Puerto Rico

From Criminal Defense Wiki
Revision as of 16:29, 30 April 2019 by Jsalome5 (talk | contribs)
(diff) ← Older revision | Latest revision (diff) | Newer revision → (diff)
Jump to: navigation, search

Under Development


Globe3.png English


Contents

CODES


LEGAL RESOURCES

LEGAL TRAINING RESOURCE CENTER


Introduction

Court Jurisdiction

Magistrates Courts


High Courts


Court of Appeal

The Court of Appeal hears all appeals from the High Court and Magistrates Court.

Subject to the provisions of the Sri Lankan Constitution and of any law, the court is vested with the following specific jurisdiction:

• May in the exercise of its jurisdiction, affirm, reverse, correct or modify any order, judgment, decree or sentence (Article 139(1));

• May further receive and admit new evidence additional to, or supplementary of, the evidence already taken in the Court of First Instance (Article 139(2));

• Power to issue writs, other than writs of habeas corpus (Article 140);

• Power to bring up and remove prisoners (Article 142);

• Power to grant injunctions (Article 143);

• May inspect and examine any record of any Court of First Instance (Article 145).

Supreme Court

The Supreme Court of Sri Lanka was created in 1972, after the adoption of a new Constitution. The Supreme Court is the highest and final superior court of record and is empowered to exercise its powers, subject to the provisions of the Constitution. The court rulings take precedence over all lower Courts. The Sri Lanka judicial system is complex blend of both common law and civil law. In some cases such as capital punishment, the decision may be passed on to the President of the Republic for clemency petitions.

The jurisdiction of the Supreme Court encompasses the following specific areas:

• Constitutional Matters;

• Fundamental Rights;

• Final Appellate Jurisdiction – both in criminal and civil matters;

• Consultative Jurisdiction;


• Election Petitions (Presidential Election);

• Breach of privileges of the Parliament;

• Other matters which Parliament may by law vest or ordain;

• Admission, Enrolment, Suspension and Removal of Attorneys-At-Law.

Article 132 of the Sri Lankan Constitution determines that:

The several jurisdictions of the Supreme Court is ordinarily exercised in Colombo unless the Chief Justice otherwise directs and, subject to the provisions of the Constitution, is ordinarily exercised at all times by a Bench of at least three Judges; the Chief Justice may, on his own motion or at the request of two or more Judges hearing any matter or on the application of a party, if the question involved is in the opinion of the Chief Justice one of general and public importance, direct that an appeal, proceeding or matter be heard by a Bench comprising five or more Judges.

Appeals from a High Court Trial at Bar shall be heard by a Bench of five or more Judges.

International Treaty Obligations and Persuasive Global Legal Standards

Sri Lanka has signed, ratified, or acceded to a number of seminal international treaties. Practitioners are encouraged to argue for judicial interpretations of Sri Lanka national law consistent with the international obligations in these treaties. These treaties and the corresponding dates of their signature, ratification, or accession by Sri Lanka are set forth below:

A. Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (Acceded to on 3 January 1994);

B. Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Acceded to on 5 December 2017);

C. International Covenant on Civil and Political Rights (Acceded to on 11 June 1980);

D. International Convention for the Protection of All Persons from Enforced Disappearance (Signed 10 December 2015, Ratified on 25 May 2016) with acceptance of individual complaints procedures;

E. Convention on the Elimination of All Forms of Discrimination against Women (Signed on 17 July 1980, Ratified on 5 October 1981) with acceptance of individual complaints procedures;

F. The United Nations Convention on the Rights of the Child (Signed on 26 January 1990, Acceded to on 12 July 1991); and

G. Convention on the Rights of Persons with Disabilities (Signed 30 March 2007, Acceded to on 8 February 2016).

Legal Framework and Torture

Sri Lanka ratified the CAT on 3 January 1994 and torture is specifically outlawed in Sri Lanka by the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment Act 22 of 1994 (this piece of legislation was enacted to give domestic effect to the provisions of the CAT in Sri Lanka).

Sri Lankan courts have also ruled (See the matter of De Silva v. Fertilizer Corporation [1989] 2 SLR 393) that even mental aggression can constitute torture.

Yet, despite these laws and safeguards protecting individuals from physical or psychological harm, the reality is that lawyers in Sri Lanka are regularly confronted with detainees who have been the victims of ill-treatment or torture. In 2016, the UN Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment stated categorically in his report on Sri Lanka (dated 7th May 2016) “... that torture is a common practice carried out in relation to regular criminal investigations.”

Recently, the Human Rights Commission of Sri Lanka (HRCSL) found that Sri Lanka’s police “seriously violated the human rights of the people.” According to the chairperson of the HRCSL, the Commission received 5,614 complaints in the first nine months of its work. Of these, 1,174 were against the police for illegal detention and torture. According to the HRCSL the most important difficulties stemmed from police conduct during detention and the interrogation phases. It was further highlighted that between January and September 2017 the Commission recorded 249 cases of torture, 298 cases of arbitrary detention and 323 cases of threatening behavior.

During 2017, a subsequent UN Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment in Sri Lanka reported that “the use of torture has been, and remains today, endemic and routine, for those arrested and detained on national security grounds” and that “80% of those most recently arrested under the Prevention of Terrorism Act in late 2016 complained of torture and physical ill-treatment following their arrest.”

Transitional Justice

[A] Introduction

Transitional justice refers to the ways countries emerging from periods of conflict and repression address large-scale or systematic human rights violations so numerous and so serious that the normal justice system will not be able to provide an adequate response. In broad terms, transitional justice aims to provide truth, accountability, reparation and justice.

Sri Lanka was embroiled in a 26-year civil war that ended in May 2009 and the effects of human rights abuses, enforced disappearances and lack of accountability and government transparency continues long after the end of the war. Following the Presidential elections in 2015, the government has made commitments towards transitional justice.

[B] Adoption of International Treaties into Domestic Law

The political scenario in Sri Lanka was greatly impacted by the January 2015 Presidential and Parliamentary elections as the new government became open to democratic development. The Sri Lanka government adopted directives recommended by the Human Rights Commission in June 2016 to protect detainees from abuses, particularly at the time of arrest and ensuing detention, including medical and legal assistance, registration of arrest etc.

In March 2017, the United Nations Human Rights Council reviewed Sri Lanka’s performance under the latest resolution (2015) and extended time for full implementation of the commitments made by Sri Lanka. In May 2017, the cabinet approved a draft Counter Terrorism Act intended to replace the Prevention of Terrorism Act (PTA); however, it has failed to move forward on the new law. In March 2018, the Protection of All Persons from Enforced Disappearance Act (No. 5 of 2018) came into force.

Although Sri Lanka is a party to many international human rights treaties, it has been criticized of not giving full effect to a number of legal responsibilities as set out in these treaties. As indicated however, the Sri Lankan government has indicated its commitment to transitional justice and compliance with its international treaty obligations.

[C] The Attorney-General Department

The Attorney-General Department has used its discretion for political ends, subverting justice and enabling impunity. The department has withdrawn indictments against State officials and politicians notwithstanding evidence supporting a conviction.

The department has often been viewed as insensitive to cases of rape, children and torture. Moreover, there is a need for training in these areas. The Attorney-General has also developed a series of questionable practices: filing identical indictments against the same accused simultaneously in multiple jurisdictions; refusing to consent to bail under emergency laws where pre-trial release should otherwise be granted; obstructing victims’ access to Magistrate reports into habeas corpus hearings to a jurisdiction where petitioners or victims cannot attend hearings; and failing to appeal acquittals in torture cases where there are clear grounds for such an appeal.

As a result of these practices, victims are denied their right to a fair trial. The Attorney-General needs to be independent and perform its duties fairly, consistently and expeditiously, respecting and protecting human dignity and human rights, thus contributing to ensuring due process and the smooth functioning of the criminal justice system.

[D] Constitutional and Institutional Reform

The constitutional reform process was initiated in 2016 and several new laws have been adopted. The Right to Information Act, and four important institutions were established: The Office of Missing Persons (OMP), Office for Reparations (OR), Commission for Truth, Justice, Reconciliation and Non-Recurrence (CTJRNR) and Judicial Mechanism (JM). The OMP was established in March 2018, the OR draft bill is pending in Parliament, although progress has come to a standstill with the CTJRNR and JM.

[E] Delayed Justice

Time limits must be placed on criminal cases to negate delays, abuse of power and to afford victims access to justice in a timely manner. Certain cases are heard only once a year because the courts do not have the capacity to accommodate them twice. Cases are delayed due to judges and prosecutors being absent. Cases are postponed because there is no mechanism in place (such as a provision in the Judicial Services Commission) to hear cases by another judge in the absence of the one who normally heard the case. A reported shortage of courthouses resulted in numerous criminal cases being transferred to Colombo, and often, due to the large number of cases, it is impossible to have them heard in a timely manner.

