There are many objections that can be taken against the proposed Code of Criminal Procedure Bill on the basis of the unconstitutionality of many of the provisions of the Bill.
Some of these objections are as follows.
The essence and core of the Bill is to dispense with the requirements of the presence of the suspect at the time the magistrate may make orders relating to him or her and the high court judge may also make similar orders, including the dispensing of the presence of the suspect at the time of the trial. This very idea of dispensing the presence of the suspect violates the very core of the constitutional principle that is at the heart of the Constitution, which is the protection of the individual
The very notion of the independence of the Judiciary is tied up with the possibility of playing the judicial role and the judicial function as required of a judicial officer. The exercising of the judicial mind on making a decision is at the core of the judicial role and the judicial function. If that function is modified in a way so as to interfere with the exercise of the judicial mind on issues of utmost importance, such as deciding on the legality of an arrest, the legality of a detention, and on the matters relating to a fair trial, these are all basic aspects of undermining the judicial role and judicial function and therefore, judicial independence. Judicial independence is enshrined very clearly in the Constitution and therefore, the core idea of the Bill allowing the magistrate or a high court judge to dispense with the presence of a suspect is a violation of the principle of the independence of the Judiciary
The exercise of the judicial mind requires that in making a judicial decision, the court is under obligation to respect the principles of natural justice. Natural justice requires that the Judiciary listen to both the parties to the case and in criminal cases – it means either the Police or the Attorney General (AG) on the one hand and the suspect on the other. For a suspect to be heard, the suspect must be in the presence of the judicial officer. If his/her presence is dispensed with, what takes place is essentially an ex parte process, where a prosecuting officer, the Police, or the AG could make requests without giving an opportunity for the defendant to know what is being presented to the court against him/her and thereby to be able to make an informed response to whatever that is being said to the judicial officer against him/her. Without that presence at the time when things are told against him/her to the court, the suspect is not in a position to respond to the details of what is being said, and at the same time, also to reply in detail to what has been said. When the suspect is not given the opportunity to do so, this deprives the magistrate of knowing from the accused about what his/her views are about what is told against him/her. This is a fundamental violation of the rule of audi alteram partem (a basic rule of natural justice)
Thus, the core idea of dispensing with his/her presence itself is unconstitutional. Before going into the consequences of such dispensing with his/her presence, it is essential to go into the very notion about such suspension and its legality. Thus, the making of a law to dispense with the presence of a suspect violates the very notion of judicial proceedings, the very notion of the independence of the Judiciary, and the fundamental notion of the duty of the courts to protect the rights of an individual. Thus, the very idea that has been proposed is in itself unconstitutional. On that basis alone, this whole Bill – and not just particular provisions of the Bill – should be rejected. If the idea that the presence of an accused is to be dispensed with in itself is unconstitutional, then the rest of the Bill it follows is completely unconstitutional.
Then, we could go into the unconstitutionality of the various provisions of the Bill, which contravene the different Articles of the Constitution. Empowering various officers such as police officers, the AG, the Superintendent of Police, etc. to make an application for dispensing with the presence of the suspect is in itself unconstitutional in that this is not a function that could be exercised by anyone in exercising Executive powers. All these officers are pursuing Executive power when they arrest, detain, investigate crimes, or prosecute crimes in court. However, it is not within their power as to how the court should conduct itself in dealing with arrests, detentions, investigations, and fair trials.
These are matters that are determined by constitutional principles and those basic principles of criminal justice. It is not within the power of the Executive to determine these principles or to make requests to the courts to undo the judicial function that is inherent in the very functioning of the Judiciary. The Executive has to act within the framework of the judicial system and its fundamental principles in exercising their powers. It is not within their power to ask that some or more of these principles should be dispensed with. For example, if any of these officers make a request for dispensing with the right of cross-examination of the prosecution witnesses by the suspect, this is a similar request to dismissing the right to be present in the court when decisions are being made regarding his/her life or liberty. The judicial process itself is tampered with when such requests are authorised by way of a statute. Then the statute itself will be violating the fundamental aspects of the judicial process. Thereafter, it will cease to be a judicial process.
The Bill violates the right against illegal arrest as enshrined in Article 13 of the Constitution. The right of arrest is subject to producing a suspect within the shortest possible time before a magistrate, where the suspect is able to challenge the legality of the arrest itself. Suppose a suspect is arrested on a charge that does not in fact exist or on the basis of facts about the suspect’s conduct which are not at all illegal in any way. Many instances have already come up before courts in recent times when a person peacefully demonstrating on some issues has been arrested and brought to court where they were able to inform the magistrate about what they had been engaged in, which were perfectly legal activities, and then the magistrate released them or immediately enlarged them on bail on the basis that there was no ground for the arrest. Thus, the right to challenge the legality of the arrest itself at the earliest possible opportunity is part of the constitutionally enshrined right against illegal arrest.
