"The Public Security Act and the regulations made there under gave no authority to destroy persons." ¹

"The Procedure for dealing with persons arrested and detained under the Emergency Regulations of 1989 left the way open for disappearances to take place with the greatest feast." ²

The expansion of the powers given under the Regulations to the Police and the armed forces accompanied by the reduction of the occasions and the degree of scrutiny by the judicial system, assisted in creating an environment within which the incidents reported to the Commission took place.

Emergency Regulations constitute Special legislation that amounts to a deviation from the regular law on crime prevention and crime investigation. The operate along side the Code of Criminal procedure, Penal code and Evidence Ordinance which together presents a criminal justice system where in there exists the necessary safeguards for the protection of the interests of all parties regarding issues of crime prevention, investigation of crime, the detention of persons and admissibility of evidence.

The Supreme Court of Sri Lanka has repeatedly stated that the requirements laid down by the Regulations for the Regulations' Provisions to come into operation, should be strictly observed.

In order to minimize "disappearances" and abuses, it is of paramount importance the requirements laid down by regulations would be strictly observed. They were not intended for merely cosmetic purposes, but for the sake of fulfilling the basic obligation of the state to ensure the personal security and liberty of all persons. ³

Even assuming the existence of credible evidence against him the police had no power to have arrested the 6^th accused under Regulations 18 (1) as stated in the detention order (2R 1). That regulation only empowers an arrest on account of an offence under Emergency Regulations. Murder as such is not such an offence. It is an offence in respect of which an arrest can only be made under Section 23 of the code of Criminal Procedure. As such, the impugned arrest is illegal for failure to effect it according to procedure prescribed by las and is therefore violative of Article 13 (1) of the Constitution. ⁴

The Commission accordingly recommends that steps to design alternatives to the prevailing state of emergency are taken by the state, and until such steps are taken, that the utilisation of the powers under the state of emergency in minimised.
Further to the above, the Commission recommends that the underlying principles to the Regulations made under the emergency powers should b as follows:

Scrutiny of Emergency Regulations:- This Commission recommends a mechanism set up within Parliament entrustes with the specific task of the scrutiny of each regulation before its monthly promulgation by Parliament. Currently, whilst the extension of the Emergency itself is subjected to discussion by Parliament on a monthly basis and the Public Security Ordinance provides that Parliament may revoke, amend of modify a regulation, this rarely happens. We consider that the provision of such a mechanism would further strengthen the resolve that "secrecy is to be replaced by publicity and openness" which the Supreme court has identified to be the objective of the provision in the current Regulations that all places of detention authorised by the Secretary of Defence must be published in the Gazette and be notified to the Magistrate within whose jurisdiction the place of detention is located.⁵

Publicity to the content of Regulations:- It is recommended that the contents of Emergency Regulations are given wide publicity through the media each month at the time of their renewal. The regulations would be worded in clear and unambiguous language, and be drafted under the supervision of the Legal Draughtman.

Arrest:- The evidence before the Commission of the arbitrary removal of persons indicates that even where the removal was by officials of the state the persons removed were not told the reason why they were being taken. In addition, no information was made available as to who was the arresting authority or where they were being taken. A disappearance could ensure from such an irregular arrest with little poser in the law enforcement system to intervene. The Commission accordingly recommends that the regulation must:

(i)Specify the situation under which arrests without warrants can be made, and by whom;

(ii) Require that the arrestee is informed at the time of arrest of the reasons for the arrest;

(iii) The arrestee as well as the persons who are with him must be informed of the identity of the arresting officer;

(iv) State that the present requirement of the issue to the family of a receipt containing the above particulars will be strictly enforced without exception.

Detention

Place of Detention:- "I looked for him all over the country" was a familiar refrain in the evidence of the many petitioners before the Commission. We welcome the face that detention is required to be only at a place which is designated as an authorised place of detention by the relevant authority. We recommend

1. That adequate publicity be given to the authorised places of detention:

(i) at a central regional office

(ii) through public display at the Magistrate's Court, Gramasevaka's office and the District Secretary's office of the area concerned.

2. That the regulation should include the requirement of prompt handing-over to the custodial authorities
(i) that members of armed forces hand over persons arrested by them to the officer in change of the nearest Police Station and

(ii) Custody of the arrestee be handed over to the prison authorities as soon as possible. The task of the prison authorities is detention, independent of any investigation process that may be involved.

These requirements shall apply equally to a change of place of detention.

3. Conditions of Detention:- It is recommended that:

(i) The prison rules are made applicable to the detention of persons under the emergency regulations, including the right of detainee to communicate with family and legal counsel.

(ii) that the Detainees are produced before the Magistrate within 24 hours of the arrest.

