Bail is the Rule and remand is the exception- Prolonged Pre-Trial Detention, Fundamental Rights, Equality Before the Law and Judicial Accountability in Sri Lanka: A Comparative Legal Research Study

Oct 29, 2026 at 10:43 AM

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Lanka Leader

Abstract

Personal liberty constitutes one of the fundamental constitutional values of a democratic state governed by the rule of law. A person accused of committing a criminal offence is entitled to the presumption of innocence until proven guilty according to law. 

Consequently, pre-trial detention should not be employed as a form of punishment.

Section 2 of the Bail Act, No. 30 of 1997, expressly recognises that granting bail is the general rule and refusing bail is the exception. Nevertheless, a significant number of individuals in Sri Lanka remain in remand custody for prolonged periods without their criminal trials being concluded.

This research examines the legality of prolonged pre-trial detention, its implications for fundamental rights guaranteed under Articles 11, 12 and 13 of the Constitution of Sri Lanka, the responsibilities of the judiciary and the executive, and the legal remedies available to individuals subjected to unlawful or excessive detention.

Particular attention is given to the decisions in Farook v Raymond, Weerawansa v Attorney-General, Wickramasinghe v Attorney General, and Thambiyah Prakash alias Dhanush v Attorney General.

The study further draws upon comparative jurisprudence from India and the European Court of Human Rights to evaluate the principles governing pre-trial detention, judicial delay, proportionality and the presumption of innocence.

The principal conclusion is that the legality of prolonged remand detention cannot be determined solely by reference to the justification for the initial arrest. Rather, it requires continuous judicial scrutiny of the necessity of detention, the progress of criminal proceedings, the proportionality of bail conditions and the resulting deprivation of personal liberty.

The study argues that prolonged pre-trial detention, particularly where attributable to systemic judicial delays, may undermine the presumption of innocence and the constitutional protection of personal liberty.

Keywords: Bail Law, Pre-Trial Detention, Personal Liberty, Fundamental Rights, Presumption of Innocence; Rule of Law, Judicial Accountability, Sri Lanka.

1. INTRODUCTION

In a state governed by the rule of law, the purpose of the criminal justice system is not confined to punishing offenders. It also includes the protection of the legal and constitutional rights of persons accused of criminal offences.

The arrest of a suspect, the institution of criminal proceedings, the determination of guilt and the imposition of punishment constitute distinct stages of the criminal justice process.

An arrest must satisfy the legal requirements governing reasonable suspicion and prescribed procedures. In contrast, a conviction in a criminal trial requires proof of guilt beyond reasonable doubt.

Consequently, the mere arrest of a person does not establish criminal guilt.

Nevertheless, where an individual remains in remand custody for five, ten or even more years without the conclusion of a criminal trial, the deprivation of liberty may, in practical terms, become comparable to a custodial sentence.

Such circumstances raise a fundamental question:

Does the continued deprivation of personal liberty for several years, without the conclusion of a criminal trial, constitute a necessary measure for the administration of criminal justice, or does it amount in substance to punishment imposed before conviction?

Addressing this question requires an examination of domestic bail legislation, constitutional guarantees, judicial decisions and international human rights standards.

It also requires an assessment of the institutional responsibilities of the police, prosecution authorities, courts and prison administration.

The central proposition of this research is that pre-trial detention must remain an exceptional measure justified by legitimate legal considerations, rather than becoming an automatic consequence of criminal prosecution

 2. Research Problem

The principal research problem concerns the apparent contradiction between the statutory recognition that bail is the general rule and the continued detention of certain suspects for prolonged periods without the completion of their criminal trials.

This raises several interconnected legal questions.

First, under what circumstances may prolonged remand detention become inconsistent with constitutional guarantees of personal liberty?

Second, what legal obligations arise when the duration of pre-trial detention becomes excessive?

Third, to what extent should judicial delays influence decisions concerning bail?

Fourth, how should courts balance the interests of public security and the administration of justice against the fundamental rights of accused persons?

