009-SLLR-SLLR-2010-V-1-WICKRAMASINGHE-vs.-ATTORNEY-GENERAL-AND-ANOTHER.pdf
CA
Wickramasinghe vs. Attorney General and. another
141
WICKRAMASINGHE VS. ATTORNEY GENERALAND ANOTHERCOURT OF APPEALSISIRA DE ABREW. J.
ABEYRATNE. J.
LECAM VASAM. J.
CA (PHC) 39/2009HC NEGOMBO HCAB 490/2006DECEMBER 8, 2009JANUARY 22, 2010
Bail Act 30 of 1997 – Section 2, Section 3 (1), Section 14, Section 16,Section 17- Could a suspect be kept on remand for a period exceeding24 months? – Should Section 16 – Section 17 of the Bail Act be readsubject to Section 14 ? – What is the purpose of remanding a suspect/accused? – What is the maximum period that a suspect to whom the BailAct applies can be kept on remand? – Interpretation of Statutes -Prevention of Terrorism (Sp. Prov.) Act 48 of 1979.
The accused was arrested on 28.9.2006 in connection with the offenceof murder. The High Court on 30.3.2009 refused bail. The accused hadbeen on remand for 3 years and 5 months. The accused sought to revisethe said order.
Held:
Grant of bail shall be regarded as the rule the refusal to grant bailis the exception.
Per Sisira de Abrew. J.
“The purpose of remanding a suspect/accused is to ensure hisappearance in Court on each and every day that the case is calledin Court; if the Court feels that, he would appear in Court after hisrelease on bail Court should enlarge him on bail. Court should notremand a suspect/accused in order to punish him”.
Section 14, Section 16, Section 17 of the Bail Act do not state that“Notwithstanding anything to the contrary in the provisions of theAct – but Section 16 states ‘subject to the provisions of Section 17,and it does not state subject to the provisions of Section 14 -therefore Section 16 and Section 17 are not subject to Section 14.
142
Sri Lanka Law Reports
[2010] 1 SRIL.R.
When one considers Section 3 and Section 16 it is clear that thesuspect/accused to whom the Bail Act does not apply can be kepton remand for a period exceeding two years but not the suspectsto whom the Bail Act applies.
Per Sisira de Abrew. J.
“The maximum period that a suspect to whom the Bail Act Appliescan be kept on remand is 2 years, the period of 2 years is consid-ered only if the Attorney General acts under Section 17. If thereis no application under Section 17 the maximum period that asuspect/accused to whom the Bail Act applies can be kept onremand is 1 year”.
Held further
The mere fact that the results of applying a statute may be un-just or absurd does not entitle this Court to refuse to put it intooperation, it is however common practice that if there are twodifferent interpretations, so far as the grammar is concerned of thewords in the Act the Courts adopt that which is just reasonableand sensible rather than one which is or appears to them to benone of those things.
The role of the Judge is to give effect to the expressed intentionof Parliament, as it is the bounden duty of any Court and thefunction of every Judge to do justice within the stipulatedparameters.
APPLICATION in Revision from an order of the High Court, Negombo
refusing bail.
Case referred to:
Jayawathie vs. Attorney General – CA 189/2004 CAM 27/4/2006(Overruled)
Holmen vs. Bradfiled Rural District Council – 1949 2 KB 1 at 7
Sebestian Fernando vs. Katana MPCS – 1900 – 1 Sri LR 342 (SC)
Attorney General vs. Sumathipala – 2006 2 Sri LR 126
Senerath Jayasundera for petitioner.
Vijith Malalgoda SSC for respondent.
CA
Wtckramasinghe vs. Attorney General and another
(Sisina de Abrew, J.)
143
March 04th 2010SISIRA DE ABREW, J.
