Serious concerns on amendments to the Criminal Procedure Code
18 May 2016
Lawyers for Liberty views with extreme concern the Criminal Procedure Code amendment bill that is listed to be tabled in the current parliamentary sitting.
Of utmost concern is the new sections 265A, 265B and 265C that had previously been withdrawn in December 2013 due to strong opposition but they are now being reintroduced without any clear explanation as to what had transpired since then to merit such a reintroduction.
These new provisions relating to “protected witnesses” essentially allow for witnesses to testify in secret where the accused person and his/her counsel would not be able to see, hear or cross examine the witnesses. Such secrecy is repugnant to the very basic foundation of our criminal justice system that demands a fair trial – that justice must be done openly and transparently; the accused must be afforded an opportunity to challenge the evidence presented; and the guilt against the accused must be proven beyond a reasonable doubt.
We are further extremely concerned by the proposed amendments to sections 173A and 294 that remove the discretion of the judiciary to discharge or impose binding over sentences for offenders who were charged for a “serious offence” or those charged under the Domestic Violence Act.
While we do not take “serious offence” or domestic violence lightly, we are of the view that judicial discretion in sentencing is an essential aspect of judicial power under our legal system. Judges are not automatons designed to sentence mechanically. They must be allowed to decide on the appropriate sentences for each individual cases, depending on their peculiar facts and circumstances, including by discharging or binding over certain offenders.
If the sentence in a particular case is too lenient or insufficient, the appropriate recourse is to appeal the sentence, not to impose a blanket straightjacket on judicial discretion in sentencing. To deprive the judiciary of such discretion and to force them to impose harsh or custodial sentences is an unnecessary fetter on their discretion and interferes with their independence and justice.
Lawyers for Liberty
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