Finally, what legal remedies are available where detention becomes unlawful, arbitrary or disproportionate?

2.1 Methodology

This study adopts a doctrinal and comparative legal research methodology.

Primary legal sources include the Constitution of Sri Lanka, the Bail Act, the Code of Criminal Procedure Act, the Prevention of Terrorism Act, the Release of Remand Prisoners Act and relevant judicial decisions.

Comparative legal analysis is undertaken through selected judgments of the Supreme Court of India and the European Court of Human Rights.

The research also examines international human rights standards, particularly Article 9 of the International Covenant on Civil and Political Rights.

3. The Fundamental   Legal Principle  Relating to  Granting   Bail

Section 2 of the Bail Act, No. 30 of 1997, establishes the fundamental principle that granting bail is the rule and refusing bail is the exception.¹

This provision reflects a legislative intention  and preference for personal liberty.

However, it does not confer an unconditional right to bail in every criminal proceeding.

Section 14 of the Bail Act permits the refusal of bail where legally recognised grounds exist.

Such grounds include

(a) The risk that the suspect may fail to appear before court,

(b)Interference  with witnesses, 

(c)Obstruct the administration of justice or 

(d)Engage in conduct relevant to the statutory grounds for refusing bail.

Nevertheless, the power to refuse bail must not be exercised for punitive purposes.

The distinction between preventive detention pending trial and punishment following conviction is fundamental to the legitimacy of the criminal justice system.

Furthermore, section 15 of the Bail Act recognises the importance of providing reasons for relevant judicial decisions concerning bail.

Judicial discretion in bail matters must therefore be exercised in accordance with statutory requirements and established legal principles.

4. Statutory  Limitations on the Duration of Remand Detention 

Section 16 of the Bail Act provides that, subject to section 17, a person who has not been convicted and sentenced shall not be kept in remand custody for a period exceeding twelve months from the date of arrest.²

Section 17 permits the High Court, upon an application by the Attorney-General, to extend the period of remand detention where sufficient grounds exist.

Such extensions must be supported by recorded reasons.

An individual extension may not exceed three months, while the aggregate period of extensions may not exceed twelve months.

Accordingly, in proceedings governed by these provisions, the statutory framework ordinarily limits remand detention to a maximum period of twenty-four months.³

However, this limitation must be understood in the context of the applicable legislation.

Special statutory regimes may contain different provisions governing detention and bail.

Consequently, the limits prescribed by the Bail Act cannot automatically be applied to every category of criminal proceedings.

In Wickramasinghe v Attorney General and Another [2010] 1 Sri LR 141, the Court of Appeal examined the relationship between sections 14, 16 and 17 of the Bail Act.

The Court emphasised that the purpose of remand detention is not to punish a suspect but to secure the proper administration of criminal proceedings.

It further clarified that section 14 should not be interpreted as permitting the indefinite circumvention of the statutory limitations contained in sections 16 and 17.⁴

This judgment constitutes an important domestic authority concerning the statutory limitations on prolonged remand detention.

It demonstrates that judicial discretion concerning bail must be exercised consistently with the legislative framework governing the duration of detention.

4. Current Statistical Position Regading the Remand Detention in   Sri  Lanka

According to the Department of Prisons' Prison Statistics of Sri Lanka 2025, the number of unconvicted prisoners recorded as at 31 December 2024 was 18,985.

The report identified the following categories of prolonged detention:

628 persons had remained in custody for more than two years.

347 persons had remained in custody for more than three years.

109 persons had remained in custody for more than five years.⁵

These figures do not establish that every instance of prolonged detention was unlawful.

The legality of detention must be assessed by reference to the applicable legislation, judicial orders and circumstances of each case.

Nevertheless, the existence of 109 unconvicted persons who had remained in custody for more than five years raises serious concerns regarding the efficiency of criminal proceedings and the continuing justification for deprivation of liberty.

Prolonged detention may result from several institutional factors, including 

(a) Delays in investigations, 

(b)Difficulties in obtaining forensic evidence, 

(c) The unavailability of witnesses,

(d) Repeated postponements and 

(e) Delays in prosecutorial proceedings.

