Long Term Custody Pending Trial- a Violation of Human Rights

9 September 2015 06:30 pm Views - 3699

PRISONERS LANGUISHING IN JAIL FOR YEARS WITHOUT BEING CHARGED

In our prisons there are thousands of remand prisoners languishing in custody for years without being charged or brought to trial within a reasonable time. Let us see the statistics relating to remand prisoners in custody for more than one year during the past ten years:
In any given year after 2004, there were over 800 remand prisoners languishing in jail for over two years. In 2012, there were 486 remand prisoners who have been in remand custody for over 3 years. 136 of them have spent over 5 years in remand custody. (Please refer to the Prison statistics charts)


WHO ARE THE PRISONERS HELD IN LONG TERM CUSTODY WITHOUT BAIL?
Most of these prisoners held in long term custody without bail are not persons involved in terrorist activities, hired assassins, gang robbers, big drug peddlers or persons involved in other categories of serious crimes.

Most of these prisoners held in long term custody without bail belong to the following categories:

• Persons remanded on the allegation of selling a ganja cigar or a few milligrams of heroin;
• Persons remanded on the allegation of possession of a hand bomb or a grenade under the Offensive Weapons Act;
• Persons remanded on the allegation of committing an offence while being armed with a firearm;
• Persons in Non-Summary cases remanded on the allegation of committing murder;  

   In respect of these 4 categories, the Magistrate’s Court has no jurisdiction to grant bail. Bail can be granted by the High Court only.

• Persons with means retain counsel, file bail applications and obtain bail from the High Court.
• Indigent persons without means to make an application for bail to the High Court  languish in jail for years till they are charged or indicted and their trials are concluded.  
• Persons languishing in jail for years without being able to furnish heavy cash bail ordered by the High Court.
• Persons languishing in jail for years without being able to furnish bail as they  have no sureties acceptable to Court.
• Persons languishing in jail for years without being able to furnish bail due to unreasonable bail conditions ordered by the Court.  

FACTORS THAT HAVE CONTRIBUTED TO THIS SITUATION
When a suspect is produced in Court on the allegation of trafficking in drugs, (however small the quantity is) or possession of a bomb or committing an offence (even a bailable, minor offence) while being armed with a firearm, a Magistrate’s court has no power to grant bail.   


ABUSE OF THE LAW BY THE POLICE AND OTHER INTERESTED PARTIES

• The provisions in the Poisons, Opium & Dangerous Drugs (Amendment) Act No. 13 of 1984, the Offensive Weapons Act, the Firearms (Amendment) Act No. 22 of 1996 and the Bail Act can be abused by the Police and other interested parties to keep persons in long term custody without bail.
• Under the provisions of the Release of Remand Prisoners Act No. 8 of 1991, the Magistrate’s Court can grant bail to a person produced in Court on the allegation of possession of a quantity of - (a) less than 5 kilogrammes of cannabis; or (b) less than 1 gram of      heroin, offences under S. 54A (d) of the Poisons, Opium & Dangerous Drugs Ordinance as amended by Act No. 13 of 1984.   

Where such a person who has been granted bail by a Court continues to remain in custody for more than one month being unable to furnish bail, the Court is required to release such person on personal bail without sureties.

Where no proceedings are instituted against such person over a period of 3 months from the date of remand, the Court is required to release such person on personal bail without sureties.

Under S. 83 (1) of the Poisons, Opium & Dangerous Drugs Ordinance as amended by Act No. 13 of 1984, no person suspected or accused of an offences under S. 54A or S. 54B of the Ordinance can be released on bail, except by the High Court in exceptional circumstances.

Thus a Magistrate’s Court can release on bail a person arrested with 4.5 kg of ganja or 975 mg of heroin in his possession.

But a Magistrate’s Court cannot release on bail a person who is produced in Court by a Police Officer on the allegation of selling of a ganja cigar or 10 mg of heroin.

Such a person has to obtain bail from the High Court which is a very expensive exercise. If he has no means to make an application for bail to High Court, he has to languish in jail till he is charged.