4. Detention Order:- The Commission welcomes the fact that the authority of the Secretary to the Ministry of Defence on issuing and renewing a detention order is subject to a period of one year. The Commission recommends:

(i) that the regulations require that the reason for the order be recorded on the order itself.

(ii) that the Magistrate be empowered to require the Secretary to provide supplementary information regarding the detention order when inquiring into the extension of the detention order.

5. Recording arrest and detention/ Reporting it:- The Commission recommends that the regulations should be amended to include:
(i) the requirement for a Register of record of arrest and detention to be maintained

(a) at the place of detention

(b 11) the main army camp/police station, where the arrest/detention is at a temporary post.

(ii) The Commission recommend that the arrest and detention of perons must be notified within 24 hours of the arrest, to:

(a) the Local Magistrate

(b) the Local Administrative Service

(c) the Human Rights Commission/ Human Rights Task Force

(iii) The Commission recommends that the issue of receipts to members of the family of the detainee and/or a person elected by detainee must be strictly monitored.

(iv) That the regulations should require the issue of receipts regarding the place of detention and the details of the detention/remand order.

6. Information regarding the arrest/detention:- "We asked everywhere the a police, the Army, the ICRC, the Presidential Mobile Secretariat" was another familiar refrain before the Commission. It is recommended that a Register of all persons detained under Emergency Regulations is kept at the District Secretary's office and regularly updated ⁶

7. The consequences of Non adherence to Regulations:- This Commission recommends -

(i) an alleged violation of the regulations by an officer of the state should be the subject of a disciplinary Inquiry by an Inquiring Officer from outside the service concerned.

(ii) That penalties of suspension, termination of service, loss of promotional rights and other disciplinary action be taken against persons found by the disciplinary inquiry to have violated the regulations.

(iii) When the violation amounts to a criminal act, that the Attorney General initiates criminal proceedings without delay.

While the present regulations provides a procedure for dealing with a non-adherence of the regulations, and the Presidential directives of July 1995 under the HRTF regulations specify clearly that every member of the armed forces and of the police force shall

ensure that fundamental rights of the persons arrested or detained are respected

no prosecutions have ensured. It is vital that the state itself is seen to be alert to the preservation of these rights by way of an institution of action in respect of alleged violators.

(iv) where the Supreme Court has found and officer to have acted in breach of fundamental rights, that -

(a) it is so recorded in his service record

(b) that action is taken against the officer concerned as given above.

8. Release from Custody/Rehabilitation :- Several cases of the disappearances of persons after a record of their release from custody has been proved before this Commission. The Commission recommends:

(i) that release should always be through courts

(ii) where the release is from detention under Emergency Regulations that the release should be to a relation who has proved his identity to the Court concerned.

(iii) While the Commission welcomes the concept of rehabilitation of detainees it is requisite that a record of released and release to a relative be required in this case also

9. The disposal of bodies:- the phenomenon of disappearances in this Commission's experience has not been limited to the removal of person only. The result of the removal was in most cases the death of the abductee. Most families however remain unaware of the subsequent experience of their loved ones. This has in turn created many of the situations faced by the persons giving evidence before the Commission. This Commission has lost count of the number of persons who began weeping at the mention of the availability of Death Certificates, as this was the first time they had to confront this fact. This Commission further notes that wherever an inquest had been held valuable evidence of the cause of death and the circumstances of the death were available to the Commission. The Commission accordingly recommends that:

(i) The Emergency Regulations should not eliminate the requirement of an inquest before the disposal of the bodies of the deceased.

(ii) The regulation should include a requirement that the bodies of the deceased should be returned to their families.

"Secret" (unauthorised) Detention Camps:
The spectre of secret places of detention continues to haunt petitioners. "I do not want you to consider my son as disappeared. I want you to find him. I hear there are secret detention camps, please go there and find my son" was a plea addressed to the Commission on several occasions. This Commission recommends that:

(i) That immediate steps are taken to remove any possibility of the existence of such camps; a possibility which has been established in judicial proceedings. ⁷
(ii) Such steps should include a through investigation by independent parties into complaints made regarding the existence of such camps.

End Notes:

1. Wijesuriya v. the State (1973) NLR p. 43

2. Dr. A. R. B. Amarasinghe "Our Fundamental Rights of Personal Security v. Physical Liberty" p. 121, Sarvodaya Press 1995

3. Vinayagamoorthy v. The Army Commander et al. SCAP No. 36*94 SCM 20.12.96

4. Ansalin Fernando v. OIC, Police Station, Chilaw et al. (1992) ISLR 411 at 415

5. SC Application 26/94 SCM 20.12.96.

6. As at present there is no central place which information regarding the detention of persons is available to the members of the family/friends/legal representative of the detainee.

7. Vinayagamoorthy v. the Army Commander et al. SC Application No. 26/94, Sc Minutes 20.12.96.