Where such delays are attributable to the criminal justice system rather than the accused, the justification for continued detention requires particularly careful scrutiny.

5. Prolonged  Pre-Trial Detention  Aand Fundamental  Rights

 Article 13(1)- Protection Against Unlawful Arrest

Article 13(1) of the Constitution provides that no person shall be arrested except according to the procedure established by law.

The legality of an initial arrest does not necessarily establish the legality of every subsequent period of detention.

An arrest may initially be lawful, while the continued deprivation of liberty may subsequently become legally questionable.

This distinction is particularly important when evaluating prolonged remand detention.

 Article 13(2)- Judicial Supervision of Detention

Article 13(2) requires a person held in custody or otherwise deprived of personal liberty to be brought before the judge of the nearest competent court according to the procedure established by law.

Continued detention must be authorised in accordance with the applicable legal framework.

The purpose of this constitutional safeguard is to prevent arbitrary deprivation of liberty through the uncontrolled exercise of executive authority.

Judicial supervision must therefore provide meaningful legal protection rather than merely formal authorisation for continued custody.

 Article 13(5)-  Presumption of Innocence

Article 13(5) recognises the presumption of innocence.

A person charged with an offence is presumed innocent until proven guilty according to law.

This principle has significant implications for pre-trial detention.

A suspect who remains in custody for several years without a determination of guilt experiences a serious deprivation of liberty despite continuing to enjoy the constitutional presumption of innocence.

Although pre-trial detention is not necessarily inconsistent with that presumption, its prolonged duration requires careful justification.

The presumption of innocence would lose much of its practical significance if detention pending trial were routinely employed as a substitute for punishment.

Article 11- Freedom from Torture and Inhuman Treatment

Article 11 prohibits torture and cruel, inhuman or degrading treatment or punishment.

Prolonged detention does not automatically constitute a violation of Article 11.

However, the circumstances of detention may raise constitutional concerns.

Relevant considerations may include the duration of confinement, prison overcrowding, inadequate medical facilities, physical and psychological suffering, and the conduct of responsible authorities.

Where these factors reach the required legal threshold, issues concerning Article 11 may arise.

 Article 12(1)- Equality Before the Law

Article 12(1) guarantees equality before the law and the equal protection of the law.

The administration of bail should not be influenced by irrelevant considerations such as:

(a) Political influence, 

(b) Wealth or 

(c) Social status.

However, equality before the law does not necessarily require identical bail conditions for every accused person.

Rather, it requires the fair, consistent and non-discriminatory application of relevant legal principles.

This distinction becomes particularly important when courts determine monetary bail and surety requirements.

6. Analysis of  Case  Law   

Farook v Raymond-; Judicial Orders and Personal Liberty

Farook v Raymond and Others [1996] 1 Sri LR 217 is an important Sri Lankan decision concerning personal liberty and the constitutional implications of arrest and detention.

The case involved questions relating to the legality of arrest and detention pursuant to a judicial order.

The Supreme Court determined that the initial arrest violated Article 13(1) of the Constitution.

However, the Court also explained the limitations of its fundamental rights jurisdiction under Article 126 in relation to the judicial act concerned.⁶

The decision illustrates an important distinction.

The existence of an unlawful judicial order and the availability of a fundamental rights application under Article 126 are not necessarily identical legal questions.

Article 126 primarily concerns infringements of fundamental rights through executive or administrative action.

Consequently, where an alleged violation arises directly from a judicial decision, the appropriate remedy may require consideration of the applicable appellate, revisionary or other supervisory jurisdiction.

This distinction is essential when examining judicial accountability for unlawful detention.

Weerawansa  v Attorney General: National Security Legislation  Aand Personaln Liberty

In Weerawansa v Attorney-General and Others [2000] 1 Sri LR 387, the Supreme Court considered the legality of arrest and detention under the Prevention of Terrorism Act.

