Focus on Rights

Should the end justify the means?
In Canada, as presently in Sri Lanka, efforts to combat organised crime, contemplates that most ancient of all questions; should the end justify the means? The competing arguments are fairly straightforward. Human rights advocates, on the one hand, would contend - as indeed they do - that as serious as the harm is, that is caused by organised crime, the loss of confidence in democratic institutions as a result of police actions and prosecutions carried out in defiance of basic guarantees of fundamental rights would result in even greater harm.

On the other hand, proponents of special laws to deal with particular categories of criminals say that the overaching nature of organised crime can be combated only through measures that supersede ordinary laws and give some measure of extraordinary discretion to the police.

This is, in addition, in a context where it is argued that judicial interventions, in actual fact, have made the job of the police in combating crime, much harder. Thus, the Canadian Supreme Court, through its interpretation of the Canadian Charter of Rights and Freedoms, has articulated that any individual - whether an ordinary law abiding citizen or the foulest crook - has the right to life, liberty and security and the consequent right not to be deprived thereof, except in accordance with constitutional norms.

Interestingly, this reasoning was taken to its highest in 1999 when in Campbell v Shtrose (1999, 1 SCR, 565), the Supreme Court ruled that peace officers, involved in undercover investigations are subject to the rule of law and do not enjoy immunity. This meant effectively that police officers could be prosecuted for actions taken in complete good faith in the course of an investigation.

However, while this was applauded as a safeguard both necessary and admirable by rights advocates, the downside of this argument came in a string of high profile cases where key mob figures, through the aid of highly paid lawyers, were able to obtain postponements of trials and in some cases, acquittals.

In Sri Lanka as well, the expansion of fundamental rights jurisprudence by the Supreme Court has unequivocally extended equal protection of the law to all persons, even the worst of criminals, whilst demanding high standards of diligence in police investigations.
The difference, of course, between debates in both countries is that while Canada has to cope with the occasional problem of "noble cause corruption" (meaning where an over zealous police officer, convinced of the guilt of his suspect, goes to any lengths to secure a conviction), what Sri Lanka has is still plain old fashioned corruption rampant in her police force. This gives a very different contextual flavour therefore to the appropriateness of legislation combating organised crime in both countries.

Regardless, we now have a substantial lobby, putting forward the necessity for a special law that would treat particular criminals differently on the reasoning that the type of crimes that they engage in, justifies differential treatment. It was this reasoning that found approval with Sri Lanka's Supreme Court recently with regard to a proposed Organised Crimes Bill, the specific provisions of which was discussed in a previous issue of this column.

In the Determination of the Court (comprising Shirani A. Bandaranayake, P. Edussuriya and J.A.N. de Silva), it is however significant that particular clauses of the Bill were singled out as needing amendment, a factor that seems to have gone largely unnoticed up to now, raising concerns that far reaching criminal legislation has gone unchecked by court. This is largely due to the fact that these amendments were suggested by the Court "in the opinion of the Court", whilst ruling that none of the provisions of the Bill were inconsistent with the Constitution.

Thus, the court recommends amendment of clause 10 of the Bill in order that a suspect, upon arrest, must be produced within twenty four hours exclusive of the time of travel either before the nearest Magistrate and that an application be filed in the "magistrate's Court before which such person was so produced" if an extension of that period of detention is requested.

Similarly, the Court has recommended that reasons be recorded by the Magistrate as to why, under Clause 11(2) of the Bill, police custody of seven days is authorised for a suspect where the Magistrate is satisfied that there are reasonable grounds to believe that such person has been concerned in the commission of, or has committed an offence under the Act.

Every such order should meanwhile stipulate the conditions of detention and hours of interrogation. An order may also be made that such suspect be examined by a medical officer, if necessary. The Magistrate is also required to take steps to notify the spouse or any family member nominated by the suspect, of the order of detention and the place of detention.

Importantly, even though the Bill, as it stood, made remand compulsory until the conclusion of the trial, the Court was also of the opinion that explicit mention should be made in clause 13 of the Bill to the fact that recourse could be had to Section 404 of the Code of Criminal Procedure Act, empowering the Court of Appeal to grant bail.
Equally validly, the Court records the agreement that offence of harbouring, concealing or assisting an offender under Clause 4 of the Act should be, (in line with the exception to Section 209 of the Penal Code), subject to the exception that the prohibition does not catch up husbands, wives, parents or the children of the offender.

Those clauses of the Bill that provided for police custody of suspects for seven days and of confessions made to ASPs to be admissible, were however ruled as being right and proper in dealing with organised crime. The Court also refused to accept the argument that the various punishments specified, including the prescribing of a minimum mandatory sentence, forfeiture of property and non-eligibility of remission for offenders, amounted to a piling up of punishment upon punishment.

The question remains as to whether the above safeguards would be sufficient to deter the possibility of abuse once the Bill is passed into law. It is well if those human rights advocates who continue to answer this question in the negative, (in the specific contextual context of what passes for police investigations and discipline in this country), lobby for a further fine tuning of the Bill before it comes before the House.

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