26 October, 2020

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Imprisoning The Innocent

By Saliya Pieris

Saliya Pieris

Saliya Pieris

The plight of those wrongly arrested

The plight of the 17 year old boy and the 31 year old man arrested and remanded over the brutal murder of Seya and then suddenly released, brings to focus the plight of those who are wrongly arrested by the police, and then sent to remand prison by judges who are at times oblivious to the importance of human liberty and the suffering and ignominy of being remanded.

The boy who was arrested by the police and then remanded, was vilified and humiliated. There are allegations that he was tortured and subject to inhuman and degrading treatment by the police. In addition both suspects have been tried by media- especially social media. Until their release the public at large would not have had second thoughts about their guilt. The media carried stories of how the boy’s lap top was full of pornographic material, as if he was the first teenager found to be in possession of porn.

Untold damage has been done to the boy and there must be an inquiry into the circumstances of his arrest and detention. However sensational and tragic the case, was it really necessary to remand the two suspects? Could not the DNA tests be done without remanding?

Arresting people- the need for reasonable cause

The bottom line for arresting a person is laid down in the Criminal Procedure Code. For certain types of offences, known as ‘non-cognizable offences’, people cannot be arrested unless there is a warrant from a magistrate. For most offences which are termed as ‘cognizable’ offences, the police can arrest a person without a warrant.

However there is a threshold requirement which is that such a person must be one “who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists.”

In plain words this means that there must be some justifiable or reasonable material connecting a person with the offence before arresting him. Without such material the police cannot cause an arrest and any such arrest will be illegal.

Arrests in practice

However what happens in practice is a different story. Police arrest people with or without reasonable cause. Sometimes people are subject to arrest on the mere complaint of a party, irrespective of the truth of the complaint. Often the police do not bother to verify the truthfulness of the complaint or check out the accused’s version. After weeks in remand and sometimes after years of litigation, the complaint is found to be false. Rarely are people charged for making false complaints.

There are instances when unscrupulous police officers can be influenced into launching a criminal investigation, even where no criminal case is disclosed. This is especially so when sometimes civil or commercial transactions turn sour, and people use the police to bring pressure to bear on their opponents to settle the case. Corrupt police officers are sometimes ‘retained’ for this purpose.

In one such instance a businessman, resident in the UK who had invested money in an apartment building fell out with his business partner. A criminal complaint was made with the CID, the suspect arrested and bailed out and a travel ban imposed on him. Finally after nearly two years he was discharged, when the Attorney General decided there was no case against him.

Remanding suspects by Magistrates – The need to apply one’s judicial mind

What of remanding a suspect? In most instances, a suspect once arrested has to be produced before a Magistrate within twenty four hours. In some instances the period in police custody can be extended.

When the suspect is produced before a Magistrate, the police have to submit a report to the court setting out particulars of the investigation and the material available against the suspect. Based on this report the Magistrate has to decide on whether to remand the suspect, or whether to release him on bail. Where no material is disclosed in the police report he may even release the suspect.

Prior to making a remand order the Magistrate must apply his judicial mind and consider whether remanding is necessary and whether in fact there is sufficient material against the suspect.

Even where there is material implicating a suspect in an offence, except in cases where he has no power to grant bail, the Magistrate must apply his judicial mind on whether or not to detain the suspect in remand. The guidelines for granting bail are found in the bail act- that granting bail is the rule and refusal the exception.

Bail can be refused if there is a likelihood of interference with the investigation or witnesses, public disquiet or the likelihood of the suspect absconding. However none of these exceptions excuse a Magistrate from his sacred duty of considering whether in fact there is sufficient material implicating the suspect before him.

In cases where the offence is one carrying a sentence of life imprisonment or death, or under certain special laws such as the Offensive Weapons Act or the Poisons, Opium’s and Dangerous Drugs Ordinance, the Magistrate has no power to grant bail, which must be done by the High Court. However here too the Magistrate before remanding a suspect must be satisfied that there is material against a suspect to justify remanding him.

In every instance, if sufficient material is not disclosed a Magistrate should refuse to remand the suspect.