The judgment emphasised that powers exercised under national security legislation remain subject to the requirements and limitations established by law.⁷

The existence of special legislation relating to terrorism does not automatically eliminate constitutional protections.

Even where Parliament has authorised exceptional powers of arrest and detention, those powers must be exercised within the statutory framework.

The decision therefore provides an important basis for examining the relationship between national security, executive authority and constitutional liberty.

It also demonstrates that the invocation of national security cannot, by itself, justify detention that lacks a lawful basis.

Thambiah Prakash alias  Danush v Attorney General- 

Thambiyah Prakash alias Dhanush v Attorney General, CA/CPA/0054/2024, represents a significant recent development in Sri Lankan jurisprudence concerning prolonged remand detention and the granting of bail under special security legislation.

The Court of Appeal delivered its decision concerning bail on 17 July 2026.

The judgment was delivered by Justice Pradeep Hettiarachchi, with Justice P Kumararatnam agreeing.

The case is particularly relevant to the interpretation of exceptional circumstances justifying bail where an accused person has remained in remand custody for an extended period under the Prevention of Terrorism Act.⁸

Factual Background

Thambiyah Prakash, also known as Dhanush, was arrested in August 2009.

According to published reports, he was approximately twenty-six years old at the time of his arrest.

An indictment was subsequently filed against him before the High Court of Colombo in September 2012.

The indictment reportedly contained 230 charges.

Of these, 115 charges were brought under the Prevention of Terrorism Act, while the remaining 115 were brought under emergency regulations.

A substantial number of prosecution witnesses had reportedly been identified.

These circumstances suggested that the completion of the criminal trial could require a considerable additional period.

The duration of detention and the anticipated delay in concluding the proceedings became central considerations in the application for bail.

Duration of Remand Detention

The applicant had been arrested in 2009.

By the time the Court of Appeal considered the application for bail, he had reportedly remained in remand custody for approximately fifteen years.

A distinction must, however, be drawn between the total calendar period following the arrest and the specific period of remand detention considered in the proceedings.

The period between August 2009 and July 2026 exceeds sixteen years.

Nevertheless, another published account referred to a period of approximately fourteen years and seven months of remand detention.

Accordingly, these periods should not be treated as interchangeable without reference to the complete judicial record.

The central legal issue remains the exceptional length of time during which the accused had been deprived of liberty without the conclusion of his criminal trial.

6.1. Section 15B of the Prevention of Terrorism Act

The Prevention of Terrorism (Temporary Provisions) (Amendment) Act, No. 12 of 2022, introduced section 15B into the principal legislation.

This provision recognises judicial authority to grant bail in circumstances satisfying the statutory requirements.

The central question in the Thambiyah case was whether prolonged remand detention, together with the delay in completing the criminal trial, could constitute exceptional circumstances warranting bail.

The case therefore required the Court of Appeal to consider the relationship between statutory restrictions on bail and the consequences of prolonged deprivation of liberty.

6.2. Decision of the Court of Appeal

According to published accounts of the judgment, the Court of Appeal concluded that the prolonged detention of the applicant and the likelihood of further delay in completing the trial constituted exceptional circumstances relevant to the granting of bail.

It was also reported that the Court considered whether the High Court had adequately taken account of the legislative purpose of the 2022 amendment when refusing bail.

The Court of Appeal accordingly set aside the High Court's refusal of bail and directed that bail be granted.

The principal legal proposition emerging from the reported decision may be expressed as follows:

Even where special national security legislation imposes restrictions on bail, prolonged remand detention and substantial delays in completing criminal proceedings may constitute relevant exceptional circumstances warranting judicial consideration of release on bail.

This proposition is particularly important in cases involving complex indictments, numerous witnesses and substantial delays in prosecution.

6.3.Bail Conditions Imposed

According to published reports, the Court of Appeal imposed the following bail conditions:

(a) Cash bail of Rs. 200,000.

(b) Four sureties, each entering into a bond of Rs. 5 million.

(c) Reporting to the relevant terrorism investigation authority once every two weeks.

(d) Surrender of the passport.

Compliance with the relevant judicial directions.

