Criminal Justice Commissions

Criminal Justice Commissions

AN ACT TO ENABLE THE APPOINTMENT OF CRIMINAL JUSTICE COMMISSIONS, TO PRESCRIBE THEIR POWERS AND PROCEDURE, TO FACILITATE THE PERFORMANCE OF THEIR FUNCTIONS, AND TO MAKE PROVISION FOR MATTERS CONNECTED WITH OR INCIDENTAL TO THE AFORESAID MATTERS.

BE it enacted by the Queen’s Most Excellent Majesty, by and with the advice and consent of the House of Representatives of Ceylon in this present Parliament assembled, and by the authority of the same, as follows: –

Short title.

1. This Act may be cited as the Criminal Justice Commissions Act, No. 14 of 1972.

Establishment of Criminal Justice Commissions.

2.

(1) Whenever the Governor-General is of opinion-

(a) that, within a specified period, whether generally or in a particular area or district, there have been committed, before or after the date of commencement of this Act,-

(i) offences in connection with, in the course of, or during, any rebellion or insurrection, or

(ii) offences in relation to currency or foreign exchange of such a scale and nature as to endanger the national economy or interest, or

(iii) widespread offences of destruction, damage or destroying of factories, industrial plant and other installations, whether public or private, and

(b) that the practice and procedure of the ordinary courts are inadequate to administer criminal justice for the purpose of securing the trial and punishment of the persons who committed such offences,

the Governor-General may, by warrant under the Public Seal of the Island, establish a Criminal Justice Commission (in this Act referred to as a ” Commission “) consisting of such number of Judges of the Supreme Court not exceeding five as shall be specified in the warrant with the terms of reference referred to in subsection (3) which shall be specified in the warrant.

(2) A Commission established under this Act shall be deemed to be a superior court of record.

(3) Subject to the other provisions of this Act, the terms of reference of a Commission shall be-

(a) to inquire into generally the circumstances which led to, and all other matters connected with or incidental to, the commission, during such period, of offences of the description and character set out in the warrant establishing the Commission issued under this Act;

(b) to inquire and determine whether any person or persons and if so what persons were or were not guilty of such offences; and

(c) to deal with the persons so found guilty or not guilty in the manner prescribed by this Act.

(4) Where a warrant establishing a Commission is issued by the Governor-General under the preceding provisions of this section in consequence of his opinion, under such provisions, expressed in the warrant, such opinion and such warrant shall be final and conclusive and shall not be called in question in any court or tribunal, whether by way of action, application in revision, appeal, writ or otherwise.

Appointment of members of a Commission.

3.

(1) In every case where a Commission is established under this Act, the Chief Justice shall appoint by name the Judges of the Supreme Court (of whom he may be one) who shall be the members of the Commission, the number of such Judges so appointed not exceeding the number specified in the warrant establishing the Commission.

(2) Where-

(a) the Chief Justice is a member of the Commission, he shall be the Chairman of the Commission; or

(b) the Chief Justice is not a member of the Commission, the Chief Justice shall name one of the members of the Commission to be suck Chairman.

(3) At any inquiry before a Commission, the determination of any question before the Commission shall be according to the opinion of the majority of the members of the Commission.

(4) In the event of the death or incapacity of a member of a Commission after an inquiry under this Act has commenced, the inquiry may continue and be concluded before the remaining members of the Commission :

Provided, however, that the Chief Justice may name another Judge of the Supreme Court in place of such member, and if he does so, it shall not be necessary for the Commission so re-constituted to hold such inquiry de novo, but the Commission shall be entitled to continue such proceedings from the stage at which they were at the time of such death or incapacity.

(5) Where, before the proceedings of any Commission are concluded, any member of that Commission reaches the age of retirement provided by law for the retirement of the Judges of the Supreme Court, he shall, notwithstanding such law, continue to hold office as a Judge of the Supreme Court and as a member of that Commission until the conclusion of the proceedings of that Commission.

(6) An inquiry by a Commission under this Act shall be commenced and held, with due regard to the interests of justice, as expeditiously as possible, and accordingly the Commission-

(a) may, where any pleader appearing for any person desires to address the Commission upon any question or matter, limit the duration of the address, and in such event require the address to be submitted in writing;

(b) may commence, or continue with, the inquiry notwithstanding that the pleader appearing for any person is absent or desires to withdraw from the case, or such person desires time to make a change of pleaders;

(c) may commence, or continue with, the inquiry in the absence of any person-

(i) if the Commission is satisfied that such person is evading arrest, or absconding, or feigning illness; or

(ii) with his consent; and

(d) shall take all such other steps as it may consider necessary for the purpose of enabling the inquiry to be expeditiously held.

