Clarifying and updating law and finding solutions, or creating more problems and confusion?

Ministry of Justice Law Reforms:

By Kalyananda Tiranagama
Executive Director
Lawyers for Human Rights and Development
(continued from yesterday)

As Minister of Justice Ali Sabry has said at a meeting recently: ‘‘When foreigners come to file a case, often about an investment, they ask two questions. How long it would go on and how much it would cost. Most cases drag on for about 10 years, and we would say it is hard to say. As for the second question, we can never tell the cost of litigation because we don’t know how long the case will go on. Most foreign investors never filed cases, and such experience prevented others from coming in to invest here. Laws needed to be changed to eliminate delays and ensure that the public faith was restored in the legal system.’’

However, the repeal of S. 82 of the Evidence Ordinance goes against the above expressed views of the Minister. It will not eliminate delays, but result in prolonging cases, compelling the investors to incur heavier costs of litigation as many of these cases may involve the proof of documents executed in foreign countries. It will certainly benefit the lawyers appearing for both sides.

Bail Amendment Act No. 7 of 2021

When looked at from the angle of any person with a little understanding of the law relating to bail in Sri Lanka, this Amendment is also a dismal failure, a futile exercise. It has not touched any of the problematic provisions in the Bail Act that have contributed to heavy congestion in prisons, enabling long term detention of suspects in remand custody without bail.

The Bail Act No. 30 of 1997 was enacted for the avowed purpose of liberalizing the provisions relating to bail and reducing congestion in prisons and providing for anticipatory bail, enabling courts to release persons in custody on reasonable conditions without undue delay. The Bail Act states that grant of bail shall be the guiding principle in the implementation of the Act. The grant of bail shall be the rule, while the refusal to grant bail shall be the exception.

However, with the passage of time, in practice it proved that the Bail Act has failed to bring about the intended result of liberalizing the provisions relating to bail and reducing congestion in prisons. When the provisions in the Bail Act are analysed in comparison with the provisions in the Code of the Criminal Procedure Act under which bail was granted earlier, and its implementation is examined, it appears that the Bail Act had the contrary effect of hardening the law relating to bail and further contributing to congestion in prisons.

Before the enactment of the Bail Act. in the Code of Criminal Procedure Act there was a very simple and logical procedure for the release of suspects on bail. Anyone produced in Court on an allegation of commission of a bailable offence was required to be released on bail immediately.

A person suspected of committing a non-bailable offence could be remanded only for a period 14 days, unless he was suspected or accused of the commission of an offence, coming under a special Act like the Prevention of Terrorism Act or Public Property Act with restrictive provisions relating to bail. He was required to be released after 15 days,

A person remanded on an allegation of committing a capital offence was required to be released after three months from the date of his arrest if proceedings were not instituted within that period.

But under S. 14 of the Bail Act, the Court could refuse to grant bail not only in non-bailable offences, but also in bailable offences when the Police object to bail on any of the grounds mentioned in the Section. Though the Court has the discretion to grant or refuse bail, this provision, in effect, has left the discretion of allowing bail to be granted or not in the hands of the Police.

Instead of liberalising the law relating to bail, the Bail Act has strengthened the hands of the Police in depriving people of their liberty. The Police have been armed with a good weapon to keep people in custody without bail at their wish. If they want to keep any person in custody without bail they simply have to state in their report filed in court that there is a strong likelihood of public peace being disturbed in the event the suspect is released on bail and the investigations are not completed and Courts often refuse to grant bail.

As mentioned above, in the Criminal Procedure Code there was a time frame for granting bail. The Bail Act has removed that time frame. S. 16 of the Bail Act allows a suspect, even a person arrested in connection with a bailable offence, to be detained in custody for a period not exceeding twelve months from the date of arrest. Under the provisions of the Act a person, irrespective of whether he has committed a bailable offence or a non-bailable offence, could be kept in remand custody for a period of 12 months.

Under the Code, a person released on police bail did not incur any penalty for his failure to attend Court on the date required by the Police for him to attend Court.

Under S. 6(2) of the Bail Act, the failure of such a person to attend court on the given day will result in his being convicted of an offence and punished with a fine of Rs. 1000 or simple imprisonment for a period not exceeding 6 months for such failure in addition to the penalty for the offence in respect of which he was required to attend Court.

Under the Code, a Magistrate was required to release an accused convicted of an offence on bail, without any delay the moment an appeal was filed against the conviction. Whatever the nature of the offence, the maximum sentence a Magistrate could impose on a convicted accused is two years imprisonment. The framers of the Code had thought it fit to release such a convict on bail the moment he has filed an appeal against the conviction.

Under S. 19(2) of the Act, now it has been left to the discretion of the Magistrate to release such an accused on bail or not.

Moreover, S. 19(1) of the Act provides for remanding of an accused acquitted of an offence. An acquittal after trial is the final order that determines the innocence of an accused. Despite that, the Act has made provision for issuing a warrant for the arrest and remanding of a person acquitted by Court when an appeal is filed against his acquittal.

As mentioned above, some of the provisions in the Bail Act have resulted in some extremely negative consequences: unreasonable and unnecessary pre-trial detention of suspects for years; enabling police to selectively keep suspects in long term custody without bail abusing its provisions; the exceptions to the Bail Act removing drug and terrorism related cases from its ambit, facilitating prolonged, unjust and unnecessary pre-trial detention; prohibitively high and excessive cash bail and unreasonable bail conditions often imposed by Courts making it effectively impossible for suspects to furnish bail.

Over the years there was an urgent need of addressing these issues with suitable amendments to the problematic provisions in the Bail Act. But this new Amendment Act has not touched any of these problematic provisions in the Act that have contributed to heavy congestion in prisons. Instead, it has increased the penalties that can be imposed on errant suspects and sureties.

The Bail Amendment Act No. 7 of 2021 has amended the following 3 Sections in the Bail Act increasing the fines that can be imposed in respect of the offences specified in those sections:

S. 6 (2) Failure of a suspect released on police bail on condition to appear before a Magistrate on the given date – punishable with a fine of Rs. 1000 or simple imprisonment for 6 months or both.

– Now the fine has been increased to Rs. 15,000/-

S. 12 (2) – Giving a false address to Court by a person released on bail – an offence punishable with a fine of Rs. 1000 or simple imprisonment for 6 months or both.

– Now the fine has been increased to Rs. 10,000/-

S. 18 (5) A person habitually standing surety for bail and making application to have the bail bond discharged without adequate cause – an offence punishable with a fine of Rs. 1500.

– Now the fine has been increased to Rs. 25,000/-

Yet, under the normal criminal jurisdiction of the Magistrate’s Court the maximum fine that can be imposed for any offence a person has committed is Rs. 1500/- This shows the extent of the absurdity of this amendment.

In this series there are several other Amendment Acts of this nature that need to be examined to understand the unnecessary problems created these legal reforms to be discussed later.

(To be continued)