These conditions appear intended to secure the accused's attendance before court and address legitimate security considerations.

However, they also raise an additional question concerning the practical effectiveness of bail.

6.4.Granting Bail Without Securing Actual Release

A subsequent report published in 2026 indicated that Thambiyah Prakash and another accused person had reportedly remained in remand custody despite the granting of bail because they were unable to satisfy the conditions imposed.

This circumstance raises a particularly important legal issue.

A judicial order granting bail does not necessarily result in actual release if the accused lacks the financial resources or practical ability to comply with the prescribed conditions.

Consequently, the deprivation of liberty may continue even after a court has determined that bail should be granted.

The legal distinction is therefore between the formal granting of bail and the practical ability to obtain release.

Where bail conditions are beyond the realistic capacity of the accused, an order granting bail may fail to achieve its intended purpose of securing conditional liberty.

This issue should be examined in the context of section 11 of the Bail Act.

That provision requires consideration of the financial circumstances of the accused when determining the amount of bail and recognises that bail should not be excessive.

Accordingly, the proportionality and practical feasibility of bail conditions are important considerations in the administration of criminal justice.

6.5. Equality Before the Law and Financial Capacity

The Thambiyah case also raises a broader constitutional question concerning equality before the law.

A financially privileged accused person may be able to provide substantial cash bail and secure the assistance of several sureties.

By contrast, an economically disadvantaged accused person may be unable to satisfy identical requirements.

In such circumstances, the formal availability of bail may produce substantially different practical outcomes depending on financial capacity.

This raises questions concerning the relationship between monetary bail, substantive equality and Article 12(1) of the Constitution.

Nevertheless, it must be emphasised that this analysis does not establish that the bail conditions imposed in the Thambiyah case were judicially determined to violate Article 12(1).

Rather, it represents a constitutional question arising from the reported facts and the practical operation of monetary bail.

6. 6. Broader Legal Significance of the Decision

Three principal legal considerations emerge from the Thambiyah case.

First, prolonged remand detention may be relevant to the judicial assessment of exceptional circumstances even under legislation imposing special restrictions on bail.

Second, substantial delays in completing criminal proceedings may influence the justification for continued detention.

Third, bail conditions should be assessed not merely by reference to their formal legality but also in terms of proportionality and practical effectiveness.

The case therefore provides an important basis for examining the interaction between national security legislation, judicial delay and personal liberty in Sri Lanka.

6.7.The Thambiah Judgement and  International   Human Rights Standards 

Article 9(3) of the International Covenant on Civil and Political Rights provides that detention of persons awaiting trial shall not be the general rule.

It also recognises that release may be subject to guarantees securing appearance at trial and other relevant stages of judicial proceedings.

Article 9(4) provides the right to challenge the lawfulness of detention before a court.⁹

These provisions establish important international standards concerning personal liberty and judicial supervision of detention.

The circumstances arising in the Thambiyah case may be examined in light of these principles.

Relevant considerations include the length of detention, the reasons for delays in the criminal trial, the necessity of continued custody and the availability of less restrictive alternatives.

The principle of proportionality is particularly significant.

Where the objectives of criminal proceedings can reasonably be achieved through reporting requirements, travel restrictions or other appropriate conditions, continued detention may require stronger justification.

The international legal framework therefore supports the proposition that the necessity of pre-trial detention must remain subject to meaningful judicial assessment.

7. Comparative  Jurispruence  of Granting Bail- India 

State of Rajasthan v Balchand

In State of Rajasthan v Balchand (1977) 4 SCC 308, Justice V R Krishna Iyer emphasised the importance of liberty in decisions concerning bail.

The judgment is associated with the well-known principle "Bail, not jail".

The underlying proposition is that release on bail should ordinarily be preferred unless legally sufficient reasons justify detention.¹⁰

This principle is consistent with the general legislative policy reflected in section 2 of Sri Lanka's Bail Act.

However, the application of the principle remains subject to the applicable statutory framework and the circumstances of each case.

