By The Pulseline News Desk
The Government’s proposed amendments to the Prevention of Organised Crimes Bill (POCB) have addressed several concerns raised before the Supreme Court, including provisions affecting media freedom, warrantless searches and the identification of criminal gang members through tattoos. According to report, however, some of the most controversial powers granted to the police and the executive remain largely unchanged.
While the proposed amendments seek to reduce the period a suspect can be held in police custody before being produced before a Magistrate from 72 hours to 48 hours, the Bill continues to allow detention for up to one year under orders issued by an executive authority.
The revised provisions have reportedly also retained the requirement for Magistrates to give effect to such detention orders, raising questions about the extent of judicial discretion in determining whether suspects should remain in custody.
The Attorney General’s Department had informed the Supreme Court that the proposed amendments would be incorporated at the Committee Stage of Parliament. Solicitor General Viraj Dayaratne had also indicated that the Government was prepared to consider further proposals.
The changes follow challenges to the Bill before the Supreme Court, where 26 petitions were filed, including objections raised by the Bar Association of Sri Lanka (BASL).
Amendments go beyond President’s initial assurances
President Anura Kumara Dissanayake had announced on November 5 that the Government was prepared to amend three key provisions: reducing the 72-hour detention period to 48 hours, removing the use of tattoos as an indicator of criminal gang membership and excluding offences under the Excise Ordinance from the proposed legislation.
He had also indicated that the Government was willing to engage with parties raising concerns over human rights and fundamental freedoms.
However, the revised draft has contained several additional changes, including the complete removal of a provision requiring prior court approval before reporting on judicial proceedings.
The Government has also proposed restricting warrantless searches and strengthening legal protection for confidential communications between lawyers and their clients.
Media freedom provisions revised, but concerns remain
One of the most significant changes concerns Section 14(3), which had originally made it an offence to publish information about judicial proceedings relating to serious offences under the proposed legislation without prior court approval.
The provision had carried a possible prison sentence of up to two years.
BASL had challenged the provision, arguing that it could undermine media freedom and the principle of open justice.
The Government has now proposed removing it entirely.
However, concerns remain over Section 56, which criminalises the disclosure of information that could prejudice an investigation. The offence carries a maximum prison sentence of 10 years.
The BASL has warned that this provision could potentially be used against journalists, whistleblowers and individuals exposing police misconduct, particularly where information is disclosed in the public interest.
Tattoo provision removed, but association remains a factor
The revised Bill has also removed the provision allowing courts to consider clothing styles, hand signals, language and tattoos associated with criminal groups when determining whether an individual belongs to such a group.
However, Section 4(2)(d) continues to allow courts to consider an individual’s associations with prominent members of criminal groups.
The wording has been changed from “association” to “suspicious association”, although the revised draft does not clearly define what constitutes a suspicious association.
Other changes reportedly require individuals to have knowingly attended meetings with criminal group members or knowingly received financial or other benefits from such groups for these factors to be considered.
One-year detention provision remains
Despite the reduction of the initial police custody period from 72 hours to 48 hours, the Bill’s longer-term detention provisions remain a major concern.
Under Section 21(3), detention orders can be issued for periods of two months at a time, extending up to a maximum of one year.
The authority to issue these orders rests with the Secretary to the Ministry responsible for the Police.
Although provisions exist for High Court supervision when detention is extended, the initial detention order is issued by an executive official.
Furthermore, Sections 19(4) and 20(3) have not been amended.
Under these provisions, a suspect cannot be released without first being produced before a Magistrate. If an executive detention order is presented, the Magistrate is required to give effect to it. If no such order is presented, the suspect must be remanded.
Consequently, the revised provisions have not established a clear alternative for releasing a suspect at that initial stage, even where questions arise about the grounds for the arrest.
The Bill also continues to exclude Sections 115 and 116 of the Criminal Procedure Code, which ordinarily provide procedures for police to submit investigation reports and summaries of witness statements when producing suspects before court while investigations remain incomplete.
Police confessions remain admissible
Another contentious area concerns Sections 46 and 47, which deal with confessions and statements obtained by police officers.
The provisions effectively remove certain restrictions under the Evidence Ordinance on admitting police confessions as evidence.
Section 47 allows statements obtained before a police officer not below the rank of Assistant Superintendent of Police to be used as evidence, even where they amount to confessions.
These provisions have reportedly been retained in the revised draft.
However, some additional safeguards have been introduced. Where technical problems prevent audiovisual recording of questioning, prior approval from a Magistrate must be obtained before questioning proceeds without recording. The suspect must subsequently be produced before a Magistrate within 12 hours.
Warrantless searches and surveillance powers
The Government has also proposed amending Section 17 to establish the general requirement for a search warrant before police enter and search premises.
An exception remains where waiting for a warrant could allow a suspect to escape or evidence to be concealed, provided the reasons for conducting the search without a warrant are recorded.
Nevertheless, the Bill has retained extensive investigative powers.
These include provisions allowing police to obtain armed forces assistance for arrests, monitor communications and access information from telecommunications providers.
Section 44(4), for instance, has allowed a police officer not below the rank of Deputy Inspector General to obtain certain subscriber identification details, call records and mobile tower location information without a Magistrate’s order.
The legislation has also provided for obtaining financial information from banks and other financial institutions.
Concerns have reportedly been raised over privacy, judicial oversight and the potential misuse of these powers have not been substantially addressed through the proposed amendments.
Further legal concerns remain
The revised draft has also introduced changes to the criminal liability of company directors, the treatment of suspects in custody and the protection of lawyer-client confidentiality.
However, several other provisions reportedly remain unchanged, including those relating to the use of certain witness statements and documents as evidence, the consideration of previous conduct when determining criminal group membership, and the confiscation of property belonging to third parties.
The BASL has also raised concerns over mandatory punishments and restrictions on early release.
The amendments have therefore represented a series of significant changes to the original Bill, particularly in areas relating to media freedom, searches and certain procedural safeguards.
However, the retention of executive detention orders, the admissibility of police confessions and extensive investigative powers means that several fundamental concerns raised before the Supreme Court remain.
With 26 petitions challenging the legislation, the proposed amendments are likely to remain central to the debate over how the Government intends to balance the fight against organised crime with constitutional safeguards, individual liberties and judicial oversight.
Leave a comment