[F] Criminal Accountability

Criminal accountability for the atrocities committed during the 26-year Civil War is an important element of transitional justice. In 2010, President Rajapaksa set up the Lessons Learnt and Reconciliation Commission (LLRC), which was mandated to investigate events that took place between 2002 and 2009. This commission received international criticism for its limited mandate and its perceived bias.

The Sri Lankan government has failed to establish a special court to investigate and prosecute alleged perpetrators. The government in 2017 asserted that there would be no international participation in prosecutions and that no war heroes (military personnel who fought the LTTE) will be touched.

[G] Diverse Justice System

Sri Lankan society is predominately Sinhalese, with significant Tamil and Muslim minorities. Sinhala and Tamil are both official languages, however, the diversity of the population is not reflected in the current justice system with the majority of judicial staff Sinhalese. Tamil speaking litigants often have difficulties navigating the justice system due to a lack of interpreters and court officials who speak Tamil. In addition, women in the legal profession are under-represented in higher-appointed judicial positions.

[H] Administrative Inefficiency

Staff shortages have resulted in unnecessary delays in criminal cases. Additionally, administrative staff must be properly educated and trained to properly execute their duties. Adequate and qualified staffing is necessary to ensure that cases move through the system without delay and efficiently.

[I] Judiciary

The role of the Judiciary in a democratic society provides a check and balance on the political branches of government. The current Sri Lankan Constitution fails to contain specific provisions for judicial independence or a separation of powers. According to a UN Report completed in March 2017 by the Special Rapporteur on the independence of judges and lawyers in Sri Lanka, there are credible concerns relating to the independence, impartiality and competence of the judiciary. Judges of the Superior Court can be removed from office by a decision of the President after an impeachment procedure before Parliament. The Executive has the power to arbitrarily remove a judge, which raises concerns on the level of control of the Executive over the Judiciary.

The Constitutional Council conducts the appointment and selection of superior court judges. The Constitutional Council is a ten member constitutional authority tasked with maintaining independent commissions and monitoring affairs. The role of the Constitutional Council is meant to mitigate the President’s influence over the judiciary; however, the majority of the Council’s members are politicians. The procedure for appointment to the Judiciary by the Council continues to be unknown. The International Bar Association in 2009, cited the lack of independent oversight and practice of executive presidential discretion over judicial appointments makes the judiciary vulnerable to executive interference and jeopardizes its independence.

The Judicial Service Commission establishes the process in which judges to the lower judiciary are appointed, transferred, removed and disciplined. Members of the Commission lack political autonomy as the President appoints them and therefore the recruitment of judges is likely influenced by political affiliations. Moreover, the nomination of judges should be based on their competence, not political affiliation. According to the Special Rapporteur Report in 2017, in the past there have been instances when judicial appointments did not follow the established procedure.

The procedure for promoting judges remains relatively vague. There is concern that promotions are used as a tool to ensure political conformity on contentious issues such as human rights abuses and torture. Judges are often offered government or political offices following retirement.

Juveniles Accused of Crimes

In Sri Lanka, juvenile justice issues are primarily considered in terms of The Children and Young Persons Ordinance (1939) (CYPO). The CYPO defines a “child” as a person under the age of 14 and a “young person” as a person between 14 and 16 years.

According to the Penal Code, a person is considered unable to commit an offence under the age of 8 (Penal Code, Section 75). Similarly anything done by a child above 8 years of age and under 12 years is not an offence, if such child has not attained sufficient maturity to judge the nature and consequences of his conduct on the particular occasion (Penal Code, Section 76).

Juvenile Jurisdiction

The CYPO establishes juvenile courts, or children’s courts, as forums of summary hearing with the jurisdiction to hear any charge against a child or young person (CYPO, Section 2). The CYPO also provides for the appointment of children’s magistrates to hear such cases in Sri Lankan magistrate’s and municipal courts (CYPO, Sections 3(1) and 3(2)). The courts have extensive jurisdiction covering all cases of children in need of care and protection and any criminal charges against children other than scheduled offences such as murder, culpable homicide, attempted murder and robbery.

A Municipal Court sitting as a Juvenile Court shall have jurisdiction for offences committed under the Municipal Councils Ordinance (CYPO, Section 4(2)). The Magistrates Court sitting as a Juvenile Court shall have jurisdiction to hear and determine any case in which a child or young person is charged with any offence other than a scheduled offence (CYPO, Section 4(1)).

Where a child or young person is brought before a Juvenile Court for any offence which that court has jurisdiction to hear and determine, it shall be the duty of the court as soon as possible to explain to him in simple language the substance of the alleged offence (Child Act, Section 9(1)).

The Juvenile Court shall have jurisdiction over any offence other than an indictable offence (CYPO, Section 4(1)). The court shall, in the case of indictable offences and if it is of opinion that it is expedient that the case should be summarily disposed of, put to the young person the following or a similar question:

“Do you wish to be tried by this court or by a higher court?”

It is important that the court, together with the above question, explain to the accused child that he/she may consult his parents or guardian or a friend before replying. It is also incumbent upon the presiding officer to explain to the child accused the effect of the matter being so tried and if the matter proceeds in the Juvenile Court and the presiding officer at any stage during the proceedings determines that the matte ought to be heard by a higher court, he/she shall direct that the matter proceed in such a higher court (CYPO, Section 9 (4)(b)(i)).

If the young person or child wishes to be tried by a higher court, the charge should be preferred in a Magistrate’s Court of competent jurisdiction.

Juvenile Detention

The CYPO requires that children and young offenders be detained separately from adults in police stations and courts and juvenile girls shall while detained, being conveyed or waiting, be under the care of a woman (CYPO, Section 13). Sections 14(1), 14(2) and 14(3) of the CYPO provides for bail and/or detention of children and young persons arrested.

Section 122A of the Penal Code makes provision for a medical examination in case of an offence alleged to have been committed by a child of, or above twelve years of age and under fourteen and is as follows:

(1)The officer in charge of the police station who is investigating an offence alleged to have been committed by a child of, or above, twelve years of age and under fourteen years, shall, with the consent of the parent or guardian of such child, cause the child to be examined by a multidisciplinary team comprising of the experts specified in subsection in order to obtain a report whether such child has attained sufficient maturity of understanding which enables the Magistrate having jurisdiction in the case to decide—

(a) The degree of responsibility of such child, taking into consideration the nature and consequences of the alleged offence; and

(b) Whether the child is in need of any therapeutic intervention.

(2) The multidisciplinary team referred to in subsection (1) shall comprise of—

(a) The judicial medical officer of the relevant district;

(b) A pediatric or adolescent psychiatrist; and

(c) A psychologist.

(3) Where such parent or guardian of the child does not consent to the child being so examined, the officer in charge of the police station shall apply to the Magistrate having jurisdiction in the case, for an order authorising such multidisciplinary team to examine such child.

(4) In any event where the judicial medical officer of the relevant district is not available, the officer in charge of the police station who is investigating the offence shall obtain the assistance of a judicial medical officer of any other district to obtain the report referred to in subsection (1).

(5) Such multidisciplinary team shall submit its report to the officer in charge of the police station who shall submit such report to the Magistrate, in order to assist him to form his opinion as referred to in subsection (1) and to make his decision, taking into consideration the provisions of section 76 of the Penal Code.

(6) The child referred to in subsection (1) shall be subject to rehabilitation in the prescribed manner under the supervision and assessment of a paediatric psychiatrist and a psychologist.

Court Procedures for Juveniles

In every case tried by a Juvenile Court, the court shall adopt the following procedure as outlined in section 9(5) of the Child Act:

(a) The court shall ask the child or young person whether he admits that he committed the offence;

(b) If the child or young person does not admit that he committed the offence, the court shall then hear the evidence of the witnesses in support of the charge;

(c) At the close of the evidence-in-chief of each such witness, the court shall ask the child or young person, or if it thinks fit the parent or guardian of the child or young person, whether he wishes to put any question to the prosecution’s witnesses;

(d) The child or young person, or the parent or guardian may, if it is so desired, put any questions accordingly;

(e) The child or young person may, instead of asking any questions, make a statement, if he so desires;

(f) It shall be the duty of the court to put to every witness who gives evidence in support of the charge such questions as appear to the court to necessary;

(g) The court may put to the child or young person such questions as may be necessary to explain anything in any statement made by the child or young person;

(h) If it appears to the court that a prima facie case is made out, the evidence of any witness for the defense shall be taken and the child or young person shall be allowed to give evidence or to make any statement;

(i) If the child or young person admits that he committed the offence or if the court is satisfied on the evidence adduced that the child or young person committed the offence, he shall be asked if he desires to say anything in extenuation of the offence or in mitigation of punishment or otherwise.

