The crowd at the Joint Opposition rally held last Friday in Nugegoda was much larger than the crowd that attended the first ‘Mahinda sulanga’ rally in Nugegoda in February 2015. Thereby the Joint Opposition broke its own record for organising what is by far the largest gathering ever held in Nugegoda.
The fact that there was such a turnout despite overcast skies the whole day and torrential rains in many parts of the country was telling. Unlike at previous such meetings that this writer has observed, this was an uncommunicative and almost unfriendly crowd. Attempts to engage people in conversation elicited only grunts and monosyllables. Everybody wanted to listen to the speeches that were being made even though nothing new was being said.
At previous meetings, people did not seem to have come to listen to speeches but to express solidarity with a cause. But this time, people were very serious, with hardly a smile on their faces, they were listening to the speeches as if their lives depended on it.
A request to raise their hands and cheer elicited a single minded response even from the fringes of the crowd on the Nawala and Pagoda Roads with people lustily bellowing their allegiance to the cause. Each person seemed to be bound to the stage, not to his fellows around him. In this writer’s view, two years from now, the Joint Opposition will continue to draw record crowds. But by that time, the assembled multitude may not be a crowd but a mob.
It was Dayan Jayatilleke who used the phrase ‘Nugegoda man’ to describe the crowd that attended the first ‘Mahinda sulanga’ rally. Now it appears that Nugegoda man is multiplying and evolving and the mood of the multitude is changing.
EU involvement in drafting SL laws
Last week, Prof. G.L.Peiris said at the Joint Opposition’s weekly press conference that a meeting had been held between the ambassadors of several EU nations and the Prime Minister to finalize plans to repeal the PTA and to replace it with a new counter terrorism law acceptable to the EU. The Joint Opposition claimed that they had received a record of the discussion with the Prime Minister and the draft counter terrorism law that is to replace the PTA ‘by post’ and shared a copy of what they had got ‘in the post’ with journalists including this writer. According to this document, this meeting had taken place on December 16, 2016 at Temple Trees at 5.00 pm under the chairmanship of the Prime Minister.
The other participants at this meeting were as follows. Wijeyadasa Rajapakse – Minister of Justice, Sagala Ratnayaka – Minister of Law & Order and Southern Development, James Dauris – British HC, Jean-Marin Schuh – Ambassador of France, Tung-Lai Margue – Ambassador EU, Joanne Doornewaard, Netherlands Ambassador, Joern Rohde – German Ambasssador, Paolo Andrea Bartorelli Italian Ambassador, Victor Chiujdea Romanian Ambassador, Jayantha Jayasuriya – Attorney General, Esala Weerakoon – Secretary Ministry of Foreign Affairs, Yasantha Kodagoda, Additional Solicitor General, A.L.A. Azeez, Senior Director General – Ministry of Foreign Affairs, Roshan Lyman – Economic Counsellor, Geoffrey Alagaratnam – President Bar Association, Saliya Pieris – Deputy President, BASL, Amal Randeniya – Secretary BASL, Rajitha Hathurusinghe – Assistant Secretary, BASL.
GLP deplored the fact that the Ambassadors of foreign countries were directly involved in the process of drafting what will be a part of the public security legislation of this country. Earlier according to the documentation available, on September 20, 2016 the Prime Minister had submitted a cabinet memorandum stating that he had appointed a committee headed by the Minister Sagala Ratnayake to draft the policy and legal framework for a new counter terrorism law. The PM sought the approval of the cabinet for the policy and legal framework for the proposed Counter Terrorism Act submitted by Minister Ratnayake and to refer it to the Parliamentary Oversight Committee on National Security requesting their observations within a month’s time. The Legal Draftsman was also to be instructed to draft the new law accordingly.
What we do not know at this stage is what comments the Parliamentary Oversight Committee on National Security has made on this draft legislation. This committee is Chaired by parliamentarian Malith Jayathilake and the following are its other members: Palitha Thewarapperuma, Chamal Rajapaksa, Douglas Devananda, Vijitha Herath, Chandrasiri Gajadeera, M. S. Thowfeek, Dharmalingam Sidharthan, A. A. Wijethunga, Buddhika Pathirana, Ramesh Pathirana, M. A. Sumanthiran, Shehan Semasinghe, Chandima Gamage, Kavinda Jayawardana, Mayantha Dissanayake, Bandula Lal Bandarigoda, Muhammad Mansoor, Ashu Marasinghe, S. Viyalanderan.
