Government Trying To Water Down The Right To An Attorney
Ruwan Jayakody
Faizer Shaheid
This article has specific emphasis on the latest Bill introduced in the Parliament where the legislature seeks to limit the right of access of any person held in Police custody to an Attorney-at-Law. It craftily uses deceptive words to redirect an Attorney-at-Law to have access to a Police Officer in lieu of the suspect in Police custody.
The Code of Criminal Procedure (Special Provisions) (Amendment) is a Bill put forward by the Ministry of Justice that seeks to amend the Code of Criminal Procedure (Special Provisions) Act, No. 2 of 2013. In the said Bill’s Statement of Legal Effect, provisions in Clause 2 state that it seeks to amend the said Act by the insertion of a Section 6A (a new Section) to it, the legal effect of which is to make provisions to ensure the rights of an Attorney-at-Law who represents a person held in Police custody.
Section 6A(1) of the proposed Bill which purports to allow for the right of an Attorney-at-Law to access a person in the custody of the Police, holds that “an Attorney-at-Law representing a person in police custody shall, from the time such person is taken into custody, be entitled to have access to the police station in which such person is being held in custody, for the purpose of meeting the officer in charge of the police station and making representations to such officer.” An Attorney-at-Law is hired to represent the interests of the client who is the suspect in custody. The client is not the Officer-in-Charge (OIC) of the Police Station in which the suspect is being held in custody. The OIC does not and cannot be legitimately expected to represent the interests of justice (to use a phrase that appears later on in this Bill) of the suspect. Hence, there is an immediate need and direct requirement for the Attorney-at-Law to meet and conduct consultations with the suspect cum client. Section 6A(1) does not recognize the Attorney-at-Law’s right to have access to the client. This is in complete contravention of the principle of due process and the right to a fair trial, not to mention the fact that the suspect under principles of natural law is at all times presumed to be innocent until proven guilty by a competent court of law.
Section 6A(2) of the proposed Bill reads, “The right of an Attorney-at-Law, to have access to the police station, and to make representations, shall not affect the investigations that may be conducted in respect of the person being represented.” While access of an Attorney-at-Law to his/her client in the custody of a Police Officer should be permitted at all times, the right of an Attorney-at-Law should not under any circumstances impinge upon the investigations being conducted by the Police into the involvement of the suspect in the commission of any offence.
Section 6A(3) of the proposed Bill states that while any such Attorney-at-Law shall be permitted entry into the relevant Police station, s/he is to be treated cordially and courteously, and given a fair and patient hearing by the Police Officers attached to the said Police station. The words “cordially” and “courteously” are synonymous and are also not suitable for use in a legal enactment of this nature. It is also the duty of the Police Officers to give a fair hearing and exercise patience during the process of doing so.
Section 6A(4) of the proposed Bill outlines that any such Attorney-at-Law acting and appearing on behalf of the person held in Police custody, is entitled to meet the OIC of the relevant Police station and ascertain certain specified and unspecified information from the said OIC. Section 6A(4)(d) of the proposed Bill however recognizes that while the preceding provisions, respectively, Sections 6A(4)(a), 6A(4)(b) and 6A(4)(c), specify the information that can be obtained as being information pertaining to the offence alleged to have been committed by the client, information pertaining to the date, time and location of the arrest and the date, approximate time and place of production of the suspect before a Magistrate, in the case of the Attorney seeking to ascertain “any other information”, which are unspecified in the context of the proposed Bill, such would only be provided on the grounds that the revealing of such “would not adversely affect the conduct of further investigations and the interests of justice”. The phrase “interests of justice” should entail within it the interests of three parties, namely, the suspect, the victim/s, and the investigating Officers. It is also not specified in this provision as to who is vested with the power of making the value judgment and the call of deciding on as to what information, the revealing of which constitutes an adverse impact on further investigations and the interests of justice.
Section 6A(6) of the proposed Bill holds that the Attorney-at-Law “shall, if he so requests, be allowed to have access to the person in custody, unless such access is prejudicial to the investigation being conducted.” “He” should be changed to a gender neutral term. The extent of the access allowed is not specified. The provision does not define the scope of what is meant by the word ‘prejudicial’. The provision also does not illustrate or define as to who is to make the judgment call with regard to the said matter.