The manner in which judges in the lower courts before whom suspects are produced act vary widely. Some judges are conscious of the need to avoid unnecessarily remanding people. They carefully consider the available material before taking a decision. However, others tend to believe whatever the police say and remand orders are made for the asking by the police. Yet others use the powers of remand or bail to force suspects to settle cases on the pain of being sent inside if they don’t. Some judges use the weapon of remand in order to punish suspects even before they are found guilty, quite contrary to the presumption of innocence. For them remand is a way of teaching a suspect a lesson. Some suspects are thrown into remand for relatively trivial offences.

There are people in the system of administrating justice who are plainly oblivious to the suffering in prison and the effect remanding innocent people have on themselves and their families.

A onetime President of the Court of Appeal, Justice P. Wijeyeratne once told me that he thinks that all Magistrates should be made to spend a few days in remand prison, to make them understand how it is to have one’s freedom curtailed.

The depraved conditions in prisons

Outside the Welikada prison, there is inscribed on the wall “Prisoners are also Human Beings.”. However humanity stops at those walls.

The unfortunate conditions in our overcrowded prison and the squalor of the prison added to the suffering of people being unfairly deprived of liberty, albeit temporarily.

An interesting anecdote was told to me by a senior officer in the government. He told me how he accompanied a UN Rapporteur to a prison in Colombo. While inspecting the prison a few big, well- fed rats ran across. When they dropped into the kitchen yet another rat or two ran across, highlighting the squalor of the prison. The UN official was highly disturbed and observed that getting rid of the rats cannot be so difficult. Thoroughly embarrassed at what happened my friend trotted out the excuse that there were so many rats in the prison because the officials didn’t want to kill them as taking any form of life was contrary to their religious beliefs. The UN official seemed to accept that explanation.

Apart from the overcrowding and the squalor there is also the threat of violence and sexual abuse, of inhuman treatment, of nefarious activities within the prison will frighten any normal human being. One remand prisoner told me everything is available within the prison – but at a price.

Maximus Danny and the sardonic pleasures of opinionated investigators

The conduct of magistrates in pointlessly throwing people into remand was highlighted in the unfortunate plight of Maximus Danny, a widower who checked into a guesthouse at Dankotuwa with his lady partner. This is how the Supreme Court describes Danny’s story:

“The Petitioner had a relationship of sexual intimacy with one Leela, a lonely widow. They met on 22. 07. 1998 and decided to spend a quiet night at the Sirisevana Guest House, Dankotuwa. About 10.30 p.m., their hopes for tranquillity were dashed to the ground, when a group of persons rudely knocked at their bedroom door. The door opened on six intruding police officers, two of whom were in uniform, and among them were the first to fifth respondents. On inquiry by the petitioner they informed him that they were from the Chilaw Police Station. They arrested both of them and took them by a van, first to the Dankotuwa Police Station and thereafter to the Chilaw Police Station. Five women and four men, also taken into custody at the said Guest House, were taken in that van along with the petitioner and his companion. From 2.30 a.m. on the 23rd July they were kept in custody and were produced before the Magistrate, Marawila around 12 noon. An application made for bail was refused and the petitioner was remanded until 29. 07. 1998 when he was discharged.”

Maximus Danny was charged by the Police under the Brothels Ordinance, despite there not being an iota of evidence that he was managing or assisting in the operation of a brothel. The Magistrate without batting an eyelid remanded him into custody, because the police requested him to do so. Danny’s version was not heard until six days later he was released.

Danny was represented by Mr. J.C. Weliamuna before a three judge bench of the Supreme Court which held that his Fundamental Rights were violated by the police.

The Court in its judgment written by Justice Dr. Shirani Bandaranayake, made an important observation about the conduct of Magistrates who blindly make orders remanding suspects:

“I must express my concern over Magistrates issuing orders of remand, mechanically, simply because the police want such orders made. I cannot do better than to quote the words of my brother, Dheeraratne, J., said in connection with Magistrates issuing warrants of arrest (in the case of Mahanama Tillakaratne v. Bandula Wickramasinghe) . Magistrates should not issue remand orders “to satisfy the sardonic pleasure of an opinionated investigator or a prosecutor”. Remanding a person is a judicial act and as such a Magistrate should bring his judicial mind to bear on that matter before depriving a person of his liberty.”

