By Somapala Gunadheera –

Somapala Gunadheera

A news item in the Island of the 3rd instant highlights a controversy that has arisen with the publication of a Bill proposing to introduce a new section to the Criminal Procedure Code to deprive suspects’ access to lawyers until their statements were recorded, thus withdrawing the rights already guaranteed by the State under rules made by the Inspector General of Police in accordance with the Police Ordinance. The proposed Section 37A(1) states, “any person who has been arrested and detained in custody, shall have the right to retain and consult an Attorney-at-law of his choice at his own expense, after the recording of his statements in terms of the provisions of subsection (1) of the section 110 and prior to being produced before a Magistrate.”

Justice Minister Dr Wijeyadasa Rajapakshe

Justice Minister Dr Wijeyadasa Rajapakshe, PC, has emphatically stated that the government would go ahead with the proposed amendment to the Criminal Procedure Code meant to deprive lawyers an opportunity to meet their clients before the police recorded their statements. He has alleged that in their anxiety to protect the interests of the suspects, both the HRCSL and BASL had turned a blind eye to the suffering of the victims, overlooking the difficulties experienced by law enforcement authorities fighting crime as well as ordinary law abiding citizens. Of course no one can shut out legal assistance before a suspect arrives at a Police station, unless he is suddenly arrested.

In a letter addressed to the President, BASL President Geoffrey Alagaratnam has pointed out, “The Protection of Victims of Crime and Witnesses Act No. 4 of 2015, grants an aggrieved party a right of representation at the police station from the inception. However a suspect’s right to be represented will be limited by the proposed Bill resulting in unequal treatment”. The HRCSL has alleged that there had been many instances of torture as well as cruel, inhuman treatment of suspects at police stations between the period of arrest and the conclusion of the recording of their statements. Dr Deepika Udagama, the Chairperson of the HRC, has warned, “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. The passage of the new Bill will hinder the efforts of the Government which has expressed its determination to stop torture in Sri Lanka.” Practically however, the dangers feared by HR activists cannot be completely eliminated by seeking legal assistance as no such assistance is available overnight.

The conflict has put law enforcement and human rights between the horns of a dilemma. Allowing legal assistance to a suspect before he makes his statement leaves room for what he says to be tinkered to suit the dictates of the law under professional intervention. Denying such right leaves him helpless against the well-known tyrannies of law enforcement. However, in normal practice, it is the affluent that engages lawyers when they are facing Police action as suspects. The poor have no wherewithal to protect themselves under the finer points of the law. Thus the proposed amendment is unlikely to make any difference to the man in the street.

However the objections raised are very real and the challenge before the law-makers is to device a method by which justice could be dispensed, without compromising either interest. They have to find a way of ‘having the cake and eating it’. As far as I see it, this objective can be achieved without resort to complicated legislative amendments, by a physical adjustment in the process of recording the first statement of a suspect. The adjustment calls for an interrogation cubicle somewhat similar to the confessional chamber of the Roman Catholic Church.

There is an aperture between the cubicles in which the suspect and the interrogator sit. Whenever a lawyer is retained he sits with the interrogator and submits objections to the latter, without being heard by the suspect, as and when he finds the interrogation unlawful. At the end of the interrogation the lawyer can place on record his objections, if any, for the consideration of the tribunal that would finally hear the case. If no such record is submitted, it will be presumed that the examination of the suspect was done according to law. This procedure will be called for only in rare instances where counsel is retained by suspects. Even in other instances, it would be prudent to follow the practice in some foreign jurisdictions by separating the suspect and the interrogator into two adjoining cubicles with a connecting aperture. This would prevent body contact, which is a frequent allegation against law enforcement by force.