By Gehan Gunatilleke
Imagine two persons are arrested at the same time. Let’s call the first Asanka and the second Asif. Asanka is arrested because he is suspected of writing the following words on Facebook:
“It is time to defend ourselves against the Muslim terrorists. Attack their shops and homes. Drive them back to Arabia.”
Asanka is arrested under section 3(1) of Sri Lanka’s ICCPR Act of 2007 on suspicion of inciting violence against a religious group. The arresting police officer claimed Asanka’s statement advocated violence against the Muslim community. The provisions of the Code of Criminal Procedure Act of 1979 come into operation. Under this Act, a suspect may be held for a period of 24 hours (extendable under certain circumstances to 48 hours), after which the suspect must be produced before a magistrate.
Asanka is accordingly produced before a magistrate within 24 hours of his arrest. The Magistrate refuses to grant bail to Asanka under section 14(1)(a)(iii) of the Bail Act of 1997. The Bail Act authorises a judge to refuse bail to a suspect if he believes the suspect would commit an offence while on bail. The Magistrate in Asanka’s case forms the view that Asanka may incite violence on social media if he is released, and accordingly orders that he be remanded until the next hearing date. Asanka is then placed in remand custody, and is given regular access to his lawyer and family members – a right guaranteed under section 15(2) of Sri Lanka’s new Enforced Disappearance Act of 2018.
Around the same time, Asif is arrested on suspicion of posting the following words on Facebook:
“It is time to take up arms and defend ourselves against the Sinhala-Buddhists. Attack them before they attack us”
Asif is arrested under section 10(g) of Sri Lanka’s new Counter Terrorism Law (imagine it has been enacted) for distributing information with the intention of inciting the commission of the offence of terrorism. The arresting police officer considers Asif’s post to be an incitement to others to commit grievous hurt with the intention of intimidating the Sinhala-Buddhist population – an offence under the new law.
According to section 21(1)(c) of the new law, Asif is entitled to access a lawyer “as provided for in written law”. Since section 15(2) of the new Enforced Disappearance Act of 2018 sets out the right to communicate with a lawyer immediately after someone is deprived of liberty, and since no further conditions to this right are found in any other law, Asif is able to communicate with a lawyer. However, compared to Asanka, things soon begin to play out very differently for Asif.
First, the officer-in-charge (OIC) of the police station that Asif is taken to applies to a Deputy Inspector General of Police (DIG) to obtain a detention order against Asif. The detention order is issued by the DIG, and remains valid for 14 days. Second, Asif is produced before a magistrate within 48 hours of his arrest.
However, the Magistrate is bound by section 27(2)(a) of the new Counter Terrorism Law. Under this provision, the Magistrate has no choice but to give effect to the detention order issued by the Police. The Magistrate gets absolutely no say in Asif’s continued detention.
Third, after the lapse of 14 days, the OIC applies to the Magistrate under section 36(1) of the Act to have the detention order further extended. He does so by filing a “confidential report” on the investigations against Asif. The Magistrate is bound under section 36(2) to maintain the confidentiality of this report; Asif and his lawyer are only permitted some information to enable them to object to the extension of the detention order.
However, the extent of this information remains limited, as the Magistrate is bound to keep the Police report confidential. Asif is thereafter detained for the maximum period of eight weeks before finally being moved to remand custody, where he is afforded access to his family.
Same offence, different laws
Consider these two cases carefully. They are virtually identical in nature. Both Asanka and Asif are suspected of inciting violence against others, and are potential threats to society.
However, one is kept in police custody for 24 hours prior to being produced before a Magistrate, while the other is kept for 48 hours, thereby exposing him to greater risks of ill treatment.
One is afforded the procedural protection of a trained judicial officer considering the suitability of his continued incarceration, whereas the other’s fate is determined by a police officer usurping judicial power.
One receives access to his family as a result of being placed in remand custody, whereas the other must wait eight weeks before getting access to his family. One is characterised as a criminal suspect. The other is stigmatised as a “terrorist” suspect.
All of these grave differences in treatment and characterisation hinge on one simple, yet life altering decision by the arresting police officer: the decision on which law to apply to the suspect.
The stories of Asanka and Asif teach us three valuable lessons. First, it reminds us of the importance of article 12 of Sri Lanka’s Constitution, which guarantees to every person equality before the law, equal protection of the law, and the right to non-discrimination.
These sacred ideals require Sri Lanka’s laws to be applied with certainty, predictability, and objectivity. Yet when the law itself permits police officers to arbitrarily pick and choose which procedures to apply to suspects, the basic notion of legal certainty in our system breaks down.
Second, it reminds us that we are all innocent until proven guilty. Thus any offence – whether it is an offence of inciting violence or an offence of terrorism – can only be proven in a court of law after a judge considers the evidence. A police officer is not capable of deciding the guilt or innocence of a suspect at the point of arrest. Why then should a police officer get to determine the extent of rights a suspect is entitled to? Sri Lanka’s proposed Counter Terrorism Law effectively affords police officers this incredible power.
Third, this story reminds us that our ordinary criminal procedure law is more than adequate to protect us against violent threats. A Magistrate is fully empowered under our Bail Act to prevent the release of suspects who may commit offences while on bail. Such general powers call into question the need for detention orders at the behest of police officers. Should we not trust our judges?
If Sri Lanka’s Counter Terrorism Law merely sets out certain offences, and remains subject to the ordinary criminal procedure law, the problems of legal certainty may be avoided.
Yet, as it stands, the Counter Terrorism Bill that is about to be debated in Parliament, sets out a terrible procedural regime, and places incredible power in the hands of police officers.
Such laws, regardless of how well they mimic international benchmarks, have no place in a civilised, rights-respecting society – a society where only judges exercise the people’s judicial power; a society in which it does not matter whether you are an Asanka or an Asif.
(The writer is an Attorney-at-law and Research Director of Verité Research. This article appears in themorning.lk)