Sentencing Juveniles

According to the CYPO, if the child or young person is found guilty of an offence, he/she may be punished in the following manner:

• Committed to custody in a remand home for a period not exceeding one month (Section 25(1));

• Child of 12 years of a young person may be sent to an approved or certified school (Section 26(1));

• Handover to parents or guardians for custody on condition of keeping good behavior for one year (Section 27(1));

• Place him in charge of some fit person for three years (Section 27(1));

• Conditionally release him (Section 27(1));

• Fine him (Section 28(1));

• Order corporal punishment (6 strokes with a light cane for males only) (Section 29(1));

• Discharge him after due admonition (Section 30).

Convicted child prisoners are usually sent to the following institutions in Sri Lanka:

• Wathpitiwela Training School for Youthful Offenders,

• Pallansena Correctional Centre for Youthful Offenders or/and

• Taldena Correctional Centre for Youthful Offenders.

Women Accused of Crimes

Women make up a relatively small percentage of crimes committed in Sri Lanka. At the beginning of 2017, female inmates made up just 4.9% of the total prisoner population in Sri Lanka (out of a total prisoner population for the same period of almost 21, 000).

Women are often victims of domestic violence and rape in Sri Lanka and it has been reported that gender insensitivity is prevalent throughout all phases of the criminal justice system including: (i) law enforcement; (ii) prosecution; (iii) adjudication; (iv) correction; and (v) rehabilitation. It must be noted that similar to other jurisdictions that whenever it is necessary to cause a woman to be searched such search shall be done by another woman with strict regard to the accused’s decency (Criminal Code, Section 30).

It is further reported that the lack of gender sensitivity can be seen through the different actors of the criminal justice system including police constables, lawyers, judges, prison officials, judicial medical officers and others. Issues reportedly confronting female prisoners and inmates in Sri Lanka’s prisons (whether they are awaiting trial or convicted) include the following:

• A lack of an effective police presence – although the Women and Children's Bureau has taken steps to increase the number of women and children’s desks in Sri Lanka such desks in each District of the country are unable to provide effective service delivery;

• Overcrowding and poor conditions in prisons;

• Lack of appropriate and sufficient shelters for female victims of crime - including transgender-women; and

• Assistance to and protection of victims of crime (in terms of the Assistance to and Protection of Victims of Crime and Witnesses Act No.4 of 2015) fails to recognize gender dimensions and does not make any specific reference to female victims of crime or afford any special protection to women on the ground of their vulnerabilities.

Abortion, Rape and Prostitution

Abortion remains a contentious legal issue in Sri Lanka with section 303 of the Sri Lankan Penal Code providing that anyone voluntarily causing a woman with child to miscarry is subject to up to three years’ imprisonment and/or payment of a fine, unless the miscarriage was caused in good faith in order to save the life of the mother. The penalty is imprisonment for up to seven years and payment of a fine if the woman is “quick with child,” (a term which, while not defined in the Code, refers to an advanced stage of pregnancy when there is perception of foetal movement, as opposed to “woman with child,” which simply refers to “being pregnant”).

A woman who induces her own miscarriage is subject to the same penalties. If the miscarriage is caused without the consent of the woman, whether or not she is quick with child, the person causing it is subject to up to 20 years’ imprisonment and payment of a fine (Penal Code, Section 304). The same penalty is imposed if the woman’s death results from any act carried out with intent to bring about a miscarriage, whether or not the offender knew that the act was likely to cause death (Penal Code, Section 305).

The Penal Code defines rape as sexual intercourse between a man and woman under several specified circumstances and penetration is sufficient to constitute an act of sexual intercourse. For a man to be accused of raping his wife, the couple must be judicially separated by court order. Living separately as a result of a breakdown in the marriage does not constitute the necessary separation. Where the spouses cohabit, a husband in Sri Lanka cannot be accused of rape.

A significant number of women in Sri Lanka are accused of prostitution and prostitution is a criminal offence in Sri Lanka under the Vagrants Ordinance (1841), Brothels Ordinance (1889) and the Penal Code.

Numerous concerns have been raised with this issue as it has the effect, due to legal vagueness and abuse, of discriminating against women by punishing only the female prostitutes without imposing any penalty on the male clients. Section 3(1)(b) of the Vagrants Ordinance stipulates that: "Every common prostitute wandering in the public street or highway, or in any place of public resort, and behaving in a riotous or indecent manner shall be deemed an idle and disorderly person, and shall be liable upon the first conviction to be imprisoned, or to a fine.”

Section 3(2) of the Vagrants Ordinance further provides that:

"A police officer may arrest without a warrant every person deemed to be an idle or disorderly person."

The term 'common prostitute' in the above section is not defined in the Vagrants Ordinance and it remains a vague legal term giving broad powers to the police to arrest without a warrant “any person deemed to be an idle or disorderly.”

Section 7 of the Vagrants Ordinance also stipulates that

"Any person in or about any public place soliciting any person for the purpose of the commission of any act of illicit sexual intercourse or indecency, whether with the person soliciting or with any other person, whether specified or not, shall be guilty of an offence, and shall be liable on summary conviction to imprisonment, or to a fine, or both." The above situation similarly is vague from a legal perspective and leaves the police with broad arresting powers.

Lesbian, Gay, Bisexual, Transgender and Intersex

Lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons in Sri Lanka may face legal challenges not experienced by non-LGBTI residents. It remains a taboo subject and they are often associated with scandals.

Article 12 of the Sri Lankan Constitution recognizes non-discrimination based on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any one of such grounds as a Fundamental Right. This measure protects persons from stigmatization and discrimination on the basis of sexual orientation and gender identities. Article 12.1 of the Sri Lankan Constitution ensures equality for sexual orientation and gender identity and laws discriminating on the grounds of sexual orientation and gender identity are unconstitutional. Notwithstanding the aforementioned, both state and non-state discrimination and abuses against LGBTI population reportedly persists.

Sections 365 and 365A of the Penal Code criminalize homosexuality in Sri Lanka by prohibiting “carnal knowledge against the order of nature” and “gross indecency.” This is commonly understood in Sri Lanka to criminalize all same-sex relations between consenting adults.

Section 365: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be punished with fine and where the offence is committed by a person over eighteen years of age in respect of any person under sixteen years of age shall be punished with rigorous imprisonment for a term not less than ten years and not exceeding twenty years and with fine and shall also be ordered to pay compensation of an amount - determined by court to the person in respect of whom the offence was committed for injuries caused to such person.”

Section 365A: “Any person who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any person of, any act of gross indecency with another person, shall be guilty of an offence, and shall be punished with imprisonment of either description, for a term which may extend to two years or with fine or with both and where the offence is committed by a person over eighteen years of age in respect of any person under sixteen years of age shall be punished with rigorous imprisonment for a term not less than ten years and not exceeding twenty years and with fine and shall also be ordered to pay compensation of an amount determined by court to the person in respect of whom the offence was committed for the injuries caused to such person.”

Sri Lankan law does not specifically criminalize transgender or intersex people but no laws ensure that their rights are protected, and police have reportedly used several criminal offenses and regulations to target LGBTI people - particularly transgender women and men who have sex with men involved in sex work. This includes the vaguely worded Vagrants’ Ordinance, which prohibits soliciting or committing acts of “gross indecency” or being “incorrigible rogues” procuring “illicit or unnatural intercourse.” Some transgender women and men involved in the sex industry have indicated that repeated harassment by police, including instances of arbitrary detention and mistreatment, had eroded their trust in Sri Lankan authorities, and made it unlikely that they would report a crime. The community also reported abuse and harassment at the hands of medical authorities, leading many transgender people to self-medicate rather than seeking professional assistance. Sri Lankan law in this sense remains vague and ambiguous making it open for abuse.

Mentally Ill

If, as a result of interviews with the client, the defense lawyer considers that the client is not mentally fit to stand trial, the lawyer should liaise with the prosecutor in the case so that the mental condition of the accused can be brought to the attention of a magistrate and an order can be made for a psychiatric investigation into the mental competence of the accused to take place.

The defense lawyer must also consider whether the client was suffering from a mental disorder at the time that the accused committed the act constituting the charge. The mental disorder does not have to be a permanent disorder. The crucial question is whether the disorder existed at the time the “crime” was committed.

