention of the provisions of such Treaty or Agreement – Constitution of The Democratic Socialist Republic of Sri Lanka Chapter 20/157.

Universal Declaration on Human Rights

Click here to see Pretrial Rights International’s summary of pretrial detention rights under the Universal Declaration on Human Rights.

International Covenant on Civil and Political Rights

Click here to see Pretrial Rights International’s summary of pretrial detention rights under the ICCPR.

Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment

Click here to see the Convention against Torture.

Local Organizations

• A foreign national arrested should immediately contact their respective embassies. Contact information for the Embassy or Consular can be found here.
• Center for Policy Alternatives (CPA): CPA is an independent organization that engages in research and advocacy to promote human rights. CPA opposes the Prevention of Terrorism Act and advocates for the PTA to be repealed and replaced.

Contact: Address: 24/2, 28^th Lane, Colombo 7, Sri Lanka Telephone: +94 11 2565304-6, 5552746, 5552748 Email: info@cpalanka.org

• Front Line Defenders: Provides assistance within 24 hours to individuals in immediate danger.
• Human Rights Commission of Sri Lanka: Independent organization which “ensures Human Rights for all and promote and protect the rule of law.” The organization specifically focuses on ensuring the performance of the duties and obligations set forth by the various international treaties and agreements.

Contact: Address: 165 Kynsey Road, Borella, Colombo 8, Sri Lanka Telephone: +94 11 2694925, 2685980, 2685981 Email: sechrc@sltnet.lk

• Institute of Human Rights Sri Lanka: Independent not for profit organization that provides access justice (legal advice and representation), education and training, and humanitarian assistance.

Contact: Address: 86 Rosmead Place, Colombo 7, Sri Lanka Telephone: +94 11 2695828 /3158863 Email: legal@ihrsrilanka.org

Statistics

“More than half of those in prison either were awaiting or undergoing trial… more than 1,000 prisoners awaiting trial had spent more than two years in remand.” – Country Report on human Rights Practices for 2013 United States Department of State. Prisonstudies.org: Information conducted May 2014. Total number in pretrial/remand imprisonment: 9,835 Percentage of total prison population: 43.9% Estimated national population: 21.44m Pretrial/remand population rate (per 1000 civilians) 46 Trend: 2000 – 44; 2005 – 57; 2010 – 67

Other Sources

United Nations Human Rights: Status of Ratification Interactive Dashboard Customary International Humanitarian Law: Custom IHL