period exceeding twenty-four hours would be unconstitutional.185 Section 38 of the CCP Act requires that Officers in Charge of Police stations must report to the Magistrate’s Court of their respective districts, the cases of all persons arrested without warrant by any police officer attached to their stations or brought before them and whether such persons have been admitted to bail or otherwise. Similarly, Section 65 of the Police Ordinance states that “a person taken into custody by any police officer without warrant (except persons detained for the mere purposes of ascertaining their name and residence) must forthwith (emphasis mine) be delivered into the custody of the officer in charge of a station, in order that such a person may be secured until he can be brought before a Magistrate, to be dealt with according to law.” Buttressing these statutory provisions, Police Departmental Order No A. 20186 states in Section 2 subsection (ii) that a person arrested must be brought before a Magistrate without unnecessary delay and that the period of detention shall not exceed twenty-four hours (exclusive of the journey from the place of arrest to the Magistrate). Further, in order to minimise cases of torture during the period prior to being produced before a judge and remanded into fiscal custody, Police Departmental Order No A. 3 stipulates that an officer-in-charge is expected to daily inspect the station lock-up barracks and other places and make an entry to that purpose187 and also to provide facilities for members of the public, who are desirous of lodging any complaint.188 Such complaints must be attended to as expeditiously as possible. 189 Whatever the safeguards may be in terms of the ordinary law as discussed above, emergency law has significantly reduced the rights of suspects in this regard. As in the case of Article 13(1) discussed above, Article 15(7) of the Constitution privileges regulations made under the PSO over and above the safeguards provided for in Article 13(2) as well. Thus, departing from the strict time limits prescribed under the normal law, Regulation 21 (1) of EMPPR 2005 states 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.”190 Sections 36 and 37 of the CCP Act, which related inter alia to prompt production before a Magistrate, are explicitly dispensed with.191 In terms of arrests made under Regulation 20 of EMPPR 2005 for investigation purposes, (as differentiated from arrest made for preventive detention purposes under Regulation 19), there is no stipulation that the suspect must be produced before a judge. Instead, Regulation 20(2) merely states that such a person must be handed over to the nearest police station within twenty-four hours. It is silent on the procedure to be followed thereafter, except to require the arresting officer to report the arrest to the relevant superior officer (Regulation 20(8)) and to notify the family members of the fact of arrest through the prescribed form, in default of which penalties are imposed (Regulations 20(9)). These Emergency Regulations are in violation of ICCPR article 9(3). The PTA, Section 7(1) 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
Kapugeekiyana v. Hettiarachchi [1984] 2 Sri LR 153. Also Faiz v. Attorney General [1995] 1 Sri LR 372. Issued by the Department of Police. 187 Section 3 of Part 11. 188 Part 111. 189 ibid. 190 The Amendment Regulation 2008 changed this to some extent by Regulation 19(1) A. which stated that the period of thirty days was to be calculated from the date of ‘detention’ rather than ‘arrest.’ However as stated previously, this Amendment Regulation was suspended by the Supreme Court on December 15th 2008. 191This is the common trend in these types of Regulations. 185 186
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