Why we have anti-terroism laws
To see what should replace the Prevention of Terrorism Act, one has to get clear in one’s own mind why anti-terrorism laws are necessary and what such a law is supposed to achieve. The preamble of the existing PTA states the truism that ‘men and institutions remain free only when freedom is founded upon respect for the rule of law’. It follows naturally that when public order is endangered by groups that advocate violence as a means of accomplishing governmental change, that society has to do whatever is necessary to restore order or risk the possibility of anti-democratic forces gaining the upper hand. Laws like the PTA were meant to deal with such extraordinary situations.
The existing PTA sought to give the government additional teeth to combat offences such as killing, abducting or intimidating specified persons such as politicians, members of the armed forces, police and government servants, the robbery of state property and banks, the collection, possession or manufacture of firearms and explosives or carrying out propaganda promoting the commission of acts of violence or causing religious, or communal disharmony etc. Prison sentences ranging from five years to life could be handed down for offences coming under this Act. The PTA conferred powers on police officers above the rank of Sub-Inspector to carry out arrests, searches of premises and any vehicle including aircraft and to seize anything related to unlawful activity.
Persons arrested under the PTA have to be presented before a magistrate within 72 hours unless a detention order has been taken out on him. The magistrate can order such person to be kept in remand continuously until the conclusion of the trial. He may be released on bail if the Attorney General consents. The Minister can issue detention orders on persons arrested lasting three months at a time for a maximum period of 18 months. Such orders cannot be called into question in any court. The minister can also impose restrictions on persons suspected of terrorism related offences in terms of movement, place of residence, employment and travel within and outside Sri Lanka and in holding memberships in any organization or addressing public meetings etc. such orders will be valid for three months and can be extended for up to 18 months. These orders too cannot be called into question in any court.
The PTA also established a three member advisory board which could hear appeals in relation to detention orders or orders imposing other restrictions on terrorism suspects. Under the terms of the PTA, statements made by suspects in custody can be admitted as evidence in courts, and the burden of proving that any such statement is irrelevant shall be on the person asserting it to be irrelevant. In other words, a suspect who asserts that the statement he made was not voluntary, will have to prove that his statement was not voluntary. A person convicted under this Act will remain in remand until the determination of any appeal he may make against his conviction. Under section 12 of the Public Security Ordinance: No. 25 of 1947, the Minister had the power to vest members of the armed forces with police powers.
A law to protect terrorists?
There are primarily three areas that are problematic in the so called draft counter terrorism law. These relate primarily to the procedures relating to the arrest, detention and trial of terrorism suspects. It should be borne in mind that the PTA was a piece of legislation designed to deal with extraordinary situations not to deal with isolated incidents of violence that may occur in normal times. The counter terrorism law that has been proposed as a replacement for the PTA, fails to recognize that such a law would be needed only in extraordinary situations where there has been a break down in law and order. The proposed counter terrorism law envisaged an arrest procedure for terrorism suspects as follows:
Any person arrested by a member of the armed forces has to be handed over to the OIC of the nearest police station or to a police officer designated by the IGP within 24 hours. Any visible injuries on the person arrested will be noted and the police OIC will refer him to a Judicial Medical Officer for a medical examination. The arrest has to be carried out with due regard to the privacy of the person arrested. Where possible, female terrorists should be arrested by female officers. Searches of female terrorists has to be necessarily carried out by female officers. When a person is arrested, an acknowledgement of arrest has to be provided to the next of kin or associates of the person within 24 hours. In addition to notifying the OIC of the nearest police station, the Human Rights Commission also has to be notified within 24 hours. The IGP has to maintain a central data base of all persons, arrested, detained, prosecuted, jailed or discharged under the provisions of the proposed new counter terrorism law.
