This article has specific emphasis on the latest Bill introduced in the Parliament where the legislature seeks to limit the right of access of any person held in Police custody to an Attorney-at-Law. It craftily uses deceptive words to redirect an Attorney-at-Law to have access to a Police Officer in lieu of the suspect in Police custody.
The Code of Criminal Procedure (Special Provisions) (Amendment) is a Bill put forward by the Ministry of Justice that seeks to amend the Code of Criminal Procedure (Special Provisions) Act, No. 2 of 2013. In the said Bill’s Statement of Legal Effect, provisions in Clause 2 state that it seeks to amend the said Act by the insertion of a Section 6A (a new Section) to it, the legal effect of which is to make provisions to ensure the rights of an Attorney-at-Law who represents a person held in Police custody.
Section 6A(1) of the proposed Bill which purports to allow for the right of an Attorney-at-Law to access a person in the custody of the Police, holds that “an Attorney-at-Law representing a person in police custody shall, from the time such person is taken into custody, be entitled to have access to the police station in which such person is being held in custody, for the purpose of meeting the officer in charge of the police station and making representations to such officer.” An Attorney-at-Law is hired to represent the interests of the client who is the suspect in custody. The client is not the Officer-in-Charge (OIC) of the Police Station in which the suspect is being held in custody. The OIC does not and cannot be legitimately expected to represent the interests of justice (to use a phrase that appears later on in this Bill) of the suspect. Hence, there is an immediate need and direct requirement for the Attorney-at-Law to meet and conduct consultations with the suspect cum client. Section 6A(1) does not recognize the Attorney-at-Law’s right to have access to the client. This is in complete contravention of the principle of due process and the right to a fair trial, not to mention the fact that the suspect under principles of natural law is at all times presumed to be innocent until proven guilty by a competent court of law.
Section 6A(2) of the proposed Bill reads, “The right of an Attorney-at-Law, to have access to the police station, and to make representations, shall not affect the investigations that may be conducted in respect of the person being represented.” While access of an Attorney-at-Law to his/her client in the custody of a Police Officer should be permitted at all times, the right of an Attorney-at-Law should not under any circumstances impinge upon the investigations being conducted by the Police into the involvement of the suspect in the commission of any offence.
Section 6A(3) of the proposed Bill states that while any such Attorney-at-Law shall be permitted entry into the relevant Police station, s/he is to be treated cordially and courteously, and given a fair and patient hearing by the Police Officers attached to the said Police station. The words “cordially” and “courteously” are synonymous and are also not suitable for use in a legal enactment of this nature. It is also the duty of the Police Officers to give a fair hearing and exercise patience during the process of doing so.
Section 6A(4) of the proposed Bill outlines that any such Attorney-at-Law acting and appearing on behalf of the person held in Police custody, is entitled to meet the OIC of the relevant Police station and ascertain certain specified and unspecified information from the said OIC. Section 6A(4)(d) of the proposed Bill however recognizes that while the preceding provisions, respectively, Sections 6A(4)(a), 6A(4)(b) and 6A(4)(c), specify the information that can be obtained as being information pertaining to the offence alleged to have been committed by the client, information pertaining to the date, time and location of the arrest and the date, approximate time and place of production of the suspect before a Magistrate, in the case of the Attorney seeking to ascertain “any other information”, which are unspecified in the context of the proposed Bill, such would only be provided on the grounds that the revealing of such “would not adversely affect the conduct of further investigations and the interests of justice”. The phrase “interests of justice” should entail within it the interests of three parties, namely, the suspect, the victim/s, and the investigating Officers. It is also not specified in this provision as to who is vested with the power of making the value judgment and the call of deciding on as to what information, the revealing of which constitutes an adverse impact on further investigations and the interests of justice.
Section 6A(6) of the proposed Bill holds that the Attorney-at-Law “shall, if he so requests, be allowed to have access to the person in custody, unless such access is prejudicial to the investigation being conducted.” “He” should be changed to a gender neutral term. The extent of the access allowed is not specified. The provision does not define the scope of what is meant by the word ‘prejudicial’. The provision also does not illustrate or define as to who is to make the judgment call with regard to the said matter.