Unfortunately, fifteen years on, some are yet to learn from the wisdom of that judgment.

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Latest comments

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    Hundreds of Tamils political prisoners still languish in detention—some for decades. But let’s not mention them in a piece titled ‘Imprisoning the Innocent’. Colombo liberals. Lol.

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    Saliya Pieris

    RE: Imprisoning The Innocent

    “The plight of the 17 year old boy and the 31 year old man arrested and remanded over the brutal murder of Seya and then suddenly released, brings to focus the plight of those who are wrongly arrested by the police, and then sent to remand prison by judges who are at times oblivious to the importance of human liberty and the suffering and ignominy of being remanded.”

    Sri Lanka has Judges who are Modays, Mootals and Idiots. Sri Lanka also has many police officers who are Modays, Mootals and Idiots. The National average IQ of Sri Lanka is 79.

    The UN wanted Hybrid Courts. If Sri Lanka had hybrid course with with one qualified Foreign Judge, this would not have hipped. Why? Because the Sri Lankan judges are Modays, Mootals and Idiots.

    National IQ Scores – Country Rankings

    The intelligence scores came from work carried out earlier this decade by Richard Lynn, a British psychologist, and Tatu Vanhanen, a Finnish political scientist, who analysed IQ studies from 113 countries, and from subsequent work by Jelte Wicherts, a Dutch psychologist.

    Countries are ranked highest to lowest national IQ score.

    Rank
    ——– Country
    ———————– %
    ————-
    1 Singapore 108
    2 South Korea 106
    3 Japan 105

    28 Sri Lanka 79

  • 3
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    Dear Saliya Pieris

    I read your articles, it always some insight that are of legal paternity,

    “When the suspect is produced before a Magistrate, the police have to submit a report to the court setting out particulars of the investigation and the material available against the suspect. Based on this report the Magistrate has to decide on whether to remand the suspect, or whether to release him on bail. Where no material is disclosed in the police report he may even release the suspect”.
    “Prior to making a remand order the Magistrate must apply his judicial mind and consider whether remanding is necessary and whether in fact there is sufficient material against the suspect”
    As many as many present Magistrates not even bother to ask few questions or not even bother to look at the suspects, the inquiring officer has produced unlike the old generation ones, – they presume that the police is doing the job just perfectly and go through the mechanical motion of signing at the spot where they are, fail to understand why there is a compulsory procedure laid before motioning person into a remand.

    “Justice Dr. Shirani Bandaranayake, made an important observation about the conduct of Magistrates who blindly make orders remanding suspects”

    Well quoted

    /////“I must express my concern over Magistrates issuing orders of remand, mechanically, simply because the police want such orders made. I cannot do better than to quote the words of my brother, Dheeraratne, J., said “Magistrates should not issue remand orders “to satisfy the sardonic pleasure of an opinionated investigator or a prosecutor”. Remanding a person is a judicial act and as such a Magistrate should bring his judicial mind to bear on that matter before depriving a person of his liberty.”/////
    A complete revamping of Judiciary and In-service judicial Intercourse is need of the hour!

