By Basil Fernando –

Basil Fernando

In recent times there have been several instances of blatant abuse of ICCPR act, namely the article 3 of the said act.  Article 3 reads as follows;

“3.(1) No person shall propagate war or advocate national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. 

   (2) Every person who

1. Attempts to commit;
2. Aids or abets in the commission of; or
3. Threatens to commit,

An offence referred to in subsection(1), shall be guilty of an offence under this Act.

    (3) A person found guilty of committing an offence under subsection(1) or subsection (2) of this section shall on conviction by the High Court, be punished with rigorous imprisonment for a term not exceeding ten years.”

The most operative part that is being abused is article 2(4) which reads as follows: “An offence under this section shall be cognizable and non-bailable, and no person suspected or accused of such an offence shall be enlarged on bail, except by the High Court in exceptional circumstances”. It appears that the sole purpose for which this act is being used is to deprive anyone suspected or accused of an offence under the act to be deprived of availing themselves of the right to bail through recourse to a magistrate as early as possible. In fact, the magistrates are deprived of the right to protect the individuals concerned as is required under the normal law. 

In our legal system, the magistrates have the function of protecting persons from illegal arrest and illegal detention at the earliest possible opportunity. This is not only a legal requirement but the entire legal system, democracy and the rule of law is heavily dependent on the power of the magistrates in order to protect persons from illegal arrest and illegal detention. 

Throughout the civilised world, development of the power of the magistrate to decide at the earliest possible opportunity on the legality or otherwise of arrest and detention was arrived at after centuries of bitter struggles. Much bloodshed and unrest and political upheavals which resulted from arbitrary use of powers of arrest and detention  led to a global consensus that whenever a person is arrested or to be detained such a person should have the earliest possible opportunity to have an opportunity to review such a decision by a person who decides the matter entirely on the basis of law. 

The distinction between police officer including a CID officer or any other person other than a judicial officer deciding on the validity or otherwise of arrest and detention is that the judicial officer will decide the matter entirely on the basis of law while those who act on behalf of the executive are neither bound nor competent to decide on the matter in the same manner as the judicial officer. 

An arrest and detention is the most serious attack on the freedom and the liberties of an individual. To live in an environment in which there are no grounds for an unreasonable fear of arrest and detention is the most basic precondition of an open society.

It is this fundamental realisation that has been inbuilt into the law by granting the power of the magistrates to decide on the legality or otherwise of an arrest and detention in the earliest possible opportunity. 

Article 3(4) is a direct attack on this most fundamental element of protection of an individual as well as protection of society collectively. 

Therefore, such a grave undermining of this basic protection could be done only on rarest of occasions and to the most limited extent possible. 

Examination of several cases where the ICCPR act has been used in recent times clearly demonstrates that there was no ground of any sort to use such a draconian measure to deprive this fundamental protection to the persons involved. 

In none of these instances, there had been any threat or an attempt to commit or aid and abet to commit or threatening to commit such acts with a view to propagate war or advocate national hatred, racial hatred or religious hatred. Article 3(1) also requires that such acts should constitute incitement to discrimination, hostility or violence. 

Thus, the heart of the matter is that there should be either a propagation of war and in all the known recent incidents, there had not been any allegation of such a propagation of war; there had also not been an advocacy for national hatred or racial hatred or religious hatred. Nor have there been allegations of incitement to discrimination, hostility or violence.

Thus, there is no alleged act of committing any of the crimes that are being mentioned in the article 3(1) of the ICCPR act. 

Where there is no criminal act, there cannot be a crime. It is simple common sense that the beginning of a criminal allegation should be the existence of a crime. And crime is defined by our law as constituting those elements which constitutes such a crime. Where there is no such element, making an allegation and worse arresting a person is itself irresponsible and, if such irresponsible act is pursued further, could itself constitute a criminal act. 

A simple way to illustrate is that, if an allegation is made against somebody of committing a murder and in fact, no person has been murdered at all, it is the highest form of absurdity to arrest such a  person for a murder that has never happened. Similarly, it could be said of every crime in the penal code and other statutes that the first step in deciding to arrest a person should be the existence of such a crime. 

Pure allegations of crimes by way of mistaken beliefs or worse deliberately malicious intentions is no reason to arrest a person or to detain a person if in the very first place there is no factual information that a crime has taken place. 

Thus, mere attempts to instigate arrest without revealing factual details of a crime that has taken place would itself be an attempt to manipulate and to abuse the legal process. 

Duties and responsibilities of the arresting officers

It is a legal obligation for an officer in charge of an investigation as well as all those who execute the orders of such an investigating officer to first of all ensure that a crime in terms of the particular offence stipulated in the particular statute (in this instance article 3(1)) has taken place. In any crime, if the investigating officer does not have adequate factual information of what may constitute a crime has taken place, he does not have even the jurisdiction to initiate an investigation into a crime. An investigating officer cannot claim that due to the ignorance of law, he thought there was a crime committed, although he did not have any factual grounds to base his initial judgement. An investigating officer also cannot take refuge by saying that he had received some complaints and simply because of complaints he is arresting and making orders for detention of a person. 

In short, the mere fact that the statute states that an offence under the ICCPR act is not bailable it does not restrict the power of the magistrates to enquire as to whether there is basically a factual ground on which basic prima-facie case exists of the crime stipulated by the statute has taken place. Therefore, to claim that the magistrates do not have the power to grant bail in instances where in fact there is no prima-facie case being established if a crime has taken place would be an absurdity. 

The abuse of words like non-bailable to give some kind of draconian powers to investigative officers to arrest persons without even having factual basis of a commission of a crime would reduce the entire legal system of Sri Lanka into ridicule. Nobody at all will be safe because out of sheer perversity or other political motives all sorts of allegations could be made about non-existent crimes in order only to avail themselves of the provision of non bailability.

The provision of non-bailability

It is fast becoming in Sri Lanka a habit to punish people by way of denying bail. In law, everyone is presumed innocent and only the persons proven guilty by court (under ICCPR act by high court) could be punished. However, the expectation of arresting and detaining people by the use of non bailability provision, is not in pursuit of an investigation but to punish a person by keeping the person as long as possible under custody, purely on the basis of a report of a police investigating officer of whatever particular branch of the police. 

Therefore the abuse of the ICCPR act needs public condemnation. On the other hand suspects who are being arrested and detained where there had not been any factual information of an offence being committed should be released smoothly. Those who abuse their powers should be made to be answerable through appropriate legal actions such as by the use of writ jurisdiction where possible.