The suspect has to be presented before a Magistrate within 72 hours of his arrest. He has to be presented before a magistrate in this manner whether or not a detention order has been issued by the DIG in terms of this act. If a detention order had already been issued by a DIG, the Magistrate will respect that order for its duration. A DIG can on an application made by the OIC of a police station, issue a detention order on a suspect for 30 days which cannot be extended beyond six months. Detention orders issued have to be communicated to the Human Rights Commission within 72 hours and any magistrate or officer of the Human Rights Commission can without prior notice visit any place of detention and inquire into the welfare and wellbeing of the suspects.
If a suspect is to be detained beyond 90 days, that can be done only with the approval of a magistrate and the OIC of the relevant police station has to file a confidential report before a magistrate explaining why further detention is required. The suspect can make submissions to the magistrate as to why the detention should not be extended beyond 90 days and if the suspect is not satisfied with the magistrate’s decision he can appeal to the High Court and that court has to decide within three weeks whether it is going to uphold the magistrate’s order or transfer the suspect to remand from detention. Every suspect in detention will have to be presented before a magistrate once every 30 days and the magistrate will inquire into the wellbeing and welfare of the suspect.
If a detention order has not been issued by the time the suspect is produced before a magistrate, the magistrate can either remand the suspect or release him on bail depending on the request made by the OIC. The magistrate before whom the suspect is produced will look into the wellbeing and welfare of the suspect. If the magistrate suspects that the person arrested may have been subject to torture, he will have to be presented to a JMO for an examination. Suspects cannot be kept in remand for more than one year unless criminal proceedings have been instituted against them. It can be extended beyond one year only on an order by a High Court on an application made by the Attorney General.
If criminal proceedings have not been instituted against a suspect within one year, he will be released on bail by a magistrate. If the proceedings in a High Court cannot be concluded within two years, the High Court judge can enlarge the accused on bail. In addition to the above, as in the case of the existing PTA, there is to be a three member administrative appeals body, which will hear appeals against the arrest and detention of suspects.
Fighting terrorists with feathers and powder puffs
It can be seen that the provisions relating to the arrest and detention of terrorism suspects has been designed more with a view to ensuring the welfare of the terrorist suspect than dealing firmly with an extraordinary situation to protect the lives of ordinary people who expect the State to provide them with basic security. How likely is an ordinary law abiding citizen to be arrested under law like the PTA? We are not talking about temporary detention as during a cordon and search operation when people are questioned and released. We are talking of a formal arrest and detention as a terrorism suspect. It is very unlikely that an ordinary person would be formally arrested under a law like the PTA. While it is true that everyone is innocent until proven guilty, laws like the PTA are activated to restore law and order.
Even under the existing PTA, when members of the armed forces exercised police powers, these related mainly to powers of arrest. Systems had been evolved where suspects would soon be handed over to the police for further investigations. But the system was by no means as rigid as the one mooted under the proposed counter terrorism law. The executive arm of the state has to have some leeway to identify and arrest people they deem to be dangers to society without being put in a straitjacket of regulations that will afford protection to the terrorist but not to the ordinary people at the receiving end of that terrorist’s actions. Without the executive having that leeway, they will not be able to perform their duty of maintaining law and order.
Under the existing PTA, the detention order in the first instance is up to three months and can be extended up to 18 months with no court of law being able to question such detention. But under the proposed law a detention order is valid only for 30 days and cannot be extended beyond six months and if a detention order is to be extended beyond three months, a magistrate has to grant his approval. And the suspect can challenge the magistrate’s ruling in the High Court which means that after three months a suspect can appeal to courts against his detention. Furthermore, anything done under the proposed counter terrorism law will be subject to judicial review from day one and anybody arrested under this act will have access to fundamental rights jurisdiction of the Supreme Court and the writ jurisdiction of the Court of Appeal from the very moment of his arrest.
Not only are terrorist suspects to be afforded the maximum protection by putting the security forces in a straitjacket, the new counter terrorism law is to function as a kind of ‘Truth Commission’ for terrorist suspects too. If death or grievous bodily harm has not been caused to any person or if the security of the state or people not seriously compromised or if no serious damage has occurred to property, the Attorney General can suspend or defer proceedings against terrorist suspects or even withdraw indictments that have been filed in the High Courts if the terrorist suspect agrees to fulfill one or more of the conditions such as tendering a public expression of remorse or an apology, provision of reparations to victims as specified by the AG, voluntary participation in a program of rehabilitation, giving a public undertaking not to commit any offence in this act and engagement in specific community service.
