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by Edither G. Perera, Retired Superintendent of Prisons and Human Resources Development Manager

Chapter 48 section 13.2 of the establishment code stipulates that the disciplinary authority, shall permit the accused officer to be represented by a serving or retired officer. Normally an accused consults the Defence representative, from the point when an explanation is called for an alleged offence or when interdicted.

Similarly, in a court case, the accused retains a lawyer to defend him. If a lawyer is an accused, he retains another lawyer to defend him, because he will not be able to defend himself in his own case. This fact emphasises, the need for a lawyer to defend an accused in a court case.

The principle of permitting a lawyer to appear in court for an accused and a Defence Representative to appear for an accused in a Domestic Inquiry is a basic principle of natural justice.

The Defence Representative will perform the following functions:-

1. He will peruse the preliminary investigation papers under supervision and take down relevant notes.

2. He will draft the explanation.

3. At the Domestic Inquiry he will raise objections if necessary.

4. He will cross examine the witnesses for the prosecution.

5. He will lead evidence of accused officer if necessary.

6. He will lead evidence of defence witnesses in rebuttal of the charges preferred against the accused officer.

7. He will examine the validity of the documents produced.

8. He may make his own observations in regard to the manner in which the inquiry was conducted.

9. He will forward his written submissions.

The defence representative is somewhat a professional in this field and has the knowledge, skills and experience to defend an accused officer and to ensure no injustice is done to him.

Nevertheless, this basic facility for an accused to retain a defence representative is not permitted in a domestic inquiry in the private sector. Certain organisations permit an observer at an inquiry. But he is not permitted to raise objections bad evidence and cross examine witnesses.

Consequently, the accused officer in the private sector is at a tremendous disadvantage and is adversely affected at a domestic inquiry, which may even lead to an ad hoc termination of service. The disadvantages are as follows:-

1. He has to defend himself. It is an accepted fact that one cannot defend himself.

2. He does not have the knowledge, skills, expertise and experience to defend himself.

3. He may not have a sufficient education.

4. He may be overawed by the situation he is placed, since the inquiring officer may be a superior of his.

5. Inquiries could be manipulated in the absence of a defence representative to fix the accused.

6. The majority of the employees are ignorant of the rules, regulations in respect of disciplinary procedures.

7. Absence of a Defence Representative could lead to a miscarriage of justice.Under these circumstances, the accused officer in the private sector should be provided with facilities to retain a defence representative. It will give him confidence that the management cannot victimise an employee. It will reduce the number of cases in labour tribunals.

Adherence to correct procedures, ensuring fair play and justice in disciplinary proceedings will further increase the confidence of the employees in the private sector. It will also provide job security to the employees.

This is an effort to draw the attention of the honourable minister of Justice, labour, commissioner general of labour and the trade unions, this vital need of retaining a defence representative in respect of employees in the private sector. The accused officer should be given a reasonable opportunity to exculpate himself from the charges preferred against him.

This is in compliance with the overall requirement that, "Justice must not only be done, but that it must manifestly and abundantly appear to be done."

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