Bail Act (Amendments): Fighting or breeding crime?

By Saliya Pieris

The bill termed an amendment to the Bail Act No. 30 of 1997 has been touted as a panacea for the crime wave which has swept the country. However a closer analysis of its provisions leaves one wondering whether it will reduce the crime wave or rather breed a new generation of criminals from among the prisoners who will probably languish in the remand prisons of Sri Lanka if and when the Bill is passed by Parliament. The amendment to the Bail Act rolls back certain progressive provisions introduced by the former Minister of Justice and effectively deprives judges of exercising their judicial discretion in relation to bail for a number of offenses. The Bail Act was passed with the avowed intention of liberalizing our country's bail law and it was declared that "granting of bail was the rule and refusal the exception."

One of the important provisions of this Act was the introduction of 'anticipatory bail' which allowed a Suspect to go to Court and seek bail in anticipation of his arrest by the police. The concept of anticipatory bail, which is also found in the Indian Law was salutary since it provided the citizen with a measure of protection from 'surprise arrests' effected by the police - often in a high handed manner. It also provided protection to those who faced arrest over matters which were arguably civil in nature, but which the arresting officer - sometimes for reasons best known to him - decided was a criminal act. It is no secret that some police officers resented the concept of anticipatory bail, since it allowed a person to go directly to Court and the police were effectively prevented 'from getting their hands' on Suspects before producing them in Court.

While the existing law allows a person charged with a non-bailable offence, (except those that are punishable with death or life imprisonment) to obtain anticipatory bail, the new amendment seeks to remove the provisions relating to anticipatory bail in its entirety. The reason for this is said to be that it will facilitate investigation. However the Bail Act did not entitle a suspect to automatically obtain anticipatory bail. One had to apply for anticipatory bail with notice to the police and bail was granted only after hearing the police. The Magistrate had a discretion to refuse anticipatory bail and even where bail was granted the Magistrate could also make such orders preventing interference with the investigation and also direct the accused to co-operate with the investigation.

While no doubt it would not be pru dent to allow a suspected robber or rapist to apply to Court for anticipatory bail, whether it should be scrapped in its entirety is a different question. One complaint during police arrests is that the suspect and his kith and kin are often left at the mercy of the Police. Numerous are the instances when suspects have been tortured while in police custody and held in police custody for periods longer than what is permitted by the law. Anticipatory bail prevented these excesses from happening.

Of even greater concern is the new section (termed Section 5A) being introduced to the Bail Act which makes it mandatory for a judge to remand a suspect until the conclusion of the trial in certain scheduled offences for most of which hitherto the Magistrate was empowered to give bail. 

Thus suspects in cases of 21 items of offences including rape, grave sexual abuse and attempted murder where hurt is caused, will have to be remanded until the conclusion of trial - unless the police fail to file action within three months. If the police file the case within three months as often happens then the accused will have to be in remand custody until the end of the trial.

Rape, is no doubt a serious and grave crime as is attempted murder and grave sexual abuse. But when one considers the inordinate length of time that takes to conclude a trial, these new provisions are manifestly unreasonable and violate the principle that the remand provisions ought not be used to punish persons who are not yet found guilty. For instance in rape cases, except in the cases of statutory rape (of a girl under 16 years) first there is a non-summary inquiry before a Magistrate who ascertains whether a prima facie case exists against the accused. Before a non-summary inquiry is concluded the medical reports as well as reports from the Government Analyst may be required which in the very least would take a few months or more. Then the accused is committed to stand trial in the High Court and the file is sent to the Attorney General's Department where State Counsel prepare the charge sheet known as an "Indictment". This too may take a few months. This indictment is then forwarded to the High Court where the actual trial takes place. In many instances the High Court trial may commence five years after the alleged incident.

In the High Court too there is no guarantee of a case being taken up early. Much would depend on the cases pending before Court. There may be older cases on the trial roll. The case may be postponed on the application of either State Counsel or Defence Counsel or by the Court of its own motion. Yet on other days the witnesses - both lay persons and officials such as the doctor or the police may be absent and the case will in legal parlance "go down" for another date. Sometime the trial dates are over two months apart. In certain High Courts where the trial roll is heavy there may be a six months interval between trial dates. In all a case in the High Court may take two years or more to conclude from the time indictment is forwarded by the Attorney General. Today in certain High Courts there are cases which relate to incidents which occurred in the 1980s or 1990s.

Thus an accused will be lucky if his case is concluded in five years. And under the new Bail Law if you are an accused - you have a good chance of being a guest of the government for the next five years.

Among the 21 scheduled offences for which bail will be taboo are offences against the State, culpable homicide not amounting to murder, kidnapping and sexual. exploitation of children. Strangely murder and robbery - even armed robbery is not in the schedule meaning that for robbery bail can be granted in the Magistrate's Court and for Murder in the High Court.

The Bail Act introduced in 1997 has a provision which states that no suspect or accused can be kept in custody for over one year, unless on the application of the Attorney General - and that too for only one further year, three months at a time. Whether this provision limiting the remand period will apply to the new amendment is unclear, since trials are unlikely to conclude within one year.

The proposed new law does not give any Court whatsoever the power to grant bail in respect of the scheduled offences. Even a Suspect in a clearly fabricated case or a suspect having exceptional circumstances such as a life threatening illness will not be able to obtain bail. 