Where the crime is apparently motiveless, this should alert the defense lawyer to the possibility that the client may have been suffering from some form of mental instability when she/he committed the crime. In the case of murder, odd, inexplicable and bizarre behavior before, during or after the killing or from the way in which the accused instructs the lawyer or the way in which she/he behaves must not be ignored, as it may provide the basis for establishing that the accused had an unsound mind.

If the client was suffering from a temporary mental disorder at the time of the act but is now mentally stable, the accused may be reluctant to allow the lawyer to plead unsound mind. The client may fear that if this route is taken he or she may end up being incarcerated at a mental asylum for the criminally insane. The lawyer should explain to the client that if the defense succeeds and the court also decides that the accused is no longer suffering a mental disorder, it can simply order that the he be released from custody.

Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to the law (Penal Code, Section 77). This section completely exonerates criminal responsibility from a defendant deemed to be of unsound mind at the time of the offence. The section provides the legal definition of insanity to be used within the judicial system of Sri Lanka.

None of the statues in Sri Lanka provides a legal definition of mental illness. The term used in the Penal Code refers to a mental illness as an ‘unsoundness of mind.’ The term ‘unsound mind’ is also used in the Mental Health Ordinance of 1873, the Code of Criminal Procedure of Sri Lanka of 1979, and the Evidence Ordinance of 1895, to refer to mental illnesses. The term ‘unsoundness of mind’ is considered to be wide enough in scope to include mental illnesses due to a disease of the mind as well as those due to retarded development such as mental retardation.

A request to perform an evaluation to determine criminal responsibility may originate from a Magistrate’s court or from a higher court. The issue may be raised before or during the trial process. The prosecution, defense or the judge may raise the issue of mental unsoundness.

The assessment of a person for criminal responsibility due to unsoundness of mind requires specialist expertise and moves to call upon an expert for the determination. The criminal procedure act identifies medical officers as experts in the assessment of unsoundness in a defendant.

The defense of insanity is based on the principle that a person who is of unsound mind or insane at the time of the offense is unable to form the mens rea necessary for the act constituting the crime and thus not subject to punishment.

Pre Trial Procedures

Police Procedures

Complaint/Information

In the first instance “complaint means the allegation made orally or in writing to a Magistrate with a view to his taking action under this Code that some person, whether known or unknown, has committed an offence" [1] In the event that the complaint forms part of court proceedings - "here shall be attached to every summons issued to an accused person a copy of the complaint or report or other document upon which proceedings against him have been instituted together with a list specifying the names and addresses of the witnesses for the prosecution, if any" [2]

Arrest, Search and Seizure Laws

The arresting officer (peace officer) under the criminal code shall "actually touch or confine the body of the person to be arrested unless there be a submission to the custody, by word or action, and shall inform the person, to be arrested, of the nature of the charge or allegation upon which he is arrested". [3] It is worth noting that under the code, a “non-cognizable offence” means an offence for which a ”non-cognizable case” means a case in which a peace officer may not arrest without warrant. In specific circumstances, peace officers may arrest without execution of an order from a Magistrate. These circumstances are:

(a) who in his presence commits any breach of the peace;

(b) who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been so concerned;

(c) having in his possession without lawful excuse (the burden of proving which excuse shall be on such person) any implement of house-breaking;

(d) who has been proclaimed as an offender;

(e) in whose possession anything is found which may reasonably be suspected to be property stolen or fraudulently obtained and who may reasonably be suspected of having committed an offence with reference to such thing;

(f) who obstructs a peace officer while in the execution of his duty or who has escaped or attempts to escape from lawful custody;

(g) reasonably suspected of being a deserter from the Sri Lanka Army, Navy or Air Force;

(h) found taking precautions to conceal his presence under circumstances which afford reason to believe that he is taking such precautions with a view to committing a cognizable offence;

(i) who has been concerned in or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been concerned in any act committed at any place out of Sri Lanka.[4]

In the case of an arrest without a warrant, the arrested person must not be detained for more than a period of twenty-four hours. Furthermore, the criminal code explicitly states that such persons must be presented before the appropriate at the earliest opportunity after arrest - "peace officer shall not detain in custody or otherwise confine a person arrested without a warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate" [5]

Pre-Trial Detention

In Sri Lanka, an arrested person or suspect can be detained during the period of an investigation - "every inquirer and officer in charge of a station shall have power to authorise the detention of a person during an investigation".[6] Should a longer-term detention be required, then a Magistrate in authority would need to sign off. The criminal code is specific in this event - "if he is satisfied that it is expedient to detain the suspect in custody pending further investigation, may after recoiling his reasons, by warrant addressed to the superintendent of any prison authorize the detention of the suspect for a total period of fifteen days and no more". It is also clear that after this period of time, should proceeding not be entered into against the suspect, then the court, must "either discharge the suspect or require him to execute a bond to appear if and when so required".[7] The arrested person or accused shall only be detained in a safe manner by the appointed authorities for as long as the court permits it. "The superintendent shall, upon delivery to him as aforesaid of the person named in the warrant, detain him and keep him safely in custody on behalf of the court making the detention, commitment or remand for such time as may be specified by the warrant" [8]

Searches

The carrying out of searches is permitted in a variety of situations under the criminal code. Under the code, a court issued warrant is deemed as a necessary legal instrument to enable a peace officer to carry out a search in the first instance and once this warrant has been issued by a Magistrate then - "whenever any place liable to search or inspection.....is closed any person residing in or being in charge of such place shall on demand of the person executing the warrant and on production of the warrant allow him free ingress thereto and afford all reasonable facilities for a search therein".[9]

In the event that a person is suspected of wrongfully confining another person, a Magistrate has the authority to issue a warrant under the law - "if any Magistrate's Court has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, it may issue a search warrant; and the person to whom such warrant is directed may search for the person so confined and such search shall be made in accordance therewith".[10]

If a search is to be carried out, then the property owner, even an accused or arrested person has the right of attendance during any search - "The occupant of the place searched or some person on his behalf shall in every instance be permitted to attend during the search".[11]

Exclusionary Rule

The first exclusionary rule under s24 of the Evidence Ordinance of Sri Lanka has a direct bearing on the criteria of liability where the object of the prohibition, under this section, is to rule out confessions which are caused by a threat, inducement or promise.[12] There is a high degree of probability that confession made in these circumstances will not be true.[13] The second and third exclusionary rule, under s25 and s26 of the Evidence Ordinance, do not depend on the actual unreliability of a confession since it is made to a police officer or made while the accused is in police custody.[14]

Protection against illegal police procedures/actions

The code provides protection to a suspect or arrested person in relation to police procedure with regard to accruing a warrant to carry out a search or to carry out an arrest by a peace officer - "any omission or error as to time and place and any defect in form in any order or warrant given under this section and any omission to comply with the provisions of paragraph (e) shall not be held to render illegal any execution carried into effect under such order or warrant or intended so to have been carried into effect, nor to render any execution illegal which would otherwise have been legal".[15]

Lineups and other identification procedures

The code provides for the holding of court ordered identification parades, for the purposes of identification of the accused alone. "Every Magistrate to whom application is made......shall assist the conduct of an investigation by making and issuing appropriate orders and processes of court, and may, in particular hold, or authorise the holding of, an identification parade for the purpose of ascertaining the identify of the offender".[16]

Interrogation

A police officer (peace officer) has the right to interrogate a suspect under the same Magistrate who issued a warrant for a specific period of time before any formal charge in court - "the right of any police officer to interrogate the applicant with respect to any offence specified in the application".[17] In the event a suspect is charged and released on bail, the police retain the right to request the suspect attend for further interrogation within reason - "such person shall make himself available for interrogation by a police officer, as when required, provided that such interrogation shall not under any circumstances whatsoever be between 6 p.m. in the evening and 6 a.m. in the morning".[18]

Right to Counsel

The arrested person does have the right to have legal counsel appointed in advance of their initial Court hearing and shall be considered innocent until proven otherwise.[19]

Rights of the accused at all times

Double Jeopardy

The code provides protection against an instance of double jeopardy - "No person to be tried twice for the same offence".[20]

Legality Principle

The right of equality before the law in combination with clearly defined limits of police powers - "The rule of law in this sense is expressed in the maxim, derived from the 19th century liberalism, nulla poena sine lege..."[21]

Presumption of Innocence

The code explicitly states that an accused person has the benefit of the "presumption of innocence" until proven guilty in a court of law.[22]

Standards of Proof and Standards for Conviction

The Criminal Code does not specify the quantum of proof and fails even to indicate which party to the proceedings bears the burden of proof. However the Evidence Ordinance of Sri Lanka, under section 3, defines proof and chapter 9 gives guidelines as to how the several burdens have to be discharged.