The evolution of the law for producing the suspect as early as possible before a magistrate has been a well-enshrined principle actually achieved through centuries. It is such a fundamental aspect relating to an individual’s right for liberty and rights that without the protection of which, this right cannot exist. Therefore, the possibility of dispensing with the presence of an accused during a trial is a total violation of the constitutionally enshrined principle against illegal arrest.
It is also the provision for dispensing with the presence of a suspect that is contrary to the right against torture and ill treatment as enshrined in Article 11 of the Constitution and the relevant provisions of the international covenants to which Sri Lanka is a State Party. Producing a suspect before a magistrate as early as possible ensures that the magistrate has an opportunity to examine the appearance of the suspect to see whether his/her rights against torture and ill treatment have been violated. There have been many instances that have come up before the courts where the magistrates have noted such disturbing features on the body of a suspect and thereafter, having questioned the suspect as to whether he has been ill treated and when he/she has confirmed, he/she has been referred to a medical examination. Such intervention by the magistrate on the one hand is an opportunity for the suspect to get medical treatment as early as possible and on the other hand, to be on record as evidence of such illegal treatment of the suspect.
In the same manner, the presence of the suspect at the earliest possible opportunity after arrest provides the suspect an opportunity to inform the magistrate about the condition that he/she is in as a result of the illegal arrest and torture. This again has the same consequences as being able to get the magistrate’s protection, get medical treatment through the magistrate’s intervention, and also leave a record of evidence for future use. All these will be deprived if the presence of the accused or the suspect is dispensed with.
This will also be contrary to Article 13 of the Constitution, relating to illegal detention. It is unconstitutional to illegally detain a person. If the suspect’s presence is dispensed with, it is quite possible that an order can be made ex parte on the basis of incorrect information placed before the magistrate, whereby otherwise illegal detention becomes legal detention due to the fact of the magistrate making an order for detention. If the suspect were to be present, he/she could provide a detailed objection to further detention and thereby either obtain bail or release as a result of this. In the circumstances as envisaged by this Bill, this opportunity will be denied in the first instance to the accused and he/she could be unnecessarily detained because his/her version of the facts has not been placed before the magistrate.
To this, it may be added that the making of false representations regarding the suspect is not an infrequent practice in Sri Lanka. Many of the cases decided under Article 126 of the Constitution on fundamental rights by the Supreme Court have held that illegal arrest and illegal detention has taken place. In all these instances, the Police, or the prosecution, have given versions about the incident which the court has rejected in deciding in favour of the petitioners in these cases. As this is an overwhelming prevailing practice to provide inadequate and inaccurate reports to courts, the present Bill paves the way for violations against illegal detentions and therefore is contrary to the provisions of Article 13 of the Constitution.
Dispensing with the presence of the suspects also violates the right to a fair trial. It is a fundamental notion enshrined in the International Covenant on Civil and Political Rights (ICCPR) to which Sri Lanka is a State Party, and the Supreme Court has recognised this Covenant as part of the Sri Lankan law – that a fair trial should take place in a fair and open manner. The principle of hearing a trial in open courts is one of the most fundamental aspects of a fair trial. It has evolved as against secret trials which have taken place over a long period in many countries and it has become a sacrosanct part of the notion of a fair trial to have the trials in open courts, except in the instances which are expressly recognised by the Constitution.
These are just initial reflections, and many more reflections may be added to this to demonstrate that this whole Bill is opposed to the Constitution and the ICCPR as well as the long history relating to a fair trial and judicial processes which are part of our law by way of numerous decisions of the Supreme Court.
(The writer is the Asian Human Rights Commission’s Policy and Programmes Director)
The views and opinions expressed in this column are those of the author, and do not necessarily reflect those of this publication.Objections to the Bill on the proposed amendment to the Code of Criminal Procedure
02 Dec 2021
Objections to the Bill on the proposed amendment to the Code of Criminal Procedure
02 Dec 2021
There are many objections that can be taken against the proposed Code of Criminal Procedure Bill on the basis of the unconstitutionality of many of the provisions of the Bill.
Some of these objections are as follows.
