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On the Code of Criminal Procedure (Amendment) Act Bill 

a year ago

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The mere presence of a lawyer is not a substitute for the presence of the accused in court when proceedings are taking place against them. The first objection to the mere presence of a lawyer is that in the very first instance of arrest, when the Officer In Charge (OIC) of the Police station makes an application to the Magistrate to have an order for the remanding of the suspect, it is very unlikely that a lawyer could be present. The suspect will be taken from the Police station directly to the remand or it is not even clear whether they could be kept further in the Police station itself. In any case, the first contact with the lawyer in many instances would not be made under these circumstances. Even after a lawyer is contacted, the suspect must be present in order to properly instruct the lawyer throughout the proceedings. It is the suspect who knows the details about the matters about which they are accused of, and their presence is needed in order so that they could give proper instructions to the lawyer. The suspect also has the right to change the lawyer if they feel that the representation made by the lawyer has not adequately presented their version of the situation. This is an inherent right of the suspect. By dispensing with the presence of the suspect, the suspect will lose all these basic rights and would have to suffer the consequences.  At the stage of the trial, it is essential for the suspect/accused to be present in court because on many matters that will arise during the trial, witnesses will give evidence about which the lawyer of the suspect/accused would need detailed instructions on. In the process of the cross examining of the witnesses for the prosecution, the suspect’s or accused party’s assistance is essential for their lawyer so that they could accurately represent their client. Further, it is a right of the suspect/accused to hear all of the evidence that is given against them. It would be a violation of natural justice if a suspect or an accused is punished and in the case of a High Court trial, they could be punished with a long term of imprisonment if they are not fully and thoroughly aware of all that has been said against them.  It is also the fundamental right of the suspect/accused to put up a defense. Against every offense, there are defenses recognised by the law, and without the recognition of such a right of defense, the criminal law becomes a farce. In the making of their defense, the suspect/accused would have to answer the questions that are arising from the evidence that is led against them in court. This would require that they be present in court and that they are aware of the evidence that is given against them.  The suspect/accused also has the right to make their own defense. To make that defense, they need to be present in court. The prosecution has a right to cross examine them and the court has the duty to watch their demeanour while they are giving evidence. The court also has the opportunity to get any clarifications from the suspect/accused about the evidence that they are giving in the court. All these require their presence.  The conduct of the proceedings through virtual means such as videos cannot adequately fulfil any of the requirements mentioned above. Taking proceedings through video or virtual means should not be confused with the idea of having the proceedings on camera. When proceedings including trials take place on camera, all arrangements are made to fulfil the requirements of a fair trial, but the only thing that has been excluded is the trial being heard in open court and this is done only when there is serious evidence available or when there are special reasons such as the cases relating to small children like sexual abuse cases. These proceedings have their own procedures and these ensure the presence of the suspect although the means by which it is done may be on camera.  This bill also violates and undermines the independence of the judiciary in another respect. It is the duty of the state to provide protection to the courts so that the courts could proceed with the required security while conducting proceedings. This bill makes provisions for dispensing with the presence of a suspect or an accused if there is a threat to their life or if there is a possible disturbance by outsiders if they are present in court due to some particular situation. In both of these instances, the practice so far and the practice throughout the world is for the state to provide security for the suspect/accused brought before the court.  In the 1980s, there were famous cases when persons who were publicly seen as terrorists were brought before High Courts. One such case was the famous case of an individual who was a leading member of the Liberation Tigers of Tamil Eelam (LTTE). His trial was conducted in a High Court. Throughout the trial, heavy security was provided for the suspect and there was no incident reported during the trial where the mobs or anyone intervened to attack the accused. It was later in the remand prisons where he should have had the complete protection of the prison authorities that he was assassinated. Sri Lankan courts have extensive experience of conducting controversial trials and in those cases, the state carried out its obligations to provide protection to the courts. The failure to provide protection to the court would amount to the undermining of the very notion of the independence of the judiciary because the functioning as independent judges requires that they are provided with security by the state to carry out their functions.  The purported reason, to go by some statement made by Justice Minister President’s Counsel M.U.M. Ali Sabry in a recently-held television interview on the supremacy of law, is in order to reduce the workload of the courts. This method of dispensing with the suspect or the accused will not contribute to that end in any significant way. In fact, this will increase the workload of the courts because if the courts make decisions in the absence of the suspects, it is very likely that in the very first instance available, these decisions will be challenged in the same courts itself or in higher courts by the suspects/accused parties.  If for example, a detention order had been obtained by providing false information to the magistrate, then it is very likely that in the first instance possible, the suspect will bring their version of the actual events to the notice of the magistrate in court. This will require the magistrate to inquire into the matter again which in turn means the calling back of the officers who made the earlier representations and such proceedings will take even more time than in the instances where the suspect is present in court when the initial decisions are being made.  Similarly, if trials take place in the absence of the accused, it is very likely that the trial itself will be challenged in many ways due to this very fact and the other consequences that will follow because of this. Thus, it is very likely that retrials will be ordered or the cases will get completely dismissed due to these situations.  The proposed law instead of solving any problem will increase the problems in courts as it will cause further delays in the judicial proceedings and above all, it will create a situation where the basic rights of the individual are taken away in a manner so as to virtually create a police state.  (The writer is the Asian Human Rights Commission’s Policy and Programmes Director)  The views and opinions expressed in this article are those of the author, and do not necessarily reflect those of this publication.

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