By Tassie Seneviratne –

Tassie Seneviratne

Mal-practice of remand from inadequate judicial process has a debilitating effect on law and order. This is perhaps a matter of recent experience and now growing by the day, as it were. The public have taken up this problem as ‘laymen’ reacting to these articles, in this column, on law and order. This article is therefore in response to those sympathetic public concerns. Remand process and remand mal-practice are problematic to law and order, in many ways. This comes through violation of law and violation of rights. In this manner, remand process and practice vitiate the viability of the whole Criminal Justice System (CJS) for law and order. Together, these take a heavy toll on rights of the public. These assertions bear some explanation.

Violation of the law

Remand order today is in direct sheer violation of the law in the Bail Act. The Bail Act 1997 at section 2 says: ‘the granting of bail shall be the rule and that the refusal to grant bail will be the exception’. This law proclamation sounds pontifical, but as with all sermons, the remand practice is profane. This law rule is even turned on its head. Now the exceptions are the rule and the Bail rule has to fend for itself. Violation of the law starts with the Police with their frivolous application to Court for remand by outside influence. Police application for remand is not trivial, for they are made as directed. That is the first point of violation of the law. The second point is when Courts, on such mal-application for remand just acquiesces in it, routinely, when Court just asks no questions as to the exceptional need of remand. The Police are not brought to explain. In fact, exceptional reasons to refuse bail and ask for remand would be so rare, and barely applicable. But remand order is yet freely given. There is no intervention by the AG or by the BASL, as in some other countries abroad to check malpractice. Such is not conceivable in this country.    

More significantly, violation of the law is thereby not merely in breach of the law, but is also in subversion of its exercise of the law. Subversion can be so only on purpose. The prior impulse for subversion also can only come from outside the system. These influences use the law process to that end. That purpose can then be political though pursued through the judicial law. Such action in violation of the law is then simply to undermine and to destabilize the CJS to serve the ultimate political purpose of the politician. This is the reality from a practice that is prevailing. There is little to question it. This wrongdoing has been so reigning over other jurisprudence imperatives as Justice and Morality, to their near occlusion. This misconduct is then blatant. It continues unfeeling and insensitive to other niceties of the law, with little let or hindrance. This then is simply an everyday matter. The system is thereby weak and afflicted and is a ripe ground for politicians to further manipulate the order and join in unabashed through violation of the law.

Surely, however, violation of the law is not an academic or jurisprudence exercise. They are as such not attractive enough to these outside pressures as violation of rights. For violation of rights is more influential and remunerative. Rights law, ensconced within violation of the law, is, in this sense, superficial as it does not take into account the role of money and power which drives their manipulation within the law, and take control of those who would be so maneuvered. Courts would avoid such concerns. Court would prefer a clean plate. The problem then continues between those who earn and spend for profit and those who would be bought up in the process. A trivial nature of rights can even be enlarged to the fundamental of rights, that too through the violation of the law. The courts and the administration of the law barely differentiate between the two. So, this too is another form of violation of the law. The case of Tissa Kumara v. IP Premalal is illustrative. In this case, the IP was found by SC to violate rights by torture. The IP was indicted in the Kalutara High Court and found ‘not guilty’ of the same alleged torture. What was more in the SC was reduced to less in the High Court. The AG avoided appeal out of discretion. 

What has all this to do with remand, the ‘Layman’ asks. The answer is that when the law does not deliver other discrepancies insinuate into the process. Remand, as is now seen, can serve such insidious purpose politicians and other influences they entertain, exploiting the violation of the law.   

Violation of rights

Violation of rights only runs parallel and in tandem with violation of the law. The application for remand by Police, the order by Courts for remand, the custody by Prisons of those remanded, are in direct violation of rights of alleged suspects. In the Prisons, violation of rights is brutal; that too not out of a peculiar pathology. Prisons only take the cue from what is given to them at all stages of the CJS. They do not fall short. Direct or indirect, these violations of rights are insidious and invidious. Punishment through remand is the devious purpose, and induced by gainful incentives too.

Rights of the people

Violation of the law and violation of rights thus run through the entire criminal justice system (CJS). Rights of the public are in jeopardy at the very hands of a Justice system. Rights of the people are of their interests, in their security, for their safety, and in their wellbeing. But the people find their interests gravely affected through violation of the law and rights. In other words, the CJS has failed them, – a system instituted at much expense for the people. Suffering is now the lot of the people. The subject, ‘remand’, is today topical and indicative of the denial to the people their idea of justice.  In truth, punishment from remand than by Justice, is what is meted out by the CJS. And is not the invariable practice of handcuffs for remand suspects an aspect of punishment, whereas Sec. 88 of the Prisons Ordinance lays down: “No prisoner shall be put under mechanical restraint as a punishment”? Sec 89(1): A prisoner may, whenever he is outside prison walls, be put in handcuffs solely as a precaution against violence, escape etc. Police action too falls under this law: Sec 77(5) “Every police officer for the time being engaged in escorting any prisoner or prisoners or in guarding any prison or — – – -, shall be deemed to have all the powers and right granted by this section to prison officers.” It is inconceivable that most of the political prisoners, many being distinguished personalities, seen in handcuffs, fall into this category. 

The conclusion may be: Good law makes for bad economics; the converse is even truer, though embarrassing. Remand, the exception, brings in better gain than the Bail rule. In this event, therefore, the Bail law is turned on its head by the Remand practice, plainly for unlawful gain.

*The writer is a Retired Senior Police Officer. He can be contacted at seneviratnetz@gmail.com