Last week, both politician Azath Salley and poet and teacher Ahnaf Jazeem, both arrested and detained for months on end under the draconian, punitive and repressive Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979 complained to the Human Rights Commission of Sri Lanka (HRCSL). Salley was acquitted recently by a High Court of accusations pertaining to allegedly making utterances that could incite communal religious disharmony, and Jazeem was recently enlarged on bail on charges related to the alleged propagation of “extremism”. In his complaint Salley claimed that the office of the Attorney General (AG) and the latter’s Department (specifically mentioning the tenure of former AG, President’s Counsel Dappula De Livera) and the Public Security Minister Sarath Weerasekera had failed, per their public duty, to exercise due diligence prior to his arrest, detention and subsequent indictment on the basis of fabricated evidence. Both Salley and Jazeem allege persecution in the form of the violation of their Fundamental Rights as enshrined in and guaranteed by the Constitution. Salley went on to point out in his complaint to the HRCSL that the AG’s Department “should not be used by political powers to perpetuate injustice”. Jazeem who claims unlawful arrest and has since challenged such in the Supreme Court, has, in his complaint, taken the Colombo Remand Prison and the Prisons Department Commissioner General to task for the breach of his rights to personal dignity, freedom and liberty through the arbitrary and wrongful detention in illegal custody even upon being granted bail by a High Court. Jazeem has requested the HRCSL to make a recommendation for the establishment of an administrative mechanism to provide for the immediate release of suspects or accused from the Remand Prison as and when bail is granted by a Court if there is no pending remand order against such persons.
Previously, the Court of Appeal, in ordering the enlargement on bail of former Criminal Investigations Department Director, Senior Superintendent of Police Shani Abeysekera, noted with regard to the objections raised by the AG to the granting of bail, the following evidentiary cavities: “At the time of the arrest, the suspect (Abeysekara) has not been in possession of any illegal weaponry and there is no substantial evidence to link the possession of the said weaponry to the suspect other than the statements given by the witnesses”; “There is no evidence to reasonably suggest that the suspect would abscond, (and) not submit to the jurisdiction of the Court and legal process”; “there is no evidence to say that the suspect would interfere with the witnesses or the evidence against him or otherwise obstruct the course of justice”; “it is crystal clear that the statements given by the said witnesses in 2020 are contradictory to the statements given by them in 2014”; “the suspect was arrested without any credible or reasonable evidence and produced before the Gampaha Magistrate, on the incredulous allegation that the suspect has committed offenses”; and that “There is no cogent material before this Court to establish that the witnesses were intimidated by the suspect”. Instead, the Court (Justice [J.] N. Bandula Karunarathna with R. Gurusinghe J. in agreement) adduced the following evidence: that “on account of the unusual and extraordinary delay in lodging the first complaint (which “delay”, the Court held, “has not been satisfactorily or credibly explained”) despite every ability to do so demonstrates very strongly that the allegations against the suspect are a result of falsification and embellishment and a creature of afterthought”; “the complaint smacks of the introduction of a fabricated, false version and an exaggerated account or concocted story involving a set of collaborators or conspirators, to unduly cause prejudice and harm to the suspect, for collateral purposes”; “Upon the statements of apparent backers and supporters or collaborators of the convicted murderers, purported facts have been reported to the Gampaha Magistrate's Court against the suspect, in a blatant attempt to frame allegations through the fabrication of false evidence pertaining to (the) purported commission of offences”; and that “However, no credible evidence had been brought to the attention of the Court to substantiate this position or credibly establish a semblance of a prima facie case”.
If there is confusion on how to proceed with regard to matters connected to the arrest and detention of suspects based on sufficient evidence, the relevant law enforcement authorities need not look further in order to seek clarity or guidance than to the Government’s very own preeminent jurist, the incumbent Foreign Minister Prof. G.L. Peiris. In his “Human rights and the system of criminal justice in Sri Lanka” (Sri Lanka Journal of International Law, Volume Two, 1990), Peiris discusses freedom from arbitrary arrest or detention, alongside the mode of effecting an arrest, the judicial surveillance of arrest and detention, the right to the invocation of judicial remedies and the right to compensation for the wrongful loss of freedom, under the right to liberty. For Peiris, due process includes equality before the law, the presumption of innocence, the right to a fair trial (includes the complete intimation of the charge and ancillary matters; facilities for the preparation of the defense; conducting the trial without undue delay; the right to legal assistance; the right to examine witnesses; the right to the services of an interpreter; and the privilege against self-incrimination), the rehabilitation of juvenile offenders, the right to appeal against the conviction, the right to compensation, and the doctrine of precluding double jeopardy.
