the Bail Amendment Bill
Imaging of cops and lawyers
Mudliyar's piece on the Bail Amendment Bill drew a reply
from me solely because, as I stated there, it was an excuse for
an unwarranted attack on my learned friend, President's Counsel,
Ananda Wijesekere on the false ground that he collaborated with
me on this piece of legislation. I am glad Mudliyar has taken his
medicine and has been careful not to persist in this unfounded charge.
With reference to his oblique claim of interest shown in the Bail
Amendment Bill by the Colombo MC Lawyers' Association he has not
sought to refute my position that contributes to the non-credibility
of this claim. Instead he has gone on a frolic of regaling us with
his amateur TV script on whom he calls a kingpin in the heroin trade,
dossier on Noor and the game of cops and robbers he projects, though
damagingly biased on the side of the CIA operative type cop, is
interesting. But it leaves unanswered the query of remandees as
to how Noor is in and out of remand with such ease when they languish
in the dumps without bail. I knew why they were reduced to their
plight; they are persons brought to court on the police report that
on a search of their person each was found to be in possession of
a small quantity of what goes for heroin. Remand is imperative under
the law applicable to drugs related offences. But Noor too is dealt
with under the same law and how come he secures different treatment!
Police reports I have had access to as Minister of Justice carry
a story that a few unscrupulous lawyers and cops exploit for the
benefit of the Noors a provision in the Bail Act that suffers from
want of sufficient clarity.
traditionally perched beneath the bench, would agree that no Magistrate
could be unwillingly misled on this. My Bail Amendment Bill, I believe,
clarifies the position in regard to this category of offence.
provisions in my Bail Amendment Bill left intact prevailing provisions
on bail except in relation to socially ''abhorrent" crime as
murder, rape, child molestation, extortion, procuration, etc. These
are the "scheduled offences". It also provides the procedure
to be adopted by a Magistrate in refusing bail in respect of even
a non-bailable offence (excluding the scheduled offences).
He has to record
his reasons for refusal of bail, and it is left to his discretion
to grant him bail at the end of fifteen days if proceedings are
not instituted against him. Even in respect of the scheduled offences
a Magistrate is required to release the suspect on bail if no proceedings
are instituted against him within three months. In these matters
the Magistrate has to record his reasons for refusing bail and that
makes his decision readily reviewable by a higher court.
to question my qualification in the area of law and procedure covered
by my Bill. This is a matter on which I need to be silent because
self advertisement or what amounts to it is frowned on in the ethics
that apply to my profession. Ethical conduct does not seem to bother
Mudliyar as is seen in his piece on Noor. He advocates for the crime-cop
the abusive use of the methods of the criminal which include the
free indulgence in the sharing of the heroin loot with criminals
so as to keep open the lines of police information. His condemnation
of police officers who refuse to compromise on this is, to say the
least, most obnoxious.
Speaking of ethics I note that Mudliyar preserves a studied silence
on my reference to a handful of lawyers collaborating with criminals.
I mentioned the specific instance of such lawyer corroborating the
story of innocence spun out for a criminal fleeing from the police
in a "contract murder" investigation. His statement to
the police was that the man had been abducted when he was on his
way to his chambers. This story was untrue because, as discovered
subsequent]y, by then the man was being willingly ferried to safe
haven across the Palk Strait. Whether false or true, the story reflects
the condition to which a few practitioners have reduced the standards
of a noble profession. No lawyer can be heard to say that he was
willing to give a consultation to a suspect or criminal evading
the law. In respect of this particular suspect it was no secret
that the police were on a man-hunt for him for weeks before his
wholly fabricated abduction.
me as comrade too. He should not therefore take it amiss if I recall
to him Karl Marx himself on our subject: "The criminal produces
not only crime but also the criminal law;.... He produces the whole
apparatus of the police and criminal justice, detectives, judges,
executioners, juries, etc., and all these different professions.......".
(Bottomore: Karl Marx-Selected Writings in Sociology and Social
Philosophy). But this should not mean, Comrade Mudliyar that the
criminal produces the cop and the lawyer in his own image.
his rejoinder to my reply to him, faults me on my mention of the
Penal Code in the sentence, "The description of an offence
as 'non-bailable' in the Penal Code is no reason for a suspect brought
before court, with no evidence to link him to that offence, to be
held without bail." This refers to the obligation of the magistrate
to scrutinize the police report and if necessary the investigation
notes in allowing remand pending completion of inquiries - an application
often made by the police. Mudliyar resorts to song and dance on
my incorrect reference to the Penal Code and conveniently avoids
meeting my position in respect of what might be called the inherent
powers of the magistrate to protect a person's freedom from undue
detention. In this regard may I remind Mudliyar that his own rejoinder
that "the definition of bailable and non-bailable was also
in the Criminal Procedure Code" does not answer to the rigours
of his own pedantic approach. The fact is that there is no definition
of these terms in the procedure code he mentions. These errors of
reference however are of no consequence to what is being argued
and are, as lawyers and judges see them, irrelevant.
Nor do I see
any reason as to why an error in a statement of my own and attributed
to no other should disturb the repose of Dr. Colvin R de Silva.
Perhaps Mudliyar in his enthusiasm to gloss over inconvenient argument
made an error in his reading - a sin not allowed to persons in his