SC upholds right of appeal against conviction in criminal offence

Everyone convicted of a crime shall have the right of his conviction and sentence being reviewed by a higher tribunal according to law. The right to appeal is also known as the right to be reviewed. The Human Rights Committee considers that the right to appeal is absolute.

A 3-member Supreme Court (SC) Bench comprising Justice Buwaneka Aluwihare PC, Justice Nalin Perera and Justice Prassanne Jayawardena PC, this week upheld the right of a person to file an appeal against a conviction in a criminal offence, and set aside a hitherto used precedent of refusing appeals for those charged under laws that do not expressly provide for appeals.

Justice Aluwihare PC, in his judgement, wrote that Sri Lanka is a State party to the International Covenant on Civil & Political Rights (ICCPR), where an inherent right of appeal is recognised against any conviction. Such a right is also granted under the provisions of the ICCPR Act passed by Parliament in 2007, to incorporate into domestic law the implementation of the ICCPR.

Paragraph 5 of Article 14 of the Covenant lays down that, “Everyone convicted of a crime shall have the right of his conviction and sentence being reviewed by a higher tribunal according to law. The right to appeal is also known as the right to be reviewed. The Human Rights Committee considers that the right to appeal is absolute.

The Judgement said that the ICCPR Act was enacted in the discharge of Sri Lanka’s obligation as a signatory to the Covenant and the main objective of the Act is to give effect to the Covenant, and the view of the Judge was that the Act must be referable to a jurisdiction, both to that confers validity to the objectives of the ICCPR and to facilitate enforceability of the Articles of the Covenant.

In this c a s e, M. Kanishka Gunawardhana was charged before the Magistrate’s Court under the Sri Lanka Bureau of Foreign Employment (SLBFE) Act No. 21 of 1985, on the basis that he demanded and received a sum of Rs 450,000 from one Illeperumage Dilhani Pradeepa for the purpose of securing her employment in Cyprus. He was found guilty as charged by the Magistrate.

Aggrieved by the judgment, the Accused-Appellant challenged the conviction by lodging an appeal in the High Court (HC). When the matter was taken up before the HC, an objection was raised on behalf of the Attorney General (AG), with the State Counsel contending that the Accused- Appellant has no right of appeal against a conviction, in terms of the provisions of the SLBFE Act No.21 of 1985.

The State based their argument on the principle that the right of appeal is neither a fundamental nor an inherent right, but a creation of a statute. It was contended on behalf of the AG that there can be no inherent right of appeal from any judgment for determination, unless an appeal is expressly provided for, by the law itself.

The basis of the objection appears to be, that the right of appeal is a substantive right and not a matter of procedure. The HC had upheld the objection on behalf of the State, dismissed the appeal without considering the merits of the case.

The accused appellant then appealed to the SC.

The SC judgement said that the issue at hand can be resolved by application of the provisions of the ICCPR Act No.56 of 2007, and ruled that the Accused-Appellant has a right of appeal against the conviction and sentence, to the HC.