Untitled - International Commission of Jurists

Reasons need not be given for arrest. Regulation 21(1) of EMPPR 2005 stipulates that
persons arrested in terms of Regulation 19 (preventive detention) should be produced
before a Magistrate “within a reasonable time having regard to the circumstances of
such case and in any event, not later than thirty days from the date of such arrest.” To
appreciate the deviation that this represents from normal law, it is worth noting that
the Code of Criminal Procedure Act No 15 of 1979 (as amended) which prescribes
that production of a person arrested before a Magistrate having jurisdiction in the case
should be without unnecessary delay (Section 36) and that such period shall not
exceed twenty-four hours exclusive of the journey from the place of arrest to the
Magistrate (Section 37).
Suspects may be kept in preventive detention under the current emergency regulations
up to one year. In practice, they are often kept for much longer periods of time. A
similar permissibility is evident in the PTA. 55 Incommunicado detention in
unauthorised ‘places of detention’ 56 is a pervasive feature of this legal regime. The
admissibility of confessions continues to be allowed even though, given the
circumstances in which confessions are often extracted in secret and as a result of
torture, it is virtually impossible for the accused to prove that the confessionary
statements were not voluntary.
These emergency regulations and provisions of emergency law violate international
standards relating to the protection of life and liberty. 57 Moreover, they afford cover
to abusers by immunity for actions taken under the emergency 58 in a continuation of
the same political intention that propelled the Indemnity Act in the 1970’s and 1980’s.
Sri Lanka has been in almost a constant state of emergency since 1971. These are
fundamental and vexing questions for Sri Lanka’s judiciary, just as counter-terrorism
measures have challenged judicial institutions globally.
International human rights law to which Sri Lanka is bound allows states to respond
to security threats effectively, including the right to limit and suspend certain rights in
a state of emergency while other rights remain non-derogable, but it also requires the
maintenance of the rule of law. A state of emergency should be an extension of the
rule of law in difficult circumstance, and not an abrogation of it. The ICJ Berlin
55 Section 7(1) of the PTA states that suspects arrested under Section 6(1) (“connected with or
concerned in or reasonably suspected of being connected with or concerned in any unlawful activity”)
may be kept in police custody for a period of seventy-two hours. Thereafter, if a preventive detention
order under Section 9 has not been made, such suspect should be taken before a Magistrate, who is then
compulsorily (“shall”) required to remand the suspect until the conclusion of the trial. In the case of
preventive detention orders are made under Section 9 of the PTA by the Defence Secretary, the suspect
may be kept for a period of eighteen months with detention orders being extended three months at a
time.
56 “Places of detention” authorised by the Inspector General of Police (EMPPR 2005 19(3) in which
suspects may be detained must be distinguished from reference to the regular prisons but as having a
wider ambit, including police stations or unauthorised and undisclosed detention centres.
57 International Commission of Jurists: Sri Lanka Briefing Paper; Emergency Laws and International
Standards, April 2009.
58 Regulation 19 of Emergency Regulations 2006 provides immunity for actions taken under the
Regulations: “No action or suit shall lie against any Public Servant or any other person specifically
authorized by the Government of Sri Lanka to take action in terms of these Regulations, provided that
such person has acted in good faith and in the discharge of his official duties.” Similar immunity
provisions are contained in Regulation 73 of the EMPPR 2005, and the PSO (Sections 9 and 23) and
the PTA (Section 26).
32