The essence and core of the Bill is to dispense with the requirements of the presence of the suspect at the time the magistrate may make orders relating to him or her and the high court judge may also make similar orders, including the dispensing of the presence of the suspect at the time of the trial. This very idea of dispensing the presence of the suspect violates the very core of the constitutional principle that is at the heart of the Constitution, which is the protection of the individual
The very notion of the independence of the Judiciary is tied up with the possibility of playing the judicial role and the judicial function as required of a judicial officer. The exercising of the judicial mind on making a decision is at the core of the judicial role and the judicial function. If that function is modified in a way so as to interfere with the exercise of the judicial mind on issues of utmost importance, such as deciding on the legality of an arrest, the legality of a detention, and on the matters relating to a fair trial, these are all basic aspects of undermining the judicial role and judicial function and therefore, judicial independence. Judicial independence is enshrined very clearly in the Constitution and therefore, the core idea of the Bill allowing the magistrate or a high court judge to dispense with the presence of a suspect is a violation of the principle of the independence of the Judiciary
The exercise of the judicial mind requires that in making a judicial decision, the court is under obligation to respect the principles of natural justice. Natural justice requires that the Judiciary listen to both the parties to the case and in criminal cases – it means either the Police or the Attorney General (AG) on the one hand and the suspect on the other. For a suspect to be heard, the suspect must be in the presence of the judicial officer. If his/her presence is dispensed with, what takes place is essentially an ex parte process, where a prosecuting officer, the Police, or the AG could make requests without giving an opportunity for the defendant to know what is being presented to the court against him/her and thereby to be able to make an informed response to whatever that is being said to the judicial officer against him/her. Without that presence at the time when things are told against him/her to the court, the suspect is not in a position to respond to the details of what is being said, and at the same time, also to reply in detail to what has been said. When the suspect is not given the opportunity to do so, this deprives the magistrate of knowing from the accused about what his/her views are about what is told against him/her. This is a fundamental violation of the rule of audi alteram partem (a basic rule of natural justice)
Thus, the core idea of dispensing with his/her presence itself is unconstitutional. Before going into the consequences of such dispensing with his/her presence, it is essential to go into the very notion about such suspension and its legality. Thus, the making of a law to dispense with the presence of a suspect violates the very notion of judicial proceedings, the very notion of the independence of the Judiciary, and the fundamental notion of the duty of the courts to protect the rights of an individual. Thus, the very idea that has been proposed is in itself unconstitutional. On that basis alone, this whole Bill – and not just particular provisions of the Bill – should be rejected. If the idea that the presence of an accused is to be dispensed with in itself is unconstitutional, then the rest of the Bill it follows is completely unconstitutional.
Then, we could go into the unconstitutionality of the various provisions of the Bill, which contravene the different Articles of the Constitution. Empowering various officers such as police officers, the AG, the Superintendent of Police, etc. to make an application for dispensing with the presence of the suspect is in itself unconstitutional in that this is not a function that could be exercised by anyone in exercising Executive powers. All these officers are pursuing Executive power when they arrest, detain, investigate crimes, or prosecute crimes in court. However, it is not within their power as to how the court should conduct itself in dealing with arrests, detentions, investigations, and fair trials.
These are matters that are determined by constitutional principles and those basic principles of criminal justice. It is not within the power of the Executive to determine these principles or to make requests to the courts to undo the judicial function that is inherent in the very functioning of the Judiciary. The Executive has to act within the framework of the judicial system and its fundamental principles in exercising their powers. It is not within their power to ask that some or more of these principles should be dispensed with. For example, if any of these officers make a request for dispensing with the right of cross-examination of the prosecution witnesses by the suspect, this is a similar request to dismissing the right to be present in the court when decisions are being made regarding his/her life or liberty. The judicial process itself is tampered with when such requests are authorised by way of a statute. Then the statute itself will be violating the fundamental aspects of the judicial process. Thereafter, it will cease to be a judicial process.
The Bill violates the right against illegal arrest as enshrined in Article 13 of the Constitution. The right of arrest is subject to producing a suspect within the shortest possible time before a magistrate, where the suspect is able to challenge the legality of the arrest itself. Suppose a suspect is arrested on a charge that does not in fact exist or on the basis of facts about the suspect’s conduct which are not at all illegal in any way. Many instances have already come up before courts in recent times when a person peacefully demonstrating on some issues has been arrested and brought to court where they were able to inform the magistrate about what they had been engaged in, which were perfectly legal activities, and then the magistrate released them or immediately enlarged them on bail on the basis that there was no ground for the arrest. Thus, the right to challenge the legality of the arrest itself at the earliest possible opportunity is part of the constitutionally enshrined right against illegal arrest.
