Practice Relating to Rule 99. Deprivation of Liberty
Section D. Prompt appearance before a judge or judicial officer
Sri Lanka’s Prevention of Terrorism (Temporary Provisions) Act (1979), as amended to 1988, states:
INVESTIGATION OF OFFENCES
6. (1) 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[:]
(a) arrest any person;
7. (1) Any person arrested under subsection (1) of section 6 may be kept in custody for a period not exceeding seventy-two hours and shall, unless a detention order under section 9 has been made in respect of such person, be produced before a Magistrate before the expiry of such period.
Sri Lanka’s Emergency Regulations (2005), as amended to 2008, states:
SUPERVISION, SEARCH, ARREST AND DETENTION
19. (1) Where the Secretary to the Ministry of Defence is of [the] opinion with respect to any person that, with a view to preventing such person –
(a) from acting in any manner prejudicial to the national security or to the maintenance of public order, or to the maintenance of essential services; or
(b) from acting in any manner contrary to any of the provisions of sub-paragraph (a) or sub-paragraph (b) of paragraph (2) of regulation 40 or regulation 25 of these regulations,
it is necessary so to do, the Secretary may order that such person be taken into custody and detained in custody …
1(A) The provisions of Sections 36 [requiring a person arrested without warrant to be produced before a Magistrate without unnecessary delay], 37 [requiring that such a person be produced within 24 hours] and 38 [requiring that the Magistrates’ Court be informed by the police of all persons arrested without warrant] of the Code of Criminal Procedure Act, No. 15 of 1979 shall not apply in relation to a person detained under provisions of paragraph (1):
Provided that where any person has been detained under the provisions of paragraph (1), such person shall be produced before a Magistrate within a reasonable time having regard to the circumstances of each case, and in any event not later than thirty days from the date of such detention.
Sri Lanka’s Code of Criminal Procedure (Special Provisions) Act (2007) states:
Notwithstanding anything contained in the Code of Criminal Procedure Act, No. 15 of 1979 other than the provisions of section 43 (A) of that Act, any peace officer shall not detain in custody or otherwise confine a person arrested without a warrant for a longer period than under all the circumstances of the case is reasonable and such period shall not exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the presence of the Magistrate.
In its judgment in the Weerawansa case in 2000, the Supreme Court of Sri Lanka stated:
Article 9 of the Covenant [on Civil and Political Rights] mandates, inter alia, that “no one shall be subjected to arbitrary arrest or detention”; that “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 that “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”. A person deprived of personal liberty has a right of access to the judiciary, and that right is now internationally entrenched, to the extent that a detainee who is denied that right may even complain to the Human Rights Committee.
Should this Court have regard to the provisions of the Covenant? I think it must. Article 27(15) requires the State to “endeavour to foster respect for international law and treaty obligations in dealings among nations”. That implies that the State must likewise respect international law and treaty obligations in its dealings with its own citizens, particularly when their liberty is involved. The State must afford to them the benefit of the safeguards which international law recognises.
In that background, it would be wrong to attribute to Parliament an intention to disregard those safeguards. The PTA [Prevention of Terrorism (Temporary Provisions) Act] cannot be interpreted as dispensing, by implication or inference, with the safeguard of prompt production before a judicial officer under and in terms of Article 13(2) [of the Sri Lankan Constitution]. Such production is imperative. Since the petitioner was never brought before a judicial officer during the entire period of detention, I hold that his fundamental right under Article 13(2) was infringed for which infringement the State is liable.
In 2009, in its combined third and fourth periodic reports to the Committee against Torture, Sri Lanka stated: “The officer in charge of the police station has to forthwith take all measures to … produce a child [soldier who is arrested] within 24 hours before the Magistrate.”
Sri Lanka further stated:
Persons arrested under [the] Emergency Regulations and Prevention of Terrorism Act, for certain offences could be detained up to maximum of one year, for investigation and interrogation purposes. Even … persons arrested under these special provisions should be produced before the relevant Magistrate’s Court within a certain period and periodically according to the relevant law.