By Basil Fernando –

Basil Fernando

Making bad laws has become the hallmark of lawmaking in Sri Lanka for several decades now. The most recent example of the making of very bad laws is a bill which has recently been placed before parliament under the title Code of Criminal Procedure (Special Provision). The pursuit of injustice through legal enactment finds one more expression in this proposed bill.

The task of law is to create the framework for justice. Legislators, in making laws, ought to be preoccupied with enhancing the liberties of the people and thereby bringing about greater happiness to the people of their countries. However, it is now a Sri Lankan habit to create a framework of injustice through law and to create conditions that will make the people of the country as unhappy as possible. The pursuit of justice is by now a habit that has been lost in Sri Lanka.

In the protection of individuals, the task of the magistrates is of prime importance. It is said that the kingpin of the criminal justice system is the magistrates. It is by enhancing the capacity of the magistrates to dispense justice that society is kept in safe hands. To undermine the magistrates is to undermine the law itself and to allow illegality as law. That is one of the aims of the proposed bill. Its ultimate objective is to undermine the powers and the functions of the magistrates in Sri Lanka.

While the magistrates are being undermined, the Officers-in-Charge (OICs) and other officers of police stations are being given greater powers under the proposed bill. The powers of the OICs are embellished at the expense of the powers of the magistrates. In the future, Sri Lankans will have to depend on the mercy of the OICs of the police stations and even on officers of lesser ranks.

The average Sri Lankan knows by experience that OICs know of very little mercy or justice, but that they have great appetites and get what they want by using their fists and boots. It is quite a part of the average man’s common sense to avoid the police to the best of their ability. However, with the proposed bill the chances of avoiding the grip of such policemen and their demands will be much less. There will be no escape from the increase of extortion, torture, custodial deaths and dealing with all kinds of other demands from the police. The proposed bill will enhance such powers of the police and even change the age-old rule of the 24 hour limit before one is produced before a magistrate.

While the magistrate’s powers will be reduced, the powers of the Attorney General will be increased. The way people think of the Attorney General’s Department now is not the same as it used to be. The fact that the department’s powers can be manipulated for the benefit of politicians brings no surprise to anyone anymore. What this simply means is that the people with the right connections, whether they are accused of rape, torture or any other crime, could resort to the escape route which will be opened through interventions to the Attorney General’s Department. Under the proposed law on many serious offenses, the Attorney General’s Department will be empowered to call back the file from the magistrates. While that may be happy news for those who have the right links, it is not good news for those who are seeking justice.

However, justice may not be the concern of the government and those who are drafting these kinds of laws. Sri Lanka’s history for the last 40 years is one of the taking away of civil liberties by various means. The easiest ways were the emergency regulations and the anti-terrorism laws. However, these were not all. The country’s constitution itself is designed to embellish the power of the executive and diminish the powers of the judiciary and to leave the people without protection.

What is really happening is the naked abuse of power. However, this abuse of power is given respectability by all kinds of enactments, bills and other legislation. Freedom loving nations make laws exactly to avoid the kind of situations that Sri Lankans are creating for themselves by their laws. While more and more chains are placed on the people, these chains are now called laws.

The duty of any sensible person is to oppose the use of legislation for creating injustice and the deprivation of liberties. It is for that reason that the proposed bill needs to be opposed.