9th November 1997

Making a monster in our Black Hole

By Mudliyar

Last week I men- tioned the fact that under the provisions of the Bail Act a person, irrespective of whether he has committed a bailable offence or a non-bailable offence, could be kept in remand for a period of 12 months. Be that as it may, instead of expressing horror and revulsion at these provisions Mr. A.C.S. Hameed, a former Minister of Justice competed with his colleague Mr. Tyronne Fernando P. C, another former Minister of Justice in complementing the Minister of Justice for his untiring efforts to introduce this Bill.

Mr. A.C. S Hameed a very experienced politician, and the former Minister of Justice under the UNP government said that the conditions of Sri Lankan prisons are worse than the Black Hole of Calcutta. Those of us who may not be very knowledgeable about history might wonder what the Black Hole of Calcutta was.

The 'Black Hole,' of Calcutta was a Guard Room measuring 18 feet by 14 feet with two small windows. Indians captured some Europeans, numbering 146, forced them into this chamber. By the next day only 23 were taken out alive. One of the members who went through the ordeal was one J.Z.Holwell, who left an account of the awful suffering he endured in the Black Hole.

Therefore, the former Minister who had visited our prisons many times, compared our prisons to the Black Hole of Calcutta. He further said conditions in our prisons are much worse. Any intelligent reader would imagine the suffering the prisoners and the remand prisoners are undergoing in our Black Holes spread around the country.

The intentions of the Minister of Justice were expressed in his speech and must be clear to anyone. He was seriously trying to overcome the problem of over crowding of prisons. He sincerely believes that once the Bill becomes Law, the government would be relieved of the problem of overcrowding of prisons.

But in reading the Bill as it was presented by the Minister at it's second reading (the act is not available yet) one comes across many provisions that would shock the conscience of anyone who values liberty and is sympathetic of prisoners specially the remand prisoners who are suffering immensely in Black Holes.

One would be completely nonplussed to understand why a Bill, which was intended to prevent the unnecessary remanding of suspects, has made provisions completely at variance, and in contradiction to the intentions for which the Act was legislated. The good intentions of the Minister legislating for the release of persons from the veritable Black Holes has been negated, and has complicated the simple procedure for the release of suspects that had been in existence for a number of years.

Remanding of an accused convicted of an offence pending appeal

After having complicated the simple procedure for the release of suspects accused of offences, it has further prevented the accused convicted of offences being released on bail.

The Criminal Procedure Code has provided for the release of any accused convicted of any offence when he tenders an appeal. A Magistrate is expected to release an accused on bail, without any delay the moment the appeal papers are submitted to him.

Whatever the nature of the crime, the maximum sentence a Magistrate could impose on a convicted accused is two years rigorous imprisonment. Therefore, the framers of the Criminal Procedure Code thought it fit that an accused, though found guilty of an offence, must be released on bail if and when he submits an appeal.

But what is the position after this Act became law? Under Section 19 sub-section 2 of the Bill a Magistrate may refuse to release a person on bail even though he has preferred an appeal against the conviction.

The salutary provisions of the Criminal Procedure Code, where the accused has to be released on bail, if he prefers an appeal to a higher Court after conviction, has now become discretionary.

The Magistrate may refuse to release the accused on bail. It is beyond comprehension how this provision could help easing of the crowded remands. Instead of being released on bail after conviction, when an appeal is preferred, the accused finds himself in a situation if the Magistrate refuses to release him on bail where he would spend most of his time in remand pending the determination of the appeal by a higher Court.

This might take years. So we are back at square one. We would not only have additional remand prisoners other than suspects committed to custody on bailable and non-bailable offences, but also accused who had been convicted and remanded and awaiting the determination of the appeal.

A Magistrate may impose a sentence of two years on an accused convicted of an offence. If the accused prefers an appeal and the Magistrate commits him to custody, he may eventually stay in custody for more than two years, that is more than the maximum term of imprisonment a Magistrate can impose. If eventually the higher Court acquits him he would have served more than the term of imprisonment, in remand. Is it not a sheer mockery ?

The imperialists knew that an accused convicted by whom they called a Police Magistrate must be free until his appeal is decided by a higher Court.

Remanding of a person acquitted,

To a person accused of an offence an acquittal ends the ordeal. It is the final Order that determines the innocence of the accused. Acquittal after trial by a Magistrate ensures that neither the complainant nor the Police would peruse him after he is declared innocent by a competent court.

An appeal from an acquittal is not heard of. The Attorney General who has the power to appeal against an acquittal by a Magistrate uses that power only very sparingly. Under our adversarial system the complainant often endeavours to explore the possibility of appealing against an acquittal of the accused. Often the complainant expresses his anguish and sorrow, when he realises that the accused who had been charged on his complaint, is acquitted by Court after a lengthy and a protracted trial.

The adversarial system is such that the client is never satisfied until all his resources are spent and all avenues are explored to win a particular case. The litigation must end. The Attorney General may invoke the power; only the order of acquitting the accused is so patently wrong that it would shock the conscience of anyone who examines the record.

But the Act that provided for the release of the accused from remand, has by Section 19 sub section 1 provided for the remanding of an accused acquitted of an offence "Where an appeal against an acquittal by a Magistrate's Court is preferred, the court may issue a warrant directing the accused be arrested and brought before it, and may commit him to prison pending the determination of the appeal or release him on bail"

When the new Bail act comes into operation even an acquittal by a Magistrate would not end the suffering. When he is walking on the road he may be arrested and remanded for the same offence on which he obtained an honourable acquittal.

