By Basil Fernando
There are many objections that can be taken against the proposed Code of Criminal Procedure Bill on the basis of the unconstitutionality of many of the provisions of the Bill. Some of these objections are as follow;
The essence and core of the Bill is to dispense with the requirements of the presence of the suspect at the time the Magistrate may make orders relating to him or her and the High Court Judge may also make similar orders including the dispensing of the presence of the suspect at the time of the trial. This very idea of dispensing of the presence of the suspect violates the very core of the Constitutional principle that is at the heart of the Sri Lankan Constitution which is the protection of the individual
Hearings without the Presence of the Suspect
The very notion of the independence of the judiciary is tied up with the possibility of playing the judicial role and the judicial function as required of a judicial officer. Exercising of the judicial mind on making a decision is at the core of the judicial role and the judicial function. If that function is modified in a way to interfere with the exercise of the judicial mind on issues of utmost importance such as deciding on the legality of an arrest, the legality of a detention, and on the matters relating to fair trial, these are all basic aspects of undermining the judicial role and judicial function and therefore, judicial independence. Judicial independence is enshrined very clearly in the Constitution and therefore, the core idea of the Bill allowing the Magistrate or a High Court Judge to dispense with the presence of a suspect is a violation of the principle of the independence of the judiciary.
The exercise of the judicial mind requires that in making a judicial decision, the court is under obligation to respect the principles of natural justice. Natural justice requires that the judiciary listen to both the parties to the case and in criminal cases, it means either the Police or the Attorney General on the one hand and the suspect on the other. For a suspect to be heard, the suspect must be in the presence of the judicial officer. If his presence is dispensed with, what takes place is essentially an ex parte process, where a prosecuting officer, the Police or the Attorney General could make requests without giving an opportunity for the defendant to know what is being presented to the court against him and thereby to be able to make an informed response to whatever that is being said to the judicial officer against him. Without that presence at the time when things are told against him to the court, the suspect is not in a position to respond to the details of what is being said, and at the same time, also to reply in detail to what has been said. When the suspect is not given the opportunity to do so, this deprives the Magistrate of knowing from the accused about what his views are about what is told against him. This is a fundamental violation of the rule of audi alteram partem (a basic rule of natural justice).
Thus, the core idea of dispensing with his presence itself is unconstitutional. Before going into the consequences of such dispensing with his presence, it is essential to go into the very notion about such suspension and its legality. Thus, the making of a law to dispense with the presence of a suspect, violates the very notion of judicial proceedings, the very notion of the independence of the judiciary, and the fundamental notion of the duty of the courts to protect the rights of an individual. Thus, the very idea that has been proposed is in itself unconstitutional. On that basis alone, this whole Bill and not just particular provisions of the Bill should be rejected. If the idea that the presence of an accused is to be dispensed with in itself is unconstitutional, then the rest of the Bill it follows is completely unconstitutional.
Then, we could go into the unconstitutionality of the various provisions of the Bill which contravene the different Articles of the Constitution. Empowering various officers such as Police officers, the Attorney General, the Superintendent of Police, etc, to make an application for dispensing with the presence of the suspect is in itself unconstitutional in that this is not a function that could be exercised by anyone in exercising Executive powers. All these officers are pursuing Executive power when they arrest, detain, investigate crimes or prosecute crimes in court. However, it is not within their power as to how the court should conduct itself in dealing with arrests, detentions, investigations and fair trials. These are matters that are determined by Constitutional principles and those basic principles of criminal justice. It is not within the power of the Executive to determine these principles or to make requests to the courts to undo the judicial function that is inherent in the very functioning of the judiciary. The Executive has to act within the framework of the judicial system and its fundamental principles in exercising their powers. It is not within their power to ask that some or more of these principles should be dispensed with. For example, if any of these officers make a request for dispensing with the right of cross examination of the prosecution witnesses by the suspect, this is a similar request to dismissing the right to be present in the court when decisions are being made regarding his life or liberty. The judicial process itself is tampered with when if such requests are authorized by way of a statute. Then the statute itself will be violating the fundamental aspects of the judicial process. Thereafter, it will cease to be a judicial process.
