June 1st 2017, Colombo, Sri Lanka: The Bill titled “Code of Criminal Procedure (Special Provisions) Act No 2 of 2013 (Amendment) Bill” (the Bill) was placed on the Order Paper of Parliament on 25 May 2017. The Centre for Policy Alternatives (CPA) and its Executive Director filed a Petition on 31 May 2017 in the Supreme Court (SC SD 7/2013) challenging the constitutionality of two provisions in the Bill.
CPA argued that Sections 6A(2) and (6) of the Bill’s Clause 2 were inconsistent with Articles 11, 12(1), 13(1), 13(2), 13(3), 14(1) and 17 of the Constitution. These provisions, if enacted, will allow an Officer in Charge of a police station to deny lawyers from accessing detainees and police stations if such access would be “prejudicial” or shall “affect” the investigation being conducted. Because of this, these provisions are inconsistent with the rights of persons in custody guaranteed under the Constitution and the law.
The right to a fair trial under the Constitution includes the right to a lawyer for anyone in custody. The provisions are drafted in a way that is too broad with no objective criteria to determine the prejudice or effect a detainee’s access to a lawyer or the lawyer’s access to a police station may have on an investigation being conducted. This restricts the ability of a lawyer to adequately represent their client. The provisions are also open to abuse as they may allow further violations of detainee’s rights, including the right not to be tortured.
CPA notes that while these provisions are proposed to operate only temporarily, similar temporary legislation such as the notorious Prevention of Terrorism Act (PTA) became permanent over time. CPA further notes that the provisions in the Bill are inconsistent with the government’s stated commitment to a zero-tolerance policy towards torture.