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Criminal Procedure Code Amendment comes under fire

  • CPA raises concerns on instances of the non-production of suspects/accused to courts

BY Pamodi Waravita

Following the publication of a gazette on 8 October concerning a Bill to amend the Code of Criminal Procedure Act No. 15 of 1979 as amended, the Centre for Policy Alternatives (CPA) yesterday (14) raised concerns about the proposed amendments which seek to empower judges to dispense with the personal attendance of a suspect or an accused party in court, under special circumstances.

“The Bill, proposed as a permanent Amendment, must be evaluated in light of the existing problems of Sri Lanka’s criminal justice system where custodial torture and abuse have become almost a norm. Despite the constitutional guarantee providing for freedom from torture, decades of precedent demonstrate the continuous failure by the State to take tangible measures to protect this fundamental right, resulting in a culture of impunity. In such a context, the proposed amendments are likely to further exacerbate existing problems. We therefore urge the Government to not proceed with the Bill,” the CPA said in a statement released yesterday.

The proposed new Amendment – to be added as Section 144 A (4) to the said Code of Criminal Procedure (Amendment) Act in the event it is enacted – reads that the Magistrate may dispense with the personal attendance of a suspect or an accused – per Section 144 A (1), concerning a suspect or an accused against whom criminal proceedings have been commenced before such Magistrate, for the purpose of extending the period of detention or any other purpose – on the following grounds: “(a) where there is a threat or an apprehension of serious harm to the life of a suspect or an accused; (b) where public reaction to the offence alleged to have been committed by a suspect or an accused is likely to give rise to a breach of peace; (c) where there is a likelihood of a suspect or an accused escaping from detention or being involuntarily removed from detention; (d) where there is a likelihood of a suspect or an accused obstructing the proceedings of the court; (e) where a suspect or an accused has been subjected to a state of quarantine under any written law in order to prevent the spread of an infectious or contagious disease dangerous to life; (f) where the personal attendance of a suspect or an accused who has been admitted to compulsory rehabilitation in terms of the provisions of any written law causes interruption to the rehabilitation process of such suspect or accused and the purpose of the attendance of the suspect or accused is to extend the period of detention; or (g) where the personal attendance of a suspect or an accused is likely to pose a threat to the public safety and health due to a pandemic or other similar situation prevailing for the time being.”

The proviso in Section 144 A (4) notes that where the Magistrate is of the opinion that a ground specified in 144 A (4) has ceased to exist, he/she may direct the personal attendance of a suspect or an accused in court and enforce his/her attendance.

The CPA claimed that the aforementioned reasons are “vague and may be subject to abuse by the authorities”. They noted: “For instance, among the reasons for which a suspect may not be produced in court is ‘where there is a likelihood of a suspect or an accused, obstructing the proceedings of the court’. It is unclear how the Attorney General, the officer-in-charge of the relevant police station or the superintendent of the relevant prison, as per the Bill, will determine when such an obstruction is ‘likely’, or what amounts to an obstruction.”

Furthermore, the CPA noted that detainees are often victims of a culture of abuse and torture when in detention, in addition to often lacking meaningful access to their legal counsel. Thus, the CPA noted that the production of suspects and accused parties in court serves as a manner in which the Judiciary is able to monitor their safety and wellbeing.

“Therefore, permanently removing such an essential safeguard is unacceptable and deeply disturbing and troubling,” added the CPA.

Moreover, in its statement yesterday, the CPA said that it was “deeply concerned with the purpose and timing of the Bill in a context when Sri Lanka’s criminal justice system faces a plethora of challenges requiring urgent attention, with no information publicly available as to why the present Bill has received prioritisation over other more pressing matters”.

At a meeting held at the Prison Reforms and Prisoners’ Rehabilitation State Ministry on Wednesday (13), Justice Minister President’s Counsel M.U.M. Ali Sabry said that amendments would be made to about 60 laws that have not been modernised by the Justice Ministry during the course of the last 20 years. He explained that such changes will be accommodated into the progressive legal system he plans to implement in the future.