20 May 2015
Serious concerns on amendments to the Criminal Procedure Code
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Of utmost concern is the new sections 265A, 265B and 265C that had previously been withdrawn in December 2013 due to strong opposition but they are now being reintroduced without any clear explanation as to what had transpired since then to merit such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 282 and 294 that remove the discretion of the judiciary to impose concurrent sentences (and therefore can only impose consecutive sentences) or to impose binding over sentences for first offenders who were charged for a “serious offence”.
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.
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.
Further, there is a whole new chapter XLIA of provisions relating to organised crime that confer extremely wide and arbitrary powers to the authorities to investigate, obtain information, seize immovable and movable property, seize movable property in financial institutions, seize businesses etc.
While we understand and accept that the authorities need innovative and modern methods to tackle organised crime, this however must be done in accordance to international law enforcement norms and best practices that also provide for limited powers and checks and balances.
We therefore propose that a bipartisan parliamentary select committee be set up to study the proposed amendments as debates in parliament are usually inadequate and a foregone conclusion, a rubber stamp in favour of the government.
Lawyers for Liberty
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