The evolution of the law for producing the suspect as early as possible before a magistrate has been a well-enshrined principle actually achieved through centuries. It is such a fundamental aspect relating to an individual’s right for liberty and rights that without the protection of which, this right cannot exist. Therefore, the possibility of dispensing with the presence of an accused during a trial is a total violation of the constitutionally enshrined principle against illegal arrest.
It is also the provision for dispensing with the presence of a suspect that is contrary to the right against torture and ill treatment as enshrined in Article 11 of the Constitution and the relevant provisions of the international covenants to which Sri Lanka is a State Party. Producing a suspect before a magistrate as early as possible ensures that the magistrate has an opportunity to examine the appearance of the suspect to see whether his/her rights against torture and ill treatment have been violated. There have been many instances that have come up before the courts where the magistrates have noted such disturbing features on the body of a suspect and thereafter, having questioned the suspect as to whether he has been ill treated and when he/she has confirmed, he/she has been referred to a medical examination. Such intervention by the magistrate on the one hand is an opportunity for the suspect to get medical treatment as early as possible and on the other hand, to be on record as evidence of such illegal treatment of the suspect.
In the same manner, the presence of the suspect at the earliest possible opportunity after arrest provides the suspect an opportunity to inform the magistrate about the condition that he/she is in as a result of the illegal arrest and torture. This again has the same consequences as being able to get the magistrate’s protection, get medical treatment through the magistrate’s intervention, and also leave a record of evidence for future use. All these will be deprived if the presence of the accused or the suspect is dispensed with.
This will also be contrary to Article 13 of the Constitution, relating to illegal detention. It is unconstitutional to illegally detain a person. If the suspect’s presence is dispensed with, it is quite possible that an order can be made ex parte on the basis of incorrect information placed before the magistrate, whereby otherwise illegal detention becomes legal detention due to the fact of the magistrate making an order for detention. If the suspect were to be present, he/she could provide a detailed objection to further detention and thereby either obtain bail or release as a result of this. In the circumstances as envisaged by this Bill, this opportunity will be denied in the first instance to the accused and he/she could be unnecessarily detained because his/her version of the facts has not been placed before the magistrate.
To this, it may be added that the making of false representations regarding the suspect is not an infrequent practice in Sri Lanka. Many of the cases decided under Article 126 of the Constitution on fundamental rights by the Supreme Court have held that illegal arrest and illegal detention has taken place. In all these instances, the Police, or the prosecution, have given versions about the incident which the court has rejected in deciding in favour of the petitioners in these cases. As this is an overwhelming prevailing practice to provide inadequate and inaccurate reports to courts, the present Bill paves the way for violations against illegal detentions and therefore is contrary to the provisions of Article 13 of the Constitution.
Dispensing with the presence of the suspects also violates the right to a fair trial. It is a fundamental notion enshrined in the International Covenant on Civil and Political Rights (ICCPR) to which Sri Lanka is a State Party, and the Supreme Court has recognised this Covenant as part of the Sri Lankan law – that a fair trial should take place in a fair and open manner. The principle of hearing a trial in open courts is one of the most fundamental aspects of a fair trial. It has evolved as against secret trials which have taken place over a long period in many countries and it has become a sacrosanct part of the notion of a fair trial to have the trials in open courts, except in the instances which are expressly recognised by the Constitution.
These are just initial reflections, and many more reflections may be added to this to demonstrate that this whole Bill is opposed to the Constitution and the ICCPR as well as the long history relating to a fair trial and judicial processes which are part of our law by way of numerous decisions of the Supreme Court.
(The writer is the Asian Human Rights Commission’s Policy and Programmes Director)
The views and opinions expressed in this column are those of the author, and do not necessarily reflect those of this publication.Kapruka
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Discover Kapruka, the leading online shopping platform in Sri Lanka, where you can conveniently send Gifts and Flowers to your loved ones for any event. Explore a wide range of popular Shopping Categories on Kapruka, including Toys, Groceries, Electronics, Birthday Cakes, Fruits, Chocolates, Automobile, Mother and Baby Products, Clothing, and Fashion. Additionally, Kapruka offers unique online services like Money Remittance, Astrology, Medicine Delivery, and access to over 700 Top Brands. Also If you’re interested in selling with Kapruka, Partner Central by Kapruka is the best solution to start with. Moreover, through Kapruka Global Shop, you can also enjoy the convenience of purchasing products from renowned platforms like Amazon and eBay and have them delivered to Sri Lanka.Send love straight to their heart this Valentine's with our thoughtful gifts!