By Basil Fernando –

Basil Fernando

A new dimension was added to the debate on the proposed amendment to the criminal procedure code when the Minister of Justice attempted to defend the amendment on the basis that it is required to enable investigations into crime.

The proposed amendment is that lawyers would not be able to represent people at police stations until investigations into crime and recording of statements is over. It then adds that if the suspects cannot pay for the lawyers, legal aid would pay for it.

The immediate question that comes up is: what is the purpose of paying the lawyers at all if they are to serve no purpose on behalf of the suspects at the time of criminal investigations and at the time statements are recorded? Why was that second part added to this amendment if the sole purpose of the amendment was to stop the lawyers from representing suspects at the police stations? Why talk about paying them?

The obvious reason is to create an impression that a piece of progressive legislation has been passed in Sri Lanka allowing lawyers to attend police stations, while at the same time making sure that their attendance is of no purpose at all.

Wijeyadasa Rajapakshe – Minister of Justice

If the purpose of the amendment was not to allow lawyers to attend police stations to represent suspects, then what is its purpose at all? The criminal procedure code as it is now is silent on lawyers’ representation during criminal investigations and during the recording of statements from suspects. The amendment would have been required if, for example, the right of lawyers to represent clients was already part of the criminal procedure code, and then if, for policy reasons, the Minister of Justice wanted it to be removed. Since there is nothing to be removed, why is this amendment necessary at all?

If it enters into the statute book at all, this amendment will only enter as a joke. You don’t need to make laws to deprive the rights of lawyers to represent suspects at police stations. It would have been reasonable to have an amendment if its purpose was to grant the right to lawyers, as a matter of law, to represent clients during criminal investigations. You do not make laws in order to deprive a professional group the right to represent people. It would be one of the most retrogressive laws that has ever entered the statute books.

If there was any doubt as to who is the author of this crooked amendment, the Minister of Justice has admitted its authorship. It is not some mischief played by some draftsman. The mischief maker here is the Minister of Justice himself.

Here, the Minster of Justice has intervened in order to take away the rights of a profession, the legal profession, under the pretext that crime prevention requires taking away such rights. Is it, then, the view of the Minister of Justice that the legal profession is a crime-promoting agency?

This is the first law to be introduced into Sri Lanka that is a direct attack on the legal profession itself.

The situation is even worse when we consider that the Inspector General of Police has, by notification published in the gazette, instructed the police officers and the officers in charge of police stations to treat lawyers attending police stations with courtesy and provide all the assistance needed to carry out their duty.

Is the purpose of the new amendment to tell police officers and officers in charge of police stations that they can now ignore the gazette notification made by the Inspector General of Police and that they should not allow any lawyer to represent suspects during the investigation stage? Does that mean that the Inspector General of Police’s gazette notification was an attempt to help criminals and that now the Minister of Justice is attempting to help the police officers against the notification made by the head of their institution?

From every point of view, this amendment is ridiculous. It should be rejected because it is, first of all, a ridiculous amendment. The statute book is not created for various miscellaneous purposes like putting a few jokes in now and then as laws.

If the Minister of Justice cannot even understand the basic purpose of a law, a question arises as to the Minster’s own credibility to hold his post.

If the Minister wanted to look for the causes of the increase of crime, he could have easily found it out by looking around and seeing the very system of justice that we have. He would have seen that prolonged delay in trials is a major cause for criminals to lose the fear of the law. The criminals, who often have more intelligence than those who are in charge of matters relating to the administration of justice, see quite clearly that if the law is unable to punish them in the near future, it is quite safe for them to engage in crimes. Besides, having a long period of freedom after committing a crime, they also know that they can use that time to buy off or dissuade complainants and witnesses. Nothing encourages corruption in the justice system as much as the delays. If the Minister wanted to curtail crime, that was one of the areas he should have thought about. After all, that is what the Minstry is for: to deal with policy matters intelligently and to make changes in order to make the administration of justice effective and rational.

Further, if the aim was to curtail crime, he should have asked the policemen themselves as to what would have helped. Most senior policemen would have answered that it is the lack of proper training in conducting scientific investigations that causes the lack of proper criminal investigations. This is an issue that the National Police Commission, as well as senior policemen, has stated quite openly. They have stated that there is a need for a qualitative improvement in the criminal investigation capacity of policemen. It is this that the Minister should have gotten engaged in as a member of the cabinet.

Quite clearly, dealing with crimes is not the purpose of the present amendment. It is merely trying to create an impression to some policemen that the Minster is favouring them over lawyers, and trying to create the impression that the increase of crime in the country is a result of lawyers interfering into the investigations into crime and the recording of statements.

This kind of reasoning could be further extended by saying that lawyers’ interference at the stage of trial is also another cause of the inability to curtail crime. Therefore, punishing suspects without criminal trials would be a better course to achieve the kind of aim that the Minister of Justice is trying to achieve through this amendment.

This amendment is an insult to the intelligence of the cabinet. It is an insult to the people of Sri Lanka. It is also an insult to the legal profession.

Added to this, the Human Rights Commission of Sri Lanka has also clearly pointed out the status of the amendment in terms of international law on human rights. Does the Minister of Justice believe that violating human rights is the way to achieve the curtailing crime? Is he of the opinion that respecting human rights is the cause of rising crime? There have been people who thought that way, and those people were called fascists.

Anyone who stands against human rights in the modern period is a person who stands against justice. Justice and the respect for human rights cannot be separated. If someone is trying to create such a separation, the government must look into the matter seriously because this will affect the credibility of the government and the claims it has made locally and internationally about all the matters relating to the rule of law, constitutionalism and reconciliation.