(7) The members of a Commission shall be attend-ed on at any inquiry conducted by such Commission under this Act in the same manner as if they were Judges of the Supreme Court sitting at Assizes.

Change of Governor-General.

4. No warrant establishing a Commission issued under this Act shall lapse by reason of, or be otherwise affected by-

(a) the death, absence, resignation, retirement or removal of the Governor-General who issues the warrant; or

(b) the abolition of the office of Governor-General.

Jurisdiction of a Commission.

5. Every Commission shall have power and jurisdiction for the inquiry into crimes and offences committed throughout Ceylon of the description or character set out in the warrant establishing the Commission issued under this Act, and for determining whether any person is or is not guilty of any offence and to pass sentence on any person so found guilty.

Powers of a Commission.

6.

(1) A Commission shall have the following powers: –

(a) to procure and receive all such evidence and to examine all such persons as witnesses, as the Commission may think it necessary or desirable to procure or examine;

(b) to require the evidence of any witness to be given on oath or affirmation, such oath or affirmation to be that which could be required of the witness if he were giving evidence in – a court of law, and to administer or cause to be administered by an officer authorized in that behalf by the Commission an oath or affirmation to every such witness;

(c) to summon any person residing in Ceylon to attend any sitting of the Commission to give evidence or produce any document or other thing in his possession and to examine him as a witness or require him to produce any document or other thing in his possession;

(d) notwithstanding any of the provisions of the Evidence Ordinance or of any other written law, to admit any evidence which might be inadmissible in civil or criminal proceedings;

(e) to regulate the admission of the public to the inquiry before the Commission;

(f) to regulate the admission of the Press to such inquiry;

(g) to exclude the public from the inquiry or any part thereof;

(h) to exclude the Press from the inquiry or any part thereof;

(i) to require by written order the manager of any bank in Ceylon to produce, as specified in the order, any book or document of the bank containing entries relating to the account of any such person specified in the order as the Commission considers necessary, or to furnish, as so specified, certified copies of such entries;

(j) to prohibit by written order the manager of any bank in Ceylon from permitting or allowing the withdrawal of any funds standing to the credit of any account in that bank of any such person specified in the order as the Commission considers necessary, except any such reasonable withdrawal of such funds as may, from time to time, be approved in writing by the Commission;

(k) to require by written order the Commissioner of Inland Revenue or the Controller of Exchange to furnish, as specified in the order, all information available to any such officer relating to the affairs of any such person specified in the order as the Commission considers necessary, and to produce or furnish, as so specified, any document or a certified copy of any document relating to such person which is in the possession or under the control of any such officer;

(l) to require by written order the Controller of Immigration and Emigration to impound the passport and other travel documents of any such person as shall be specified in the order, being a person whose evidence may be necessary at any inquiry before the Commission, until such time as such order is revoked by the Commission by a subsequent written order, if any, issued to such Controller;

(m) to require by written order any such police officer as shall be specified in the order, whether by name or by office, to take all such steps as may be necessary to prevent the departure from Ceylon of any such person as shall be so specified, being a person whose evidence may be necessary at any inquiry before the Commission, until such time as such order is revoked by the Commission by a subsequent written order, if any, issued to such officer;

(n) to require by written order any such telecommunication authority or officer (within the meaning of the Telecommunications Ordinance) as shall be specified in the order, whether by name or by office, to produce, as so specified, any book or document containing entries relating to any message (within the meaning of that Ordinance), including any telex message, which is in the possession or under the control of any such authority or officer as the Commission considers necessary, or to furnish, as so specified, certified copies of such entries.

(2) Any person to whom an order is issued or given by a Commission under subsection (1) shall carry out such order, and in the event of his failing to comply with the preceding provisions of this subsection, he shall be guilty of an offence and shall, on conviction after summary trial before a Magistrate, be liable to a fine not exceeding two thousand rupees or to imprisonment of either description for a term not exceeding one year, or to both such fine and imprisonment.

