On the 7th of October 1997 Professor G.L. Peiris moved to read a second time the Bail Bill. The Bail Bill was supposed to be an Act which would provide for release on bail persons suspected or accused of being concerned in committing or having committed an offence. In short the object of the Government was to release on bail suspects or accused at the earliest given opportunity. It was contended that the remands are overflowing with suspects who are languishing in remand due to poverty.
The Government spends a considerable amount of money to feed these persons in remand. If anyone had the good fortune or the misfortune to visit the remand prisons he would encounter people herded into a cell like cattle being transported in lorries for slaughter. We have enacted legislation to punish those who commit cruelty to animals, but there are no similar legislation to punish those who are responsible for detaining homo sapiens in remand in worse conditions than cattle in transit.
Professor Peiris in his address to Parliament in introducing the Bill said "I have myself visited the Welikada Jail, the Bogambara Jail, the prisons in Matara and various other prisons in different parts of the country. The very regrettable state of affairs is that the majority of persons in the prisons have not been convicted of any offence. No Court has found them guilty. They are held in remand simply because they cannot find the sum of money which they have been ordered to pay. That is why I describe this as a very pathetic state of affairs." Then he proclaimed that the present Bill was a landmark piece of legislation with regard to criminal procedure. He further said 'human freedom, Mr. Speaker, is one of the core values of the law. Here we have a situation where people are deprived of their freedom not because they have committed any criminal offence but simply because of poverty".
This state of things strikes at the very root of any system of civilized human law and it needs to be rectified as a matter of priority
Under these circumstances one would imagine what it means to a person who has never seen the inside of a remand cell to be remanded. He languishes in jail with heavy cost to the tax payer. There are judges who are very liberal with bail.
"Former Justice O.S.M. Seneviratne often expressed the view that bail imposed by Court must not be prohibitive. He further contended that the wife or the closest relation would be the best surety. Then there are other judges who insist on government servants or Tax payers as sureties. It cannot be said the judges quite arbitrarily make orders for the remanding of the suspect.
"The Judiciary is highly respected in this country. The courts have to strike a healthy balance between the liberty and the presumed innocence of the suspect and the society and the complainant who had become the victim of the action of the accused. The rate of crime is steadily on the rise. Especially offences like house breaking and theft, where due to these burglaries middle-class citizens overnight become second-class citizens are on the steady increase. The police officers being concerned with the increasing number of fundamental rights applications that are being filed against them, accusing them of torture and other police excesses, refuse to use any extra legal methods to interrogate suspects.
"The law abiding citizens who have been victims of crime feel that society treats them as non entities. They have to suffer in silence, and bear the loss and face a police officer who treats him as the virtual suspect. The chances of the Police recovering the loot is like winning the jack pot. There are no NGOs who will undertake to redress their grievances. The whole world seems to be banding around to give all the redress that the accused demands. By some chance if even a part of the stolen goods are recovered the Courts find it difficult to release the goods to the complainant as the accused has suddenly found that he has some proprietary rights to the goods he stole from the complainant. By the time the case is over and the goods are returned to the complainant they had deteriorated in the Court House. Electronic goods have to be thrown in to the dust bin, as they are beyond repair. The plight of the victim often is much worse than the accused.
Some Judges order heavy bail as they are confronted with a large number of accused absconding from Court. After they are released on bail, it is only 75% that come to Court. The Police Officers are burdened with the additional duty of arresting not only the culprits but his sureties or the people who signed a piece of paper in Court called the Bond, and obtained the release of the accused. Soon after both the accused and the surety disappear leaving the complainant high and dry. A large percentage of accused do not appear at all, and the cases are laid by after the issuance of an open warrant for their arrest. The number of accused remanded on a given day is almost double the number that is released from custody.
Every Minister of Justice was faced with this problem and tried whatever methods were available to arrest this position on advice given by their officials. The simplest answer to this gigantic problem is to build more and better prisons, but it is only a utopian dream as the present Government as governments before it, is in dire financial straits so that it has no money to even build a public lavatory.
Professor Peiris made a very impressive speech, delivered in his inimitable style, From the reaction of the others it could be assumed that Professor Peiris would have enthralled his audience, the Members of Parliament. The opposition would have felt sorry that they could not, when in Government, offer such legislation which ensures without any ambiguity its commitment for human freedom, liberty and the rule of law. The senior members of the UNP Government, specially ex Ministers of Justice, applauded the Professor for having taken great pains and initiative to introduce this Bill which will become a corner- stone of human liberty.
