One of the primary tasks of the police set out in the Police Act is the investigation of all crimes which come to their notice and wherever possible, to bring the perpetrators before the courts, together with all the relevant evidence. In undertaking their difficult task they have often found themselves criticised for the methods and techniques used in the interrogation of suspected persons both by the courts and the public. They are confronted with a number of safeguards which the laws provide to protect the citizens from arbitrary and coercive action by the State.
The Bar Association is concerned about numerous reports of Police acting outside of the law, depriving citizens not only of their constitutional and human rights. In this and the following column we will explore some of these concerns, including the physical conditions of what are called in the Prison Act lock-ups and prisons. A person who has been sentenced to imprisonment must be committed to prison while a person awaiting trial or remanded in custody may be held in a prison or holding cell.
In a following column, we will address the question of who may be held in a holding cell and who makes the decision to do so bearing in mind that the very act of arrest has implications for that very fundamental right of liberty and that false imprisonment is a more egregious violation of that right. It may not be an overstatement that despite the absence of cases brought before the courts for false imprisonment, this practice takes place with unacceptable frequency.
In this column we look at some of the constitutional safeguards for citizens against abuse by the State.
First, there is a presumption of innocence and the burden of proving guilt is on the prosecution using a high bar of beyond reasonable doubt. Second, is the right to remain silent so that an accused person is not required to utter a single word to the police, or to the court other than in pleading guilty or not guilty. Third, the police are under time pressure to charge or release the person within seventy-two hours of arrest. The combined effect of these is that the Police are known to resort to some rather unorthodox methods to obtain evidence.
But here too, the Police have to respect another safeguard every person enjoys, including persons under arrest, or who are suspected or accused of a crime: the Constitution provides that no person shall be subject to torture, or to cruel or inhuman or degrading punishment or treatment. This protection is not only directly included in the Constitution but is also the subject of a separate treaty – the UN Convention against Torture and Other Cruel, Inhuman or Degrading Punish-ment or Treatment – to which Guyana is a signatory, and more importantly, which is incorporated by reference into the Guyana Constitution.
The prohibition against torture is so strong and universally accepted that it is now a fundamental principle of customary international law. This means that even States which have not ratified any of the international treaties explicitly prohibiting torture are banned from using it against anyone, anywhere. Torture of course is not only physical injuries but also “psychological and moral suffering, accompanied by psychic disturbance during questioning, may be deemed inhuman treatment. The degrading aspect is characterised by the fear, anxiety and inferiority induced for the purpose of humiliating and degrading the victim and breaking his physical and moral resistance.” This quotation comes from Justice George’s decision in the case of Twyon Thomas, the fourteen year old young man who was tortured while in Police custody at the Leonora Police Station.
Article 1(1) of the Convention Against Torture defines “torture” as follows:
“any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful actions.”
In a judgment that projects a baseline for police conduct (and for damages against the State) where torture and inhuman treatment feature significantly, Justice George made it clear “that the incorporated international human rights provisions in Guyana are not merely persuasive and that the judiciary has to be constantly cognizant of these provisions.”
The Court in the Twyon Thomas reminds the nation that Article 16 of the Convention Against Torture requires that “each State Party shall undertake to prevent … other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”
In a telephone conversation with Mr. Khemraj Ramjattan, Minister of Public Security, who represented Mr. Thomas in the case cited, he gave the assurance that he continues to take a strong view of any action by the Police that violates the law, the Constitution and the human rights of citizens. The Bar Association welcomes that assurance.
In our next column we will look at the conditions of the state of our lock-ups and ask whether they constitute degrading treatment.
