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Sri Lanka: One Island Two Nations
A Brief Colonial History Of Ceylon(SriLanka)
Sri Lanka: One Island Two Nations
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Thiranjala Weerasinghe sj.- One Island Two Nations
?????????????????????????????????????????????????Saturday, September 24, 2016
SRI LANKA: AMENDMENTS TO CODE OF CRIMINAL PROCEDURE ACT GOES AGAINST THE INTERNATIONAL STANDARDS – HRC SL
( Does Govt want to give Police unlimited powers re recording statements from suspects)
(SLB /23 Sep 2016)
In a letter Prime Minister Wickremesinghe, regarding the proposed
amendment to the Code of Criminal Procedure Act depriving suspects of
access to lawyers until their statements are recorded the Human Rights
Commission of Sri Lanka has called for withdrawal of the aforesaid
amendment to the Code of Criminal Procedure and to continue to recognise
and enhance the rights of suspects to have access to their lawyers. The
letter says that ” the new Bill derogates from the rights already
guaranteed by the State under Rules made by the inspector General of
Police under the police Ordinance.”
Further it says that ” The new Bill is contrary to the accepted
international standards of human rights which Sri Lanka is obliged to
guarantee to its people. The attention of the Government of Sri Lanka is
drawn to the relevant provisions of the lnternational Covenant on Civil
and Political Rights (ICCPR)”
The HRC-SL letter to the Prime Minister is given below:
Prime Minister of the Democratic Socialist Republic of Sri Lanka
Temple Trees. Colombo 3
Honourable Prime Minister,
Temple Trees. Colombo 3
Honourable Prime Minister,
PROPOSED AMENDMENTS TO THE CODE OF CRIMINAL PROCEDURE DEPRIVING
SUSPECT OF ACCESS TO LAWYERS UNTIL THEIR STATEMENTS ARE RECORDED.
The Human Rights Commission of Sri Lanka is gravely concerned, that the
Bill published in the Gazette on the 1,2th of August 2016, proposing to
amend the Criminal Procedure Code, will deprive suspects arrested and
detained by the Police of access to Attorneys-at-law, prior to the
recording their statement, and will adversely impact on the
constitutionally guaranteed rights of persons including the citizens of
Sri Lanka”
The Bill proposes to introduce a new section 37A to the Criminal
procedure Code. The proposed Section 374(1) states rhal”ony person who
hos been arrested and detained in custody, shall have the right to
retain and consult on Attorney-ot-law of his choice ot his own expense,
ofter the recording of his statements in terms of the provisions of
subsection (1) of the section 770 and prior to being produced before a
Magistrate.”
Although this section purports to give a right to arrested suspects to
retain and consult an Attorney at-law, such right is granted only after a
statement is recorded from the suspect. Between the time of arrest and
until the time of the conclusion of the recording of a statement, the
suspects are deprived of access to their Attorneys-at-law.
The new Bill derogates from the rights already guaranteed by the
State under Rules made by the lnspector General of Police under the
police Ordinance.
The Human Rights Commission notes that as a result of a settlement
reached in the Supreme Court in a Fundamental Rights Application, the
inspector General of Police made rules under the police Ordinance cited
as Police (Appearances of Attorneys-at-Law at Police Stations) Rules
2012,” recognising the right of a lawyer to represent his/her client at a
police station and requiring the officer in charge of the police
station to facilitate such representation. These rules effectively
recognise the right which all persons including suspects have to access
their Attorneys-at-law at any time, including the period immediately
after arrest and while being in detention.
The Human Rights Commission has observed that many instances of torture
as well as cruel, inhuman treatment of suspects at police stations occur
between the period of arrest and the conclusion of the recording of
their statements. As such depriving suspects under arrest and detention
of access to their lawyers until the conclusions of their statements
will result in a greater risk of suspects being subject to torture,
cruel and inhuman treatment as well as illegal arrest and detention by
errant police officers.
The passage of the new Bill will hinder the efforts of the Government
which has expressed its determination to stop torture in Sri Lanka.
The Human Rights Commission is equally concerned that the new
provision will impinge on Fundamental Right of a fair trial guaranteed
to an Accused under Article L3(3) of the Constitution’ The right to a
fair trial begins from the time of investigation. The lack of a fair and
impartial investigation will result in the deprivation of a fair-trial
to an accused. The new provision, depriving suspects of access to
lawyers during a crucial stage of the investigation will result in
eventually the accused being deprived of a fair trial as a result of an
unfair and partial investigation.
Furthermore, granting access to lawyers after the suspects’ statements
are recorded and just before them being produced before a Magistrate is
of little consequence. The new Bill is contrary to the accepted
international standards of human rights which Sri Lanka is obliged to
guarantee to its people. The attention of the Government of Sri Lanka is
drawn to the relevant provisions of the lnternational Covenant on Civil
and Political Rights (ICCPR). lt has been observed that the right to
liberty and security of persons and the right of due process established
by law requires the State to permit access to counsel from the
inception of the detention and that there ought to be prompt and regular
access to lawyers.
The Supreme Court of Sri Lanka has upheld that the Right to a fair trial
includes the accused being granted adequate time and facilities for the
preparation of the defence and to communicate with counsel of one’s own
choosing. This is also reflected in Article 14 of the ICCPR. Sri
Lanka’s Code of Criminal Procedure has been criticised by international
bodies including the UN Committee Against Torture of lacking
‘fundamental legal safeguards, such as the right to have o lowyer
present during any interrogation ond…the right to confidential
communication between lawyer and client.’ As such, it is necessary to
strengthen, not weaken, the right of suspects to have access to lawyers.
Especially when Sri Lanka has embarked on a constitutional reform process, including the drafting of a new Chapter on Fundamental Rights that should accord with the highest international and national human rights standards, the presentation of this Bill is all the more problematic.
ln the above circumstances, the Human Rights Commission of Sri
Lanka calls upon the Government of Sri Lanka to withdraw the aforesaid
amendment to the Code of Criminal Procedure and to continue to recognise
and enhance the rights of suspects to have access to their lawyers.
Dr N. D. Udagama,
Chairperson.
Human Rights Commission of Sri Lanka
Chairperson.
Human Rights Commission of Sri Lanka
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