Although Section 6A(9) of the proposed Bill recognizes that for the purpose of the Bill, the OIC of a Police station includes any other Police officer representing the said OIC of the Police station, Section 6A(8) of the proposed Bill informs that “Every officer in charge of a police station shall, if he is not in a position to entertain representations made by an Attorney-at-Law, under this section, appoint a suitable police officer to entertain such representations.” Here too, the word “he” should be changed to a gender neutral term. The provision in Section 6A(8) does not specify whether the powers vested in the OIC is in this instance transferred in the entirety to the subordinate officer. The word “entertain” as used in this provision is non-legal language. It is also unclear as to what exactly constitutes and is meant by, “not in a position to entertain representations”.
The above provisions lay a strong emphasis on aspects pertaining to the investigations conducted by the Police while depriving the suspect of his/her right to an Attorney-at-Law. Depriving access to an Attorney-at-Law permits the Police to take advantage of the situation and manipulate the suspect to make undue confessions by means of coercion or even torture. The law has previously recognized this element. It is for this precise reason that Section 25 of the Evidence Ordinance prevents the admission of any confession to a Police Officer for use in order to prove the guilt of a suspect in a trial proceeding. The only exceptions to this rule have been in the case of legislation such as the draconian Prevention of Terrorism Act, emergency regulations and the Public Security Ordinance. While it is admitted that a statement made by the suspect may assist the Police in their investigations, it is a fundamental aspect of law to recognize that a suspect is innocent until proven guilty.
Meanwhile, the Human Rights Commission of Sri Lanka (HRCSL) and columnist, Attorney-at-Law Kishali Pinto Jayawardena too have called for the amendment of this amendment and the removal of certain Sections of the Bill.
Previously, the authors (along with others such as the Bar Association of Sri Lanka, the HRCSL and Jayawardena) called for the withdrawal of a proposed amendment to the Code of Criminal Procedure Act. In this instance, the demand concerned a Bill to amend the Code of Criminal Procedure Act, No. 15 of 1979, titled the ‘Code of Criminal Procedure (Amendment)’, that had been gazetted. It sought to insert a Section 37A, thus allowing for anyone arrested or detained in the custody of the Police to retain and consult as per Section 37A(1) an Attorney-at-Law/lawyer of his/her choice at his/her own expense or in the event the said person is unable to do so, the Legal Aid Commission of Sri Lanka (LACSL) would as per Section 37A(2) provide such service if the LACSL was in a position to provide such. Furthermore, Section 37A(3) of the proposed amendment outlined that it is the OIC of the relevant Police station who is to make the latter request as per Section 37A(2) to the LACSL for the provision of the said service. According to the proposed amendment, the right to legal counsel can only be exercised after the recording of statements from the suspect as per the provisions of Section 110(1) of the Act and prior to being produced before a Magistrate.
Extorted confessions through the use of torture and cruel, inhuman and degrading treatment and punishment, freedom from the latter which is guaranteed in Article 11 of the Constitution, is reported as especially taking place prior to the recording of the statement/s from the suspect. Article 12 of the Constitution provides for the equal protection of the law. This includes due process and the right to a fair trial. The proposed amendment can be deemed as violating all of such. It must also be noted that the right to confidential legal counsel with a competent counsel and representation by him/her must be provided for any person at any time during the process of investigation (from the moment of arrest or detainment and during the period of detainment and being in custody, and onwards). Criminal proceedings begin from the moment of investigation. The provision stating that the LACSL would provide the said service only if they are in a position to do so was recommended to be deleted. If the suspect cannot afford a lawyer, the LACSL should be legally bound to definitely provide one. It can also be argued that granting an OIC the right to place the request before the LACSL would constitute a contravention of the suspect’s right to exercise his/her choice with regard to retaining and consulting a lawyer. The suspect must be allowed to communicate with the LACSL directly. Services and assistance provided should also be in the language of the suspect’s choosing.
The said amendments are therefore of little consequence to protecting the rights of the suspects and therefore must be completely withdrawn urgently.