| By
Batty Weerakoon |
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Changes to the Bail Act and Non-summary Procedure The columnist ''Mudliyar'' from Hulftsdorp has made on me a two-piece diatribe on amendments to the Bail Act brought by me to Parliament as Minister of Justice. I do not think an ex-Minister is called upon to personally defend his Ministerial decisions and acts when he is no longer Minister and has no access to the relevant ministry files. But as 'Mudliyar" has mentioned by name eminent President's Counsel, Ananda Wijesekere, in connection with the Bail Act amendment I feel obliged to set facts right on the matter. I am of the view that the subject has been brought up now, and Mr. Wijesekera targeted, wholly for what we lawyers call a 'collateral purpose" of doubtful virtue. Mr. Wijesekera's name has been announced as contestant for the post of President of the Bar Council and rivals engage in this kind of calumny for self-serving purposes. Hence all the more reason for this reply from me. The Bail Act
which was enacted by the 1994 Parliament embodied the very salutary
principle that bail is the rule and remand the exception. The under-world
was quick to exploit the virtues of this piece of legislation and
its key operatives were in and out of the Remand Prisons especially
in Colombo, thanks to the Bail Act. Some of them were even on anticipatory
bail. But suspects who should have been released on bail were languishing
in remand which was extended every two weeks on the police report
that inquiries were not complete. The Legal Unit of the Ministry
of Justice was already on the job of putting this situation right
and a draft Bill for the purpose was ready when I assumed office.
My job was to take it forward to Cabinet and Parliament. This I
did and Parliament passed it but at the time of the dissolution
of Parliament, which happened soon after, the Speaker had not as
yet signified that the Bill was duly passed. Hence it lapsed. ''Mudliyar"
berates me for being reactionary on the law despite my long association
with the late Dr. Colvin R de Silva. I am glad that honoured name
has been mentioned. Often have I heard from Dr de Silva both in
Court and outside that a Magistrate is obliged to go into the question
as to whether a suspect in a non-bailable offence is in fact connected
with that offence when he deals with a police application that the
suspect be remanded pending completion of inquiries or investigations.
The description of an offence as ''non-bailable" in the Penal
Code is no reason for a suspect brought before Court, with no evidence
to link him to that offence, to be held without bail. It is of course
the lawyer who has to invite the Magistrate's attention to the matters
he should take into consideration in making his order. This should
apply even in the case of the "scheduled'' offences given in
my Amendment as offences in which a Magistrate is not permitted
to release a suspect on bail except where even after three months
of remand the police fail to file proceedings against him. The "scheduled
offences" in my Bill that concern the ordinary citizen are
those of the Penal Code relating to homicide, culpable homicide
not amounting to murder, attempt to murder where hurt is caused
thereby, causing miscarriage without the subject's consent, cruelty
to children, voluntarily causing grievous hurt by dangerous weapons
or means, voluntarily causing grievous hurt to extort property or
to force a person to do an illegal act, kidnapping/abducting, procuring
women/trafficking, sexual exploitation of children, rape, grave
sexual abuse, habitually dealing in stolen property, house trespass
to commit an offence punishable with death. These are all
offences in respect of which no Magistrate had powers to grant bail
prior to the Bail Act. Hence the justified public concern over the
manner in which the provisions of the Bail Act were used or misused
in the Courts in granting bail to suspects brought before them on
these offences. The abuse went so far that there were instances when the provisions of the Bail Act were resorted to in order to release on bail suspects who were brought under special laws as those that relate to trafficking in dangerous drugs, or possession of offensive weapons, or causing loss or damage to State property on which release on bail was expressly prohibited. This is what prompted drug related young suspects in remand for months without end and without proceedings being filed against them to put to me the embarrassing question as to how "Kudu Noor" was in and out of remand every week or two when their own applications for bail were not countenanced by Court. The Bail Amendment
provides relief to suspects in "non-scheduled" offences
under the Penal Code though these too are categorized as non-bailable.
The Amendment makes provision for Magistrates to exercise their
discretion on the question of bail even where the police apply for
remand pending the completion of investigations. In instances where
a remand order is made in the first instance the Magistrate is required
to release the suspect on bail if no proceedings are filed against
him after the first fifteen days of remand. I must stress
the fact that the restrictions in my Amendment relate in large measure
only to proceedings before a Magistrate prior to non-summary inquiry
stage. What the working of the law demand in the context of the
Amendment is that both judge and lawyer give adequate consideration
to the facts on which a police application for remand is based.
Of course a Magistrate will not release on bail a suspect in a non-bailable
offence if he is satisfied that there is prima facie evidence of
his link to or involvement in the offence. It is very
unlikely that the appellate courts will give any relief in such
instance. Nevertheless the Bail Act Amendment Bill leaves untouched
and intact the powers that appellate courts exercise in such instance.
To be contd. next week |
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