Untitled Document

By Batty Weerakoon

Reply on the Bail Amendment Bill
Imaging of cops and lawyers
Mudliyar's piece on the Bail Amendment Bill drew a reply from me solely because, as I stated there, it was an excuse for an unwarranted attack on my learned friend, President's Counsel, Ananda Wijesekere on the false ground that he collaborated with me on this piece of legislation. I am glad Mudliyar has taken his medicine and has been careful not to persist in this unfounded charge. With reference to his oblique claim of interest shown in the Bail Amendment Bill by the Colombo MC Lawyers' Association he has not sought to refute my position that contributes to the non-credibility of this claim. Instead he has gone on a frolic of regaling us with his amateur TV script on whom he calls a kingpin in the heroin trade, Mr. Noor.

Mudliyar's dossier on Noor and the game of cops and robbers he projects, though damagingly biased on the side of the CIA operative type cop, is interesting. But it leaves unanswered the query of remandees as to how Noor is in and out of remand with such ease when they languish in the dumps without bail. I knew why they were reduced to their plight; they are persons brought to court on the police report that on a search of their person each was found to be in possession of a small quantity of what goes for heroin. Remand is imperative under the law applicable to drugs related offences. But Noor too is dealt with under the same law and how come he secures different treatment! Police reports I have had access to as Minister of Justice carry a story that a few unscrupulous lawyers and cops exploit for the benefit of the Noors a provision in the Bail Act that suffers from want of sufficient clarity.

But Mudliyar, traditionally perched beneath the bench, would agree that no Magistrate could be unwillingly misled on this. My Bail Amendment Bill, I believe, clarifies the position in regard to this category of offence.

The substantive provisions in my Bail Amendment Bill left intact prevailing provisions on bail except in relation to socially ''abhorrent" crime as murder, rape, child molestation, extortion, procuration, etc. These are the "scheduled offences". It also provides the procedure to be adopted by a Magistrate in refusing bail in respect of even a non-bailable offence (excluding the scheduled offences).

He has to record his reasons for refusal of bail, and it is left to his discretion to grant him bail at the end of fifteen days if proceedings are not instituted against him. Even in respect of the scheduled offences a Magistrate is required to release the suspect on bail if no proceedings are instituted against him within three months. In these matters the Magistrate has to record his reasons for refusing bail and that makes his decision readily reviewable by a higher court.

Mudliyar appears to question my qualification in the area of law and procedure covered by my Bill. This is a matter on which I need to be silent because self advertisement or what amounts to it is frowned on in the ethics that apply to my profession. Ethical conduct does not seem to bother Mudliyar as is seen in his piece on Noor. He advocates for the crime-cop the abusive use of the methods of the criminal which include the free indulgence in the sharing of the heroin loot with criminals so as to keep open the lines of police information. His condemnation of police officers who refuse to compromise on this is, to say the least, most obnoxious.

Speaking of ethics I note that Mudliyar preserves a studied silence on my reference to a handful of lawyers collaborating with criminals. I mentioned the specific instance of such lawyer corroborating the story of innocence spun out for a criminal fleeing from the police in a "contract murder" investigation. His statement to the police was that the man had been abducted when he was on his way to his chambers. This story was untrue because, as discovered subsequent]y, by then the man was being willingly ferried to safe haven across the Palk Strait. Whether false or true, the story reflects the condition to which a few practitioners have reduced the standards of a noble profession. No lawyer can be heard to say that he was willing to give a consultation to a suspect or criminal evading the law. In respect of this particular suspect it was no secret that the police were on a man-hunt for him for weeks before his wholly fabricated abduction.

Mudliyar addresses me as comrade too. He should not therefore take it amiss if I recall to him Karl Marx himself on our subject: "The criminal produces not only crime but also the criminal law;.... He produces the whole apparatus of the police and criminal justice, detectives, judges, executioners, juries, etc., and all these different professions.......". (Bottomore: Karl Marx-Selected Writings in Sociology and Social Philosophy). But this should not mean, Comrade Mudliyar that the criminal produces the cop and the lawyer in his own image.

Mudliyar in his rejoinder to my reply to him, faults me on my mention of the Penal Code in the sentence, "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." This refers to the obligation of the magistrate to scrutinize the police report and if necessary the investigation notes in allowing remand pending completion of inquiries - an application often made by the police. Mudliyar resorts to song and dance on my incorrect reference to the Penal Code and conveniently avoids meeting my position in respect of what might be called the inherent powers of the magistrate to protect a person's freedom from undue detention. In this regard may I remind Mudliyar that his own rejoinder that "the definition of bailable and non-bailable was also in the Criminal Procedure Code" does not answer to the rigours of his own pedantic approach. The fact is that there is no definition of these terms in the procedure code he mentions. These errors of reference however are of no consequence to what is being argued and are, as lawyers and judges see them, irrelevant.

Nor do I see any reason as to why an error in a statement of my own and attributed to no other should disturb the repose of Dr. Colvin R de Silva. Perhaps Mudliyar in his enthusiasm to gloss over inconvenient argument made an error in his reading - a sin not allowed to persons in his vocation.

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