21st December 1997

The blunder behind the Bail Act

By Mudliyar

Sarath Nanda Silva, former judge of the Supreme Court, the present Attorney General or the Chief Government Prosecutor, addressed the annual general meeting of the Judicial Service Association at the BMICH, and requested the judicial officers to help implement the new Bail Act which makes granting bail a rule rather than the exception.

He adverted to the fact that the new Bail Act had bestowed on the magistrates and judges the discretion to order an offender to be remanded if he is found to be a social menace. The new legislation has placed a maximum time limit of one year for an offender to be kept in remand.

If what appeared in the Daily News of December 3, 1997 is the content of the speech of the Attorney General, then he had enlightened the judges of their power to remand a person found to be a social menace for not more than one year. The offence such a person had committed has nothing to do with the period of remand. Can any one give a rational or a judicious explanation for remanding a person which can be extended for a year, when the entire exercise of introducing this legislation was to prevent people from being remanded?

As I pointed out earlier in this column this is the most draconian section in the Bail Act. This permits a police officer to make an application to remand any person on the basis that the police officer feels that the release of the accused on bail would result in public disquiet, which I believe is now amended to read as 'breach of the peace'.

Many persons would remain in the eyes of the police as persons who should be permanently remanded. We must not forget that during the days of terror the police in the guise of wiping out terrorism allegedly killed many criminals, as they were convinced that these criminals were a social menace.

Under the present Act, the release of such a person on bail would inevitably result in a breach of the peace. Equally there would be others who are a social menace in the eyes of their opponents, and graft and filthy lucre would metamorphose any person into being a social menace.

It would be a stupendous task to evaluate the real position by reading a report filed by the police to find out whether the release of a suspect would result in a breach of the peace. Even today many judicial officers are reluctant to release a suspect accused of a non bailable offence unless the police acquiesce to the release.

It is a well known fact that the police abuse these orders to the maximum. They object to bail and it is common ground that unless the police officer is retained he would refuse to concede to bail, and a few days later a motion would be filed and the same police officer would not object to bail. Some judges who had become aware of these corrupt practices, refuse to entertain a motion to release a suspect on bail until the stipulated 15 days are over. With the present provision in the Bail Act the police would become virtual administrators of justice. They would determine first at the police station, then in court, the freedom of the individual.

The end result would be that the noble intentions of Justice and Constitutional Affairs Minister G.L. Peiris would be negated by the very same Act.

This Act had been originally prepared by the previous UNP Government. That was one of the reasons why the two former Ministers of Justice, A.C.S. Hameed and Tyronne Fernando went to ecstasies when the Bill was introduced in Parliament. The enthusiasm shown by senior members of the opposition would have delighted every one. I believe that as a non-controversial progressive bill even senior members of the Government and the lawyers of the calibre of Mahinda Rajapaksa, Jeyaraj Fernandopulle, Nimal Siripala de Silva who were essentially practitioners in the original courts would have not taken the care to warn the government of the obvious infirmities in the bill. These members who are lawyers know how difficult it is to obtain bail for a non-bailable offence, if the police file a report padded with lies, requesting the court to remand the suspect for fourteen days.

It was quite late in the day, after this column demonstrated the draconian nature of the bill, that some members had even cared to read the bill carefully. The human rights activists and others seem to ignore this bill. It was the opinion of some senior members that this law even violates the constitution.

This column wishes to place on record its appreciation of UNP's National List MP Sarath Kongahage. for having - I believe after reading this column - expressed his views on the matter in Parliament. Mr. Kongahage in his speech at the debate on the vote for the Ministry of Justice complimented Minister Peiris for having brought this Act with a view to removing any doubts that were in the minds of the judicial officers about granting of bail. He said, Dr. Peiris under whom the prisons came, had been appalled by the conditions that exist in them. The conditions were pathetic, and remanding was worse than sentencing a person to jail. But he said that the obvious anomalies in the Act had gone unnoticed, and would eventually negate the very principles on which the minister brought this legislation. He confessed that as a lawyer he himself had to take a fair share of the blame for having failed to realise the inherent dangers of the Act which had been passed unanimously by Parliament.

He said there are President's Counsel both in the Government and in the opposition and a large number of lawyers in Parliament both in the Government and opposition, all of them who should sincerely and with humility accept that they have erred in passing the bill without major amendments. He also accused the Bar Association and its Branches of not having perused the bill carefully, and for having failed to suggest their views on the matter in the way they had in respect of the Title Registration Bill.

All the MPs who addressed the Assembly on the Bail Act were swayed by the preamble to the Act, but no one had the foresight or the acumen to go through the Bill carefully to investigate whether there were any sections which were diametrically opposed to the very principles on which the Bail Bill was introduced.

Mr. Kongahage said, "I think that this Bill which was introduced to simplify the laws relating to bail, has made it even worse than even the Prevention of Terrorism Act. My fear is that this Bill gives more power to the police, which would completely contravene the noble principles on which it was introduced."

Dr. Peiris in answer to Mr. Kongahage, made a very important statement. He said: "Hon'ble Sarath Kongahage referred to a series of deficiencies in the Bail Act. I wish to assure my friend that this is not an arrogant Government. We do not think that our legislation is infallible, and if there are deficiencies we are prepared to change those. But I would like to say that I find myself unable to agree with some of the points he made. For instance, Section 6, which enables the police to refer a matter to a magistrate. That is in very limited situations where the police feel that there can be public disquiet. The magistrate will make the final decision and the discretion exercised by the magistrates is governed by very clear principles of law".

