Providing legal services to vulnerable communities

10 Feb 2010

Forty-eight year old Padma Weerasinghe could hardly believe her ears when a breathless neighbor informed her of the arrest of her only son. With thousands of questions running through her mind, she made her way to the Eppawala police station, in North Central Sri Lanka, where the young man was said to have been taken. At the police station, she came to know that her son Sujith Kumara had been arrested and detained on charge of theft, which the suspect vehemently and repeatedly denied. She was not allowed to speak to him but was informed that he would be produced before the Magistrate the following day.

The mother realised that she had to act fast to prove her son’s innocence but knew not where to seek help. Neither Padma nor her impoverished relatives had the means to retain a lawyer to defend Sujith. Upon being produced in the Thambuttegama Magistrate court, Sujith was remanded and an identification parade was ordered to be held.

It was a few days later that Padma came to know of the newly-established legal aid desk in the District of Anuradhapura, in the North Central Province of the country, which rendered free legal services on behalf of crime suspects. On the information gathered from the distressed mother, the Legal Officer of the Anuradhapura criminal defense legal aid desk visited Sujith who swore his innocence and claimed that the police have falsely implicated him on personal vendetta.
Having collected all the information relating to the suspect, the LAC officer visited the suspect in remand prison, where he was scheduled to be presented for the identification parade. Here, he learnt that the complainant had visited previously and seen the suspect in prison, thereby clearly undermining the purpose of the identification parade.

Representing the suspect when he was next produced before the Magistrate, the Legal Officer objected to the identification parade. As a result, the holding of the identification parade was cancelled and Sujith was released. 
One of the key indicators of a country’s protection of human rights in criminal proceedings is said to lie in the degree of substantive and effective defense afforded to a criminal defendant. This ‘defense’ consists principally of a defendant’s right to access and be represented in court by a professional defender possessing the knowledge and skill to present his case. This right flows from the two basic principles of law that a person is presumed innocent until proven guilty, and is therefore entitled to a fair hearing and equal protection of the law.

In Sri Lanka, Article 12 of the Constitution guarantees equal protection of the law to all persons. The essential corollary of this fundamental right is equal access to justice, the foundation upon which the notion of legal aid is based. The provision of legal aid for criminal defendants has received specific statutory recognition in Section 260 of the Code of Criminal Procedure Act whereby every person charged before a criminal court has the right to be defended by an Attorney-at-Law.

However, the Act makes express provision for legal aid in criminal defense only with regard to matters before the High Court (by way of an assigned counsel) and the Court of Appeal, thus leaving out the vast majority of accused tried in the Magistrate’s Court from the right to legal aid. Accordingly, free legal services given by legal aid providers in the country have hitherto been confined to civil matters, including a majority of family, land and fundamental rights issues.  

This lacuna in the law was addressed in 2007 with the promulgation of the International Covenant of Civil and Political Rights Act which in Section 4 (1) (c) clearly recognized the right of a person charged of a criminal offence to legal assistance. To give effect to this right, the Equal Access to Justice (EA2J) Project in conjunction with the Legal Aid Commission (LAC) set up seven desks providing legal aid exclusively for criminal defense for the first time in Sri Lanka.
The desks, located in Jaffna, Vavuniya, Trincomalee, Batticaloa, Anuradhapura, Hambantota and Nuwara Eliya are mandated to provide legal assistance in criminal defense with respect to matters before the Magistrate’s courts, where the system of ‘assigned counsel’ does not operate.

The Legal Officer in charge of each desk will provide free legal assistance in criminal litigation for accused with less than Rs. 6,000 earnings per month, whereas counseling on criminal matters will be available to all, irrespective of income level. In addition, the desks will provide legal aid with regard to cases where the police have falsely implicated an accused, or where the accused is charged for the first time with an offence relating to illicit liquor or drugs.

However, the service will not be available for habitual offenders, persons accused of child abuse, and persons charged with indictable offences in which case the accused will be entitled to an assigned counsel.

In a majority of criminal cases, direct evidence to associate an accused with the offence he/she is charged with is hard to come by. In view of such uncertainty as to the guilt of an accused (until so determined by a court) and given the numerous points at which the investigation of a crime could possibly be twisted, manipulated and fiddled with, it is imperative that suspects of crime receive legal assistance to prove their innocence in court.      

As the cliché goes, ‘better that ten guilty persons escape, than that one innocent suffer’ (William Blackstone).