By C. A. Chandraprema Courtesy The Island

The Human Rights Commission of Sri Lanka has written to the Acting Inspector General of Police Chandana Wickramaratne outlining a set of guidelines to prevent arbitrary and illegal arrests. The HRCSL has requested the Acting IGP to bring these guidelines to the attention of police personnel with strict Instructions requiring compliance. The guidelines recommended by the HRCSL are as follows:

1. Whenever an arrest is to be made there should be solid evidence to form a reasonable suspicion pursuant to proper investigations. Arrests should not be made merely on hearsay.

2. Where cultural issues are involved, such as the identification of religious symbols or identifying contents written in an alien language, proper expert opinion should be obtained.

3. Where identification of chemical substances or contents of computer files or video footage or the like are involved expert opinion should be obtained.

4. It is vital that the arrests are made not before, but after receiving credible information based on expert analysis and opinion, and on reasonable suspicion.

These guidelines have been issued in the context where Sri Lanka is once again faced with a major terrorist threat. The Easter Sunday bombings was the biggest single terrorist attack on civilian targets carried out in South Asia and indeed anywhere in Asia. On two occasions, since April this year, neighbouring India went into panic mode due to reports that terrorists from Sri Lanka were trying to infiltrate India by sea. Not a day goes by in this country without reports of the arrest of terrorist suspects and the discovery of weapons and explosive devices including claymore mines, yet the Human Rights Commission of Sri Lanka has seen fit to issue instructions to the police saying that they should be in possession of solid evidence, vetted by experts, before an arrest can be made.

This should be enough to send not only the people of Sri Lanka but even our neighbouring countries into a blind panic. When there is a terrorist problem, you can’t carry out arrests in the manner recommended by the HRCSL. When Kuttamani was arrested in 1981, the Navy did not know who they had arrested. He and two other terrorists were arrested only because they had tried to flee on seeing the Navy. It was only later that the police had identified one of the arrested men as Kuttamani. In 2008, the terrorist responsible for the Piliyandala bus bombing which killed 24 and injured 40 was captured only because the police had rounded up 29 suspicious individuals and brought them to the Piliyandala police station to be questioned. So the guidelines issued by the HRCSL are plain insanity. To be able to deal with terrorism effectively, the police and armed forces should be able to carry out arrests on suspicion or even on a hunch without having to look for solid evidence or expert opinion before carrying out the arrest.

Our internal security laws have very practical provisions in this regard. Article 15(7) of the Constitution states very clearly that provisions of the fundamental rights chapter will be subject to restrictions in the interests of national security, public order and for the purpose of securing due recognition and respect for the rights and freedoms of others. The Prevention of Terrorism Act states that a police officer not below the rank of Sub-Inspector duly authorized by his superiors may arrest any person without a warrant and enter and search any premises and stop and search any individual, vehicle, vessel, train or aircraft; and seize any document or thing. The emergency regulations promulgated under Section 5 of the Public Security Ordinance confers similar powers on the law enforcement authorities.

These are more like the powers that should be vested in the law enforcement authorities of a country beset by terrorism. The Emergency Regulations in fact even give the defence authorities the power to order the pre-emptive detention of a suspect with a view to preventing such person from acting in a manner prejudicial to national security or to the maintenance of public order. Under the Emergency Regulations, the defence authorities also have the power to restrict the movements of suspects, keep them under house arrest, demand the surrender of their passports, and even restrict a suspect’s communication with others and the propagation of his views.

Such measures are necessary in order to be able to combat terrorism successfully. There are safeguards to protect the rights of the suspects arrested as well. There are internal reporting requirements where superior offices have to be kept informed about the arrests made. Then the arresting officer has to issue a document to the next of kin of the suspect, acknowledging the fact of arrest. In cases where wrongful arrest has occurred, the aggrieved person can present his case to the HRCSL itself or avail himself of other legal remedies such as a fundamental rights case. But to make it virtually impossible to arrest a terrorist suspect by imposing unrealistic conditions on the law enforcement authorities will be a case of inviting disaster.

The HRCSL in its letter to the Acting IGP, has expressed dissatisfaction that in most instances, the police investigations are conducted after the arrest and stated that investigations including the obtaining of expert opinion should be carried out before the arrest is made. Is this a practical proposition? The terrorist suspect would have disappeared by the time the police comes to arrest him after making all the inquiries and obtaining expert opinion! The HRCSL had sent this letter to the Acting IGP on 2 July 2019 when the declaration of emergency was fully operational. This shows how out of step with the ground realities the HRCSL is. The State of Emergency was lifted only on 24 August 2019. The HRCSL recommendations to the police will vitiate the very purpose of declaring a state of emergency.

As an example of an arbitrary arrest, the HRCSL has drawn attention to the case where a British tourist, named Michelle Coleman was arrested by the police for having a tattoo of the Buddha on her arm. Ms. Coleman, and was later awarded compensation by the Supreme Court. The HRCSL is unable to see the difference between a peacetime fiasco like the arrest of a tourist over a tattoo, and the arrest of suspects who may be plotting to kill hundreds or even thousands of people in one go. In this writer’s view, there should be one retired police officer and one retired army officer sitting among the five members of the HRCSL to ensure that this body is kept aware of ground realities and to prevent them from issuing instructions that would have the ultimate effect of placing the lives of the general public at risk.