By Dimithri Wijesinghe
The last few months have seen the Sri Lanka Police come under fire repeatedly for questionable actions caught on camera during the many moments of civil unrest in the country. The Police, despite the opportunity to exercise their power to keep the peace as mandated and to work in the best interests of the public, have displayed actions that have not inspired confidence amongst the general public.
Amidst the slew of allegations being hurled at Sri Lanka Police of late, news of a recent incident regarding an alleged arbitrary arrest by the Thalangama Police made the rounds on social media.
The victim of this alleged arbitrary arrest was a household staff member of an individual who shared the story publicly, claiming that the victim had been arrested on grounds that he did not have his ID card with him. Despite the victim’s employer immediately visiting the Police station with the victim’s ID, the Police continued to refuse to release him.
This arrest gained enough attention online to prompt a response from the Police Media Division. Issued on 13 November, the Police claim in the statement that while the person in question was arrested at 6.40 p.m., they were released by 11.55 p.m. The statement also noted that the arrest was made during one of the regular sting operations the Police routinely conducted to apprehend those involved in various crimes in the locality.
Addressing the specific alleged arbitrary arrest, the statement noted that the team of officers had come across a man behaving suspiciously near the Thalangama Bus Depot. As the individual’s identity was unable to be confirmed at the time, due to them not having a National Identity Card (NIC) or any other identification document, the Police had detained him and attempted to confirm his identity “as per the powers vested with the Police Force”.
The Police further urged the public to carry their NICs or any other documents to prove their identity to simplify the process in the event they encountered a similar scenario.
This prompted The Sunday Morning Brunch to ask the question, can you be arrested on arbitrary grounds just for looking suspicious?
According to the Police
Speaking to The Sunday Morning Brunch, Police Media Spokesperson SSP Nihal Thalduwa stated that as per the Criminal Procedure Code, the Police retained the right to make an arrest on grounds of suspicion and it was at the Police officer’s discretion.
Thalduwa noted that Police officers were meant to keep the peace in their respective localities. In doing so, it is required of them to make a call regarding suspicious individuals. If there is someone who seems unfamiliar to the locality and is also unable to show proof of identity, then naturally the Police must inquire into the matter.
The statement issued by the Media Division also reiterated this sentiment, noting that operations like these kept the peace and reduced crime. By acting preemptively, the Police are able to better protect the public.
Thalduwa also noted that when such a person was detained, their fingerprints were recorded and sent to be cross-checked with the Police database, as it was likely that this individual had been party to a crime in a different Police division and the matter understandably required some time to administrate.
He further added that keeping one’s identity documents on one’s person at all times was one important way that private citizens could assist in keeping the peace and ensuring that the Police were able to carry out their duties effectively.
Addressing the arresting of people who were unable to show proof of ID, Thalduwa said: “It is not just about carrying the NIC. It is a matter of ascertaining that Police suspicions are not confirmed. The Police, in doing their duty, are only looking to confirm that this is a person who is not a risk, for which they employ confirmation of ID, confirming the legitimacy of the person and their purpose. What is the purpose of issuing the NIC and all these forms of identification if people do not utilise them properly? These are there to help the Police protect the public and for the public’s own protection as well.”
He added that one must not necessarily have an NIC, but that it was a matter of providing proof of who you were, whether you had a legitimate reason to be doing what you were doing, and that you were not a threat to society.
The Media Spokesperson also noted that if a private citizen were to employ an individual who may be from another area of the country, in addition to being registered with the local authorities, they should also be encouraged to carry their identification documents with them at all times.
According to the law
Article 13 of the Constitution of Sri Lanka provides for the “freedom from arbitrary arrest, detention, and punishment, and prohibition of retroactive penal legislation” and further states that “no person shall be arrested except according to procedure established by law”.
Sri Lanka, however, has implemented Emergency laws which have allowed for the arrest of the public during times of civil unrest according to the Constitution, with exceptions provided for under Article 15 of the Constitution. More recently, the proposed Bureau of Rehabilitation Bill has also been scrutinised for its sweeping and arbitrary powers as it allows for the compulsory detention of any “drug dependent persons, ex-combatants, members of violent extremist groups, and any other groups of persons” into military-staffed “rehabilitation centres”.
As the bill does not establish exact circumstances under which the Bureau will be permitted to take an individual into rehabilitation, human rights experts have condemned the bill and claim that it will lead to abusive detention without merit.
It can be observed that while the Constitution does in fact provide for protection against arbitrary detention, the ground realities are slightly different.
Attorney-at-Law Migara Doss shared that in case of arrest for those who did not have a NIC on their person at the time of arrest, the law applicable would be the Registration of Persons Act No. 32 of 1968.
He stated that Section 15 of the Act provided that the identity card was to be produced when required: “15(1) The holder of an identity card shall, on a request made by the Commissioner or any other prescribed officer, produce that card at such time and place as shall be specified in such request, and permit it to be inspected.”
However, Doss stated that the Act also provided that a question arose when the Police based their actions on the Act and made an arrest: “When an arrest is made in this regard, the question arises over which is the superior law; do we follow the Constitution as it protects one’s right to be free of arbitrary arrest or is it the Registration of Persons Act?”
Other laws and policies
Speaking to Attorney-at-Law Bastian Jayawardena, Brunch learned that the Police Ordinance No. 16 of 1865 also provides for arrests under Section 65: “Persons arrested without warrant to be taken to Police station until brought before Magistrate or bailed.”
Jayawardena stated that under this section, it was implied that Police could in fact detain a person for “the mere purpose of ascertaining their name and residence”. He further added that as per the Code of Criminal Procedure Act No. 15 of 1979, there were instances which provided for arrests made on suspicion.
Section 32 of the Act provides for “when peace officers may arrest without warrant”. This section states that “any peace officer may without an order from a Magistrate and without a warrant arrest any person against whom a reasonable suspicion exists”.
Section 33 of the Act provides power of arrest in non-cognisable cases: “When any person in the presence of a peace officer is accused of committing a non-cognisable offence and refuses on the demand of such peace officer to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such peace officer in order that his name or residence may be ascertained.”
However, both Doss and Jayawardena confirmed that where a person was detained on grounds that their identity was unable to be ascertained, then they had to be released immediately upon proving their identity satisfactorily.
SSP Thalduwa also stated that on occasions when a person’s identity had been proven, they may be released immediately. However, he added: “When we say immediately, there is a reasonable consideration as there is due process to be followed. It is not something personal that the Police have against the public, it is a matter of due process.”
The public should be made aware that the powers vested in the Police are given in order to maintain the peace and protect the public. However, due to many displays of abuse of power over the years, this trust placed in the Police is often questioned – sometimes to the point that even lawful actions come under heavy scrutiny.