Capital Punishment

Whilst Capital Punishment is a legally enforceable sentence since its reintroduction in 2004, it is only enforceable in the case of rape, murder or drug related conviction.[23]

Ex Post Facto Punishment

The Constitution of Sri Lanka protects against any form of retroactive penal laws or penalties - "(n)o person shall be held guilty of an offence on account of any act or omission which did not, at the time of such act or omission, constitute such an offence, and no penalty shall be imposed for any offence more severe than the penalty in force at the time such offence was committed".[24]

Rights of the accused at all times (Fair Trial Rights)

Freedom from Prolonged pre-trial detention & Freedom from Punishment

Under the Sri Lankan Constitution, the accused person is protected against prolonged pre-trial detention and freedom from cruel or unusual punishment - "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 procedure established by law, and shall not be further held in custody, detained or deprived of personal liberty except upon and in terms of the order of suet. Judgement made in accordance with procedure established by law".[25] "No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment".[26]

Right to Counsel

Whilst the right to access a lawyer is technically bound by the Constitution of Sri Lanka in Sections 6A (2) and (6) of Clause 2 of the Bill, the Centre for Policy Alternatives (CPA) note that the appropriate sections 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".[27]

Right to Habeas Corpus

The writ of Habeas Corpus is explicitly taken care of by the Court of Appeals - "The Court of Appeal may grant and issue orders in the nature of writs of habeas corpus to bring up before such Court".[28]

Right to Medical Care

During a period of custody, every prisoner is guaranteed the right to medical care under the Prisons Act and that responsibility to provide said care initially is with the attending officer - "The names of prisoners desiring to see the Medical Officer or appearing out of health in mind or body shall be reported by the officer attending them to the jailer; and the jailer shall without delay call the attention of the medical officer to any prisoner desiring to see him".[29]

Right to a fair trial

The right to a fair trial is guaranteed under the Constitution - "Any person charged with an offence shall be entitled to be heard, in person or by an attorney-at-law, at a fair trial by a competent court".[30]

Right to a speedy trial

There is no automatic right to a speedy trial under the law in Sri Lanka as it stands today.

Right to trial by jury

All trials currently held in Sri Lanka are held before professional judges - magistrates, and not juries.[31]

Right to impartial judge

The right to act impartiality during trial is an international obligation of Sri Lanka - "Sri Lanka, as a State Party to the International Covenant on Civil and Political Rights, it bound to provide a "competent, independent and impartial tribunal [or court] established by law".[32]

Right to appeal

The right to appeal from a Magistrate’s court to the Court of Appeal is guaranteed under law.[33]

Rights of the accused at all times (Ways to protect rights)

The rights of the accused are guaranteed under the Code of Criminal Procedure, Chapter 26. The accused has the right to call witnesses, has the right to be defended by an Attorney-at-law at trial and at any pre-trial hearings, has the right to give evidence on their own behalf, the right not have their life put in danger, if they are not accused of a crime punishable by the death sentence, and the right to appeal.

Rights in Prison

Conditions of confinement

The code specifies that all prisoners must be held in humane conditions and their basic food, clothing and bedding must be provided without the taking of a fee - "the food, clothing, and bedding issued to each prisoner or each class of prisoners shall, without prejudice to the provisions of sections, 59, 60, and 61, be in accordance with such rules as may be made in that behalf under section 94", and "No money shall be taken by any prison officer by way of garnish, fee, or gratuity from any prisoner or any person on his behalf or account, on his entrance into or discharge from or during his detention in the prison, under any pretence whatsoever".[34]

Immigrant Detention

Entry into Sri Lanka of persons other than citizens of Sri Lanka is controlled according to the provisions of Part III of the Immigrants and Emigrants Amendment Act, No. 7 of 2015. This part is related to the matters connected with approved ports of entry, documents required at the entry, requirement of visa to enter and stay in Sri Lanka, medical & other examinations upon arrival, inspection of persons & their belongings and detention & removal of certain persons from Sri Lanka.’ S20 of the above mentioned act speaks to the detention of persons for examination and inspection, where a person who is directed by an authorized officer to disembark and enter any place on shore, may be detained at any place approved in that behalf by the Minister for such length of time as may be necessary for completing such examination or inspection. S21, of the above Act, speaks the detention of certain persons. S21(1) states that the master of any ship arriving at any place in Sri Lanka shall, at the request of an authorized officer, detain on board the ship any person who has been refused an endorsement by that officer, or any person who enters Sri Lanka from that ship in contravention of the provisions of s10. S21(2) states that where a person to whom this Part applies is refused an endorsement by an authorized officer or where a person enters Sri Lanka in contravention of the provisions of section 10, he may be temporarily detained in such manner and in such place as may be specified in any general or special directions of the Minister, if such person cannot for any reason be detained on board the ship by which he traveled to Sri Lanka or that ship has left Sri Lanka.

Right to medical care in prison/mental health care

Right to medical care whilst in prison addressed in the previous section. Prison infrastructure is poor and old combined with not well-equipped consultation rooms makes it difficult to have good sanitation and it affects the health of prisoners.

Restriction of rights

The Constitution of the Democratic Socialist Republic of Sri Lanka provides for temporary restrictions on fundamental rights if national security issues are involved.

Women's rights in prison

The criminal code details the specific rights enjoyed by female inmates in Sri Lankan prisons. There must be a least one female officer in each prison, and additionally female prisoners are to be dealt with only by female officers - "In every prison in which female prisoners are detained there shall be at least one female officer" and "provided that the persons of females shall be searched by some female prison officer" and that "males shall be separated from females" at all times also.[35]

Court Procedures

Pre-Trial

Initial Court Appearance

Should an arrestee be living in Sri Lanka, the initial court appearance before a Magistrate must occur not more than twenty-four hours after an arrest - "shall within twenty-four hours from the arrest exclusive of the time necessary for the journey be taken before the nearest Magistrate's Court......such person shall be forthwith released on his executing a bond for his appearance before a Magistrate's Court if so required".[36] Should an arrestee not have a permanent address in Sri Lanka then the arresting peace officer shall take the suspect "forthwith to the nearest Magistrate who may either require him to execute a bond with or without a surety for his appearance before a Magistrate's Court or may order him to be detained in custody until he can be tried".[37]

Charging Instrument

Once the court is ready and at the very commencement of the trial the "registrar shall in the hearing of the accused read the indictment to the jury and the Judge".[38]

Preliminary Hearing

According to s145 of the Code of Criminal Procedure (Amendment) Act, No. 11 of 2018, ‘when the accused appears or is brought before the Magistrate’s Court, the Magistrate shall in a case, (a) where the offence or any one of them where there is more than one, falls within the list of offences set out in the Second Schedule to the Judicature Act; or (b) where the Attorney-General being of opinion that evidence recorded at a preliminary inquiry will be necessary for preparing an indictment, within three months of the date of the commission of the offence so directs, hold a preliminary inquiry according to the provisions hereinafter mentioned.’

Pre-Trial Motions

S145 of the Code of Criminal Procedure (Amendment) Act, No. 11 of 2018 states, ‘when the accused appears or is brought before the Magistrate’s Court, the Magistrate shall in a case— where the offence or any one of them where there is more than one, falls within the list of offences set out in the Second Schedule to the Judicature Act; or where the Attorney-General being of opinion that evidence recorded at a preliminary inquiry will be necessary for preparing an indictment, within three months of the date of the commission of the offence so directs, hold a preliminary inquiry according to the provisions hereinafter mentioned.’ S146 of the same Act mentions, ‘a Magistrate conducting a preliminary inquiry shall at the commencement of such inquiry read over to the accused the charge or charges in respect of which the inquiry is being held, but upon such reading over the accused shall not be required to make any reply thereto; if any such reply is made, it shall not be recorded by the Magistrate; nor shall any such reply be admissible in evidence against the accused.’ S147 of the same Act states, ‘the officer in charge of the police station where the relevant Information Book is kept shall at the commencement of the inquiry furnish to the Magistrate three certified copies of the notes of investigation and of all statements recorded in the course of the investigation.’ v. Discovery S72 of the Criminal Procedure (Amendment) Act, No. 11 of 2018 speaks to discovery of persons wrongfully confined. It goes on the state that ‘if any Magistrate’s Court has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, it may issue a search warrant; and the person to whom such warrant is directed may search for the person so confined and such search shall be made in accordance therewith; and the person if found shall be immediately taken before such court, which shall make such order as in the circumstances of the case seems proper.’

