Manipulating bail and publicity to deny justice - Sri Lanka Guardian

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Friday, March 5, 2010

Manipulating bail and publicity to deny justice

A Statement by the Asian Human Rights Commission

(March 05, Hong Kong, Sri Lanka Guardian) Chandradasa was a young man living in an urban area making a living through various kinds of odd jobs.He was engaged in various kinds of buying and selling, such as the selling of vegetables and fish. He also worked in small commissions of trade. He was very well liked within his community; he was an extremely helpful person who was willing to be of assistance to anyone who needed it. He was also a tough man who spoke his mind when he found that things were wrong. Unfortunately, this last trait meant that he had several enemies who carried their enmity for this young man far beyond reasonable proportion. Among them, was a OIC of the nearby police station.

As Chandradasa was aware of the bribe-taking habits of this OIC, and the little harassments that the OIC would cause to people for the purpose of attaining these bribes, he was also sarcastic in his remarks about these crimes with the OIC. Unfortunately, such local officials have their own way of getting information and being aware of who their enemies are. One day, when Chandradasa was selling vegetables near a railway road, the OIC picked him up and took him to the police station. Originally, the OIC wanted to charge him for the possession and sale of illicit liquor, a crime that Chandradasa has never committed. Then, he learned that Chandradasa had accompanied somebody to the Assistant Superintendent of Police of the area to make a complaint against the crimes committed by the OIC.

The result was that the OIC thought the charges that should be levelled against Chandradasa should be of a higher nature. He wrote a report stating that Chndradasa was found with a duppy bomb (a small locally manufactured bomb which uses ring pulls from bottles as an external trigger. It is used to produce noise and smoke but causes only minor damage). In his wisdom, the crime OIC knew that the possession of any kind of bomb is a non-bailable offence. If the allegation had been of the possession of a more sophisticated grenade or bomb, this would create many questions, but a duppy bomb might be in the possession of anyone, and this would create less trouble for the OIC from his superiors. Of course, as a crime OIC, he was aware that there were many such weapons around at the police station collected through previous raids which could be used whenever they thought to fabricate a case.

Thus, Chandradasa was produced in a magistrate court with what is known as a B-report, (a preliminary report,) which stated that he was found in possession of a duppy bomb. The Magistrate, as a consequence, refused him bail. While Chandradasa understands that sometimes police officers harass people and put silly charges such as the possession of illegal liquor on them, this was beyond his understanding as to why such a serious trap had been laid for him. He also could not understand what a non-bailable offence meant.

With the help of a sister who was living abroad, he paid some money to a lawyer to apply for bail from the Court of Appeals. However, the lawyer explained to him that despite an application being made, it would be unlikely that he would get bail on this side of six months. This was very confusing to Chandradasa who was aware only of the type of litigation that goes on in the neighbouring magistrate courts, where most people spend not more than two weeks in jail without bail. He was suspicious of the good intentions of his lawyer in this regard. Despite his lawyer’s best efforts, Chandradasa remained in remand for almost eight months before he received bail. By that time, he was an angry man who was deeply confused about the law as well as the nature of his society. Much later, charges were filed against him in a High Court, and he had to find a great deal of money to go to another lawyer who would appear in the High Court to fight his case. The High Court lawyer who was not from the area did not believe that the charges filed against Chandradasa were completely fabricated. After all, many people make claims like this once they have been trapped. At the High Court, Chandradasa was found guilty of possession of a bomb, and was sentenced to seven years of rigorous imprisonment.

There were only two persons attending the High Court trial who knew the true story; one was the crime OIC, the other was the state council conducting the trial, who in the early stages looked at all the documents and was convinced that there was something wrong in this case. However, he adapted the more convenient approach and conducted his case in the High Court and was happy to get a conviction. Chandradasa went to jail and was released after several years when his term was completed. The crime OIC was promoted later and also became a higher official. The state council who conducted the case is today, a very high official within the system.

The story of Chandradasa is not an exception to the rule. There are many in our jails who are there because of the manipulation of a certain person, which has led to the fabrication of a charge, which initially deprives the person of bail. Later, the person finds himself being convicted of an offence simply because most poor people do not have the capacities to hire lawyers who might be able to conduct their defences efficiently and who may take adequate trouble to find out the actual circumstances and put up a proper fight on behalf of their client.

Many people may defend the system which has created this category called 'non-bailable offences.' The period of non-bailable offences may extend depending on the nature of the charges. The charges depend on those who make the charges, which are the officers who are ultimately responsible for charging the offenders. The usual presumption that would exist within the rule of law system is that these officers act in good faith. However, the belief that the officers act in good faith is not a belief that exists in actuality among the people of Sri Lanka, particularly among the poorer people of Sri Lanka. They see the use of such powers to falsely charge as matters that are more to do with power rather than with reason. Once a person is in the trap, he will have to face the consequences of being in that trap and his fate will be determined by those who have the power to put him in that trap. Despite the popular disbelief of the good faith of the officers who engage in the work of false charging, the system has few possibilities open for proper examination of such charges. With overcrowded courts that have little time available for each case and above all, with the mentality that does not create such a heavy burden of conscience regarding the making of decisions on keeping people in detention or otherwise, it is not difficult at all for anyone who has power to manipulate the process of justice.

When there are enough officers who do not consider it an obligation to act in good faith on such serious matters as charging of people on offences, it is not difficult, particularly for more powerful people in the political arena, to manipulate the system for political advantages. Today, even reputed monks are complaining that there are attempts to introduce various objectionable items in their properties with the view to charge them on offences such as possession of firearms.

The political manipulation of the process of introducing criminal charges can be used not only by manipulation of the bail procedure but by manipulation of publicity. While with the case of a person like Chandradasa, publicity may not be an important factor, for anyone who is involved in political activities, publicity is a more important factor than anything else.

When, for example, a reputed monk is being accused for the possession of bombs or other firearms and this issue is being publicized through television and other media, immediately, many problems are being created with regard to the political reputation of such a person. With the type of media facilities that are available, within the matter of a few minutes, the entire reputation of a person can be seriously damaged by the publication of a false report regarding that person being involved in some kind of serious crime. The moment some police officers are sent and they file a report stating that some things have been found and then a report is filed in the courts, this is followed with photographs of a person and perhaps some police officers take him into courts, or pictures of court scenes which create sufficient amount of impressions that now the person is really being charged before a court on a serious charge.

Once a person is brought before a court, the impression of his being possibly guilty is more attributed to the fact of his offence being non-bailable than to whoever is behind the scene and is manipulating the process. The reports will now say that the courts have charged him and that the courts have refused him bail and now the person is being kept in remand on the basis of court orders. Therefore, a legitimacy is now attached to the charges and a greater belief is being created about the charges and greater doubt is created about the honesty and integrity of the person charged. To this, when the refusal to bail comes because of the nature of the offence itself, the person is in no position to answer the allegations of the public. He is not able to face the cameras and give his version of the event. The power in the publicity area is with the accusers. The accused is powerlessly inside a remand prison.

It is this kind of problem relating to justice that any citizen of Sri Lanka has a real possibility of facing now. There is no limit to the possibility of fabricating a charge against anyone, so long as the person lives within the borders of the country. Some way can be found to introduce something, and a police officer can easily be found to co-operate in the manipulation of such charges. On the one hand, there is a system that has all these possibilities of being manipulated, on the other hand, there is a policing system within which the whole issue of good faith on the process of charging of offences virtually does not exist. This is a new kind of challenge to the whole issue of freedom of the individual in Sri Lanka today.

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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.

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