The Law & Society Trust (LST) voices its grave concern over the introduction of the draft amendment to the Criminal Procedure Code restricting the right to counsel of those arrested or detained as gazetted on the 12th August 2016. The amendment proposes to deprive those arrested and detained by the Police from accessing a lawyer until their statement is recorded. Further, it also provides that where such persons are unable to retain and consult a lawyer at their own expense, the Legal Aid Commission of Sri Lanka would be prevailed upon to provide legal counsel if it is in a position to provide such service. These amendments constitute a grave curtailment of rights and heighten the risk of torture, undermine the right to a fair trial,, and impede access to justice.
Many aspects of Sri Lanka’s criminal justice procedure and system are urgently in need of significant overhaul and reform. But this proposed amendment amounts to an arbitrary, piecemeal and misguided attempt at reform.. Unfortunately,, it is also consistent with recent tendency to bring about legislation that has far-reaching implications in terms of access to justice by stealth rather than through a transparent and consultative process. The Law & Society Trust calls on the government to withdraw this proposed amendment and instead initiate a transparent and consultative process of criminal justice reform that is principled, evidence-based and holistic.
The implications of the proposed amendment are far-reaching and serious. The period of time between the arrest and the recording of the statement by the police is critical and depriving someone of access to a lawyer at this stage heightens the risk of torture and cruel, inhuman or degrading treatment and punishment; practices that are widespread and systematic in Sri Lanka.
Despite the fact that confessions made to the police are inadmissible under law, by way of the Evidence Ordinance, admissions made to or information extracted by the police that refer to other facts or circumstances of the case are admissible, and can be used as evidence against the suspect. In this context, the proposed amendment would further jeopardise an individual’s right to protection against self-incrimination. Indeed, this amendment is one step towards effectively regularizing the unacceptable exception under the Prevention of Terrorism Act (PPTA)) allowing confessions made to the police admissible as evidence.
A person’s fundamental right to a fair trial, central to which is early and prompt access to legal counsel, begins at the very outset of an investigation. Depriving an arrested person or detainee of access to a lawyer at this stage will compromise this right recognised unequivocally by domestic and international law. The right to a fair trial under Article 14 the International Covenant on Civil and Political Rights, to which Sri Lanka is a party, sets out many minimum guarantees including the right of an accused person to access legal counsel at all stages of a criminal investigation and trial.
The proposed amendment also qualifies access to legal aid. It states that when an arrested person is “unable to retain and consult an Attorney-at-law at his own expense, the service of an Attorney-at-law from the Legal Aid Commission of Sri Lanka [……] shall be provided to him where the Legal Aid Commission is in a position to provide such service”. (Emphasis added) Under circumstances where the Legal Aid Commission is significantly under – resourced,, having such a qualification in the law opens the doors to legalizing the restriction of access to fair and competent legal representation..
Overall, the amendment runs counter to Constitutional guarantees in Article 12((11)) — “All persons are equal before the law and are entitled to the equal protection of the law”” — and Article 13((33)) — “Any person charged with an offence shall be entitled to be heard in person or by an attorney-at-law at a fair trial by a competent court.” The Law & Society Trust calls on the government to immediately withdraw this proposed amendment. In doing so it echoes and supports the positions of the Human Rights Commission of Sri Lanka,, the Bar Association of Sri Lanka, and the Centre for Policy Alternatives.