To prevent a person from getting bail, the Police have only to state in the B Report filed in Court that the suspect sold a ganja cigar to a Policeman for Rs. 50 and that they arrested the suspect with 2 ganja cigars in his possession. 
 
The maximum penalty that can be imposed under S.54A of the Poisons, Opium & Dangerous Drugs Ordinance for the offences of (a) manufacturing, (b) trafficking, (c) importing or exporting, or (d) possessing  a quantity of cannabis not exceeding 5 kilograms is ‘a fine not exceeding Rs. 25,000 or imprisonment of either description for a period not exceeding one year.’



Lawyers for Human Rights Development (LHRD) has come across in its visits to Bogambara, Mahara and Negombo Prisons in 2009, 2010 and 2011, a number of remand prisoners held in custody without being charged for well over 2 years, on the allegation of sale of a ganja cigar to a Policeman, an offence  the maximum penalty is a fine not exceeding twenty five thousand rupees or imprisonment of either description for a period not exceeding one year. - M. C.
Gampaha Case No. B 1239/08 (selling and possession of 4 ganja cigars – three years and 2 months in remand custody); M. C. Gampaha Case No. B 1002/08 (sale and possession of 4 ganja cigars - two years and 6 months in remand custody); - M. C. Gampaha Case No. B 3469/08 (sale and possession of 4 ganja cigars - one year and 10 months in remand custody); M. C.Minuwangoda Case No. B 670/08 (selling and possession of 2 ganja cigars - two years and 8 months in remand custody) and prisoners held in custody without being charged for well over 4 years and 5 years on the allegation of sale / possession of a small quantity of heroin is an offence tried by the Magistrate’s Court and punishable with ‘a fine not less than Rs.15,000 and not exceeding Rs.50,000 or imprisonment of either description for a period not less than three years and not exceeding seven years.’ - M. C. Kurunegala Case No. B1272/2001 (sale / possession of 110 mg of heroin - 8 years and 5 months in remand custody); M. C. Attanagalle Case No. 70278 (sale / possession of 10 mg of heroin - 5 years and 10 months in remand custody); M. C. Attanagalle Case No. B 336/06 (sale / possession of 31 mg of heroin - 5 years and 5 months in remand custody).

nThe Firearms (Amendment) Act No. 22 of 1996 is a very obnoxious law which can be abused by the Police and other interested parties with sinister motives to keep persons in custody without bail for very long periods. To land a person in long term custody without bail over any minor incident one has only to put into the mouth of a witness that the offender or a person among a group of persons constituting an unlawful assembly was armed with a gun at the time the offence was committed. Then all the members of the group can be arrested and held in custody without bail and charged under S. 44A or 44B of the Firearms Ordinance.   

nThe Offensive Weapons Act was another law of which undue advantage has been frequently taken of to keep persons in long term custody without bail.   In its prison visits LHRD came across a number of remand prisoners held in custody for well over 5 years without being charged on the allegation of possession of hand bombs.- M. C. Dambulla Case No. B 1527/05 (5 years 3 months); M. C. Teldeniya Case No. B 814/05 (5 years 8 months); M. C. Wattala Case No. 4618 (over 6 years); M. C. Gampaha Case No. B1155/06 (over 4 ½ years).

Several remand prisoners stated that they were falsely implicated on the allegation of possession of a hand bomb at the instance of interested parties - who wanted to get rid of them from the land they were residing in; - M. C. Dambulla Case No. B 1527/05;  for opposing a brothel run with the connivance of the Police - M. C. Wattala Case No. 4618; due to displeasure with the Police - M. C. Teldeniya Case No. B 10/08; M. C. Gampola Case No. B 3623/10; M. C. Gampaha Case No. B1155/06


OFFICIAL INSENSITIVITY TO HUMAN SUFFERING
The situation prevailing in Sri Lanka today in this respect is almost similar to the situation described by the former Chief Justice of India Bhagwati delivering the Judgement of the Supreme Court in Hussainara Khatoon’s Case (1980 1 SCC 81). In that case CJ Bhagwati said:

“An alarmingly large number of men and women, children including, are behind prison bars for years awaiting trial in Courts of law. The offences with which some of them are charged are trivial which even if proved would not warrant punishment for more than a few months, perhaps for a year or two, and yet these unfortunate forgotten specimens of humanity are in jail, deprived of their freedom, for periods ranging from 3 – 10 years without even as much as their trial having commenced. It is a crying shame on the judicial system which permits incarceration of men and women for such long periods of time without trial.