It was said that a copy of the Bill in its original form was sent to the Bar Association of Sri Lanka for their observations, comments and recommendations. Mr. Anil Silva, the former Secretary of the Bar Association had by Circular sent the Bill to the sixty odd branches of the BASL and asked for response. The Branches as usual did not respond and the only opinion the Secretary could form was that the Bill was a large leap in the right direction. When the Minister inquired from the Bar Association for any response or any criticism about this Bill, the Bar Association either did not reply or told the Minister that there were no objectionable clauses in the Bill.
Under the present Criminal Procedure Code, offences are divided into two main categories. They are the bailable offences and the non bailable offences. Most bailable offences are offences where the suspect has committed a simple offence. Most bailable offences under the penal code are offences where the matter would be first referred to the Mediation Board for settlement. If there is no settlement the matter is referred to Court. Though the Police prosecute accused for bailable offences the person who suffers the injury will have the right to settle the charge in Court. The non-bailable offences are grave offences where the injured party has no right to settle and is considered an offence against the State. In a bailable offence as it stands today the Police Officer in charge of the Station has the right to release the suspect from custody and order him to appear in Court when he receives summons, but more than 65% of the cases reported to the Police are bailable offences and the Police by a practice they have developed over the years do not take the responsibility of releasing them from custody but produce the suspect in Court. The suspect is brought to Court with a report stating what the alleged offence is, with the productions recovered from the accused or the suspect. Then the Court makes an order to release the suspect on bail.
There is now a judicial tradition built on several decisions expounded by the Court of Appeal and ratified by the Supreme Court, that a person is produced before a Magistrate on suspicion that he has committed an offence which is described in the schedule to the Criminal Procedure Code as a bailable offence, the Court shall release the suspect forthwith., or at anytime during the course of the proceedings. It is a virtual right of the accused guaranteed by the Criminal Procedure Code. The Superior Courts on more than one occasion have passed severe strictures on Magistrates who had made such illegal orders. The Bar Association has conducted seminars where senior Judges have addressed the members of the Bar and Magistrates on the importance of suspects being released forthwith without remanding the suspect even for a day on matters connected with bailable offences.
The second category of offences are known as non-bailable offences and the Police will produce in Court anyone suspected of having committed a non-bailable offence. The Police are bound by law to produce a report to Court and a brief summary of the evidence so far recorded. The Police will express their desire to the Magistrate whether the accused should be remanded for a maximum period of 15 days or should be released on bail. The Magistrate will then have an opportunity to peruse the report filed in Court by the Police and the submissions made by the counsel for the accused and decide whether an order of remand should be made or not. Whatever course of action the Court takes with regard to the remanding of the accused, the Court is bound by law to release the suspect after 15 days.
Then there is the last category of offences where a suspect is produced in Court that he committed murder or to other offences referred to in Section 115 the Magistrate will have no power to release the suspect until three months lapses. If the Police for some reason are unable to complete their investigations with regard to the alleged murder within three months from the time the accused was arrested, the Magistrate is again bound by law to release the suspect after the lapse of three months.
So we have a very simple, logical procedure for the release of suspects on bail founded on the time tested legislation called the Criminal Procedure Code. Anyone produced on an allegation that he committed a bailable offence he must be released immediately. Similarly a person who commits a non-bailable offence must be released after 15 days and cannot be kept in remand even for a single day more than the 15 days. Any person remanded for committing the capital offence must be released after three months from the day of his arrest if proceedings are not instituted.
The Bill was introduced to streamline the procedure in granting bail. The Bill has become law. Having examined the Bill for the first time, I believe it is one of the most retrogressive piece of legislation that this Government has introduced. The compassionate intention of the Minister is likely to be nullified by this Bill. The police may have tinkered with the Bill in order to give them the authority which had eluded them. In deciding whether the suspect should be produced in Court or not for the purpose of the suspect being released on bail the OIC will be the sole authority.
From the time the Police Force was established in Ceylon, it has earned the unequivocal wrath of the populace of this country. The one single reason the public is willing to digest any evidence which is per se false as gospel has been the past conduct of the Police.
The Commissions thrive on these obvious weakness of the public, and lead evidence against the police which is in the realm of pure fantasy. It has been said that only a dead police officer is a good police officer. Once Dr. Colvin R. De Silva remarked that the imperial rulers who introduced the Evidence Ordinance, firstly to India thought it fit to have many safeguards against admitting confessions made to a police officer, though the rulers themselves admitted confessions made by Englishmen to their Police Officers and were convicted on their own confessions. But the subjects were spared of such ignominy."
To this pathetic situation the political factor must be added. Today, the local politician is virtually the arbiter of police powers. The politicians who had been nurtured in the traditions of holding on to power by what ever means they could, had to protect their henchmen from being arrested by the police.
