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The tortuous dance of some in Government to ensure that a suspect in police custody is not allowed legal counsel at the earliest opportunity is indeed painful to observe. The latest amendment to the Code of Criminal Procedure Act suggested by the Ministry of Justice reflects this reluctance exceedingly well. Now, instead of the earlier harebrained proposal that the access to legal counsel can be given to a suspect only after police interrogations are concluded, we have another equally imaginative proposal.

Better to retain the status quo
This amendment issued earlier this month in the form of a Bill, states in one of its sub-clausesthat an attorney-at-law shall, if he so, requests, be allowed to have access to the person in custody, ‘unless such access is prejudicial to the investigation being conducted.’ I can only marvel at the sheer disingenuousness of this proposal. Even in the context of reforms of laws pertaining to civil liberties traditionally being reduced to a game to give rights with one hand and take away with the other, this particular clause is manifestly beyond the pale.

For the question that arises is immediate and glaring. Who determines the fact of legal counsel being ‘prejudicial to the investigation being conducted’ in order to decide whether to afford this basic right or not? The simple answer to that would be, the police itself, of course. So what flows from the right to counsel being subject to such a preposterous condition?

Effectively the suspect would be in no better condition that if he or she did not have that right available under the law.Indeed, if there is any serious possibility of this passing through the House, it is far better not to have this amendment at all and to retain the status quo as it is.

Discarding of that judicious balancing of interests
This is quite as bad as that other wonderful idea urged by a former police spokesman taking great pride in his badge of honour as an attorney-at-law who suggested blandly in a recent television interview that if legal counsel is afforded to suspects at the point of arrest, then confessions made by suspects to police officers must also be admissible.

The fact that the entire weight of Sri Lanka’s criminal procedure jurisprudence since independence had stood stoutly against the very notion, in general circumstances, of confessions being admissible not only to police officers but also to any person standing in a position of authority was airily relegated to the background. It was of no consequence that these principles had been developed by judges of stern mettle who judiciously balanced the interests of law enforcement with civil liberties and made sure that neither suffered in the result.

But waving these aside with a quick brush of the hand, our garrulous representative of the police force could only proclaim pompously that ‘well, they want counsel and if so, we should have our confessions since lawyers are representing them.’ These are the absurd depths of discussions on national television with the news anchors gaping foolishly.

Entrenched in the same State power mindset
In fact, the displacing of liberty protections in the ordinary law by anti-terrorism statutes institutionalising the use of torture is unquestionably the greatest tragedy to visit Sri Lanka’s legal system. From a difficult weighing of the scales even in the face of civil conflict soon after independence, we toppled down the authoritarian precipice.

State officers were given free rein to do whatever they wished with terrified suspects for whom the legal presumption of innocence until proven guilty meant nothing in effect.That mindset has been reinforced by certain prosecutors who, despite whatever government in power, firmly believe in the ideology of State power and State ability to brutalise human beings and not be accountable.

This is in line with the cynical thinking that the ‘greater good’ is served even if innocents are killed by the State. And this is precisely why, despite the ending of active conflict and a new Government coming into power, we remain firmly entrenched in that same old mindset.

The ‘soft soap’ of the amendment Bill
Other sub-clauses of the March Criminal Procedure Amendment Bill state that lawyers shallbe entitled to have access to the police station in which the suspect is being held to meet the officer incharge (OIC). Problematically here also the right is stipulated as not allowed to affect theinvestigations that may be conducted.

The Amendment Bill also replicates practices already in place on intervention by the Supreme Court. Thus, a lawyer is to be permitted entry into the police station, to be treated ‘cordially and courteously’(is there a difference pray, between the two?) and ‘be given a fair and patient hearing’ by police officers. Further, such lawyer may ascertain from the officer in charge, relevant details regarding the offence in issue and ancillary information, provided that this does not ‘adversely affectthe conduct of further investigationsand the interests of justice.’

But that is all ‘soft soap’ as that pithy idiom puts it. If that clause of this Criminal Procedure Code amendment giving authority to the OIC of the police stations to decide if legal counsel should be allowed or not is retained, the rest of the amendment will be reduced to mere rhetoric. For that regression will veritably eat away at everything else.

A relentless rolling back of civil liberties
And the point is that we are not talking of rights in the abstract here. Let us be quite clear on that. Sri Lanka has an endemic problem of torture, used as the commonest law enforcement method of interrogation. Those practices are inflicted on hapless victims from the North to the South at the very earliest point of arrest as countless studies have shown.

This has been heightened by the lack of effective magisterial intervention, the inadequacy of proper medical examinations and the collusion of prisons officials who, in the traditional meaning of the term, was supposed to ensure that ’fiscal custody’ would provide a safe haven for suspects. Longer arrest periods have changed all that. Relentlessly, all our normal civil liberties protections have been rolled back.

That is the core problem which has to be tackled, not through trainings for police officers (again, more of the ‘soft soap’) but through firm legal safeguards that exist as a matter of right in every developed jurisdiction.
It is quite a simple issue really.