“ We are shouting from house tops about the protection and enforcement of human rights. We are talking passionately and eloquently about the maintenance and preservation of basic freedoms. But, are we not denying human rights to these nameless persons who are languishing in jails for years for offences which perhaps they might ultimately be found not to have committed? Are we not withholding basic freedoms from these neglected and hapless human beings who have been condemned to a life of imprisonment and degradation for years on end? Are expeditious trial and freedom from detention not part of human rights and basic freedoms? …. “ It is high time that the public conscience is awakened and the government as well as the judiciary begin to realize that in the dark cells of our prisons there are large number of men and women who are waiting patiently, impatiently perhaps, but in vain, for justice, - a commodity which is tragically beyond their reach and grasp. Law has become for them an instrument of injustice and they are helpless and despairing victims of the callousness of the legal and judicial system.

“What faith can these lost souls have in the judicial system which denies them a fair trial for so many years and keeps them behind bars, not because they are guilty, but because they are too poor to afford bail and the courts have no time to try them. It is a travesty of justice that many poor accused, ‘little Indians, are forced into long cellular servitude for little offences’ because the bail procedure is beyond their meager means and trials don’t commence and even if they do, they never conclude. A procedure which keeps large number of people behind bars without trial for long, cannot possibly be regarded as ‘reasonable, just or fair’ so as to be in conformity with the requirement of Art. 21. It is necessary, therefore, that the law as enacted by the Legislature and as administered by the courts must radically change its approach to pre-trial detention and ensure ‘reasonable, just or fair’ procedure which has a creative connotation after the decision of the Supreme Court in Maneka Gandhi’s case


MAJORITY OF PRISONERS LANGUISH IN JAIL; NOT DUE TO GUILT BUT DUE  TO POVERTY
Most of the remand prisoners who were languishing in jail for very long periods without being charged and without being brought to trial are persons who could not make an application for bail to High Court due to their poverty or who could not furnish the heavy bail ordered by the Court. Most prisoners say that they have to spend a minimum of Rs. 50,000 to get the services of a lawyer to make an application for bail to a High Court.

This situation has been eloquently highlighted by American President Lyndon B. Johnson at the time of signing the Bail Reforms Act, 1966: “Today, we join to recognize a major development in our system of criminal justice: the reform of the bail system. This system has endured archaic, unjust and virtually unexamined since the Judiciary Act of 1789. The principal purpose of bail is to ensure that an accused person will return for trial if he was released after arrest. How is that purpose met under the present system? The defendant with means can afford to pay bail. He can afford to buy his freedom. But poorer defendants cannot pay the price. He languishes in jail weeks, months and perhaps even years before trial. He does not stay in jail because he is guilty. He does not stay in jail because any sentence has been passed. He does not stay in jail because he is any more likely to flee before trial.  He stays in jail for one reason only – because he is poor……”(quoted in Hussainara Khatoon’s case) Ordering excessive bail amounts to going against the intention of the legislature.  Prof. G. L. Peiris, the then Minister of Justice in his speech in Parliament introducing the Bail Bill emphatically pointed out the absurdity of ordering excessive bail stating that it struck at the very root of the foundations of any system of civilized and humane law:

“Human freedom is one of the core values of the law. Here we have a situation where people are deprived of their freedom not because they have committed any criminal offence, but simply because of poverty. That state of things strikes at the very root of the foundations of any system of civilized and humane law, and it needs to be rectified as a matter of priority……