Trial

Nature of the Trial

S5 of the Criminal Procedure (Amendment) Act, No. 11 of 2018 speaks to the trial of offences under the Penal Code and other laws. Chapter XIII of the Criminal Procedure (Amendment) Act, No. 11 of 2018, covers the area of place of inquiry or trial and highlights the place of trial, where the concerned criminal act is an offence by reason of relation to another offences (s130) and the place of inquiry or trial in various cases (S132). Chapter XVII of the above-mentioned Act deals with the trial of cases where a magistrate’s court has the power to try summarily while Chapter XVII deals with trial by the high court specifically trial by a judge without a jury (section B) and trial by jury (section C). Section D deals with the re-trial of the accused after the discharge of the jury while section F deals with the trails in the high court in the absence of the accused. Chapter XXI speaks to the general provisions as to inquiries and trials.

Defendant

According to s315 of the Criminal Procedure (Amendment) Act, No. 11 of 2018, ‘the plea of a previous acquittal or conviction may be pleaded either orally or in writing and may be in the following form or to the following effect: “the defendant says that by virtue of section 314 of the Code of Criminal Procedure Act he is not liable to be tried”.’ According to s260 of the above Act, ‘subject to the provisions of this Code and any written law, every person accused before any criminal court may of right be defended by an Attorney-at-Law, and every aggrieved party shall have the right to be represented in court by an attorney-at-law.

Lawyers

According to s2 of the Criminal Procedure (Amendment) Act, No. 11 of 2018 an attorney general is the attorney-general of the Republic of Sri Lanka including an acting attorney-general. S6 of the same Act goes on to speak to the powers of the attorney-general stating, ‘anything in this Code shall not be construed as derogating from or limiting the powers or jurisdiction of the … Attorney-General.

S133, of the above mentioned Act states, ‘whenever any doubt is entertained by a Magistrate as to the Magistrate’s Court by which any offence should be inquired into, such Magistrate may embody the ascertained facts in the form of a case and transmit the same to the Attorney-General for his opinion, and the Attorney-General shall thereupon decide in which court the offence shall be inquired into and such court shall thereupon have jurisdiction to inquire into such offence.

With regard to the attorney-at-law, it is defined as a ‘pleader with reference to any proceeding in court’ under s2 of the above Act. S152 speaks to the role of such attorneys stating, ‘if the accused in answer to the question states that he wishes to give evidence but not to call witnesses, the Magistrate shall proceed to take forthwith the evidence of the accused, and after the conclusion of the evidence of the accused, his Attorney-at-Law (if the accused is represented) shall be heard on his behalf, if he so desires. If the accused, in answer to the question, states that he desires to give evidence on his own behalf and to call witnesses or to call witnesses only, the Magistrate shall proceed to take either forthwith, or, if a speech is to be made by an Attorney-at-Law on behalf of the accused, after the conclusion of the speech, the evidence of the accused, if he desires to give evidence himself, and of any witness called by him who knows anything relating to the facts and circumstances of the case or anything tending to prove the innocence of the accused.

According to s158(2) of the above Act, ‘when an indictment has been forwarded against any person in respect of an offence which is not shown to be triable by a Magistrate’s Court in the eighth column of the First Schedule, the Attorney-General may, in the interests of justice, make available to the accused or to his Attorney-at-Law, for perusal the statement to the police of any witness not listed in the indictment.’ S190 of the above Act allows an accused to be discharged by a magistrate with a sanction of an attorney-general and with the fulfillment of the requirements listed under s194 of the above Act, and an attorney-general may withdraw an application. Like judges, attorney-generals and attorneys-at-law, are not allowed to serve and jurors, according to s245 of the above Act. S393-s401 of the above Act lists the requirements of the powers of the attorney-general.

According to s257 of the above Act, ‘the attorney-general at any stage after commitment but before judgment is pronounced may, with the view of obtaining on the trial the evidence of any person supposed to have been directly or indirectly concerned in or privy to any such offence, tender or authorise the Magistrate to tender a pardon on the same condition to such person.

According to s360 of the above Act, ‘the attorney-general shall appear for the State in every appeal to the Court of Appeal under this Code to which the State or a public officer is a party and all such documents, exhibits and other things connected with the proceedings as the attorney-general may require for the purpose of his duties under this section shall be transmitted to him by the Registrar of the court having custody of such documents, exhibits and things. The Solicitor-General or a State Counsel or an Attorney-at-Law specially or generally authorised by the Attorney-General in that behalf shall be entitled to appear for the State in place of the Attorney-General in any such appeal.

Expert Witnesses

According to S148 (1) of the Criminal Procedure (Amendment) Act, No. 11 of 2018, ‘the Magistrate shall then take, in the presence of the accused and in the manner hereinafter provided, the statements on oath or affirmation of those who know the facts and circumstances of the case, and put them in writing (called the depositions): Provided that the Magistrate shall not except where the Attorney-General otherwise directs summon and record the evidence of any expert witness but shall only cause such witness’s report to be produced and filed of record.’ According to S397(2) of the above Act, ‘the Attorney-General may if he thinks it necessary, direct the Magistrate to record the evidence of any expert witness or police officer and the Magistrate shall then comply with such directions.’

Judges

According to s2 of the Criminal Procedure (Amendment) Act, No. 11 of 2018, a judge is defined as, ‘the presiding officer of a court and includes a Judge of the Supreme Court, Court of Appeal, High Court, District Court, Magistrate’s Court and Primary Court as the context may require and includes an acting Judge of such court.’ It is important to note that judges of courts established under the law in force cannot serve as jurors (s245 of the same Act).

According to s161 of the Criminal Procedure (Amendment) Act, No. 11 of 2018, ‘subject to the provisions of this code or any other law, all prosecutions on indictment instituted in the High Court shall be tried by a Judge of that Court: Provided that in any case where at least one of the offences falls within the list of offences set out in the Second Schedule to the judicature Act, No 2 of 1978, trial shall be by a jury, before a Judge, if and only if, the accused elects to be tried by a jury.

S195 of the Criminal Procedure (Amendment) Act, No. 11 of 2018 speaks to the duty of the judge upon the receipt of an indictment. His duties include: ‘causing the accused to appear or to be brought before him; causing a copy of the indictment with its annexes to be served on each of the accused who will be tried upon that indictment; informing the accused of the date of trial; and subject to the provisions of section 403, direct the accused to execute a bond to appear in court for his trial or by warrant addressed to the superintendent of any prison authorise the detention of the accused pending his trial; causing the accused to be finger-printed and forward the prints to the Registrar of Finger Prints for examination and report to the prosecuting State Counsel; and if the indictment relates to an offence triable by a jury, inquire from the accused whether or not he elects to be tried by a jury; where trial is to be by a jury direct the accused to elect from which of the respective panels of jurors the jury shall be taken for his trial and inform him that he shall be bound by and may be tried according to the election so made; where the accused on being asked by court so requests, assign an Attorney-at-Law for his defence.

Chapter XVIII, Part B of the Criminal Procedure (Amendment) Act, No. 11 of 2018 speaks to the trial by the judge of the high court, without a jury. With specific reference to s203 under such chapter and part, the judge is to pass judgment when the cases for the prosecution and defence are concluded. According to such section, ‘the Judge shall forthwith or within ten days of the conclusion of the trial record a verdict of acquittal or conviction giving his reasons therefor and if the verdict is one of conviction pass sentence on the accused according to law.

According to s207 of the Criminal Procedure (Amendment) Act, No. 11 of 2018 ‘if the accused pleads not guilty but states that he is willing to plead guilty to lesser offence for which he might have been convicted on that indictment and the prosecuting counsel is willing to accept such plea, the Judge may if he thinks that the interests of justice will be satisfied by so doing order such plea of guilt to be recorded and may pass judgment thereon accordingly, and thereupon the accused shall be discharged of the offence laid in the indictment and such discharge shall amount to an acquittal.’ According to s208(1) of the same Act, ‘the prosecuting counsel or the accused may apply to the High Court at the sessions where the trial is pending for an order requiring a special jury to be summoned to try any case; and the Judge before whom such application comes up, shall if he considers such application just and reasonable make an order accordingly.

S230 of the above mentioned Act, speaks to the duty of the judge at the conclusion of the trial. The judge is to: ‘decide all questions of law arising in the course of the trial and especially all questions as to the relevancy of facts which it is proposed to prove and the admissibility of evidence or the propriety of questions asked by or on behalf of the parties, and in his discretion to prevent the production of inadmissible evidence whether it is or is not objected to by the parties; decide upon the meaning and construction of all documents given in evidence at the trial; decide upon all matters of fact which it may be necessary to prove in order to enable evidence of particular matters to be given; decide whether any question which arises is for himself or for the jury.