But unfortunately the birth of this Bail Bill was due to the fact that these principles of law which had been very clearly spelt out in the Criminal Procedure Code had not been followed. They have been interpreted by the Court of Appeal and the Supreme Court, which had reaffirmed the intentions of the legislature. Nonetheless, the suspects had remained in remand for reasons beyond the comprehension of many jurists.

It was Dr. Peiris who lamented the pathetic conditions that existed in various prisons in the country, and he exposed that many remand prisoners are in prisons, not because they have been convicted of any offence but because they cannot find the sum of money which they had been ordered to pay.

It was the former Judge of the Supreme Court, Justice, O.S.M. Seneviratne who had originally expressed his views with regard to the release of suspects on bail. This was immediately after the reintroduction of the Criminal Procedure Code, at a Seminar held by the lawyers in Kandy.

Justice Seneviratne's forthright, progressive and liberal comments were later published as a booklet by one of the present advisors to the Minister of Justice, Dr. Jayampathy Wickramaratne.

Dr. Wickramaratne also made a significant contribution to the interpretation of the Bail provisions in cases where suspects are in remand for the capital offence. It was his exposition of the law that made Justice Bandaranaike to rule that a suspect cannot be kept in remand for more than three months unless proceedings had been instituted against him.

Though the principles relating to bail had been established unequivocally, yet the prisons were bursting at its seams. Therefore I believe that if the Act is implemented without amendment the Ministry of Justice would be burdened with additional prisoners, and prison riots would be a common feature in the future.

Dr. Peiris further adverted to the new Section 19(2) of the Bail Act. "My friend said that Section 19(2) is a horrendous provision, because a man who is acquitted and who is appealing could be refused bail, but that is there in the present law as well. There is a provision which is contained in Section 327 of the Criminal Procedure Code."

The obvious fallacy of the argument of the Minister is that Section 327 permits the Court of Appeal and not the Magistrate to issue a warrant directing the accused to be arrested. But under the provision of Section 19(1), and not sub-section 2 as referred to by the Minister, the magistrate may issue a warrant once an appeal is proferred.

Even the Attorney General will agree that there had been very few appeals from acquittals by the magistrate, but I do not think there was a single instance of the Attorney General moving the Court of Appeal to arrest an accused who had been acquitted before the determination of the appeal.

These provisions permit aggrieved complainants to file revision applications to the High Court and thereafter obtain the sanction of the Attorney General against acquittals. Then these complainants may be advised to use the provisions of Section 19(2) to move the magistrate's court to arrest the accused who had been acquitted.

Dr. Peiris further said: "Hon'ble Kongahage M.P. spoke of Section 16, which he said allows a person to be remanded for as long a period as a year. But Hon'ble Kongahage did not mention Section 120 of the Criminal Procedure Code which requires a report to be submitted every 15 days and, of course, the suspect has a right to be present on each occasion so that he can object, it is not as though a period of a year will run without an objection from the suspect. The matter will come up every 15 days and he will have the opportunity to be heard".

I am unable to agree with the minister. I believe he had been completely misled by his officials on the interpretation of Section 120. Section 120 of the Criminal Procedure Code directs the police to complete their investigations at the earliest opportunity. The court has the right to review the progress of the investigation every fifteen days before the charges are framed.

But under the present provisions of the Criminal Procedure Code, unless you are charged with three specific offences like murder or treason, all accused would be released on bail after fifteen days. The accused will then have an opportunity to state his position and move for a discharge. The mentioning of the case every 15 days happens when the accused is in remand, having been suspected of having committed those three specific offences. A person suspected to have committed one of these three offences could be in remand for a period of not more than three months if charges are not framed against him.

But under any other offence where the accused is released on bail, Section 120 has absolutely no operation and the cases are postponed for three months or six months depending on the 'roll' of a particular court.

If a court has to call a case once in fifteen days until the charges are framed the courts will have no time to do any other work other than postponing cases where investigations have not been completed. But once the investigations are completed and the plaint is filed and charges are framed the court will adjourn the case again depending on the trial roll for a period sometimes of more than three months. Once the charges are framed even a junior criminal lawyer would know that Section 120 has no application at all.

Therefore the grave danger in the present Act is that the accused can be kept in remand irrespective of whether he has committed a bailable or a non-bailable offence for one year.

If the plaint has been filed the accused will be remanded till the next trial date which may be even six months after the first date of remand. Unless a motion is filed, the court will encounter the accused on the next trial date and not after 15 days as adverted to by the minister. Under this section the norm is remand, and the exception is bail.

But the most important statement made by the minister was that the Government was not arrogant and was prepared to accept that it is fallible and is willing to rectify any deficiencies of the Bill. He said, "I am not saying that he (Mr. Kongahage) is right or wrong, but I would be happy to have these considered in depth at the meeting of the Consultative Committee. If there are any flaws which need to be corrected we shall certainly be prepared to amend legislation before this House".

I believe this statement exemplifies Dr. Peiris' commitment to the Rule of Law. It is now up to the Government, the opposition and the members of the Bar Association to propose amendments to this legislation.

The legislation in its present form would permit the police to resort to unimaginable corrupt practices. No accused would ever know whether he would be remanded; or released on bail till the conclusion of the trial.

The young lawyers whose bread and butter is bail applications would not know whether he could ever get his client out on bail or not. The police would have the power to determine whether a particular suspect should be released on bail by him or produced in court and remanded. The period of remand will depend mainly on the report filed by the police. The Police would have the discretion to determine the fate of the accused.

But the Bail Act provides that a person who had committed an offence of even simple hurt could be produced before a court and remanded if the court is satisfied that the release of such a person would cause a breach of the peace. "This country is suffering from over legislation. Our reformers seem to have small faith in natural law. This country is all right - or will be - as soon as we repeal a few silly laws." Elbert Hubbard (1856-1915)

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