According to Section 13 of the existing Bail Act, the High Court can grant bail in cases where the offence is punishable with death or life imprisonment ( - such as Murder and certain offences under the Firearms Act). But the new amendment does not give even the High Courts which comprise of senior and experienced judges, the power to grant bail in the scheduled cases. Ironically an accused charged of murder or trafficking in over 2 grams of heroin - which are capital offences - can be enlarged on bail by the High Court. But not an accused who is charged with grievous hurt with a dangerous weapon which carries a maximum penalty of ten years imprisonment or rape which carries a maximum penalty of twenty years imprisonment or in a case of culpable homicide not amounting to murder where the ultimate sentence could be anything ranging from a suspended term to twenty years. Under the new Bail Bill an accused who kills his victim will be better off than an accused who lets his victim live!

There already exist a number of other Acts which have tough or even draconian provisions on bail. One is the Offensive Weapons Act where in cases relating to bombs only the Court of Appeal can grant bail. Another the Prevention of Terrorism Act precludes accused indicted in the High Court from being released on bail until the end of the trial. More recently amendments to the Antiquities Act and the Immigrants and Emigrants Act stipulate that suspects or accused are not entitled to bail and have to be kept in remand until the end of the trial. The latter has resulted in hundreds of persons who have tried to leave the country using forged visas and passports - sometimes unknowingly - being kept in remand under harsh conditions at the over-crowded Negombo prison. These tough bail laws have in turn led to a lot of malpractice and corruption on the part of the investigating officers and law enforcement officers. Since April the Court of Appeal notwithstanding the provision in the Immigrants and Emigrants Act has used its inherent power to enlarge suspects on bail - especially those who have been the victims of unscrupulous travel agents. Yet even these victims have had to languish in remand for many weeks until their bail applications or discharge papers are processed.

Persons remanded under the new provisions of the Bail Amendment Act (if it is passed) will have no alternative but to come before the Court of Appeal invoking its inherent powers to grant bail. The Court of Appeal is burdened with hundreds of bail applications under the Offensive Weapons Act and the Immigrants and Emigrants Act. If these provisions come through perhaps a separate bench of the Court will have to be constituted only to hear these bail applications which may well be in their thousands.

All this is not to say that offences such as rape and grave sexual abuse ought to be treated lightly. Far from it. Perhaps there ought to be guidelines for Magistrates and Judges in granting bail in these types of cases - just as the law now lays down guidelines for suspended sentences. If the legislature is of the view that suspects of offences of a serious nature should not be granted bail by Magistrates - well and good. However there must be some Court - perhaps the High Court which should be able to inquire into the matter and take a judicial decision on whether it is necessary to keep a Suspect or Accused in remand for a further period. What is required is that there ought to be a balance between the interests of society and that of the individual suspects. As much as the State has a duty to tackle crime it also has a duty to ensure that the law is just and reasonable. It is dangerous to remove the exercise of judicial discretion and leave the matter in the hands of the police officers who are preparing the reports to Court.

Underlying all these is the fundamental principle in criminal law - in civilized countries - that all accused are presumed innocent until they are proved guilty. The answer to the crime wave is certainly not to lock all Suspects for the longest possible time. The answer lies in better criminal investigation; the eradication of corruption and malpractice in the police and other law enforcement agencies; expeditious conclusion of criminal trials according to law and perhaps even stringent punishments on those found guilty.

However keeping an accused or a suspect in remand will indeed be counter productive. It is a known fact that our prisons - especially the remand prisons are a breeding ground for crime and corruption. Many a first time remand prisoner will come out of there having associated with the more hardened criminal elements. A person remanded for years will come out not only hardened but with a sense of bitterness and frustration at the lost years of his life.

Perhaps a few years after the Bail Amendment Bill is passed (if it is passed) we will see the cycle changing once more. Perhaps we will have the Minister of Justice introducing another bill - this time to repeal the Bail Amendment Act of 2001 and once again to liberalize our bail laws. Perhaps we will be told of the untold hardships and suffering the Bail Amendment Act caused to people and as to why the government of the day is moving to amend the law. Unfortunately for a few thousands of our people that will come a little too late.

* The writer is an Attorney-at-Law.

Lawyers voice concern

Therefore we appeal to the Justice Minister Batty Weerakoon and, members of the cabinet and all members of Parliament not to table and or support the said amendment to the Bail Act in Parliament."

The Association also decided to submit this resolution to the President, the Cabinet, Members of Parliament, the Bar Association and Provincial Bar Associations, calling for action.

Rights group warns US

"The US and its allies should not cooperate with commanders whose record of brutality raises questions about their legitimacy inside Afghanistan," the director of the organisation's Asia branch, Sidney Jones, said in a statement.

HRW said there had been reports from nearly two years ago of executions, looting, arson and of children being drafted into the opposition Northern Alliance.

The opposition, which has rebaptised itself the United Front, was also guilty of killing civilians between 1992 and 1996, it said.

The United States is working to support a change of regime in Afghanistan, but has stopped short of publicly saying it wants to topple the Taliban ruling militia or giving its blessing to the United Front as the Taliban's possible successor.

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