17 September, 2019

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HRCSL Wants Govt. To Withdraw New Amendment To The Code Of Criminal Procedure Act

The Human Rights Commission of Sri Lanka (HRCSL) has called on the Government to withdraw the proposed amendment to the Code of Criminal Procedure Act which deprives suspects of access to lawyers until their statements are recorded. The Commission has also highlighted that the new Bill will hinder the efforts of the Government which has expressed its determination to stop torture in Sri Lanka.

Dr.Deepika Udagama

Dr.Deepika Udagama

In a letter addressed to Prime Minister Ranil Wickremesinghe on 21st September 2016, the Commission’s Chairperson Dr. Deepika Udagama expressed concern that the Bill published in the Gazette on the 12th of August 2016, proposing to amend the Criminal Procedure Code, will deprive suspects arrested and detained by the Police of access to Attorneys-at-law, prior to the recording their statement, and will adversely impact on the constitutionally guaranteed rights of persons including the citizens of Sri Lanka.

“The Bill proposes to introduce a new section 37A to the Criminal procedure Code. The proposed Section 374(1) states that “any person who has been arrested and detained in custody, shall have the right to retain and consult on Attorney-at-law of his choice of his own expense, after the recording of his statements in terms of the provisions of subsection (1) of the section 770 and prior to being produced before a Magistrate.” Although this section purports to give a right to arrested suspects to retain and consult an Attorney-at-law, such right is granted only after a statement is recorded from the suspect. Between the time of arrest and until the time of the conclusion of the recording of a statement, the suspects are deprived of access to their Attorneys-at-Law,” Udagama said in the letter.

According to the HRCSL, the new Bill derogates from the rights already guaranteed by the State under Rules made by the Inspector General of Police under the police Ordinance.

The Human Rights Commission notes that as a result of a settlement reached in the Supreme Court in a Fundamental Rights Application, the Inspector General of Police made rules under the police Ordinance cited as Police (Appearances of Attorneys-at-Law at Police Stations) Rules 2012 recognising the right of a lawyer to represent his/her client at a police station and requiring the officer in charge of the police station to facilitate such representation. “These rules effectively recognise the right which all persons including suspects have to access their Attorneys-at-law at any time, including the period immediately after arrest and while being in detention,” the letter said.

The Human Rights Commission has observed that many instances of torture as well as cruel, inhuman treatment of suspects at police stations occur between the period of arrest and the conclusion of the recording of their statements. “As such depriving suspects under arrest and detention of access to their lawyers until the conclusions of their statements will result in a greater risk of suspects being subject to torture, cruel and inhuman treatment as well as illegal arrest and detention by errant police officers,” HRCSL Chairperson said in the letter.

“The Human Rights Commission is equally concerned that the new provision will impinge on Fundamental Right of a fair trial guaranteed to an Accused under Article L3(3) of the Constitution’ The right to a fair trial begins from the time of investigation. The lack of a fair and impartial investigation will result in the deprivation of a fair trial to an accused. The new provision, depriving suspects of access to lawyers during a crucial stage of the investigation will result in eventually the accused being deprived of a fair trial as a result of an unfair and partial investigation,” the letter stated.

The Commission pointed out that granting access to lawyers after the suspects’ statements are recorded and just before them being produced before a Magistrate is of little consequence.

“The new Bill is contrary to the accepted international standards of human rights which Sri Lanka is obliged to guarantee to its people. The attention of the Government of Sri Lanka is drawn to the relevant provisions of the International Covenant on Civil and Political Rights (ICCPR). lt has been observed that the right to liberty and security of persons and the right of due process established by law requires the State to permit access to counsel from the inception of the detention and that there ought to be prompt and regular access to lawyers,” HRCSL said.

The Supreme Court of Sri Lanka has upheld that the Right to a fair trial includes the accused being granted adequate time and facilities for the preparation of the defence and to communicate with counsel of one’s own choosing. This is also reflected in Article 14 of the ICCPR. Sri Lanka’s Code of Criminal Procedure has been criticised by international bodies including the UN Committee Against Torture of lacking ‘fundamental legal safeguards, such as the right to have a lawyer present during any interrogation and …the right to confidential communication between lawyer and client.’