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    My dear Saliya! Great effort. However great it may be, have you ever thought as to how many Magistrates and High Court Judges judges whose name board at the entrance to the chambers should indicate as they are being “out” and not “in”, are entrusted with the task of pronouncing upon the fate of the citizens on their liberty. They should actually be shown to be “out” because the “inmates display board” at Welikada” should indicate “in” sign against their names. What is the reality of this?
    The decision to incarcerate some of our clients are made by those who should in fact be otherwise in incarceration, if not for our inaction and that of the JSC. How many of our Magistrates who are destined to hold office only during good behaviour are forcibly clinging on to the office during an extended term surreptitiously robbed from general public namely during their bad behaviour as well. Bribery is on the increase due to inaction. How can we expect the Magistrates to be trapped for bribery when the Br/head was required to be trapped. A Magistrate or High Court Judge should know when to keep away on his own volition from adjudicating on the affairs of others whenever the clouds of misbehaviour or allegation of immoral activities or commission crimes however unfortunate it may be hang over him, until such time such clouds drift away.
    High Court Judges can be removed by the president and Magistrates by the JSC . By design, this shields them from the temporary passions of the public, and give them the green light to apply the law with only justice in mind and nothing else. This can only be achieved when justice is not merely confined to paper but when it is manifestly seem to have been meted out with transparency. It is time that some of the Magistrates realize that they are not preachers or social reformers.
    Some Judges look at the speck in the eyes of the accused, but do not consider the plank in their own eyes? How can they tell them ‘Let me remove the speck from your eye’ without first removing the plank from their eyes. Let our Judiciary particularly the Magistrates apply the law relating to bail with the commendable guideline shown by you Sir ….. and let Jeffry and his team be on alert… colleague at Bar @ Seethawaka

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    Some Magistrates and H.C judges are real mutts. They pretend not to understand the golden rules regarding bail and demanding. They think they are all powerful to do anything. Jsc must take stern action against them.

  • 0
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    My dear Saliya! Great effort. However great it may be, have you ever thought as to how many Magistrates and High Court Judges judges whose name board at the entrance to the chambers should indicate as they are being “out” and not “in”, are entrusted with the task of pronouncing upon the fate of the citizens on their liberty. They should actually be shown to be “out” because the “inmates display board” at Welikada” should indicate “in” sign against their names. What is the reality of this?

    The decision to incarcerate some of our clients are made by those who should in fact be otherwise in incarceration, but they are out in courts due to our inaction and that of the JSC. How many of our Magistrates who are destined to hold office only during good behaviour are forcibly clinging on to the office during an extended term surreptitiously robbed from general public namely during their bad behaviour as well. Bribery is on the increase due to inaction. How can we expect the Magistrates to be trapped for bribery when the Br/head was required to be trapped. A Magistrate or High Court Judge should know when to keep away on his own volition from adjudicating on the affairs of others whenever the clouds of misbehaviour or allegation of immoral activities or commission crimes however unfortunate it may be hang over him, until such time such clouds drift away.

    High Court Judges can be removed by the president and Magistrates by the JSC . By design, this shields them from the temporary passions of the public, and give them the green light to apply the law with only justice in mind and nothing else. This can only be achieved when justice is not merely confined to paper but when it is manifestly seem to have been meted out with transparency. It is time that some of the Magistrates realize that they are not preachers or social reformers.

    Some Judges look at the speck in the eyes of the accused, but do not consider the plank in their own eyes? How can they tell them ‘Let me remove the speck from your eye’ without first removing the plank from their eyes. Let our Judiciary particularly the Magistrates apply the law relating to bail with the commendable guideline shown by you Sir ….. and let Jeffry and his team be on alert… colleague at Bar @ Avissawella

  • 1
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    Dear Salia Peiris

    Your article is a timely needed one and real situation has been explained, thank you for your contribution in the legal field and my concern however is that just to raising the issue not going to solve anything but we need to think and put some action plans to the government. Now we say we are in Yahapalanaya. Why cant the Bar association takes it to the top and do something about it

    Now we hear that there are 30 newly recruited magistrates to be posted to the stations very soon, what they are going to do is the same cause that they are to follow since there is nothing substantial measures has been placed yet there are lots of superior court judgments and guidances given to Magistrates but those are still on paper not in reality.
    Just I wanted to add on your point on vague remand without grounds, there are instances where unrealistic bail conditions imposed by Magistrate and High Judges, like requirement of GN certificate and Government servant to be standing as a Surety and certified deed bails……………..
    There are guidelines about imposing conditions by our Supreme Court and Court of Appeal several judgments are available which are not being followed by our Magistrates.
    For example, I can tell of a incident that one Magistrate granted bail for 314 matter ( offence of simple hurt) with 100,000/-two surety with condition that to proof their resident by GN certificate with countersigned by the DS. Bail was granted at 1pm and then it is not possible to get this certificate then, lawyer for the suspect went to the Chamber and explain that tomorrow is a poya day followed up with weekend, therefore, suspect has be in remand for 3 or 4 days because of this condition. But the learned Magistrate informed to the lawyer that he cannot do anything about it and further said I can’t entertain this type of application. At the end this poor suspect spent nearly 4 days in remand ……………. This is utterly a absurdity without common sense.

