The Human Rights Commission of Sri Lanka (HRCSL) says that the proposed amendment to the Criminal Procedure Code will adversely impact the constitutionally guaranteed rights of persons including citizens of Sri Lanka.
In a letter to Prime Minister Ranil Wickremesinghe, HRCSL Chairperson Dr. Deepika Udagama wrote that the commission was gravely concerned that the Bill published in the Gazette on 12 August 2016 proposing to amend the Criminal Procedure Code would deprive suspects arrested and detained by the Police of access to attorneys prior to the recording of their statements.
The Bill proposes to introduce a new section 37A to the Criminal Procedure Code which says that any person arrested and detained will have a right to an attorney after recording a statement and before being produced in a court.
The HRCSL says that although the new section purports to give a right to arrested suspects to retain and consult an attorney such a right is granted only after a statement is recorded from the suspect. Between the time of arrest and the time the statement is recorded, the suspects are deprived of access to their attorneys.
“The new Bill derogates from the rights already guaranteed by the State under rules made by the lnspector General of Police under the Police Ordinance,” the letter to the PM said.
The commission said it has observed that many instances of torture as well as cruel and inhuman treatment of suspects at police stations occur between the period of arrest and the conclusion of the recording of their statements.
“As such, depriving suspects under arrest and detention of access to their lawyers until the conclusions of their statements will result in a greater risk of suspects being subject to torture, cruel and inhuman treatment as well as illegal arrest and detention by errant police officers,” the commission noted.
The HRCSL pointed out that the passage of the new Bill would hinder the efforts of the Government, which has expressed its determination to stop torture in Sri Lanka. The commission also expressed concern that that the new provision would impinge on the fundamental right of a fair trial guaranteed to an accused under the Constitution. The right to a fair trial begins from the time of the investigation, it pointed out. “The new provision depriving suspects of access to lawyers during a crucial stage of the investigation will result in the accused eventually being deprived of a fair trial as a result of an unfair and partial investigation,” the commission said, adding that granting access to lawyers after the suspects’ statements are recorded and just before them being produced before a magistrate is of little consequence.
According to the HRCSL, the new Bill contravenes accepted international standards of human rights which Sri Lanka is obliged to guarantee to its people.
“It has been observed that the right to liberty and security of persons and the right of due process established by law requires the State to permit access to counsel from the inception of the detention and that there ought to be prompt and regular access to lawyers.”
The Supreme Court of Sri Lanka has upheld that the right to a fair trial includes the accused being granted adequate time and facilities for the preparation of the defence and to communicate with counsel of one’s own choosing as reflected in Article 14 of the ICCPR.
Sri Lanka’s Code of Criminal Procedure has been criticised by international bodies, including the UN Committee Against Torture, for lacking “fundamental legal safeguards, such as the right to have a lawyer present during any interrogation and the right to confidential communication between lawyer and client,” the commission said.
“As such, it is necessary to strengthen, not weaken, the right of suspects to have access to lawyers. Especially when Sri Lanka has embarked on a constitutional reform process, including the drafting of a new Chapter on Fundamental Rights that should accord with the highest international and national human rights standards, the presentation of this Bill is all the more problematic,” the HRCSL Chairperson wrote.
The Human Rights Commission of Sri Lanka called upon the Government to withdraw the amendment to the Code of Criminal Procedure and to continue to recognise and enhance the rights of suspects to have access to their lawyers.
Copies of the letter have also been sent to the Minister of Justice and Minister of Law and Order.