“It is recognized in all civilized legal systems that excessive bail is tantamount to no bail at all. If you ask the person to pay a sum of money, which is not within his pecuniary resources, then that is not very different from refusing bail altogether.” - (Government Hansard – 07. 10. 1997 - Pp. 498, 500)


PUNISHING THE INNOCENT WITHOUT TRIAL
Former Minister of Justice A. C. S. Hameed, pointed out in Parliament in the debate on the Bail Bill, that when one looked at the final results regarding those people in  remand custody, only about 20% were convicted and that about 80% of those who were on remand were finally acquitted. (Government Hansard – 07. 10. 1997 - Pp. 506)

According to recent Police Department statements only 4% of all suspects arrested are convicted. That means 96% of those persons brought before courts are acquitted or discharged. All these are innocent people in the eyes of law.    

In many of these cases the Police and the State are not in a position to prove the charges due to lack of evidence. Some times the suspects may not be indicted at all. – S. C. (FR) Appn. No. 463/10 – M. C. Attanagalle Case No. 51228 (In this case, the suspect was arrested on 16. 12. 2002 on an allegation of murder. 11 months later, the High Court ordered cash bail in a sum of Rs. 15,000 with 3 sureties. He remained in custody being unable to furnish bail.
Non-summary Inquiry was concluded on 23. 4. 2004 and the case was committed to Gampaha High Court. As the suspect could not furnish the bail ordered, the High Court had converted cash bail into personal bail with 3 sureties by its order communicated to M. C. Attanagalle on 31. 10. 2006. The suspect has not furnished bail as he could not find 3 sureties. Meanwhile by his letter dated 16. 01. 2005, the Attorney General had quashed the committal and directed the Magistrate to discharge the suspect with a copy to the High Court. The suspect was not discharged as directed by the Attorney General but continued to remain in remand custody for 7 years and 8 months (5 years and 4 months in illegal custody after his discharge from the case by the Attorney General). He was released from custody only after S. C. (FR) Appn. No. 463/10 was filed in August 2010); M. C. Minuwangoda Case No. NS 451 (In this case, the suspect was arrested on 10. 3. 2008 on an allegation of murder. Non-summary Inquiry was concluded on 18. 3. 2010 and the case was committed to High Court. He remained in custody for 3 years and one month being unable to apply for bail due to poverty. On filing S. C. (FR) Appn. No. 144/11, the suspect was discharged from the case by the Attorney General in August 2011).

Even if they are charged or indicted many of them may not be convicted of the serious offences they are charged with, but of some minor offences. They are compelled to languish in jail for several years, before they ultimately released on bail or discharged. What the Police and the State are doing by keeping people in long term custody without bail and without trial is, in effect, punishing them without a judicial order in violation of their fundamental right guaranteed by Article 13(4) of the Constitution.  Under Article 13(5) every person is entitled to be presumed innocent until he is proven guilty. When people who are not convicted or who cannot be convicted are kept in long term custody without being charged and without bail, the presumption of innocence becomes an utterly meaningless thing.  The Attorney General, as the Chief Legal Officer of the State, must give proper advice to the Government and the Government officials including the Police, ensure that justice is done equally, fairly and impartially irrespective of personalities, prevent illegalities and injustice by state organs and ensure the Rule of the Law. The people of this country have a right to expect that every officer in the Attorney General’s Department acts fairly and impartially upholding the law and preventing abuse of the law.

 It is not their task to see that a case is proved somehow or other, but to ensure that justice is done. Specially at a time when there are strong allegations of corruption and politicization against the Police, when there are allegations that some Police officers are involved in crime, that the Police act in league with underworld, criminal elements; the Attorney General’s Department should be careful in accepting and acting on Police versions without subjecting them to critical analysis.

They should not act in any manner supporting or encouraging illegal and improper conduct of the Police. If the officers in the Attorney General’s Department act in a more responsible, critical and humane manner, they can play a better role in preventing abuses by the Police and ameliorating the situation in prisons.