Members of a Commission to be public servants and inquiries to be “judicial proceedings ” under the Penal Code.

7. The members of a Commission shall, so long as they are acting as such members, be deemed to be public servants within the meaning of the Penal Code, and every inquiry under this Act shall be deemed to be a judicial proceeding within the meaning of that Code.

Punishment of contempts.

8. Every offence of contempt committed against, or in disrespect of, the authority of a Commission and every offence declared under this Act to be punishable as a contempt of the Commission shall be punishable by the Commission, and for that purpose the provisions of section 47 of the Courts Ordinance shall, mutatis mutandis, apply in like manner and to the same extent as they apply in the case of an offence of contempt committed against, or in disrespect of, the authority of the Supreme Court.

Summons.

9.

(1) Every summons shall be under the hand of the Chairman of a Commission:

Provided that where a person has been appointed under section 19 to act as its Secretary, any such summons may, with the authority of a Commission be issued under the hand of the Secretary.

(2) Any summons may be served by delivering it to the person named therein, or if that is not practicable, by leaving it at or causing it to be sent by registered letter through the post to the last known place of abode of that person.

(3) Every person on whom a summons is served shall attend before a Commission at the time and place mentioned therein, and shall if so required give evidence or produce such documents or other things as are required of him and are in his possession or power, according to the tenor of the summons.

Failure to obey summons, to give evidence, &c.

10. If any person upon whom a summons is served under this Act-

(a) fails without cause, which in the opinion of a Commission is reasonable, to appear before the Commission at the time and place mentioned in the summons; or

(b) refuses to be sworn or, having been duly sworn, refuses or fails without cause, which in the opinion of the Commission is reasonable, to answer any question put to him touching the matters directed to be inquired into by the Commission; or

(c) refuses or fails without cause, which in the opinion of the Commission is reasonable, to produce and show to the Commission any document or other thing which is in his possession or power and which is, in the opinion of the Commission, necessary for arriving at the truth of the matters to be inquired into,

such person shall be guilty of an offence punishable as a contempt of the Commission.

Procedure and practice before a Commission.

11.

(1) The proceedings at any inquiry before a Commission shall be free from the formalities and technicalities of the rules of procedure and evidence ordinarily or normally applicable to a court of law and may be conducted by the Commission in any manner not inconsistent with the principles of natural justice, which to the Commission may seem best adapted to elicit proof concerning the matters that are being investigated.

(2) In particular, but without prejudice to the generality of the provisions of subsection (1), the following provisions shall apply at any inquiry before a Commission: –

(a) The Commission may at the inquiry, notwithstanding any of the provisions of the Evidence Ordinance, admit any evidence which might be inadmissible if those provisions were applicable.

(b) A confession or other incriminatory statement to whomsoever and in whatsoever circumstances made by any person who is alleged to have, or is suspected of having, committed an offence, may at any inquiry before the Commission be proved against such person, so, however, that if it is sought by or on behalf of such person to reduce or minimise the weight that shall be attached to such confession or incriminatory statement, the burden of proving the facts necessary to support such contention shall lie on such person.

(c) Where, at any time in the course of the inquiry, the Commission is of opinion that there are matters which call for an explanation by any person whose conduct is the subject of inquiry, such person, whether or not he intends to tender other evidence, shall, if called upon to do so by the Commission, be bound to give evidence and to answer any questions that may be put to him by the Commission or by counsel appearing to assist the Commission.

(d) A confession or other incriminatory statement made by an accomplice incriminating any other person suspected of having committed an offence shall be relevant and admissible against the latter person:

Provided, however, that the Commission shall attach only such weight to evidence against a person suspected of an offence proceeding from the confession or incriminatory statement of an accomplice as, in all the circumstances, appears to the Commission to be safe and just:

And provided further that such accomplice shall be called as a witness by the Commission or the counsel assisting the Commission and tendered for cross-examination:

And provided further that, if such accomplice gives evidence which is, in material particulars, different from such confession or statement, the Commission may disregard the evidence given by such accomplice and act on such confession or statement.

(e) Any statement referred to in paragraph (b) or paragraph (d) of this subsection shall not be rendered irrelevant or inadmissible by reason of the provisions of section 122 (3) of the Criminal Procedure Code.