Of material concern to the matter of the freedom from arbitrary arrest or detention, Article 13(1) of the Fundamental Rights Chapter of the Constitution holds that “No person shall be arrested except according to (the) procedure established by (the) law” with the same applying to detention per Article 13(2) where “Every person held in custody, detained or otherwise deprived of personal liberty shall be brought before the judge of the nearest competent court according to (the) procedure established by (the) law and shall not be further held in custody, detained or deprived of liberty except upon and in terms of the order of such judge made in accordance with (the) procedure established by (the) law”. The exercise of these rights enumerated under Articles 13(1) and 13(2) can be restricted, per Article 15(7), “in the interests of national security, public order and the protection of public health or morality, or for the purpose of securing (the) due recognition and respect for the rights and freedoms of others, or of meeting the just requirements of the general welfare of a democratic society”, as long as they are “prescribed by (the) law”. Certain provisions of the Code of Criminal Procedure as amended and the Evidence Ordinance as amended are also applicable in such instances.
That it is of paramount importance for the investigating agencies to gather evidence for the prosecution to build an indictable case goes without saying. Peiris notes that “An acceptable rationale for the imposition of the exacting standard of proof on the prosecution in regard to the constituent elements of a crime (the rule established per Ramaswamy Chetty vs. Uduma Lebbe Marikar [1901], and Regina vs. E.W. Batcho [1955], etc., that the prosecution must prove beyond reasonable doubt the essential ingredients of an offence) is that the sanctions of the criminal law extend to (the) deprivation of life and freedom”.
The AG, as D.P. Kumarasingha notes in “The role and function of the prosecution in Sri Lanka”, is vested with not only the discretionary and exclusive power to decide on the sufficiency of evidence prior to filing indictments, but is also duty bound to point out errors of fact (evidence) and law, the latter made on the part of the Judiciary or in the aforementioned cases, trial Magistrates/Judges, to the relevant Court, in order to ensure both the correct and fair application of the law. Per Kumarasingha: “The prosecutor is an officer of the Court and his/her role is to assist the Court to dispense justice. Thus, it is not for a prosecutor to ensure a conviction at any cost, but to see that the truth is elicited and justice is meted out. A prosecutor is not expected to keep relevant facts either from the Court or from the accused. If the investigation has revealed matters which are favourable to the accused and the accused is unaware of the existence of such facts, it is the bounden duty of the prosecutor to make those facts available to the Court and to the defense”.
Hence, it is simply suffice to state that there should be no room for malice and/or politics therein.Sri Lanka is due its due diligence and due process
09 Jan 2022
Sri Lanka is due its due diligence and due process
09 Jan 2022
Last week, both politician Azath Salley and poet and teacher Ahnaf Jazeem, both arrested and detained for months on end under the draconian, punitive and repressive Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979 complained to the Human Rights Commission of Sri Lanka (HRCSL). Salley was acquitted recently by a High Court of accusations pertaining to allegedly making utterances that could incite communal religious disharmony, and Jazeem was recently enlarged on bail on charges related to the alleged propagation of “extremism”. In his complaint Salley claimed that the office of the Attorney General (AG) and the latter’s Department (specifically mentioning the tenure of former AG, President’s Counsel Dappula De Livera) and the Public Security Minister Sarath Weerasekera had failed, per their public duty, to exercise due diligence prior to his arrest, detention and subsequent indictment on the basis of fabricated evidence. Both Salley and Jazeem allege persecution in the form of the violation of their Fundamental Rights as enshrined in and guaranteed by the Constitution. Salley went on to point out in his complaint to the HRCSL that the AG’s Department “should not be used by political powers to perpetuate injustice”. Jazeem who claims unlawful arrest and has since challenged such in the Supreme Court, has, in his complaint, taken the Colombo Remand Prison and the Prisons Department Commissioner General to task for the breach of his rights to personal dignity, freedom and liberty through the arbitrary and wrongful detention in illegal custody even upon being granted bail by a High Court. Jazeem has requested the HRCSL to make a recommendation for the establishment of an administrative mechanism to provide for the immediate release of suspects or accused from the Remand Prison as and when bail is granted by a Court if there is no pending remand order against such persons.
Previously, the Court of Appeal, in ordering the enlargement on bail of former Criminal Investigations Department Director, Senior Superintendent of Police Shani Abeysekera, noted with regard to the objections raised by the AG to the granting of bail, the following evidentiary cavities: “At the time of the arrest, the suspect (Abeysekara) has not been in possession of any illegal weaponry and there is no substantial evidence to link the possession of the said weaponry to the suspect other than the statements given by the witnesses”; “There is no evidence to reasonably suggest that the suspect would abscond, (and) not submit to the jurisdiction of the Court and legal process”; “there is no evidence to say that the suspect would interfere with the witnesses or the evidence against him or otherwise obstruct the course of justice”; “it is crystal clear that the statements given by the said witnesses in 2020 are contradictory to the statements given by them in 2014”; “the suspect was arrested without any credible or reasonable evidence and produced before the Gampaha Magistrate, on the incredulous allegation that the suspect has committed offenses”; and that “There is no cogent material before this Court to establish that the witnesses were intimidated by the suspect”. Instead, the Court (Justice [J.] N. Bandula Karunarathna with R. Gurusinghe J. in agreement) adduced the following evidence: that “on account of the unusual and extraordinary delay in lodging the first complaint (which “delay”, the Court held, “has not been satisfactorily or credibly explained”) despite every ability to do so demonstrates very strongly that the allegations against the suspect are a result of falsification and embellishment and a creature of afterthought”; “the complaint smacks of the introduction of a fabricated, false version and an exaggerated account or concocted story involving a set of collaborators or conspirators, to unduly cause prejudice and harm to the suspect, for collateral purposes”; “Upon the statements of apparent backers and supporters or collaborators of the convicted murderers, purported facts have been reported to the Gampaha Magistrate's Court against the suspect, in a blatant attempt to frame allegations through the fabrication of false evidence pertaining to (the) purported commission of offences”; and that “However, no credible evidence had been brought to the attention of the Court to substantiate this position or credibly establish a semblance of a prima facie case”.