    Another important point is that imposing a bail condition (without a valid circumstances) to sign at the police station which is also totally against to provision of our constitution and recently Court of Appeal held in case No. C.A(PHC) Application No. 58/201 decided on 03.09.2013 as follows:
    “In passing I observe that Judges of the original Court empowered to grant bail should be very slow to impose a condition on the suspects to report to a police station at different intervals, as the police department plays an important role in prosecuting the case against the suspect and when they are directed to report to the police, obviously they come in contact with the prosecution witnesses and there is a possibility however negligent the chances may be for an unscrupulous police officer to abuse his authority and take the mean advantage of the helpless and desperate plight of an accused.
    In those circumstances the suspect is brought under severe hardship in having to attend the police station pending the conclusion of the trial. Hence, an imposition of a condition to report to the police station should not be made as matter of course unless the circumstances really cry out for such a condition. In the event of constant surveillance of the suspect is necessary, it would be more appropriate to order the suspect to report
    to the Registrar of a court of the choice of the Judge who make such an order or any other officer of court nominated by court or to other person or authority not involved in conduct of the prosecution or defence in the case. This would facilitate the elimination of corruption and abuse of authority that may take place in the suspects having to report to the police stations. Further, such an arrangement will undoubtedly give meaningful effect to the presumption of innocence guaranteed under the constitution”
    Justice Sunil Rajapakshe
    Another point is of dealing with sureties …. Many a time we have seen very hash manner magistrates act with surety and many instances where sureties are remanded because they have failed to produce the suspect there are many judicial Precedents that it is illegal to remand a surety for being failure to bring the suspect to the court ………..it is dealt in a recent judgement of a Court of Appeal as follows
    The benefits of taking surety bail are twofold. Firstly the surety is bound to exercise some form of supervision on the accused, and report to court if there is a concern that he will abscond. On the other hand it is designed in such a way so as to discourage the accused from jumping bail as the member/members 0 f his family and/or friend / friends who provided the sureties will be driven into unnecessary embarrassment. In our experience, it is comparatively rare for an accused to keep away from court when meaningful sureties are in place. This is the advantage of bringing in family members or close friends into the scene than to simply depend on Government Servants as sureties which may appear to be a meaningless exercise that was not heard of in the past. As the surety stands as a bridge between the accused and court, the surety should not be put into unnecessary inconvenience or embarrassment otherwise than by resorting to the due process of law.

    In the case of Roberts vs.Hopwood and others1925 AC page 578 at page 613 Lord
    Wren bury (House of Lords) voiced his opinion as to the manner inwhich a judicial discretion should be exercised, in the following words.

    “The person in whom is vested a discretion must exercise his discretion upon reasonable grounds. A discretion does not empower a man to do what he likes merely because he is minded to do so-he must in the exercise of his discretion do not what he likes but what he ought. In other words, he must, by use of his reason, ascertain and follow the cause which reasons direct. He must act reasonably.”

    thank you again

    swarna
    Anattorney -at-Law

  • 1
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    Saliya! Why cast pearls before swine. Majority of the Magistrates refuse to acknowledge the truth on this issue because they want to have their own way in dealing with suspects. Heavy cash bail is ordered to obstruct the freedom of citizens. Insistence on govt servants as sureties-unreasonable bail conditions is another ruse adopted by judges who intectully corrupt to keep the suspect on remand. This not stupidity but sheer sadism. If the benefits of the golden rules laid down are to be reaped the Bar has to report the judges who are corrupt intellectually and materially to the JSC and Bribery. Then only a judiciary devoid of shylock mentality be a reality.

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