(f)

(i) A report purporting to be under the hand of the Government Analyst or Assistant Government Analyst or any other officer acting in such capacity in regard to the identity, composition or character of any thing or matter submitted to him for examination or analysis stall be conclusive proof of the statements contained in such report without such person being called to testify at the inquiry.

(ii) The Commission may presume that the signature of such Analyst on such certificate is genuine and that he held the office of such Analyst at the time he signed such certificate.

(iii) The Commission may, if it thinks fit, summon and examine such Analyst as to the subject-matter of such certificate.

(g) A report purporting to be under the hand of a competent authority relating to the occurrence of certain events which have come within his knowledge in the course of his official functions or duties shall be conclusive proof of the statements contained in such report without such person being called to testify at the inquiry. Such report shall not contain any statement as to the identity of any person having been concerned in such occurrence.

Representation at any inquiry before the Commission.

12.

(1) Every person whose conduct is the subject of inquiry in proceedings before a Commission shall be entitled to be represented by one or more advocates or proctors; and any other person who may consider it desirable that he should be so represented may, by leave of the Commission, be represented in the manner aforesaid.

(2) The Attorney-General, the Solicitor-General, a Crown Counsel or pleader, generally or especially authorized by the Attorney-General, shall be entitled to appear in proceedings before a Commission and assist the Commission in the conduct of the inquiry.

Tender of pardon.

13. The Attorney-General may, at any time before or after the commencement of any inquiry before a Commission but before the conclusion of such inquiry, with a view to obtaining at such inquiry the evidence of any person, tender a pardon to such person, on the condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relating to any offences which are the subject of such inquiry:

Provided, however, that if the person who has accepted such tender has not complied with the condition on which the tender was made, a finding concerning such person for the offence in respect of which the pardon was so tendered may be made by the Commission at such inquiry.

Special provisions relating to custody.

14.

(1) The following provisions shall apply in the case of any person where a Commission has reasonable grounds for suspecting that such person may be or is implicated or concerned in any matter which may be or is the subject of any inquiry before the Commission, or may be or is implicated or concerned in any offence which may be or is the subject of such inquiry: –

(a) If the Commission is of opinion that such person ought to be taken into custody pending the completion of its inquiry into that matter or offence, the Commission may issue a written recommendation to any such authority as shall be specified therein, whether by name or by office, to take into custody, and to keep in custody, such person whose name shall be specified therein, until such time as a subsequent written recommendation, if any, is issued by the Commission to such authority under paragraph (b) of this subsection.

(b) Upon completion of any inquiry in so far as it relates to any particular person, the Commission may, if such person is in custody, issue a written recommendation to the authority under whose custody such person is, to release such person from, custody.

(c) Upon a written recommendation being issued by the Commission under paragraph (a) of this subsection, the authority to whom such recommendation is issued may arrest or cause to be arrested the person named in the recommendation and deliver such person to the Commissioner of Prisons or to a Superintendent of a prison designated by him to be detained in a prison established under the Prisons Ordinance.

(d) The powers of the Commission under this subsection shall not be in derogation of the powers of any other authority to arrest, detain or keep in custody any person under any other written law.

(2)

(a) Any person held in custody in any prison upon the order of a Magistrate at the time of the establishment of a Commission and suspected or accused of any offence which may be the subject of any inquiry before the Commission under this Act shall continue to remain in such custody, until he is released upon an order made by the Permanent Secretary to the Ministry of Justice.

(b) The provisions of paragraph (a) of this subsection shall have effect notwithstanding any order made by a Magistrate that such person shall be produced before him on any date.

(3) Where a person is in custody by reason of his having surrendered himself into the custody of any authority, at the time of the establishment of a Commission or thereafter, such person shall continue to remain in custody, until he is released upon an order made by the Permanent Secretary to the Ministry of Justice.

(4) The preceding provisions of this section shall not apply to the case of any person held in custody upon a detention order made under the Public Security Ordinance or any regulation made thereunder, and in the case of custody under such detention order, the order shall not be subject to recommendations made by a Commission under such preceding provisions.

Power of Commission to deal with persons found guilty or not guilty of offences.

15.

(a) Where in the course, or at the conclusion, of any inquiry before a Commission under this Act, the Commission is satisfied, having regard to the proceedings and upon consideration of the matters before it at such inquiry, that any person has not committed any offence which is the subject of such inquiry, the Commission shall make a finding that he is not guilty of such offence and shall acquit him.

