The proposed
bill will limit the powers of the magistrates and increase the powers of the
police
| by Basil
Fernando
( October 19,
2012, Hong Kong, Sri Lanka Guardian) Making bad laws has become the hallmark of
lawmaking in Sri Lanka for several decades now. The most recent example of the
making of very bad laws is a bill which has recently been placed before
parliament under the title Code of Criminal Procedure (Special Provision). The
pursuit of injustice through legal enactment finds one more expression in this
proposed bill.
The task of law
is to create the framework for justice. Legislators, in making laws, ought to
be preoccupied with enhancing the liberties of the people and thereby bringing
about greater happiness to the people of their countries. However, it is now a
Sri Lankan habit to create a framework of injustice through law and to create
conditions that will make the people of the country as unhappy as possible. The
pursuit of justice is by now a habit that has been lost in Sri Lanka.
In the
protection of individuals, the task of the magistrates is of prime importance.
It is said that the kingpin of the criminal justice system is the magistrates.
It is by enhancing the capacity of the magistrates to dispense justice that
society is kept in safe hands. To undermine the magistrates is to undermine the
law itself and to allow illegality as law. That is one of the aims of the
proposed bill. Its ultimate objective is to undermine the powers and the
functions of the magistrates in Sri Lanka.
While the
magistrates are being undermined, the Officers-in-Charge (OICs) and other
officers of police stations are being given greater powers under the proposed
bill. The powers of the OICs are embellished at the expense of the powers of
the magistrates. In the future, Sri Lankans will have to depend on the mercy of
the OICs of the police stations and even on officers of lesser ranks.
The average Sri
Lankan knows by experience that OICs know of very little mercy or justice, but
that they have great appetites and get what they want by using their fists and
boots. It is quite a part of the average man's common sense to avoid the police
to the best of their ability. However, with the proposed bill the chances of
avoiding the grip of such policemen and their demands will be much less. There
will be no escape from the increase of extortion, torture, custodial deaths and
dealing with all kinds of other demands from the police. The proposed bill will
enhance such powers of the police and even change the age-old rule of the 24
hour limit before one is produced before a magistrate.
While the
magistrate’s powers will be reduced, the powers of the Attorney General will be
increased. The way people think of the Attorney General's Department now is not
the same as it used to be. The fact that the department's powers can be
manipulated for the benefit of politicians brings no surprise to anyone
anymore. What this simply means is that the people with the right connections,
whether they are accused of rape, torture or any other crime, could resort to
the escape route which will be opened through interventions to the Attorney
General's Department. Under the proposed law on many serious offenses, the
Attorney General's Department will be empowered to call back the file from the
magistrates. While that may be happy news for those who have the right links,
it is not good news for those who are seeking justice.
However, justice
may not be the concern of the government and those who are drafting these kinds
of laws. Sri Lanka's history for the last 40 years is one of the taking away of
civil liberties by various means. The easiest ways were the emergency
regulations and the anti-terrorism laws. However, these were not all. The
country's constitution itself is designed to embellish the power of the
executive and diminish the powers of the judiciary and to leave the people
without protection.
What is really
happening is the naked abuse of power. However, this abuse of power is given
respectability by all kinds of enactments, bills and other legislation. Freedom
loving nations make laws exactly to avoid the kind of situations that Sri
Lankans are creating for themselves by their laws. While more and more chains
are placed on the people, these chains are now called laws.
The duty of any
sensible person is to oppose the use of legislation for creating injustice and
the deprivation of liberties. It is for that reason that the proposed bill
needs to be opposed.
