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The Bar Association of Sri Lanka (BASL) has written to President Maithripala Sirisena and Minister of Justice Dr. Wijeyadasa Rajapakshe calling for the withdrawal of the recent proposed amendment to the Code of Criminal Procedure Act.

A Bill to amend the Code of Criminal Procedure Act, No. 15 of 1979 titled ‘Code of Criminal Procedure (Amendment)’ was gazetted recently.

It seeks to insert a Section 37A, thus allowing for anyone arrested or detained in the custody of the Police to retain and consult as per Section 37A (1) an attorney or lawyer of his or her choice at his or her own expense or in the event the said person is unable to do so.

The Legal Aid Commission (LAC) would as per Section 37A (2) provide such service if the LAC was in a position to provide it.

Furthermore, Section 37A (3) of the proposed amendment outlines that it is the Officer-in-Charge (OIC) of the relevant  Police station who is to make the latter request as per Section 37A(2) to the LAC for the provision of the said service. According to the proposed amendment, the right to legal counsel can only be exercised after the recording of statements from the suspect as per the provisions of Section 110(1) of the Act and prior to being produced before a Magistrate.

Torture and cruel, inhuman and degrading treatment and punishment, freedom from which is guaranteed in Article 11 of the Constitution, is reported to be taking place prior to the recording of the statements from a suspect. Article 12 of the Constitution provides for the equal protection of the law. This includes due process and the right to a fair trial.
The proposed amendment can be deemed as violating all of it. It must also be noted that the right to confidential legal counsel with a competent counsel and representation by him or her must be provided for any person at any time during the process of investigation, from the moment of arrest or detainment and during the period of detainment and in custody.

The Human Rights Commission of Sri Lanka of which the Deputy President of the BASL, Saliya Pieris, is a Commissioner and Media Spokesman, has made submissions to the same effect. RLJ