Protecting suspects
The Task Force held another consultation last week with regard to
safeguards against torture. We had gone into this at some length at a
meeting of all ministries particularly concerned with Rights Protection,
and this had been followed by a discussion chaired by the Inspector
General of Police, which had however also dealt with other matters such
as the dissemination of information regarding Police duties and
responsibilities.
It was thought best, following that meeting, to have a smaller
consultation as to particular issues, and we were helped immensely by
the presence of those in the Attorney General's Department who had been
dealing with torture problems for a long period, extending back to well
before I became Secretary to the Ministry of Human Rights and began to
study the problem, following the extremely helpful visit of Manfred
Nowak, the UN Special Rapporteur on Torture.Unfortunately the former
Attorney General, Mohan Pieris, could not attend the latter
consultation. This was a pity because he had been full of good ideas at
the meeting chaired by the Inspector General of Police, and agreement
had been reached in a number of areas which he agreed to pursue to
ensure quick action.
Allegations of torture
Amongst his innovative ideas was the concept of Duty Attorneys to be
available at all Police stations to which anyone was brought for
questioning. At present there are State Counsel assigned to I believe
every High Court area, but their duties are not clear. At the latter
discussion however attention was drawn to certain problems that might
arise if State Counsel also operated as Duty Attorneys, and it was
realized that we had to be very clear about the different obligations
the state should fulfil, and make sure there was no conflict. The first
obligation was to make sure that there was provision for observation
with regard to anyone the Police took in, but it was clear this should
not be a task for attorneys who might subsequently appear for or against
any such individual.
This would lead to a conflict of interests, and to ask State
Attorneys to protect those they might later have to prosecute made no
sense. Similarly, it made no sense, given that lawyers taking on clients
might feel obliged to use all sorts of tactics in their interests, to
expect them to be objective.The Action Plan indeed had considered this,
for what it recommended was that the mandate of the Human Rights
Commission be extended to ensure that its officials were kept informed
when any arrest took place. Currently this is mandatory only with regard
to Detention Orders, but in fact allegations of torture are more common
with regard to simple arrests for simple crimes. Nowak seemed to be of
the view that there was no policy that encouraged torture, but the
actions of individual Police officers needed to be checked if the
practice were to be prevented.
Prescribed limits
It is for this reason, I believe, that the Action Plan also suggests
that Duty Attorneys be kept informed of all arrests. Though they should
not be expected to take any steps in this regard, the fact that two
different organs of the state are aware of any situation that could lead
to abuse is in itself a safeguard, where knowledge being confined simply
to the Police station concerned could be a limiting factor.
Meanwhile the Human Rights Commission, with its independent mandate,
would also be informed, and could exercise its right to enter any
station, which unfortunately capacity limitations do not now permit to
the required extent. I should note that, a few years back, there were
proposals to strengthen the Regional Offices of the Commission, and the
refusal of the UN official concerned to take these forward, was one
reason why I continue to worry about his further involvement in Human
Rights protection activity here unless properly supervised.
The refusal to make use of the money the Swiss had offered for this
purpose, while claiming that aid was not available, is typical of the
sleight of hand that was used to try to kill off the Commission when
Justice Ananda Coomaraswamy was chairman.
This task of observation, to ensure that those arrested would face
only interrogation and nothing less innocuous, had been confused I
realized with another obligation of the state, to facilitate
consultation of lawyers by those arrested. Amendments to the relevant
regulations have now been proposed to ensure ready access to lawyers.
However what has not been provided for in those amendments already
prepared is provision for those who do not have lawyers or the
wherewithal to hire them to have representation.
This could be covered by the scheme of Duty Attorneys, but whether
such a responsibility should be undertaken by the state is a matter of
argument.
The alternative would be to provide such services from the private
bar, but the expenses of such a programme nationwide might be excessive.
What has been proposed, to pilot this in some areas, might lead to
allegations of unfairness. I am not sure what the answer is, but the
Action Plan certainly provides for setting up a Duty Attorney scheme. We
need therefore to work out ways of providing at least that all those
arrested are made aware of their rights and the procedures that should
be followed by the Police in interactions, and I believe from the Police
point of view too, ensuring the ready availability of information in
this regard will help them to work within prescribed limits. |