Untitled - International Commission of Jurists
Untitled - International Commission of Jurists
Untitled - International Commission of Jurists
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6.6. Admission <strong>of</strong> Confessions<br />
Emergency laws allowing “confessions” <strong>of</strong> guilty conduct made to an ASP and any<br />
<strong>of</strong>ficer above that rank and imposing the burden on the accused to prove that the<br />
statement was involuntary, have been subjected to severe critique, both domestically<br />
and internationally.<br />
In Theivandran’s Case, 542 the Supreme Court exhibited a sharp division <strong>of</strong> opinion on<br />
the question <strong>of</strong> the admissibility <strong>of</strong> confessions under the PTA. Justice C.V.<br />
Wigneswaran, writing a 26 page separate opinion was thoroughly disinclined to<br />
accept the contents <strong>of</strong> such confessions are solely sufficient to convict an accused in<br />
the absence <strong>of</strong> corroborative evidence. His warning was pertinent;<br />
After all, the general civilised law <strong>of</strong> the country frowns upon the admission as<br />
evidence <strong>of</strong> confessions to police <strong>of</strong>ficers. When a special politically<br />
motivated law admits them, significantly when such admission (Section 16(1)<br />
&(2) <strong>of</strong> the PTA) is incompatible with Articles 14(3)(g) and 14(2) <strong>of</strong> the<br />
ICCPR to which Sri Lanka is a signatory (Vide 27(15) <strong>of</strong> our Constitution and<br />
Justice Mark Fernando’s dictum in Weerawansa v. The Attorney General and<br />
Others (2000) 1 Sri Lanka Law Reports page 387 at page 409, the<br />
responsibility <strong>of</strong> the Court which sits without a jury increases manifold. The<br />
burden on the Judge is quite heavy in such instances. 543<br />
Justice Fernando however in this case, declined to go so far as affirming that<br />
confessions in such contexts should invariably be corroborated in order to be accepted<br />
and preferred instead to state that a presumption <strong>of</strong> truth attaches to such confessions.<br />
However, both judges agreed with the opinion <strong>of</strong> the third judge on the Bench, Justice<br />
Ameer Ismail that, on the facts <strong>of</strong> the case before Court, the confession lacked<br />
‘congruity and consistency’ 544 and therefore, that the Court <strong>of</strong> Appeal has erred in<br />
affirming the conviction <strong>of</strong> the appellant based solely upon the contents <strong>of</strong> the<br />
confession.<br />
In Singarasa v. Sri Lanka, 545 a detenu under the PTA filed an individual<br />
communication before the United Nations Human Rights Committee under the first<br />
Optional Protocol to the ICCPR, stating that inter alia, it was impossible for him to<br />
satisfy the burden imposed on him under Section 16(2) <strong>of</strong> the PTA to prove that the<br />
confession was extracted under duress and was not voluntary in terms <strong>of</strong> Section<br />
16(2), as he had been compelled to sign the confession in the presence <strong>of</strong> the very<br />
police <strong>of</strong>ficers by whom he had been tortured. He pleaded that his rights under Article<br />
14, paragraph 3 (g) <strong>of</strong> the Covenant (no one shall “be compelled to testify against<br />
himself or confess guilt”) were consequently violated.<br />
The Committee referred to the principle that no one shall "be compelled to testify<br />
against himself or confess guilt" which must be understood in terms <strong>of</strong> the absence <strong>of</strong><br />
542 SC Appeal No 65/2000, SCM 16.10.2002<br />
543 ibid.<br />
544 ibid.<br />
545 Nallaratnam Singarasa v. Sri Lanka, Communication No. 1033/2001, CCPR/C/81/D/1033/2001,<br />
adoption <strong>of</strong> views, 21.07.2004.<br />
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