'Incarcerated without granting bail negates petitioners' Fundamental Rights'

Wasantha Ramanayake

COLOMBO: The Supreme Court holding that the Fundamental Rights of some 205 illegal migrants had been violated by their long standing incarceration directed Magistrate Courts to decide on their continued detention in accordance with the procedure applicable to persons accused of non-bailable offenses.

Delivering the Judgement in the Fundamental Rights applications filed by 205 illegal migrants who had been incarcerated without granting bail until the conclusion of the cases pending against them, Chief Justice Sarath N. Silva PC observed that the continued detention of large numbers would negate the Fundamental Rights of the petitioners.

"Continued detention of such large numbers necessarily resulting in over crowding in prisons, without proper adjudication of the basis of their detention negates the very essence of the fundamental rights guaranteed by Article 13(2) of the Constitution," observed the Chief Justice.

The CJ noted that it was matter of urgency in view of the continuing flow of complaints from persons in custody without adjudication by any court of Law as to the basis of their detention. He noted" it was submitted that 10 days ago a female suspect in the Negombo Prison being one of the petitioners who was held in a crowded cell died, since their was no response to urgent appeals for medical assistance when she fell ill in the night."

Petitioners including V. Sumanadasa of Makola South stated that they were remanded under the Act for not having valid passport and visa. They stated that they were in the remand without being released on bail until the final conclusion of their respective cases in violation of their fundamental rights.

A recent Supreme Court Judgment delivered by the Justice Dr. Shirani Bandaranayake interpreting the Section 47(1) of the Immigrants Act noted that the suspects charged under the Act had to be in remand custody until the conclusion of the trial with out any remedy.

"It is clearly evident that the effect of Section 47(1) of the Immigrants Act is that no person accused of such an offence shall be admitted to bail. The restriction thus devolves on an accused, who would have to be incarcerated without a remedy until the conclusion of the trial," she observed.

She noted that this situation created the conflict between the fundamental rights and the Immigrants Act and noted that the legislature viz. the Parliament should make necessary amendments.