If there is confusion on how to proceed with regard to matters connected to the arrest and detention of suspects based on sufficient evidence, the relevant law enforcement authorities need not look further in order to seek clarity or guidance than to the Government’s very own preeminent jurist, the incumbent Foreign Minister Prof. G.L. Peiris. In his “Human rights and the system of criminal justice in Sri Lanka” (Sri Lanka Journal of International Law, Volume Two, 1990), Peiris discusses freedom from arbitrary arrest or detention, alongside the mode of effecting an arrest, the judicial surveillance of arrest and detention, the right to the invocation of judicial remedies and the right to compensation for the wrongful loss of freedom, under the right to liberty. For Peiris, due process includes equality before the law, the presumption of innocence, the right to a fair trial (includes the complete intimation of the charge and ancillary matters; facilities for the preparation of the defense; conducting the trial without undue delay; the right to legal assistance; the right to examine witnesses; the right to the services of an interpreter; and the privilege against self-incrimination), the rehabilitation of juvenile offenders, the right to appeal against the conviction, the right to compensation, and the doctrine of precluding double jeopardy.
Of material concern to the matter of the freedom from arbitrary arrest or detention, Article 13(1) of the Fundamental Rights Chapter of the Constitution holds that “No person shall be arrested except according to (the) procedure established by (the) law” with the same applying to detention per Article 13(2) where “Every person held in custody, detained or otherwise deprived of personal liberty shall be brought before the judge of the nearest competent court according to (the) procedure established by (the) law and shall not be further held in custody, detained or deprived of liberty except upon and in terms of the order of such judge made in accordance with (the) procedure established by (the) law”. The exercise of these rights enumerated under Articles 13(1) and 13(2) can be restricted, per Article 15(7), “in the interests of national security, public order and the protection of public health or morality, or for the purpose of securing (the) due recognition and respect for the rights and freedoms of others, or of meeting the just requirements of the general welfare of a democratic society”, as long as they are “prescribed by (the) law”. Certain provisions of the Code of Criminal Procedure as amended and the Evidence Ordinance as amended are also applicable in such instances.
That it is of paramount importance for the investigating agencies to gather evidence for the prosecution to build an indictable case goes without saying. Peiris notes that “An acceptable rationale for the imposition of the exacting standard of proof on the prosecution in regard to the constituent elements of a crime (the rule established per Ramaswamy Chetty vs. Uduma Lebbe Marikar [1901], and Regina vs. E.W. Batcho [1955], etc., that the prosecution must prove beyond reasonable doubt the essential ingredients of an offence) is that the sanctions of the criminal law extend to (the) deprivation of life and freedom”.
The AG, as D.P. Kumarasingha notes in “The role and function of the prosecution in Sri Lanka”, is vested with not only the discretionary and exclusive power to decide on the sufficiency of evidence prior to filing indictments, but is also duty bound to point out errors of fact (evidence) and law, the latter made on the part of the Judiciary or in the aforementioned cases, trial Magistrates/Judges, to the relevant Court, in order to ensure both the correct and fair application of the law. Per Kumarasingha: “The prosecutor is an officer of the Court and his/her role is to assist the Court to dispense justice. Thus, it is not for a prosecutor to ensure a conviction at any cost, but to see that the truth is elicited and justice is meted out. A prosecutor is not expected to keep relevant facts either from the Court or from the accused. If the investigation has revealed matters which are favourable to the accused and the accused is unaware of the existence of such facts, it is the bounden duty of the prosecutor to make those facts available to the Court and to the defense”.
Hence, it is simply suffice to state that there should be no room for malice and/or politics therein.Kapruka
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Discover Kapruka, the leading online shopping platform in Sri Lanka, where you can conveniently send Gifts and Flowers to your loved ones for any event. Explore a wide range of popular Shopping Categories on Kapruka, including Toys, Groceries, Electronics, Birthday Cakes, Fruits, Chocolates, Automobile, Mother and Baby Products, Clothing, and Fashion. Additionally, Kapruka offers unique online services like Money Remittance, Astrology, Medicine Delivery, and access to over 700 Top Brands. Also If you’re interested in selling with Kapruka, Partner Central by Kapruka is the best solution to start with. Moreover, through Kapruka Global Shop, you can also enjoy the convenience of purchasing products from renowned platforms like Amazon and eBay and have them delivered to Sri Lanka.Send love straight to their heart this Valentine's with our thoughtful gifts!