The accused in this case was arrested on 28.09.2006in conection with an offence of murder. Learned High CourtJudge has, by his order dated 30.03.2009, refused to grantbail. The accused has been on remand for over a period ofthree years and five months. The Petitioner has filed thispetition to revise the said order of the learned High CourtJudge. Learned Counsel for the Petitioner contended that inview of sections 16 and 17 of the Bail Act No. 30 of 1997(Bail Act) the accused cannot be kept on remand for a periodexceeding 24 months. Learned DSG citing M. H. Jayawathivs. Attorney General111 contended that a suspect could bekept on remand for period exceeding 24 months. His Lord-ship Basnayake in the said case decided that Sections 16 and17 of the Bail Act must be read subject to Section 14 of theBail Act. His Lordship therefore held that a suspect could bekept on remand for a period exceeding 24 months. Thereforethe most important question that must be decided in thiscase is whether Section 16 and 17 of the Bail Act should beread subject to Section 14 of the Bail Act. When consideringthis question one must consider whether the Bail Act shouldapply to any suspect taken into custody in respect of anyoffence. To find an answer to this question, Section 3(1) of theBail Act should be considered. It reads as follows:
“Nothing in this act shall apply to any person accusedor suspected of having committed, or convicted of, an offenceunder, the Prevention of Terrorism (Temporary Provisions) ActNo. 48 of 1979, Regulations made under the Public SecurityOrdinance or any other written law which makes expressprovision in respect of the release on bail of persons accused orsuspected of having committed, or convicted of, offences undersuch other written law. ”
144
Sri Lanka Law Reports
12010] 1 SRI LR.
When Section 3 of the Bail Act is considered it is seenthat the Bail Act shall not apply to a person accused orsuspected of having committed or convicted of an offenceunder
The Prevention of Terrorism (Temporary Provisions) ActNo 48 of 1979,
Regulations made under the Public Security Ordinance,or
Any other written law which makes express provisionsin respect of the release on bail of persons accused orsuspected of having committed, or convicted of, offencesunder such other written law.
It is therefore seen that when the legislature enacted theBail Act it was not the intention of the legislature to releaseeach and every suspect who has been on remand for periodexceeding 24 months. Thus the legislature when enactingthe Bail Act, did not intend to keep each and every suspecton remand for an period. In this connection one must notforget Section 2 of the Bail Act. It says that grant of bailshall be regarded as the rule and the refusal to grant bailas the exception. His Lordship Justice Basnayake in M.H.Jayawathi vs. Attorney General (supra) observed thus:
“Only cases that fall outside section 14 would comeunder sections 16 and 17. To that extent section 16 and17 are subject to section 14.” If this position is going to beaccepted where would we draw the line? If the above positionis correct can a suspect who has been on remand for a periodexceeding five years be kept on remand. If such a person isconvicted and sentenced he would have served a good part ofhis sentence. Further I ask the question: Can a suspect be kepton remand without being prosecuted for an indefinite period?In finding an answer to this question I would like to considera judicial decision considered by His Lordship Basnayakein Jayawathi’s case (supra). Holmen vs. Bradfield. Rural
CA
Wickramasinghe vs. Attorney General and another
(Sisira de Abrew, J.)
145
District Council® Fennimore J said: “Of course the mere factthat the results of applying a statute may be unjust or absurddoes not entitle this court to refuse to put it into operation.It is, however, common practice that if there are two differentinterpretations, so far as the grammar is concerned, ofthe words in the Act, the courts adopt that which is just,reasonable and sensible rather than one which is, or appearsto them to be, none of those things.” Assuming that thereare two different interpretations of the words in the Bail Act,is it reasonable, sensible or justifiable to keep a suspect oraccused on remand indefinitely without being prosecuted?I think not. For these reasons I think that courts will haveto interpret the law giving a meaningful interpretation tothe intention of the legislature. In this regard it is pertinentto consider a passage of the judgment of Justice Fernandoin Sebestian Fernando vs Katana MPCS3) “Statutes whichencroach upon the rights of the citizen have to be “strictly”construed: they should be interpreted, if possible, to respectsuch rights, and if there is any ambiguity, the constructionwhich is in favour of the freedom of the individual shouldbe adopted. Statutes which impose pecuniary burdens orpenalties are subject to the same rule. If there are tworeasonable constructions, one of which will avoid the penalty,that construction must be preferred.”
A bench of five judges of the Supreme Court in AttorneyGeneral vs. Sumathipalaw observed: “A judge cannot under athin guise of interpretation usurp the function of the legisla-ture to achieve a result that the judge thinks is desirable inthe interests of justice. Therefore the role of the judge is togive effect to the expressed intention of Parliament as it is thebounden duty of any court and the function of every judge todo justice with in the stipulated parameters.” [Justice ShiraniBandaranayake at 143].
Justice Dr. Amerasinghe in his book titled ‘JudicialConduct, Ethics and Responsibilities’ page 284 expressedthe view thus: The function of a judge is to give effect to the
146
Sri Lanka Law Reports
[2010)1 SRIL.R.
expressed intention of the Parliament. If legislation needsamendment, because its results in injustice, the democraticprocess must be used to bring about the change. This hasbeen the unchallenged view expressed by the Supreme Courtof Sri Lanka for almost a hundred years.”