Hussainara Khatoon v Home Secretary, State of Bihar

In Hussainara Khatoon v Home Secretary, State of Bihar (1979) 3 SCC 532, the Supreme Court of India recognised the importance of a speedy trial as an essential component of personal liberty.¹¹

The case arose in the context of prolonged detention of undertrial prisoners.

 Court emphasised that delays in criminal proceedings could seriously undermine the constitutional protection of liberty.

The decision is particularly relevant to criminal justice systems in which accused persons remain in custody for substantial periods while awaiting trial.

It illustrates the principle that the administration of justice must be evaluated not only by reference to the eventual outcome of proceedings but also by the fairness and timeliness of the process itself.

 Union of India v K A Najeeb

In Union of India v K A Najeeb (2021) 3 SCC 713, the Supreme Court of India considered the granting of bail under special anti-terrorism legislation.

The Court recognised that statutory restrictions on bail do not necessarily eliminate the relevance of constitutional guarantees where the completion of a criminal trial is subject to substantial delay.¹²

The decision is particularly useful for comparison with the Thambiyah case.

Both cases concern the relationship between special security legislation, prolonged detention and the protection of personal liberty.

The comparative significance lies in the recognition that the continuing justification for detention must be assessed in light of the actual progress of criminal proceedings.

8.Principles on Granting Bails  Developed  by the Europena Court  of  Human  Rights

Letellier v France (1991) 14 EHRR 83, 

In this case, the European Court of Human Rights examined the justification for continued detention pending trial.¹³

The Court recognised that reasonable suspicion may justify detention at an initial stage.

However, as time passes, the continuation of detention requires relevant and sufficient reasons.

The seriousness of the charges cannot, by itself, indefinitely justify deprivation of liberty.

This principle is important because it requires courts to distinguish between the justification for initial detention and the justification for its continuation.

Buzadji v Republic of Moldova

European Court of Human Rights further clarified the requirements governing pre-trial detention.

The Court emphasised that reasonable suspicion alone is insufficient to justify continued detention without relevant and sufficient additional grounds.¹⁴

The decision reinforces the principle that judicial authorities must provide proper justification for depriving an accused person of liberty pending trial.

This approach provides a useful comparative framework for evaluating prolonged remand detention in Sri Lanka.

In particular, it highlights the importance of continuous judicial scrutiny rather than reliance on reasons advanced at the time of the initial arrest.

9.State Responsibility for Unlawful  Detention 

Article 126 of the Constitution of Sri Lanka confers jurisdiction upon the Supreme Court in relation to infringements or imminent infringements of fundamental rights by executive or administrative action.

Under Article 126(4), the Supreme Court may grant such relief or make such directions as it considers just and equitable.

Such relief may include an award of compensation.

However, prolonged detention does not automatically create an entitlement to compensation.

A claimant must establish the relevant legal grounds and the infringement of an enforceable constitutional right.

The legal basis of the detention, the conduct of the responsible authorities and the availability of the constitutional remedy must therefore be examined.

In relation to the Thambiyah case, the granting of bail by the Court of Appeal does not, by itself, establish that the Supreme Court has determined that the applicant's fundamental rights were violated.

This distinction is important in maintaining analytical accuracy.

The judicial decision to grant bail and a judicial determination of constitutional liability are separate legal matters.

10.Judicial  Independence  and Judicial  Accountability 

Judicial independence is an indispensable requirement of the rule of law.

However, judicial independence does not mean that judicial powers may be exercised without regard to statutory limitations or established legal principles.

A Magistrate exercising the power to remand a suspect must act within the applicable legal framework.

The mere fact that the police request remand detention does not necessarily justify the granting of such an order.

The court must independently examine the relevant legal requirements and the necessity of detention.

Where the law permits bail, the availability of appropriate alternatives to detention should receive proper consideration.

Nevertheless, an important distinction must be maintained between judicial error and judicial misconduct.

An incorrect legal decision does not automatically establish personal liability or disciplinary misconduct on the part of the judicial officer.

Legal errors may be addressed through appeals, revisionary proceedings or other recognised judicial remedies.

