by Basil Fernando, Groundviews, February 2, 2022
The Prevention of Terrorism (Temporary Provisions) (Amendment) Bill, a bill to amend the Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979 (PTA), has been gazetted by the order of the Minister of Foreign Affairs. The proposed amendment still leaves much that has been criticized as dangerous in the Prevention of Terrorism Act (PTA), which is a threat to the security of people in Sri Lanka and leaves the door open for severe abuses of power by the executive. Above all, the proposed amendments continue to undermine the role of the judiciary for the protection of the people.
The amendments leave the powers of detention under the detention orders by the Secretary of Defense, beyond the challenge of courts under the normally operative criminal justice system. The administration of justice has been arranged by way of the definition of offenses in terms of the Penal Code or a relevant statute by the Criminal Procedure Code which has laid down a very precise and comprehensive system of the administration of arrest, detention and investigation into crime under the control of the whole process through the judiciary. The administration of justice therefore conforms to the basic principles of the rule of law which gives the ultimate power of the administration of all matters relating to justice in the hands of the judiciary. The PTA, including the amendment, takes away this overall power of the judiciary to control the processes of the administration of justice and places it in the hands of the executive by handing it over to the Ministry of Defense. The impact of this is that the Secretary of Defense is placed above the judiciary. This violates the basic norms of democracy where on matters of the administration of justice, the judiciary is the ultimate authority and not the executive.
This situation is further aggravated by the fact that the 1978 Constitution and its operation for the period of over four decades has demonstrated that the centre of power is given to a single individual who holds the position of what is called the executive president. As it has been pointed out by Constitutional experts, what exists in Sri Lanka is a Presidential dictatorship. When the already overpowering position of the executive is further enhanced by PTA by taking away the normal functions of the judiciary as the protector of the basic rights to the security of the people, then the problem becomes even graver. What we are dealing with is a situation of terror caused by the instrumentality of the law on the entirety of the people. This is an attempt to rule over the country through various forms of intimidation including the abuse of the powers of arrest and detention and the withdrawal of the basic rights of prisoners.
The function of the courts in upholding the principles of the administration of justice within the framework of law is primarily for the protection of all individuals whether they be charged with terrorism or whether they be charged with torture, ill treatment, extradition killings and even mass murder. Suspicion alone is not a ground for punishment. That is a foundational principle of the criminal justice system. What the PTA amounts to is to place those who are suspected of committing any offense relating to terrorism to be placed outside the process of the administration of justice by putting that process into the hands of the executive.
In considering the provisions of this proposed bill, it is not possible to ignore the extreme abuses that have been committed under the PTA for a long period of time and particularly in the recent times.
Already in two cases, the Court of Appeal found that the detention of a senior criminal investigating officer for a long time under the alleged commission of a crime under the PTA was baseless and even accused the Attorney General’s Department about the pursuit of this detention. The court released the investigating officer. Also in the recent weeks, there was the release of a Muslim politician who was kept for a long time under the same legal provisions but finally released by the court because there was no basis for the detention to be justified. These are two prominent examples but there are many others of less well known people who have been kept in detention for many years for purposes other than the prevention of terrorism. In fact, the reasons appeared to be to create a pretext for a political purpose by arresting innocent people and engaging in public accusations that they were suspected to be involved in acts of terrorism.
The latest case relates to the grenade placed at the All Saints Church in Colombo. Within a short period after a complaint was made, a person assisting the church was arrested and the police spokesmen said suspects who were involved in trying to place this bomb had been arrested. It was said that one persons had confessed to the crime. However, once the church authorities searched the closed circuit television cameras footage, they found a stranger entering into the church and doing something near the place where the bomb was found and hurriedly moving away. Thereafter, the police investigators claimed to have arrested that person. As several social media channels pointed out, the the police created the impression that knew had who placed the bomb in the church. When a person is accused of a crime under the PTA, there is suspicion about possible foul play and attempt to create a false impression to mislead the public; people no longer believe or trust that allegations made under the PTA are genuine.
When the amendment to the bill allows only an application to the court under Articles 126 and 140 of the Constitution, what it does is to take away the provisions of the Criminal Procedure Code that give powers to the courts to deal with allegations of crimes whether they be very serious or minor crimes.
The justification for the courts to have such power is the presumption of innocence until found guilty. The possibility that a person can be accused of a crime without justifiable grounds and that on the basis of the allegation, they can be arrested and detained is regarded by the law as a threat to the security of people. The function of the courts is so developed as to prevent false accusations and detention without adequate grounds.
The laws provide extensive possibilities for the police and the investigators to bring to the notice of the courts the actual reasons to suspect a person as engaged in a serious crime such as terrorism. It is the same as other crimes like murder, gang rape or robbery.
In terms of the debt crisis, Sri Lanka is faced with the worst breakdown of the economy at the moment. As stated by economists and others who have been dealing with financial systems, the real reason is the abuse of power and corruption that prevails in the country. These are bigger acts of terrorism on the economy, the state structure and the political system of the nation. While such dangerous acts have not received the attention of the law makers, the attention is still on the abuse of power in order to silence critics or to deal with opponents.
This phenomenon of the law being used to deprive the people of their security is more dangerous to the nation than anything else.
The law as it stands provides within its normal procedures for a detention if the courts are satisfied that there is sufficient ground for a possibility of the engagement of persons in serious crimes threatening the security of the people. Without using these provisions, placing in the whole issue of security in relation to the prevention of terrorism on the executive itself is a dangerous act.
If there is any serious attempt to normalize relationships, the most important aspect to address is to undo possibilities of creating intimidation and fear by the abuse of laws. The present bill that has been proposed is not aimed in that direction. In fact, it is aimed at the opposite direction.
It is also strange why the Minister of Foreign Affairs is presenting the bill. It points to the fact that there is no clarity as to which ministry is doing what. It is an extremely dangerous situation.
The way out is to abolish the PTA altogether and if necessary bring laws without the removal of any of the provisions of the normal law that places the security of the people in the hands of the judiciary. The Secretary of Defense does not lose anything by trusting the judiciary to do what is required for the security of the nation. The strengthening of the hands of the judiciary in dealing with arrests and detention will create a more secure atmosphere for the people themselves to be more actively engaged in cooperating with state authorities to deal with instances of terrorism. Terrorism can only be defeated through the active cooperation of the people but if the people do not trust the legal process and are suspicious that the legal process would be used as a pretext for something else, then that cooperation will not be forthcoming.