Purpose of remanding a suspect/accused is, in my view,to ensure his appearance in Court on each and every day thatthe case is called in Court. If the Court feels that he wouldappear in Court after his release on bail, Court shouldenlarge him on bail. Court should not remand a suspect/accused in order to punish him.
Sections 14, 16 and 17 of the Bail Act are as follows:
Section 14 (1): “Notwithstanding anything to the contraryin the preceding provisions of this Act, whenever a personsuspected or accused of being concerned in committing orhaving committed a bailable or non-bailable offence, appears,is brought before or surrenders to the Court having jurisdiction,the Court may refuse to release such person on bail or uponapplication being made in that behalf by a police officer, andafter issuing notice on the person concerned and hearing himpersonally or through his attorney-at-law, cancel a subsistingorder releasing such person on bail if the court has reason tobelieve:
that such person would
Not appear to stand his inquiry or trial:
Interfere with the witnesses or the evidence againsthim or otherwise obstruct the course of justice; or
(Hi) Commit an offence while on bail; or
That the particular gravity of, and public reaction to, the
alleged offence may give rise to public disquiet.
(2) Where under subsection (1), a court refuses to release on
bail any person suspected or accused of being concerned
CA
Wickrumasinghe vs. Attorney General and another
(Sisira de Abrew, J.)
147
in or having committed an offence or cancels a subsistingorder releasing such person on bail, the court may ordersuch suspect or accused to be committed to custody.
The court may at any time, where it is satisfied that therehas been a change in the circumstances pertaining tothe case, rescind or vary any order made by it undersubsection (1).”
Section 16 “Subject to the provisions of section 17,unless a person has been comncted and sentenced by a court,no person shall be detained in custody for a period exceedingtwelve months from the date of his arrest
Section 17 “Notwithstanding the provisions of section 16,on application made in that behalf by the Attorney-Generalat, the High Court holden in any Zone or a High Court estab-lished under Article 154P of the Constitution may, for goodand sufficient reasons that shall be recorded, order that aperson who has not been convicted and sentenced by aCourt, be detained in custody for a period in excess of twelvemonths:
Provided that the period of detention ordered under thissection, shall not in any case exceed three months at a timeand twelve months in the aggregate.”
Does section 14 of the Bail Act say that ‘notwithstand-ing anything to the contrary in the provisions of this Act?’The answer is no. Does it say “Notwithstanding the provisionsof section 16 and 17 of the Bail Act? The answer is no. Butsection 16 of the Bail Act says ‘subject to the provisions ofsection 17…. ’It does not say ‘subject to the provisions ofsection 14… “For the above reasons, I hold that section 16and 17 of the Bail Act are not subject to the provisions ofsection 14.
Contention that a suspect/accused who completes twoyears on remand will be arrested on the following day of his
148
Sri Lanka Law Reports
[2010] 1 SRI L.R.
release on bail for an offence that may be committed by himand therefore he should not be released on bail is, in myview, untenable because in such an event it is the duty ofthe prosecution to have the case concluded within a periodof two years. Contention that in this country it takes morethan two years to conclude a criminal case and therefore theintention of the legislature was, when enacting the Bail Act, tokeep a suspect/accused on remand for more than two yearsis also untenable because no one can say that the legislaturewas unaware of the situation of criminal courts of this countrywhen the Bail Act was being enacted. One can argue that thelegislature was aware of the situation of the criminal courtsand that was the very reason that it made provisions torelease suspects/accused to whom the Bail Act applies aftera lapse of two years. When one considers sections 3 and 16of the Bail Act it is clear that the suspects/accused to whomthe Bail Act does not apply can be kept on remand for aperiod exceeding two years but not the suspects to whom theBail Act applies. For these reasons I hold that the maximumperiod that a suspect to whom the Bail Act applies can be kepton remand is two years. The period of two years is consideredonly if the Attorney General acts under section 17 of the BailAct. If there is no application under section 17 the maximumperiod that a suspect/accused to whom the Bail act appliescan be kept on remand is one year. For these reasons, withdue respect to His Lordship Basnayake I am unable to agreewith the view expressed by His Lordship in M. H. Jayawathivs Attorney General (supra).
For the above reasons I set aside the order of the learnedHigh Court Judge dated 30.3.2009 and direct the learnedHigh Court Judge to release the accused on bail on suitableconditions.
ABEYRAHNE, J. – I agree.
LECAMWASAM, J. – I agree.
Application allowed.