Disciplinary responsibility, by contrast, requires consideration of the applicable constitutional and legal standards governing judicial conduct.

Judicial accountability must therefore operate consistently with judicial independence and the institutional requirements of the administration of justice.

11.Recommendations  for Legal and  Institutional  Reform

The preceding analysis demonstrates the need for reforms aimed at reducing unnecessary and prolonged pre-trial detention in Sri Lanka.

(A)Periodic Judicial Review of Remand Detention

Cases involving suspects who have remained in remand custody for more than six months should be subjected to a structured review process.

Such reviews should examine the continuing necessity of detention and the progress of criminal proceedings.

(B) Enhanced Scrutiny After Twelve Months

Where a suspect has remained in custody for more than one year, the responsible authorities should be required to provide an explanation concerning the progress of the case and the reasons for continued detention.

The court should consider whether the objectives of criminal proceedings can be achieved through appropriate bail conditions.

(C) Priority for Cases Involving Detention Exceeding Two Years

Criminal proceedings involving persons detained for more than two years should receive appropriate priority.

Such a system could reduce the risk of detention becoming disproportionate because of institutional delay.

(D) Proportionate Bail Conditions

Courts should take into account of the financial circumstances of accused persons when imposing monetary bail and surety requirements.

Conditions should be sufficient to secure the legitimate objectives of bail without becoming unnecessarily oppressive.

(E) Strengthening Legal Aid

Legal assistance should be made more accessible to economically disadvantaged suspects.

This is particularly important where individuals remain in custody because they lack the resources necessary to seek bail or satisfy bail conditions.

(F)Publication of Remand Detention Statistics

Regular publication of statistics concerning the duration of remand detention, reasons for postponement and outcomes of bail applications would improve institutional transparency.

Such information would also support evidence-based reform of the criminal justice system.

(G) Effective Remedies for Unlawful Detention

Legal mechanisms for obtaining compensation and other appropriate remedies should be strengthened where unlawful detention or violations of fundamental rights are established.

Such reforms should operate within the constitutional framework governing judicial remedies and state responsibility.

Conclusion

The fundamental principle governing bail in Sri Lanka is clear.

Granting bail is the general rule, while refusing bail is the exception.

This principle is expressly recognised in section 2 of the Bail Act, No. 30 of 1997.

It reflects the broader legal values of personal liberty, the presumption of innocence and the fair administration of criminal justice.

The decision in Thambiyah Prakash alias Dhanush v Attorney General represents an important recent development concerning prolonged remand detention under special national security legislation.

The case demonstrates that the duration of detention and delays in completing criminal proceedings may constitute significant considerations when determining whether exceptional circumstances justify bail.

However, the case also raises a further issue concerning the practical effectiveness of bail.

Where an accused person is unable to satisfy the conditions imposed by a court, an order granting bail may not result in actual release.

Consequently, the administration of bail must consider not only the legal justification for release but also the proportionality and practical feasibility of the conditions imposed.

The comparative jurisprudence of India and the European Court of Human Rights reinforces the importance of continuous judicial scrutiny of pre-trial detention.

The initial existence of reasonable suspicion cannot necessarily justify the indefinite deprivation of personal liberty.

As detention continues, the need for adequate justification becomes increasingly important.

Criminal proceedings must therefore be conducted with reasonable expedition, and the necessity of continued detention must remain open to judicial examination.

The mere accusation of a criminal offence does not extinguish an individual's constitutional rights.

Nor does the placement of a suspect in remand custody remove that person from the protection of the law.

Where a person remains deprived of liberty for several years because criminal proceedings have not been completed, serious questions arise concerning the effectiveness of constitutional safeguards and the rule of law.

Ultimately, pre-trial detention must not be transformed into punishment before conviction, and delays in the administration of criminal justice must not become a justification for the indefinite deprivation of personal liberty.

Assoc. Prof. Raja Goonaratne 

Attorney -at-Law

Department of  Legal  Studies,

The  Open University of of  Sri  Lanka