The discretion of remanding and punishing a suspect is vested in the judiciary. It is said that a judicial inquiry is one where the object is to determine a jural relation between one person and another or a group of persons or between him and the community in general. But a judge acting without such an objective view is not acting in the best interests of justice.

It is said that a judge should always strive to conduct himself so that the public will never lose their confidence in him or his actions. A majority of the judges are so circumspect and act with so much of caution that they even avoid indulging in ordinary pleasures.

The day this power is taken away by Executive action or by legislation that day would be the day of doom of democratic traditions and the judicial system of this country.

Some time ago, Batty Weerakoon, a human rights champion who was a junior to the great Colvin R. de Silva introduced an amendment to the Bail Act that would be a death knell to the democratic freedoms and human rights that his senior stood and fought for. It was unimaginable that the LSSP leader could introduce an amendment, which was intended to make releasing on bail a suspect the rule, and remanding the exception.

Mr. Weerakoon's amendment in its original form took away the granting of bail for more than fifty offences. The Bill did not state the forum to which one must move for the release of suspects on bail. In plain language, any person brought to court on a report filed by the Police was remanded until the conclusion of the trial. That is, if the report filed by the police on the offence came within the ambit of the schedule to the Act.

The people came to know about the Bill accidentally through a newspaper. The advocates of the bill described it as a measure to curb the rising crime rate in the country.

It was at this time that the Colombo Magistrate's Court Lawyers' Association protested against the Bill. It was thought that this was an excuse by a certain group of lawyers who were only interested in their own welfare and not that of the country. No one examined the patent, latent and inherent dangers of the Bill.

After the amendments to the Firearms Ordinance, any person in possession of an automatic weapon like a pistol or a revolver, if convicted, would be sentenced to life imprisonment. The Bail Act in its present form prevents a magistrate from granting bail to a person suspected or concerned in committing or having committed an offence punishable with a death sentence. Anyone who has no practical knowledge of how the law acts would applaud such an amendment but it is true that a major percentage of people who are in remand under this section are persons who had in their possession firearms.

But there are many innocent people in remand who had been produced in court on allegations that they had in their possession a firearm. In most of these cases, they were remanded based only on the statement of the complainant - no firearm was recovered from the possession of the suspect.

Recently a landlord got rid of his tenant by a simple method. What he did was that he started a verbal altercation with the tenant. He went to the Police and with the help of the Police fabricated a statement that the tenant pointed a gun at him and tried to kill him.

The Police arrested the tenant and produced him in court under the Penal Code for a dispute that should have gone to the Mediation Board. But under the amendment to the Firearms Ordinance, the offence of threatening with a firearm. Is a non-bailable one.

The Magistrate had before him only the statement of the complainant. But he knew that this statement would not stand judicial scrutiny but he had no power as his hands were tied by law. The Magistrate with great reluctance remanded the suspect. The very next day thugs of the landlord set fire to the house occupied by the feeble mother of the tenant. When the suspect ultimately obtained bail from the High court after about six months, he found that there was no house and his mother was in the house of a relative and as his house had been demolished. He lost his tenancy rights.

During the Provincial Council Elections and the Parliamentary Elections, the Police made use of the Offensive Weapons Act and the Firearms Ordinance to keep in remand politicians opposed to the government of the day. Some of the candidates were in remand during the election campaign and even on the day of election. Later they were released on bail by the Court of Appeal.

The Offensive Weapons Act and the amendments to the Firearms Act were used to harass and keep political opponents in remand. This was because a Magistrate had no jurisdiction to grant bail. The High Court of Kandy in Keheliya Rambukwella's case decided to release the suspects on bail and interpreted that the Bail Act does not preclude the High Court from granting bail. This decision was followed by many Magistrates who saw that most people in remand suspected to be in possession of offensive weapons were political opponents of the Government and there was no material to sustain the charges and released them on bail. Yet, these two sections were more than a handful for the Police to keep political opponents of a regime in remand.

Mr. Weerakoon's amendments to the Bail Act had identified more than fifty offences in the schedule where the Magistrate's discretion to grant bail had been taken away. For instance, the offence of grievous hurt is triable by a magistrate. But the same magistrate has no power to examine the material to find out whether the charges of grievous hurt are borne out by medical evidence. Even in a charge of non-grievous hurt if the Police desire could be bracketed with a charge of grievous hurt as no one can decide on the injury without having access to the medico-legal report.

The magistrate would merely become a post box signing the report and sealing the fate of the suspect. The suspect has no option but to make an application to the High Court. This process is expensive and will take at least three weeks before a decision could be arrived at.

Instead of the magistrate, the discretion to release or remand a person if the Bail Act becomes law would be vested with the Police. A person may be able to use his position and power to influence the Police to change a report and according to his wishes remand or release a suspect. There will be a handful of lawyers who would decide the fate of a suspect at the Police Station on the consideration offered and given.
An ordinary case of cheating may become cheating by impersonation. Similarly an employer who wants to get rid of his worker will have to get one of his employees to make a complaint of criminal breach of trust by the worker. He will then be remanded for at least three months. If the High Court has refused to grant bail in an offence which comes under the proviso of the schedule of offences, the Police will then again decide whether the suspect will be released or not because the present Bail Bill envisages that after three months if the proceedings are not executed the Court is compelled to release a suspect on bail. If the Police is interested in keeping the suspect for a further three months the Police can then file a plaint and charge the suspect. Otherwise the Police may conveniently inform Court that the investigations are not complete then the Magistrate will be compelled to release the suspect on bail.

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