According to s231 of the above mentioned Act, ‘the Judge may if he thinks proper in the course of his summing up express to the jury his opinion upon any question of fact or upon any question of mixed law and fact relevant to the proceeding.

Victims

S303 of the Criminal Procedure (Amendment) Act, No. 11 of 2018, speaks to the suspending the sentence of imprisonment by the court, in whole or part, provided reasons are stated in writing and in the appropriate circumstance, where there is a need to protect the victim or the community from the offender. S451A of the same Act, mentioned above, speaks to the warrant of granting custody of a victim to a place of safety. According to this section, ‘where it appears to a court in which indictment or charge for child abuse has been filed that the child in relation to whom the child abuse is alleged to have been committed requires care and protection, the court may order such child to be kept in a place of safety for care and protection, pending the trial. Where a court makes an order under subsection (1) that a child in relation to whom the child abuse is alleged to have been committed be kept in a place of safety for care and protection, a warrant substantially in the form set out in the Second Schedule shall be signed by the court and delivered to the Fiscal of the court.

Defenses Available at Trial

In the process of developing a theory of the case, a defense lawyer shall decide whether it is possible to exonerate the client from guilty. If so, the lawyer shall further consider how to prove the innocence of the client at trial.

The requirements for the various defenses that can be raised in respect of criminal charges are set out in Chapter IV of the Sri Lankan Penal Code. It is imperative that defense lawyers familiarize themselves with the available defenses as well as the essential requirements thereof. The following are possible defenses for exonerating an accused from criminal liability under the Sri Lanka legal framework:

Mistake of Fact

Nothing is an offence, which is done by a person who is, or who by reason of a mistake of fact and not by reason of mistake of law in good faith believes himself to be, bound by law to do it (Penal Code, Section 69).

For example: • A, a soldier, fires on a mob by the order of his superior officer in conformity with the commands of the law. A has committed no offence.

• A, an officer of a Court, being ordered by that court to arrest Y and, after due inquiry, believing Z to be Y, arrests Z. A has committed no offence.

Good faith

Nothing is an offence, which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be justified by law in doing it (Penal Code, Section 72).

For example, A sees Z commit what appears to A to be murder. A in the exercise, to the best of his judgment exerted in good faith, of the power which the law gives to all persons apprehending murderers in the act, seizes Z, in order to bring Z before the proper authorities. A has committed no offence though it may turn out that Z was acting in self-defense.

Self-Defense

Self-defense and defense of a third party can be full defenses if all the requirements for this defense are satisfied.

Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm if it be done without any criminal intention to cause harm and in good faith for the purpose of preventing or avoiding other harm to person or property (Penal Code, Section 74).

Every person has a right (subject to Section 92 of the Penal Code) to defend his own body, and the body of any other person, against any offence affecting the human body and the property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under definition of theft, robbery, mischief, or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass (Penal Code, Section 90).

The right of private defense in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defense (Penal Code, Section 92(4)).

Misfortune

Nothing is an offence, which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner, by means and with proper care and caution (Penal Code, Section 73).

For example, A is at work with a hatchet; the head flies off and kills a man who is standing by. Here if there was not want of proper caution on the part A, his act is excusable and not an offence.

Intoxication

Involuntary intoxication can be a full defense. Involuntary intoxication involves a situation such as where someone slipped a drug into the accused’s drink and the accused consumed it without knowing that it contained the drug. If the accused lacked the mens rea for the crime because of the effects of the drug, he will have a full defense.

Nothing is an offence which is done by a person who, at the time of doing it, by reason of intoxication incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law: provided that the thing which intoxicated him was administered to him without his knowledge or against his will (Penal Code, Section 78).

In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will (Penal Code, Section 79).

Consent

Nothing, which is not included to cause death or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt is an offence by reason of any harm which it may cause, or be intended by the doer to cause to any person above eighteen years of age, who has given consent, whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer or be likely to cause to any such person who has consented to take the risk of that harm (Penal Code, Section 80).

Similarly, nothing which is not intended to cause death is an offence by reason of any harm it may cause, or be intended by the doer to cause (or be known by the doer to be likely to cause), to any person for whose benefit it is done in good faith and who has given consent, express or implied, to suffer that harm or to take the risk of that harm (Penal Code, Section 81).

Threat

Except murder and offences against the State punishable with death, nothing is an offence which is done by a person who is compelled to do it by threats, which at the time of doing it, reasonably cause the apprehension that instant death to that person will otherwise be the consequence; provided the person doing the act did not of his own accord, or from a reasonable apprehension of harm or himself short of instant death, place himself in the situation by which he became subject to such constraint (Penal Code, Section 87).

For example, a person seized by a gang of housebreakers, and forced by threat of instant death to commit an act of harm, which would otherwise be an offence in law.

Alibi

An alibi is a specific defence in terms of which an accused in essence pleads that he/she was, at the time when the crime was committed, in a different place.

If an accused raises an alibi defense in Sri Lanka, the requirements of section 126A of the Criminal Procedure Code must be adhered to. The section determines as follows, specifically indicating that an accused must provide notice of an alibi defense:

(1) No person shall be entitled during a trial on indictment in the High Court, to adduce evidence in support of the defense of an alibi, unless he has—

(a) stated such fact to the police at the time of his making his statement during the investigation; or

(b) stated such fact at any time during the preliminary inquiry; or

(c) raised such defense, after indictment has been served, with notice to the Attorney-General at any time prior to fourteen days of the date of commencement of the trial:

Provided however, the Court may, if it is of opinion that the accused has adduced reasons which are sufficient to show why he delayed to raise the defense of alibi within the period set out above, permit the accused at any time thereafter but prior to the conclusion of the case for the prosecution, to raise the defense of alibi.

(2) The original statement should contain all such information as to the time and place at which such person claims he was and details as to the persons if any, who may furnish evidence in support of his alibi.

(3) For the purposes of this section “evidence in support of an alibi” means evidence tending to show that by reason of the presence of the defendant at a particular place or in particular area at a particular time he was not, or was not likely to have been, at the place where the offence is alleged to have been committed at the time of the alleged commission.

It is imperative for counsel to canvass this with the accused and to take note of the specific requirements of the section if an alibi defense is to be raised.

Departure from the Common Purpose or Joint Criminal Enterprise (JCE)

The doctrine of common purpose (also referred to as common design, joint enterprise or joint criminal enterprise) is a common-law legal doctrine that imputes the criminal liability of one participant to all the participants in a joint criminal enterprise for all the results arising from that enterprise.

A common application and example in illustration of the rule is to impute criminal liability for wounding a person to participants in a riot who knew, or were reckless as to knowing, that one of their number had a knife and might use it, despite the fact that the other participants did not have knives themselves. Another example can be illustrated as follows: a group comes together for a fight or to commit a crime, and either the participant knows or does not know that one of the group has a weapon. If the person knows that there is a weapon, it is foreseeable that it might be used and the fact that the other participants do not instruct the one carrying to leave it behind means that its use must be within the scope of their intention. However, if the person does not know of the weapon, this is a deliberate departure from the common purpose and this breaks the enterprise.

The Sri Lankan Penal Code recognizes and incorporates the doctrine of common purpose into Sri Lankan criminal law and determines as follows in sections 32 and 33 thereof:

Section 32: When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

Section 33: Whenever an act, which is criminal only by reason of its being done with a criminal knowledge or intention, is done by several persons, each of such persons who joins in the act with such knowledge or intention is liable for the act in the same manner as if the act were done by him alone with that knowledge or intention.

Where an accused is charged and the prosecution alleges the group acted in common purpose, the defense to be raised is departure, ie, the accused must show that he/she actively disassociated himself from the common criminal enterprise (common purpose) in question.

It is important to note that mere repentance after commission of the crime, however sincere, is insufficient to amount to a defense of departure where common purpose is alleged. One person who has been an active member of a group with a common purpose may escape liability by withdrawing before the other(s) go on to commit the crime. Mere repentance without any action, however, still leaves the party liable to prosecution and conviction.

To be effective, the withdrawing party must actively seek to prevent the others from relying on what has been done. Any communication of withdrawal by the secondary party to the perpetrator must be such as to serve "unequivocal notice" upon the other party to the common purpose that, if he proceeds upon it, he does so without the further aid and assistance of the withdrawing party:

• If an accomplice only advised or encouraged the principal to commit the crime, he must at least communicate his withdrawal to the other parties; and

• Where an accomplice has supplied the principal with the means of committing the crime, the accomplice must arguably neutralize, or at least take all reasonable steps to neutralize, the aid he has given; or

• In more serious cases, it may be that the only effective withdrawal is either physical intervention or calling in the police.