Remanding of an accused in excess of 12 months

As I indicated last week this Act provides for the remanding of any person accused of any offence for a period not more than one year. Section 17 provides for additional measures for the remanding of an accused for more than one year. The Attorney General is empowered under the provisions of Section 17 of this Act to make an application to the High Court to remand that suspect for a period in excess of 12 months. So, on theory under the provisions of the Bail Act any person accused of a bailable or non bailable offence can in fact be kept in remand for a period of in excess of 12 months.

We are extremely fortunate that we have an independent Judiciary. Even the Magistrates are selected by the Judicial Service Commission, and one of the important criteria in selecting a Magistrate is that the Magistrate should be a person who had not actively involved himself in politics.

If these conditions change in the future, and the Judges become politicized and biased, then one would only shudder to think of what would happen to innocent people who are brought to Court as their release on bail is entirely governed by the Bail Act.

Anticipatory Bail

Anticipatory Bail is a new concept which has been made into law by this act. What is Anticipatory Bail ?

If one anticipates that he would be arrested by the police for some offence he has committed he can apply to the Magistrate having jurisdiction over the place of offence and plead that he be released on bail.

What a great idea some may say. So in fact one robs a bank; with the fruits of the crime he runs to a lawyer and pays him his fee from the spoils of the Bank robbery, and asks him to make an application for bail.

The Police cannot touch you. Is this fair?

Can you permit criminals and other rich people who have the money, to commit offences and to use their money and influence to obtain bail even before the crime is investigated?

Dr. Pieris introducing the bill said "The most interesting feature of the Bill that is before the House related to the provisions governing Anticipatory Bail. This is an entirely novel concept in the laws governing procedure in our country. In neighbouring India, this concept has been used for a substantial period of time and it has conferred very significant benefits on the community"

But in India the concept of Anticipatory Bail was introduced for a very different reason. Why the provisions of Anticipatory Bail was introduced could be found in a report of the Law Commission which recommended these provisions.

"The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or other purposes by getting them detained in jail for several days. In recent times with accentuation of political rivalry, this tendency is showing signs of steady increase"

Even in India the dirty game of politics has made inroads into the system of administration of justice. When one looks at the problem of the rapid increase in crime, and the inability of the police to make detections then no one in his senses can applaud the concept of anticipatory bail.

Whatever the human rights champions say, one institution the criminals fear is the police.

The brutal methods employed by the police have permitted the police to recover stolen property, weapons and other instruments of offence. Though, since of late the police are less interested in using these methods due to the fear of fundamental rights application, still the last place the criminals want to visit is the police station.

When someone complains to the police of a grave crime and if the identity of the suspect is known but productions have to be recovered then the police will not name the suspect in the report they file in court.

If the name of the accused appears in the report, the suspect can easily appear and get him remanded. The investigation ends there. There is a battle of wits between the hardcore criminal, his lawyer and the police.

The police know how difficult it is to prove a crime unless productions, goods stolen, or the weapons are discovered. It is the first time offender, for the mortal fear of the police would confess and hand over the productions. The hardcore would never ever confess to the crime unless third degree methods (in police parlance "reasonable force") are used. With the introduction of the Anticipatory Bail provisions the rich and the hard core criminals will benefit immensely.

The law abiding Citizens will suffer in silence. A wave of crime will engulf the country.

The Supreme Court of India has said:

"The provisions regarding anticipatory bail were intended for use very sparingly in exceptional cases, where mala fide design is patent and not even latent. Such provisions cannot be used for circumventing normal procedure of arrest and investigations after arrest. Unless the accused shows that he has strong case where arrest is sought to be made in false concocted case to defame and humiliate or black mail him the Anticipatory Bail cannot be taken."

Mr. A. C. S. Hameed in participating in the debate concerning the Bail Act has said "When poor people come before the courts there must be people to appear on their behalf. Now, Sir, this is one question that the Hon. Minister, who is very imaginative, not only knowledgeable in this field, should take-up. Why can we not do that? I know that Law College students are performing certain functions. Why do you not enlarge that? Why do you not take people from the Public Service, people who are holding certain positions who could appear before a Magistrate and say, "This is the offence. This man may be bailed out"

Mr. A. C. S. Hameed was our former Minister of Justice but could not implement these lopsided ideas during his tenure of office as there was very powerful Bar Association. After having supported an Act called the Bail Act which is anathema to the concept of suspects being released on bail is requesting the Minister to permit Public Servants and others to appear as barefoot lawyers in court.

Thanks to every one in the government including some good criminal lawyers like Mahinda Rajapaksha, Mahinda Wijesekera MM Zuhair and Anura Yapa and others in the opposition like Mr. Tyronne Fernando PC.

By this act the granting of Bail has become the exception and remanding the rule. The litigants may have to retain not barefoot lawyers, but lawyers from both sides of the Parliament to unravel the mysteries created by them.

As one Senior Magistrate remarked "You may have gone to the best University in the world but to become an intelligent and practical man you must be an active student in the University of life."

Hastily drawn up legislation is often repealed in a haste. That is why the Administration of Justice Law was repealed. The Criminal Procedure Code, the Penal Code and the Evidence Ordinance had been tested not only in Sri Lanka but in India and Pakistan and had stood firm in dispensing justice. Tinkering with such time tested legislation is grave and produces a monster which even its creator Dr. Frankenstein cannot control.

Go to the Special Assignment Column

Return to the Editorial/Opinion contents page

Go to Rajpal's Column Archive