Columns

There is a clever but devious strategy employed by big cats on the hunt for a kill. Three or more may approach a wary prey from one direction resulting in the attention of that unfortunate animal being focused on the group danger whereas a single predator will creep unobserved from a completely different direction and within seconds, aim for the neck of the target, administering the ‘kill bite’ as it were.

Problematic policy decisions

Perhaps this somewhat grisly analogy may not be completely apropos when viewing Sri Lanka’s proposed draft Counter-Terror Act (CTA), now in the final stages of being enacted into law. However there is some relevance in this, as we will see. The thinking of the Supreme Court on the Bill will be in the public domain in the coming weeks. Detailed examination of the contents so reviewed in terms of their constitutional propriety must wait until then. But very real dangers in the Bill emanating from policy decisions taken by this Government (rather than constitutional conformity) must be scrutinized.

To enable a realistic discussion in these column spaces, it is not proposed to go into that intensely polarizing discussion as to whether a counter terrorism law is needed at all. While persuasive arguments can be made by both protagonists in that particular debate, what is before us in a practical sense is a different creature altogether and needs to be dealt with pragmatically in terms of the risks that the Bill holds out.

Indeed, these risks were overshadowed by the furore over other preposterous clauses in earlier versions of the CTA draft including broadly defined ‘seditious’ offences, proscribing writings that threaten ‘unity’, allowing unrestrained powers to the police to gain access to bank records so on and so forth. Enormous public concern led to the removal of such sweeping powers in the Bill.  Now judicial approval has been stipulated for obtaining access to bank records.

Serious fears of potential abuse

Meanwhile the much abused leeway given by the Prevention of Terrorism Act (PTA) in admitting confessions by alleged terror suspects to police officers with the burden of proving that this confession was induced by torture placed on the suspects themselves was taken out. Possibilities of such amendments being entered into at the committee stage level remains however, a concern. All this is well traversed ground and need not be gone into at this point. But the point is that these improvements do not detract from significant risks to the protection of liberties that the Bill still poses.

The Bill’s expansion of powers of arrest without a warrant not only to police officers but also to or the armed forces and coast guards may ring some warning bells given that this is a permanent law rather than a ‘temporary’ or ‘emergency’ measure. But far more troublingly, the Minister’s power to issue detention orders (under the PTA) has been summarily handed over to the police. Despite the fact that the detention period has been shortened, this raises serious fears in an environment where very senior police officers have been implicated in multifarious offences ranging from kidnapping plots to abduction for ransom rackets right down to the ‘terrorizing’ of citizens in the normal law enforcement process.

Traditionally, the power to issue Detention Orders was vested in the Secretary, Defence. In interpreting that power, the Supreme Court has been mindful in emphasizing strict restraints at a time when its constitutional jurisprudence was alive and thriving. The seminal precedent, twenty years ago, remains its decision declaring that the arrest and detention of former UNP Minister Sirisena Cooray was arbitrary and wrong. The strictures passed down on senior defence officials were harsh. The Secretary, Defence was held to have relied on misleading advice given to him by senior police officers. Writing on this decision at the time, I observed that in its effective separation of the legal question in the ‘political thicket’ of controversy, the Court’s message to the executive was indisputable.

Exceptionally stern judicial warnings

This was just one such decision out of many.  Just a few months following the Cooray decision, the Court ruled likewise, ironically this time concerning an application brought by police officers themselves over the violation of their rights. They had been arrested and detained in connection with proceedings of the Batalanda Commission had been violated. The judges were exceptionally stern in warning that “a reasonable suspicion or apprehension of past or future wrongdoing is an essential pre-requisite for the deprivation of personal liberty.

In the opinion of the Court, no material implicating the petitioners had, in fact, been placed before Court. The Secretary, Ministry of Defence could not have formed an independent opinion that the arrests and subsequent detention was necessary. Not only was the tenuous material available to him vague and lacking in particulars but it was pure hearsay. Not even the motions of investigating any threat or wrongdoing had been gone through. “The First Respondent (Secretary, Defence) had been misled into making the impugned orders by means of the exaggerations and distortions of the vague allegations which the police had” the Court ruled.

The highest responsible officials at the time were directed by the Court to observe salutary safeguards in formulating policy in regard to arrests and detentions under emergency law. This had a ripple effect with the tightening of procedures relating to arrests under detention orders. These cautions were however disregarded, of course, in the decade that came later and openly mocked at during the Rajapaksa period.

Dilemmas in the future

Given this history, this clause transferring the power to issue Detention Orders to police officers, despite its seemingly innocuous nature, has all the potential to deal the ‘kill bite’ to civil liberties. These are dangerous powers that need to be fenced in. Their exercise should be restricted to officials at the highest level who can appropriately be held responsible rather than be the happy hunting ground of each and every Deputy Inspector General of Police (DIG).

The mere specifying of a duty to give reasons for issuing detention orders, (as the Bill stipulates), is not an effective safeguard against abuse. This is a theoretical requirement that will be treated with due disdain. The police are demonstrably unable to carry out their duties professionally even in ‘mundane’ law enforcement situations. This is a persistent feature of Sri Lanka’s impunity landscape. So what does this potent for the citizen in fraught contexts of emergency? Who now has the means or the energy to fight these matters in courts of law, expecting positive outcomes?

These are dilemmas that we should do well to consider.