(b) Where, at the conclusion of any inquiry before a Commission under this Act, the Commission is satisfied beyond reasonable doubt, having regard to the proceedings and upon consideration of the matters before it at such inquiry, that any person has committed any offence which has been the subject of such inquiry, the Commission shall make a finding that he is guilty of such offence and shall sentence him to any punishment, other than death, to which he might have been sentenced if he had been tried and convicted by the Supreme Court:

Provided that where the only sentence provided by law for any such offence is death, the Commission shall have the power and jurisdiction to sentence any person found guilty of any such offence to imprisonment of either description for life.

Presumption on production of record of evidence given by witnesses.

16. The presumptions which, under section 80 of the Evidence Ordinance, are applicable to the documents therein mentioned shall apply to every document produced before any court and purporting to be a record or memorandum of the evidence or any part of the evidence given by a witness examined before a Commission and purporting to be signed by the members thereof.

Special powers of the Attorney-General to issue a written information.

17.

(1) Where, at any time whether before or in the course of an inquiry before a Commission under this Act, the Attorney-General by writing under his hand informs the Commission that any person whose conduct is or might be the subject of an inquiry by the Commission has already been prosecuted in a criminal court established under the Courts Ordinance or that criminal proceedings against such person are pending or are in contemplation in any such court in respect of an offence arising out of such conduct, then the Commission shall be deemed for all purposes never to have had and not to have power and jurisdiction to find such person guilty or not guilty of such offence.

(2) The terms of reference specified in a warrant establishing a Commission issued under this Act, and the other provisions of this Act shall be read and construed subject to the preceding provisions of this section.

Protection of members of a Commission.

18. No civil or criminal proceedings shall be instituted against any member of a Commission in respect of any act bona fide done or omitted to be done by Mm as such member.

Appointment of Secretary and interpreters.

19.

(1) The Governor-General may appoint any person to act as Secretary to a Commission, and such person shall perform such duties connected with any inquiry before the Commission as it may order.

(2) A Commission may appoint any person to act as interpreter in any matter arising at any inquiry before the Commission, and to translate any book, document, or other writing produced at the inquiry.

Process issued under this Act to be exempt from stamp duty.

20. No stamp duty shall attach to, or be payable for, any process issued by or by the authority of a Commission.

Service of process.

21. Every process issued by a Commission shall be served or executed by the Fiscal.

This Act to prevail over any other law.

22. The provisions of this Act shall have effect notwithstanding anything to the contrary in any other law, whether written or otherwise.

Special provisions applicable to sentences imposed by the Commission.

23. Every sentence imposed by a Commission under the provisions of this Act upon any person shall be deemed to be a sentence imposed by the Supreme Court after trial under the provisions of the Criminal Procedure Code, and accordingly the provisions of Chapter XXV and Chapter XXVII of that Code shall, mutatis mutandis, apply in respect of such sentence.

Application of Chapter XVII of the Criminal Procedure Code.

24. The Minister of Justice may, by Order published in the Gazette, declare that such of the provisions of Chapter XVII of the Criminal Procedure Code as are specified in the Order shall, mutatis mutandis, apply for the purpose of enabling a Commission to charge persons for offences punishable by the Commission in like manner and to the same extent as they apply in the case of charges under that Code.

Findings and sentences under this Act to be final and conclusive.

25. Any finding made, or sentence imposed by a Commission under this Act shall be final and conclusive, and shall not be called in question in any court or tribunal, whether by way of action, application in revision, appeal, writ or otherwise.

Interpretation.

26. In this Act, the term ” offence ” shall have and bear the same meaning as in the Criminal Procedure Code.

Effect of this Act on the Ceylon (Constitution) Order in Council,1946.

27. Every provision of this Act which may be in conflict or inconsistent with anything in the Ceylon (Constitution) Order in Council, 1946, shall, for all purposes and in all respects, be as valid and effectual as though that provision were in an Act for the amendment of that Order in Council enacted by Parliament after compliance with the requirement imposed by the proviso to subsection (4) of section 29 of that Order in Council.

Period of validity of Act.

28. This Act shall continue in force for a period of eight years and shall thereupon cease to be in force:

Provided, however, that Parliament may, at any time thereafter, by a resolution passed by a simple majority, cause such Act to be brought into force for a period not exceeding five years at a time.