“As such, it is necessary to strengthen, not weaken, the right of suspects to have access to lawyers. Especially when Sri Lanka has embarked on a constitutional reform process, including the drafting of a new Chapter on Fundamental Rights that should accord with the highest international and national human rights standards, the presentation of this Bill is all the more problematic. ln the above circumstances, the Human Rights Commission of Sri Lanka calls upon the Government of Sri Lanka to withdraw the aforesaid amendment to the Code of Criminal Procedure and to continue to recognise and enhance the rights of suspects to have access to their lawyers,” Udagama said.

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Latest comments

  • 6
    0

    Very valid request by the HRCSL, the Govt should address it post haste and not wait until it becomes a big issue. The Public is only too aware of what takes place after a suspect is taken IN by THE LAW ENFORCEMENT FORCES and before he is produced before a Magistrate. As pointed out the suspect must have immediate access to HIS LAWYER and not later.

    Time without end we have seen even now where there has been delays in allowing a suspect access to his Lawyer where there has been brutal assaults whilst in Police Custody. Just imagine if there is legal approval to refrain from permitting a suspect from seeing his/her Lawyer what the scenario would be.
    Keep pushing for this amendment HRCSL!!!

  • 3
    1

    “…………………..after recording of his statements………….”

    We all know the well refined process of how police “obtain” statements from “suspects”.

    This proposed amendment is against human rights of anyone arrested by law enforcement agents.

    In really democratic countries, it is the Right of Any Accused to retain an attorney before any interrogation.

    I await the response of the Bar Association.

  • 7
    0

    I have heard Law Enforcement Officers in foreign countries telling the arrested persons: “You have a right to remain silent and represented by a lawyer” – how that goes with Sri Lanka?. Also in certain instances when a person is asked to come to the Police Station, he/she is instructed by the Lawyers, not to speak anything other than in the presence of the represented lawyer. Are these “Foreign” to the Legal System of Sri Lanka?

    • 3
      0

      Correct, and that is how it should be.
      “You have the right to remain silent and represented by a lawyer, what ever you say now, will be presented as evidence in court”

  • 6
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    The Human Rights Commission of Sri Lanka (HRCSL)

    “The Human Rights Commission of Sri Lanka (HRCSL) has called on the Government to withdraw the proposed amendment to the Code of Criminal Procedure Act which deprives suspects of access to lawyers until their statements are recorded. The Commission has also highlighted that the new Bill will hinder the efforts of the Government which has expressed its determination to stop torture in Sri Lanka.”

    Yes.

    They record the statements after torture.

    If not recorded the way they want it, they are killed.

    So, any statement has to be AFTER, attorneys’s are contacted. with no duress.

    • 6
      0

      And,
      the statement is recorded in a language unknown to the arrested person,
      who is compelled to sign it.

      • 0
        3

        he statement is recorded in a language unknown to the arrested person, who is compelled to sign it.

        In Sinhale, Tamils are Racist and are bullying the govt.

        Any where in the World, Tamils learn the majority language in the country and work in that language.

        • 1
          0

          no it is not correct jim softy, in any democratic & civilized country a lawyer is available if demanded and if the suspect does not speak the language of the interrogator then a translator is also called upon. please check your facts correctly before you utter something! apropos your statement itself shows who is the racist with prejudice! here!

    • 2
      0

      The flipside of the coin is, lawyers advice the arrested to tell lies of some sort or other. This is the weak link in our legal system and those of many others. The extent of political involvement in our legal system was demonstrated in the Duminda Silva case. The method should involve questioning and recording the statement of the arrested in the presence of a lawyer and have him sign it as having not been obtained under duress of any sort. In circumstances such such as when the accused is admitted to a hospital and cannot be questioned, his condition should be certified by a panel of doctors, accompanied by a magistrate. The medical doctors, should be liable if they had deliberately lied. Telephone service providers recording of the initial conversation between the arrested and the lawyer should be required provide the records to courts when required.