Violates the right against illegal arrest
The Bill violates the right against illegal arrest as enshrined in Article 13 of the Sri Lankan Constitution. The right of arrest is subject to the producing of a suspect within the shortest possible time before a Magistrate where the suspect is able to challenge the legality of the arrest itself. Suppose a suspect is arrested on a charge that does not in fact exist or on the basis of facts about the suspect’s conduct which are not at all illegal in any way. Many instances have already come up before courts in recent times when a person peacefully demonstrating on some issues has been arrested and brought to court where they were able to inform the Magistrate about what they had been engaged in which were perfectly legal activities and then the Magistrate released them or immediately enlarged them on bail on the basis that there was no ground for the arrest. Thus, the right to challenge the legality of the arrest itself at the earliest possible opportunity is part of the Constitutionally enshrined right against illegal arrest. The evolution of the law for producing the suspect as early as possible before a Magistrate has been a well enshrined principle actually achieved through centuries. It is such a fundamental aspect relating to an individual’s right for liberty and rights that without the protection of which, this right cannot exist. Therefore, the possibility of dispensing with the presence of an accused during a trial is a total violation of the Constitutionally enshrined principle against illegal arrest.
Will lead to increase use of Torture
It is also the provision for dispensing with the presence of a suspect that is contrary to the right against torture and ill treatment as enshrined in the Article 13 (1) of the Sri Lankan Constitution and the relevant provisions of the international covenants to which Sri Lanka is a State Party to. Producing of a suspect before a Magistrate as early as possible ensures that the Magistrate has an opportunity to examine the appearance of the suspect to see whether his rights against torture and ill treatment have been violated. There has been many instances that have come up before the Sri Lankan courts where the Magistrates have noted such disturbing features on the body of a suspect and thereafter having questioned the suspect as to whether he has been ill treated and when he has confirmed, he has been referred to a medical examination. Such intervention by the Magistrate on one hand is an opportunity for the suspect to get medical treatment as early as possible and on the other hand, to be on record as evidence of such illegal treatment of the suspect.
In the same manner, the presence of the suspect at the earliest possible opportunity after arrest provides the suspect an opportunity to inform the Magistrate about the condition that he is in as a result of the illegal arrest and torture. This again has the same consequences as being able to get the Magistrate’s protection, get medical treatment through the Magistrate’s intervention and also leave a record of evidence for future use. All these will be deprived if the presence of the accused or the suspect is dispensed with.
This will also be contrary to Article 13 (2) of the Constitution relating to illegal detention. It is unconstitutional to illegally detain a person. If the suspect’s presence is dispensed with, it is quite possible that an order can be made ex parte on the basis of incorrect information placed before the Magistrate whereby otherwise illegal detention becomes legal detention due to the fact of the Magistrate making an order for detention. If the suspect were to be present, he could provide a detailed objection to further detention and thereby either obtain bail or release as a result of this. In the circumstances as envisaged by this Bill, this opportunity will be denied in the first instance to the accused and he could be unnecessarily detained because his version of the facts has not been placed before the Magistrate. To this, it may be added that the making of false representations regarding the suspect is not an infrequent practice in Sri Lanka. Many of the cases decided under Article 126 of the Constitution on fundamental rights by the Supreme Court has held that illegal arrest and illegal detention has taken place. In all these instances, the Police, or the prosecution, has given versions about the incident which the Court has rejected in deciding in favour of the petitioners in these cases. As this is an overwhelming prevailing practice to provide inadequate and inaccurate reports to courts, the present Bill paves the way for violations against illegal detentions and therefore it is contrary to the provisions of Article 13 of the Constitution.
Violate the right for a fair trial
Dispensing with the presence of the suspects also violates the right to a fair trial. It is a fundamental notion enshrined in the International Covenant on Civil and Political Rights for which Sri Lanka is a State Party to, and the Supreme Court has recognized this Covenant as part of the Sri Lankan law, that a fair trial should take place in a fair and open manner. The principle of hearing a trial in open courts is one of the most fundamental aspects of a fair trial. It has evolved as against secret trials which have taken place over a long period in many countries and it has become a sacrosanct part of the notion of a fair trial to have the trials in open courts except in the instances which are expressly recognized by the Constitution.
These are just initial reflections and many more reflections may be added to this to demonstrate that this whole Bill is opposed to the Constitution of Sri Lanka and the International Covenant on Civil and Political Rights and the long history relating to a fair trial and judicial processes which are part of our law by way of numerous decisions of the Supreme Court of Sri Lanka.
A lawyer’s presence is no substitute
The mere presence of a lawyer is not a substitute for the presence of the accused in court when proceedings are taking place against him. The first objection to the mere presence of a lawyer is that in the very first instance of arrest, when the officer in charge of the police station makes an application to the magistrate to have an order for the remanding of the suspect, it is very unlikely that a lawyer could be present. The suspect will be taken from the police station directly to the remand or it is even not clear whether he could be kept further in the police station itself. In any case, the first contact with the lawyer in many instances would not be made under these circumstances. Even after a lawyer is contacted, the suspect must be present in order to properly instruct the lawyer throughout the proceedings. It is the suspect who knows the details about the matters about which he is accused of and his presence is needed in order that he could give proper instructions to the lawyer. The suspect also has the right to change the lawyer if he feels that the representation made by the lawyer has not adequately presented his version of the situation. This is an inherent right of the suspect. By dispensing with the presence of the suspect, the suspect will lose all this basic rights and would have to suffer the consequences.