In most instances involving terrorists, there is a paucity of evidence and to say that a terrorism suspect will be let off if he had not killed anybody or done much damage is to essentially say that cases against them will be discontinued if there is insufficient evidence. This is a dilemma faced by all countries facing terrorism as can be seen from the Guantanamo Bay phenomenon in the USA and the continued detention of some LTTE functionaries in Sri Lanka. We have to acknowledge that there is a problem here. But is the solution to that problem simply letting the terrorist suspects go Scott free? It’s not just Sri Lanka that has to find an answer to this question but the entire world. According to the proposed new law, the burden of proof that any confession or statement made by a suspect or accused was voluntary will be on the prosecution. (It was exactly the opposite in the existing PTA where the burden of proving the irrelevance of a statement made will be on the party claiming irrelevance.) Furthermore, according to the new law, members of the armed forces can be vested with police powers by the Minister but these orders will be valid for 30 days and will have to be approved by parliament if it is to be continued beyond 30 days at a time.
Even when a terrorist is found guilty, the sentencing guidelines proposed in the new counter terrorism law stipulate that publicly denouncing terrorism, expression or remorse, young age or old age at the time of sentencing, coercion or duress under which the offense had been committed, consent on the part of victims to pardon to the terrorist, voluntary provision of reparations by the convict to the victims of the crime, public denouncement of violence and terrorism, genuine commitment to the preservation of the territorial integrity and sovereignty of Sri Lanka, participation in a program of rehabilitation prescribed by the judge will act as mitigating factors to reduce the sentence. This gives even a convicted terrorist a way to avoid long jail sentences. There will be no minimum sentence in the proposed counter terrorism law, so even convicted terrorists will be able to get away with minimal punishment by pretending to be remorseful or undergoing ‘rehabilitation’ or doing any of the other things recommended to win lighter sentences.
The new counter terrorism law appears to be tailor made to protect future terrorists not to combat terrorism. If this law is passed, it will act as an incentive for interested parties to take up arms because the government will be so hogtied by legislation that they will not be able to respond adequately. Everything that this government does seems to go in a certain direction. It was Minister Sagala Ratnayke who got this proposed counter terrorism law drafted. It was also he who headed the Constitutional Assembly Subcommittee on Police, Law and Order where it was proposed that all police powers (except in relation to a few specified and comparatively rare offences) be transferred to nine provincial police forces which would do their own recruiting from within the province on linguistic and residential criteria without transfers between provinces. It was also proposed by this Subcommittee that an unspecified special majority in parliament be required to extend a declaration of emergency and that such declarations and the emergency regulations themselves be subject to judicial review. (see article on the proposed police structure in The Island of November 28, 2016.)
If the changes to the structure of the police force and the restrictions on declarations of emergency envisaged by Minister Ratnayake’s subcommittee are combined with the counter terrorism law he has proposed, there will be no control at all over any terrorist problem that occurs in the North and East because it will be the police in those provinces that will have all powers over terrorists in their areas with the armed forces having to hand over all arrested persons immediately to the local police. Besides, the declaration of Emergency will itself be under siege due to judicial review, inhibiting the armed forces even further. Another thing that can be noticed is that even though terrorists suspects can have indictments against them withdrawn and sentences mitigated by certain factors, no such leniency is to be shown to members of the armed forces in the recommendations made by the Prime Minister’s Task Force on Reconciliation and Transitional Justice which released their report recently. (See ‘A Midsummer Night’s Dream at the PM’s Office’ The Island January 2017). According to these recommendations, no amnesties are to be given to members of the armed forces by the so called ‘truth commission’ they have proposed nor are their sentences to be mitigated in any way.
Prof. Peiris told The Island that the Joint Opposition will be studying the proposed new counter terrorism law further and alerting the Maha Sangha and the public on its contents.