      A system must be created wherein the lawyers help serve justice, while not being part of the racket to thwart justice through money power. The system should protect the ‘not guilty’ and target the ‘guilty’ with high prabailty, if we are as a people to develop respect for our judicial system.

      To get ‘Smart’ justice should be a human right in this century. The system should not permit an accused to escape justice ihrough loop holes in law and procedures. A lawyer who proveds his/her services for an accused to escape/thwart justice is a ‘good and much sought out’ lawyer in the modern legal system. Is this right? Providing an accused, who is truly guilty the opportunity not to pay the price law demands, according to the law and sans interference of money plus political power, within boundaries of human rights, should be the objective of all components of our judicial system.

      Dr,Rajasingham Narendran

  • 1
    0

    As usual when legislation is enacted it is not for the benefit of the populace but to pass something that looks good but rotten.It is well known how most cases are solved by beating the shit out of suspects and then making a confession which is submitted as evidence. this is where the legal fraternity should be in the forefront crying fowl.In the 5th amendment to the U S constitution there is a section that allows suspects from self incrimination and all they have to say is that they plead the 5th and that is the end of questioning.In California when anyone is arrested the police officer reads their Miranda rights against self incrimination.I wonder in the Srilankan constitution which has been revised so many times since independance has any such provision to safeguard its citizens ,can someone comment.

  • 1
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    I missed that in the event this piece of legislation is passed all accused should give a statement as required to the effect that they know nothing about what he is being accused of, end of story..

  • 2
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    Who the F*** Advising Government & Law makers to make these kinds of Utter Murderous Changes to the Constitution…. It can be Understandable if this Approved if it was on Mahinda’s Era…But Guess what It is the Era of Goddamn “Sanhidniyawa”…

    • 2
      0

      Who do you think in charge of the ministry? It is another “Rajapassa”. This time it’s buddy of the previous ‘Jarapaksas’ but from the UNP.

  • 0
    0

    Our Ministry of Justice and other Authorities responsible for upholding the high values of justice do not seem to care about the inhuman treatment of the people
    taken into custody.Don’t they really know the excruciating treatment the suspects get in Police custody?We observe how the Government is treating the politicians accused of heinous crimes,in fact it is well known that highly placed politicians are interfering with the process of justice in some of these cases.Why is the Govt.keen on enacting new provisions when it should really strengthen the existing laws to safeguard the interests of the suspects.
    Thanks to HRCSL for bringing this important issue to the public domain.

  • 1
    0

    HRCSL is RIGHT in insisting that the accused or the arrested is questioned by police in the presence of his/her lawyer. HRCSL must go one sep further to insist all questions are asked in camera so that the interrogator cannot threaten, beat or torture the accused. This is a serious issue because the police or CID take taw into their hands and treat the accused as they wish.

    There have been cases of torture and rape of accused while in custody. In many cases under PTA the courts accept the “confessions” obtained under duress. Sri Lanka must move forward into 21st century and not backwards into barbarism.

  • 1
    0

    Except for a about a dozen or so lawyers (many of whom are females) the rest of the legal practitioners in this country are just an army of shallow characters without any principles who are intent only on extracting money from their clients, and thriving on others’ misery!

  • 0
    0

    Dr Deepika Udugama has addressed a most draconian piece of legislation. It is widely known how the police uses inhuman torture and threats to elicit the confession they want and then call it a voluntary statement made by the arrested. Failure to comply has resulted in death in so many cases.This clause which allows the police to interrogate an arrested person before consulting a lawyer contradicts all the hallowed clauses that guarantee legal justice.It makes a mockery of justice and the right to fair trial. This intervention confers prestige and credibility to the Office of the Human Rights Commission. It is a great solace to the citizenry that we have such a person of integrity and conscience at the head of the HRC. The Bar Association should take example.

    Surendra Ajit Rupasinghe

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