Also, where one of the participants deliberately departs from the common purpose by doing something that was not authorized or agreed upon, that participant alone is liable for the consequences.

Entrapment

General

In criminal law, entrapment is a practice whereby a law enforcement agent induces a person to commit a criminal offence that the person would have otherwise been unlikely or unwilling to commit.

Entrapment occurs when an opportunity for the commission of an offence is created for the specific purpose of securing evidence, in order to obtain a conviction. It necessarily involves a degree of deception, and sometimes the law enforcement officer conducting the trap is ostensibly also involved in the illegal activity.

Entrapment often serves as a defense to criminal charges, and it's based on interaction between police officers and the defendant prior to (or during) the alleged crime. A typical entrapment scenario arises when law enforcement officers use coercion and other overbearing tactics to induce someone to commit a crime. Thus for purposes of criminal law entrapment is a practice whereby a law enforcement agent induces a person to commit a criminal offence that the person would have otherwise been unlikely or unwilling to commit.

Because of these features, there is a concern that the technique can be abused, and that people who would otherwise not commit a crime, may be unfairly tempted into doing so.

Objective vs Subjective Evaluation

Different jurisdictions employ either an objective or a subjective test to determine whether entrapment occurred and/or whether any evidence obtained by such entrapment will be allowed in evidence against an accused:

• Objective standard: under an objective standard, when a defendant-accused offers entrapment evidence jurors or the presiding officer decides whether a law official’s actions would have induced a normally law-abiding person to commit a crime;

• Subjective standard: under a subjective standard, when a defendant-accused offers entrapment evidence, jurors or the presiding officer decides whether the defendant-accused’s predisposition to commit the crime makes that defendant-accused responsible for his or her actions, regardless of any law official’s inducements.

Other Examples of Entrapment

Example #1: Joey is charged with selling illegal drugs to an undercover police officer. She testifies that the drugs were for her personal use. The reason she sold some to the officer is that at a party, the officer falsely said that he wanted some drugs for his father, who was sick with cancer and in a lot of pain. The officer even assured Joey that he wasn't a policeman.

The police officer's actions in this example do not amount to entrapment. The officer gave Berry an opportunity to break the law, but the officer did not engage in extreme or overbearing behavior.

Example #2: Annie is indicted with selling illegal drugs to an undercover police officer. She testifies that the drugs were for her personal use. The undercover officer, for more than three consecutive weeks, stopped by her apartment and pleaded with her numerous times to sell her some of her drugs because her mom was extremely sick and needed the drugs for pain relief. Annie says she kept refusing. When the official told her that the drugs would allow her mom to be pain free and more comfortable she broke down and sold her the drugs.

After this Annie was immediately arrested. The undercover police officer’s persistent efforts and untruths are sufficiently extreme to constitute entrapment and may result in a not guilty verdict.

Judicial Excuse

Nothing which is done in pursuance of, or which is warranted by, the judgment or order of a court of justice (if done whilst such judgment or order remains in force) is an offence, notwithstanding the court may have had no jurisdiction to pass such judgment or order, provided the person doing the act, in good faith, believes that the court had jurisdiction (Penal Code, Section 71).

Mistake of Law

Nothing is an offence, which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law, in good faith, believes himself to be justified by law in doing it (Penal Code, Section 72).

Incapacity (Doli Incapax)

Act of a child under eight years of age: nothing is an offence when the act is done by a child under the age of eight years (Penal Code, Section 75).

Act of a child between eight and twelve years – no sufficient maturity of understanding: nothing is an offence which is done by a child above eight years of age and under twelve, who has not attained sufficient maturity of understanding to judge the nature consequence of his conduct (Penal Code, Section 76).

Insanity

Section 77 of the Penal Code determines that “Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.”

When pleading insanity and raising insanity as a defense the critical elements are the following:

• Time when the act was committed;

• Unsoundness of mind of the accused;

• Incapable of knowing and understanding the nature of his act; and

• Whether it is wrong or contrary to the law.

Sentencing

Sentencing is at the discretion of the presiding Magistrate and shall remain detained under the order of the President of the Court - "when any person has been sentenced under section 53 of the Penal Code to be detained during the President's pleasure he shall, notwithstanding any enactment of the contrary, be liable to be detained in such place and under such conditions as the President may from time to time direct, and whilst so detained shall be deemed to be in legal custody".[39]

Appeal

A defendant retains the right to appeal to either the Court of Appeals or the Supreme Court, depending on the nature and seriousness of the crime. The right to counsel in this instance is not guaranteed by the State.[40]

References

  1. Criminal Code Part 1, Chapter 1, preliminary interpretation
  2. Criminal Code Chapter V of process to compel appearance, 44. Registries of Summons, 3
  3. Criminal Code Chapter IV of Arrest, Escape, and Retaking
  4. Criminal Code, Chapter IV of Arrest, Escape, and Retaking
  5. Criminal Code, Chapter IV of Arrest, Escape, and Retaking
  6. Code of Criminal Procedure, Chapter 26, 2
  7. Code of Criminal Procedure, Chapter 26, 2
  8. Code of Criminal Procedure, Chapter 26, 264, 2
  9. Code of Criminal Procedure Chapter 26
  10. Code of Criminal Procedure, Chapter 26
  11. Code of Criminal Procedure, Chapter 26
  12. Peiris G.L. & de Soysa R.S. ‘The Admissibility of Confessions in Criminal Proceedings: A comparative analysis of the law of Sri Lanka and England’ Sri Lanka Journal of Social Sciences 49 available at http://dl.nsf.ac.lk/bitstream/handle/1/5112/JSS%202_1_1.pdf;sequence=1.
  13. Ibid, 49.
  14. Ibid, 52.
  15. Code of Criminal Procedure, Chapter XXIV of Sentences and the Carrying out Thereof, 286, G
  16. Code of Criminal Procedure, Chapter 26
  17. Bail Act 1997, Section 25; https://www.lawnet.gov.lk/1947/12/31/bail-2/
  18. Bail Act 1997, Section 24
  19. s152(3) and s217 of the Code of Criminal Procedure
  20. Sri Lanka Code of Criminal Procedure Section 314
  21. Article - A Critical Analysis on the Application of the Legal Principle of Rule of Law in the Criminal Justice System of Sri Lanka - Volume 4, Issue 3 - 2017
  22. Code of Criminal Procedure, Chapter 26, Trial to Close of Case for Prosecution and Defence, 217
  23. Cornell Center on the Death Penalty Worldwide; https://www.deathpenaltyworldwide.org/country-search-post.cfm?country=Sri+Lanka
  24. Constitution of Sri Lanka, Act. 13, 6
  25. Constitution of Sri Lanka, Chapter 3 Section 13, 2
  26. Constitution of Sri Lanka, Chapter 3 Section 11
  27. CPA Press Release on SC SD 7/2017 [Code of Criminal Procedure (Special Provisions) Act No 2 of 2013, Amendment Bill; http://www.cpalanka.org/press-release-on-sc-sd-72017-code-of-criminal-procedure-special-provisions-act-no-2-of-2013-amendment-bill/
  28. Constitution of Sri Lanka, The Court of Appeal, 141
  29. Prisons Ordinance, Chapter 66, Prisons, Part VIII, Health of Prisoners, 66; http://policehumanrightsresources.org/wp-content/uploads/2016/03/Prisons-Act-Sri-Lanka-1877.pdf
  30. Constitution of Sri Lanka, Chapter III, Fundamental Rights, 13, 3
  31. Judicial System of Sri Lanka, Commonwealth Governance; http://www.commonwealthgovernance.org/countries/asia/sri_lanka/judicial-system/
  32. United Nations, Human Rights Council - Written Statement’s submitted by the International Movement Against All Forms of Discrimination and Racism (IMADR), a non-governmental organisation in special consultative status; http://imadr.org/wordpress/wp-content/uploads/2013/12/Written-Statement_HRC-22nd-session_Independence-of-Judiciary-in-Sri-Lanka-2013.pdf
  33. Part VII, Chapter XXVIII of Appeals, A - 320
  34. Prison Ordinance, Chapter 66, Part IV, 55 & 62
  35. Prison Ordinance, Chapter 66, Part IV
  36. Criminal Procedure Act, B - Arrest Without A Warrant, 33
  37. Criminal Procedure Act, B - Arrest Without A Warrant, 33
  38. Code of Criminal Procedure, Chapter 26, 217
  39. Code of Criminal Procedure, Chapter 26, 288
  40. Code of Criminal Procedure, Chapter 26