During the Wijetunga regime two accused supporters of an MP were convicted by the High Court and did not appear in court for sentencing. Open warrants were issued, but though the accused were seen openly moving in the town the Police did not arrest them.
At Gampola, a local politician, an active supporter of the UNP, did not appear in Court and the Court did not hesitate to issue a warrant. The Magistrate Mr. Mervyn Wijetunga reprimanded the police for failing to arrest the big time politico. The politico on the other hand was bragging that no police officer would ever arrest him, unless he wished to be transferred to the operational areas. True to his word the politico was not arrested but the Magistrate was transferred to another station.
The present regime, which came to power on a platform to eradicate these abuses, is now openly expressing the view that the UNP has taught them how to manipulate the Police and even rig the elections to stay in power. This they say without any remorse. The manner in which this government has used the Police would put even the UNP to shame. The police have become backboneless lackeys of this government and have abused their power without any compunction. Some Police Officers have done this for their own survival. There is an MP who has against him more than 45 cases. When warrants are issued no one would ever dare to arrest him. Senior Ministers walked into a Police Station and ordered the OIC to release a Kassippu dealer who had been a great supporter of the Ministers.
The Government politicians kill, maim and injure the opposition and no arrests are made. As soon as this government came into power a politician against whom an open warrant was issued came before the President and took his oaths as a Junior Minister.
Till the UNP performed a satyagraha the suspects who were named as assailants in a murder were not arrested. Later the suspects surrendered to court. There was not a single police officer with the courage to arrest these suspects, roaming freely in a southern town. The politician would transfer any Police Officer who would refuse to submit to the political machination of the Government.
We have found that after this Government assumed office the police have become the tool which implements and effectively supports acts of violence and thuggery of the hierarchy. The government knows how ineffective and impotent the opposition is to counter such abuses.
Under the circumstances can we delegate the power to decide about the freedom of an accused to an OIC of a Station. Under Section 6 of the new Bail Act the Police are not bound by law to take a suspect before a Magistrate and could release him after twenty-four hours of his detention and request him to give an undertaking to appear before a Magistrate.
But the proviso adds that though the alleged offence which is being investigated is a bailable offence, nonetheless if the OIC of the Police Station forms an opinion that public reaction is likely to give rise to public disquiet, the suspect shall be produced before a Magistrate and the Magistrate may either release him on bail or may refuse to release the suspect on bail and commit him to custody.
The order of remand can be made against a person who had committed the simplest of offences if the OIC had not been properly retained or the suspect's political opinion is different to that of the local politician.
Then the OIC would be intensely pressurized to submit a report that there is a wave of public anger against the suspect which will result in the imminent breach of the peace and might even end up in murder. The OIC would plead the provisions of the present Bail Act be invoked and the suspect be kept in custody. What is most objectionable in the present Act is not only the powers that are given to the OIC, but also the removal of any time frame which was found in the Criminal Procedure Code, What is unbelievable is that under Section 16 of the present Act, the Court can in fact remand a person for a period not exceeding 12 months from the date of the suspect's arrest.
The new Bill, would alleviate the suffering of the government politicians in their search for implements like grenades, heroin to be introduced to the person who has to be remanded. It is now sufficient to threaten the OIC to file a report, stating in his opinion the alleged offence and offence bailable or non bailable but is likely to give rise to public disquiet and move to keep him in remand .under Sect 14 of the Act
In the future members of the BASL with its blessings especially the junior lawyers will have to appear before OIC to obtain bail. These juniors would not really mind PC's appearing before the OIC's and plead for bail. . Can any lawyer with repute plead their client's cause before an OIC. In the suburbs often the OIC is a Sergeant. If the OIC files a report under section 14 of the Act then it would be difficult for a Magistrate loaded with work to hold an inquiry and decide as to whether there is public reaction against the accused which may give rise public disquiet until the inquiry is concluded the suspect would have to be remanded.
Public reaction can be staged by any Government. The Magistrate will have to take cognisance of these facts before releasing the suspect on bail. Hitherto even if the Magistrate was not completely satisfied that the suspect ought to be remanded until the investigations are concluded the Magistrate may yet remand a suspect as he knows that the maximum period of incarceration under the old law is 15 days.
Thus the Bail Act negatives the important principles regarding release of suspects on bail developed by liberal Judges over the years.
If the Act is implemented without it being amended immediately, then the remands would be bursting in their seams with not only remand prisoners who have committed bailable offences but also with prisoners who had been convicted and sentenced for their failure to attend Court. The law's delays will take a steep rise with new inquiries within a trial either to determine the allegations of the OIC demanding the accused be remanded is tenable and of those accused who had violated the bond or the undertaking he has signed at the Police Station to appear in Court on a given date.
-To be continued next week
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