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His case raises a fundamental question about the different kinds of criminal trials made against the accused under the Prevention of Terrorism Act and Emergency Regulations versus those made against the accused in regular criminal trials. Under Sri Lankan law, according to the Evidence Ordinance, any statement amounting to a confession made to a public officer is not admissible at any time in the trial. This means that there is an absolute prohibition of the admission of confessions made to public officers other than judicial officers. The rule contained in Art. 26 of the Evidence Ordinance reads as follows:
"No confession made by any person whilst he is in custody of a police officer, unless in the presence of a Magistrate shall be proved as against such person."
However, in cases under the PTA, confessions are admissible provided they have been made voluntarily. This means that there are two different laws regarding criminal trials in Sri Lanka. This is a violation of the fundamental principle of equality before the law, regarding the issue of a fair trial itself. There is absolutely no basis to argue that the type of trial offered to one class of person, under a particular law, should be different from the basic rules of fair trial applicable to all other cases.
The absolute prohibition against the admissibility of confessions in a criminal trial is based on the perception of the nature of the police and other investigative officers. Judges, over time, have reaffirmed the relevance and validity of this principle in the specific context of Sri Lanka.
In some judgments, the Supreme Court went on to uphold that a confession made to police officers or other such officers be held inadmissible due to the awe and fear with which state officers are regarded in Sri Lanka. Thousands of cases of blatant cruelty exercised by police officers throughout the country in recent years demonstrate that the circumstances under which the absolute prohibition against confession was introduced to Sri Lanka has not changed. The justification for this rule is as valid as ever.
There is no reason to believe that the circumstances under which suspects held for offenses under the PTA and ER are any less frightening or more comfortable than the circumstances under which suspects of other crimes are held. In fact, the overwhelming evidence, beginning with the treatment of suspects of the 1971 insurrection up to now under the PTA and ER, demonstrate the very opposite.
Anyone who wishes to know of the gruesome details of such detentions need only look into the evidence, given by thousands of persons before the commissions, for forced disappearances during the late 1980s. Besides the commissions’ reports, there are volumes of statements recorded by the commissions, which run into the thousands of pages, that indicate what the conditions of detention under these circumstances can be.
The recent rules of prolonged detention at police stations and other detention centers should be a greater reason to reinforce the absolute prohibition on the admissibility of confessions in trials.
Whether any confession was made in the Tissainayagam case or whether it was made voluntarily or not is not the issue that needs attention. It is the abandonment of the absolute principle against the admission of confessions that needs substantive consideration.
The changes in the rules of fair trial in favor of the prosecution is comparable to changing the rules of a boxing match to allow one of the combatants to use stabbing against his opponent. It is like the last fight of Hamlet where, by the king’s conspiracy, a poisoned sword was given to Laertes while a normal sword was given to Hamlet. A fair prosecution should never be fought with a poisoned sword.
The change in the rules of fair trial is one of the most fundamental issues of any nation. It is not just the question of the right of one person. In fact, it exposes the nature of justice in the country as a whole.
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(Basil Fernando is director of the Asian Human Rights Commission based in Hong Kong. He is a Sri Lankan lawyer who has also been a senior U.N. human rights officer in Cambodia. He has published several books and written extensively on human rights issues in Asia.)
