The Supreme Court has determined that Clause 8 of the Code of Criminal Procedure (Special Provisions) Bill that seeks to detain a person for 48 hours after being arrested without a warrant is inconsistent with the Constitution and therefore it has to be approved in Parliament by a two-third majority. The determination was announced in Parliament by Speaker Chamal Rajapaksa. The constitutionality of the Bill was challenged in the Supreme Court by Frontline Socialist Party MP Ajith Kumara.
The original law introduced on May 31, 2005 provided for such a detention for a period of two years. After the first two-year period, it was extended for another two years starting from May 31, 2007.
The subject minister could seek such extensions through gazette notifications one month prior to the expiration of the term. Accordingly, Justice Minister Rauff Hakeem unsuccessfully sought parliamentary approval on September 8, 2011.
Since parliamentary approval could not be obtianed at that time due to a technical issue raised by the opposition, the government decided to make this a permanent law instead of renewing its validity every two years.
The Bill was presented in the House by Minister Hakeem. The clause 8 of the Bill says, “Whereas during the period commencing May 31,2009 and ending on the date of the coming into operation of this Act, any power, duty or function exercised by any person to whom such power, duty or function was assigned by or under the Criminal Procedure Code (Special Provisions) Act No.42 of 2007, such power, duty or function, which was exercised, performed or discharged , as the case may be, shall notwithstanding that the provisions of the said Criminal Procedure (Special Provisions) Act No, 42 of 2007 was in operation during the aforementioned period , be deemed to have been validly exercised, performed or discharged, as the case may be, as if the said Act was in operation during such aforementioned period”.
The Supreme Court has determined that this was inconsistent with Article 13(2) of the Constitution and is required to be passed with a special majority.
The Court determination also says that this inconsistency will cease by adding a provision to the end of the Clause 8.
The addition proposed is, “Provided that the aforesaid provisions of this section shall not affect any decision or order made by any court in respect of detention made during the period within which the said Act is deemed have been in operation.
BY KELUM BANDARA AND YOHAN PERERA
Source: Daily Mirror – Sri Lanka