25 September, 2022


The Proposed Bill Will Limit The Powers Of The Magistrates And Increase The Powers Of The Police

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.

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Latest comments

  • 0

    No magistrate ever inquires from any ‘accused’ produced by police,his/her side of the ‘story’, but remands them without any effort to grant them bail,as required by law.
    The increase to 48 hours before production of accused in court,gives more time for the usual coersive methods to obtain a ‘confession’.
    “Police Bail” is mentioned – what is it?

  • 0

    Some of these bills have no purpose other than giving power and influence to the politicians. It is time for people in Sri Lanka to recognize these tactics and put them on notice.

  • 0

    People should show their contempt by all democratic means for MPs who readily say `amen’ to each and every anti-democratic Bill presented in Parliament. Government would have thought twice before presenting the 18th Amendment if there was an upsurge of public opinion against it. Even Vasu who voted for it still parades as a great democrat, a progressive and a leftist because his bona fides go unchallenged. The UNP leader is interested only in disciplining his party members, not the government. MPs voting for anti-democratic Bills should be blacklisted and their names displayed at public places!

  • 0

    I believe that the entire political culture in Sri Lanka needs deep introspection and reflection with the benefit of hindsight. People must strongly urge their parliamentary reps to actually represent the people and their common interests rather than act on their own wishes or work at developing their own careers rather than strive for the welfare of their constituents or the common good…

  • 0

    So how do you propose to bring about this change in political culture Lasantha P? How can ‘people’ strongly urge their elected representatives when these goons do not care about that and anyway, the electoral system is rigged? Asinine nonsense!

  • 0

    This amendment was brought in 2005 under Act No 15 of 2005 for two years.(Certified on 31.05.2005) It was passed without a debate in Parliament.

    After the expiry it was brought again in 2007 under Act No.42 of 2007 (certified on 09.10.2007) for two years commencing from 31st of May 2007.

    Again It was expired on the 31st of May 2009. But our Magistrates Courts in Sri Lanka continuously held non-summery inquiries under the expired provision of this act without any legal basis.

    Now once-again the government is going to extend this piece of law for another two years with retrospective effect to legalize the acts done under this expired law from 31st May 2009 .

    And the provision of 48 hour detention period is also there in all of these Acts namely No 15 of 2005 & No. 42 of 2007.

    Attorney – at – law,

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