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Tuesday, February 27, 2024

Was Rev Sr. Mary Eliza of “Prem Niwasa”‘s arrest and detention legal?

By A concerned lawyer
 The National Child Protection Authority purporting to act under the provisions of Section 34 of the NCPA Act No. 50 of 1998 arrested and detained Rev. Sister. Eliza in remand custody for an alleged offence under Section 34 of the said Act

It is necessary to examine the provisions of the NCPA Act No. 50 of 1998 and the Bail Act No. 30 of 1997 to determine whether the arrest and detention was illegal. Section 34 of the NCPA Act authorizes an officer to enter and inspect any premises of any institution where child care services are provided if he has reason to believe that the children are being kept for:

i. For the purpose of child abuse

ii. Any other unlawful purpose

iii. illegal adoption

It must be remembered that Prem Niwasa was a private institution and not a State institution funded by the State and therefore it in implied that the right to privacy of the institution has to be protected. The law does not contemplate ” raids” referred to in the daily papers. The law only authorizes the authority the right to enter and inspect for the aforesaid purposes. The law does not prohibit donations. In fact, all these private homes run by the Reverend Sisters are run on public donations and therefore the presence of money in the Home is understandable.

Even if there was any irregularity in the running of the Home the arrest and remanding of Rev Sr. Eliza appears to be unwarranted and illegal particularly in view of the salutary provisions of the Bail Act. One must also remember that the NCPA Act only creates statutory offences they are not criminal offences punishable under the criminal law and therefore the full rigor of the criminal law should not be applied in respect of statutory offences.

The Bail Act clearly states that bail should be the guiding. principle, and a person arrested for an offence could be released on bail, in bailable and even non-bailable offences except in cases of grave crime such as murder and rape. Persons who are arrested could be released under the Bail Act in the following manner:

a) on an undertaking that he would appear in court when required

b) on his own recognsance

c) by executing a bond with or without sureties

d) by deposting cash as determined by court

e) by furnishing reasonable certified bail

Therefore it is apparent that the NCPA had several options other than arresting and remanding the Rev. Sister. She could have been requested to give an undertaking to appear in court on a fixed date. It is a matter of regret that salutary provisions of the Bail Act are not complied with by the police and prosecuting officers.

Sections 2 of the Act says, “that the grant of bail shall be the rule and the refusal to grant bail the exception”. In our country the police and other prosecuting officers first arrest and remand on suspicion. In the Western democracies a complaint is investigated first before the person in arrested.

Our law also requires that when a suspect in produced before a Magistrate together with a “B Report” the report should contain a summary of the statement of witnesses. Very often this requirement of the law in not complied with. As a consequence there are several people in remand who should not be there. When a person is in remanded (invariably the breadwinner) there are serious consequences to the family, sometimes the children find it difficult to attend school as they are taunted by others children saying that their father is in jail.

The remand jails are overcrowded partly because seemingly respectable citizens are remanded when they could have been released on bail A remand prisoner is different from a convicted prisoner. The law presumes. him to be innocent until found guilty. It is not the policy of the law to punish persons before conviction. Such remands violates the principal of natural justice, human rights and fundament freedoms.

It appears that the Reverend Sister’s right to freedom from illegal arrest has been violated. The NCPA should pay substantial damages to the Rev. Sister for the humiliation and harassment caused to her and the Home. courtesy: Sunday Island


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