Focus on Rights

Dealing with organised crimes
While one may well sympathise with the objectives behind the Organised Crimes Bill that was tabled in Parliament last week, it is a sad fact that several of its provisions are completely inimical to fundamental liberty rights in our Constitution. The purpose of the Organised Crimes Bill is simple. It attempts to catch the kingpins of the vastly sophisticated underworld in this country by a specific legal enactment, based on the undoubtedly correct premise that current penal laws are insufficient to deal with this problem.

This law did not evolve within the one year period of the United Front Government alone. On the contrary, it had been in the making for quite some time and, in fact, traces its genesis to a specific study by the Law Commission of Sri Lanka as far back as 2000. While the Bill has, in the main, followed the reasoning of the Law Commission, there are also significant departures that reverberate rather unpleasantly with modern conceptions of liberty rights. Several constitutional challenges to the bill have also been filed in the Supreme Court on this basis .

The Bill, in the first instance, defines an organised criminal group, (following upon the Law Commission recommendation), to mean a group of three or more persons, not randomly formed and having as one of its objectives, the commission of one or more of particular offences specified in the schedule to the Act, punishable with a sentence of imprisonment for a term of not less than six months.

Offences listed in the schedule include murder, attempting to murder, wrongful confinement, kidnapping, procuration, sexual exploitation of children and trafficking, gang rape, extortion, robbery, and crimes concerning military deserters, forging a valuable security or will and counterfeiting currency notes, all punishable under the Penal Code.

Also included are offences relating to importation, manufacturing, selling, possessing and acquiring of offensive weapons, causing damage, destruction or injury thereto (under the Offensive Weapons Act No. 18 of 1996), manufacture of guns without a licence, having the custody or possession or using an automatic gun (under the Firearms Ordinance) offences under the Brothels Ordinance, trafficking in human beings (under the Immigration and Emigration Act), and manufacture, trafficking, etc. in such substances (under the Poisons, Opium and Dangerous Drugs Ordinance ( as amended).

Membership of such a group, by itself, subjects a person upon conviction to dire penalties amounting to a minimum of two years and a maximum of twenty years imprisonment of either description. Any person who commits, attempts to commit, conspires to commit or abets the commission of an offence specified thereto or does any other act in furtherance of the general criminal activities of an organised criminal group is made guilty of an offence under the draft law.

Aggravated punishment is stipulated for members of an organised criminal group convicted of an offence as provided above while there is also provision for punishment of persons who are not members of such a group. Harbouring such persons is also made an offence. The draft law provides for equally stringent punishment for any person intimidating or causing harm to persons investigating or assisting investigators into offences committed under the law.

Very problematically, the explanation of ' intimidation or harm" (in Section 5) is defined to apply not only to the person or property of an individual but also the reputation of such person. In more welcome phrasing, all references to "acts committed" have been defined to include illegal omissions.

Any moveable or immovable property constituting the proceeds of crime can be forfeited, consideration being given, however, to the interests of third parties who have acquired such properties in a bona fide manner. It is also provided that once sentence is passed, an offender will not be liable for early release under any scheme.

The harsh nature of these measures may be justified by some as necessary in the interest of curbing the underworld. However, libertarians are bound to protest primarily with regard to troubling provisions dealing with investigation and indictment of suspects.
Section 10 specifies that a police officer making an arrest shall, within twenty four hours of the arrest (not including the time necessary for the journey from the place of arrest to the presence of the Magistrate), produce such person before the nearest Magistrate or the Magistrate of the division within which the offence was committed. This departs from the Law Commission recommendation that production of a suspect must be within twenty four hours before a Magistrate having jurisdiction in the case.

Section 10 of the Bill thus clearly conflicts with Article 13(2) of the Constitution which requires that every person deprived or personal liberty must be brought before a judge of the nearest competent court according to procedure established by law. The draft law also provides for a suspect to be kept in police custody for seven days subsequent to production by an SP or ASP before the Magistrate who has to be satisfied on reasonable grounds that the suspect has committed or been concerned in the commission of an offence.

There is no requirement concerning medical supervision of such a suspect to ensure that he or she is not being tortured nor is provision made for legal advise. Neither is there any allowance for intervention of monitoring bodies such as the Human Rights Commission.

Once this period is over and upon a report setting out the material against such suspect, he or she is compulsorily remanded until the conclusion of the trial. Hear again, the Bill departs from the draft of the Law Commission, which allowed for bail in exceptional circumstances upon judicial order.

Awakening old and highly problematic ghosts, however, the Law Commission appears to have approved of bringing back provisions of the Prevention of Terrorism Act and Emergency Regulations, allowing confessions to ASP's to be made admissible in a departure from the normal law. The Bill reproduces these recommendations in Sections 16 and 17 . In addition, it provides that any such statement shall be admissible against any other person indicted jointly with that person, if the statement is corroborated in material particulars.

Fears regarding the conferring of such wide and arbitrary powers to the police in a context where the police force is itself very much part of the problem of organised crime in Sri Lanka, are understandable. Ultimately, the fate of bills, (having an otherwise admirable purpose), but not thought through well enough, is that if they are liable to be rejected on grounds of constitutional impropriety, the good is also thrown out with the bad. We saw this with the Equal Opportunity Bill some years back. It would be a pity if the same fate befalls the Organised Crimes Bill as well.

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