At the stage of the trial, it is essential for the accused to be present in court because on many matters that will arise during the trial, witnesses will give evidence about which the lawyer of the accused would need detailed instructions on. In the process of the cross examining of the witnesses for the prosecution, the suspect’s assistance is essential for his lawyer so that he could accurately represent his client. Further, it is a right of the accused to hear all of the evidence that is given against him. It would be a violation of natural justice if an accused is punished and in the case of a High Court trial he could be punished with a long term of imprisonment if he is not fully and thoroughly aware of all that has been said against him.
It is also the fundamental right of the accused to put up a defense. Against every offense, there are defenses recognized by the law, and without the recognition of such a right of defense, the criminal law becomes a farce. In the making of his defense, the accused would have to answer the questions that are arising from the evidence that is led against him in court. This would require that he is present in court and that he is aware of the evidence that is given against him.
The accused also has the right to make his own defense. To make that defense, he needs to be present in courts. The prosecution has a right to cross examine him and the court has the duty to watch his demeanor while he is giving evidence. The court also has the opportunity to get any clarifications from the accused about the evidence that he is giving in the court. All these require his presence.
Use Of virtual means
The conduct of proceedings through virtual means such as videos cannot adequately fulfill any of the requirements mentioned above. Taking proceedings through video or virtual means should not be confused with the idea of aving the proceedings in-camera. When proceedings including trials take place in-camera, all arrangements are made to fulfill the requirements of a fair trial, but the only thing that has been excluded is the trial being heard in open court and this is done only when there is serious evidence available of use of violence or when there are special reasons such as the cases relating to small children such as sexual abuse cases. These proceedings have their own procedures and these ensure the presence of the suspect.
The State duty to protect suspects
This Bill also violates and undermines the independence of the Judiciary in another respect. It is the duty of the State to provide protection to the courts so that the courts could proceed with the required security while conducting proceedings. This Bill makes provisions for dispensing with the presence of an accused if there is a threat to his life or if there is a possible disturbance by outsiders if he is present in court due to some particular situation. In both of these instances, the practice so far and the practice throughout the world is for the State to provide security for the suspect or the accused brought before the court. In the 1980s, there were famous cases when persons who were publicly seen as terrorists were brought before High Courts.
One such case was the famous case of Kuttimuni who was a leading member of the Liberation Tigers of Tamil Eelam. His trial was conducted in the High Court at Bullers road. Throughout the trial, heavy security was provided for the suspect and there was no incident reported during the trial where the mobs or anybody intervened to attack the suspect. It was later in the remand prisons where he should have had the complete protection of the prison authorities that he was assassinated. Sri Lankan Courts have extensive experience of conducting controversial trials and in those cases, the State carried out its obligations to provide protection to the courts. The failure to provide protection to the court would amount to the undermining of the very notion of the independence of the Judiciary because the functioning as independence judges requires that they are provided with the security by the State to carry out their functions.
Will increase the work-load and delays
The purported reason to go by some statement made by the Minister of Justice in a recently held television interview on the supremacy of law is in order to reduce the workload of the courts. This method of dispensing with the suspect or the accused will not contribute to that end in any significant way. In fact, this will increase the workload of the courts because if the courts make decisions in the absence of the suspects, it is very likely that in the very first instance available, these decisions will be challenged in the same courts itself or in higher courts by the suspect. If for example, a detention order had been obtained by providing false information to the magistrate, then it is very likely that in the first instance possible, the suspect will bring his version of the actual events to the notice of the magistrate in courts. This will require the magistrate to inquire into the matter again which in turn means the calling back of the officers who made the earlier representations and such proceedings will take even more time that in the instances where the suspect is present in court when the initial decisions are being made. Similarly, if trials take place in the absence of the accused, it is very likely that the trial itself will be challenged in many ways due to this very fact and the other consequences that will follow because of this. Thus, it is very likely that retrials will be ordered or the cases will get completely dismissed due to these situations.
The law instead of solving any problem will increase the problems in courts as it will cause further delays in the judicial proceedings and above all it will create a situation where the basic rights of the individual is taken away in a manner to create virtually a police State.