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Criminal investigators and prosecutors looking askance at a reminder by the Fort Magistrate in the case against lawyer Hejaaz Hizbullah, that Sri Lanka’s Prevention of Terrorism Act (PTA) does not ‘suspend’ the operation of the country’s Criminal Procedure Code, are curtly advised to re-acquaint themselves with the jurisprudence of the Supreme Court.

Most vulnerable since independence to international scrutiny

That such a position is being openly taken in court is truly shocking, let it be said very clearly. It has moreover been reported that previous judicial orders to submit statements of witnesses named in the investigations have also been resisted by the CID. In sum, this speaks to the extent to which we seem to be loosing even the basic sense of what it means to be a nation governed by the Rule of Law. It is no wonder that this country finds itself the most pitiably vulnerable ever, at any point since independence to the turbulent cross winds of hostile international scrutiny. As Geneva approaches, when will we ever learn, we ask despairingly, again and yet again?

The Magistrate’s ruling was that investigations into any offence is within his supervision and control, ‘unless otherwise specifically provided by any other Act.’ The case before the Magistrate related to the detention of a lawyer by the CID for purportedly terrorism related offences. That lawyer has been held for what now amounts to more than nine months, the basis of which still however remains unclear. And what the Fort Magistrate said was no more and no less what the Supreme Court itself had declared in established cursus curiae.

Those several decisions of the Court were delivered, we may remind ourselves, when the Bench boasted of courageous judges who upheld their constitutional role against all odds. That fact is adverted to in today’s context with particular emphasis given what appears to an alarming slide towards the negation of the law, the Court and the authority of the legal process itself, aided and abetted by politically subverted criminal investigators and prosecutors alike. Some may perhaps be surprised to know that perhaps the best example of judicial strength in this regard related to a law enforcement officer himself, (Weerawansa v Attorney General (2000)).

Authority of the Magistrate is not negated

Weerawansa,  an Assistant Superintendent of Customs was arrested by the CID on the 30th of April, 1996 under Section 6(1) of the PTA and detained thereafter successively under PTA Section 7(1), ministerial orders under PTA Section 9(1) and finally, under a magisterial remand order. Examining his complaint of unlawful detention, the Supreme Court held that there was no reasonable suspicion established of any unlawful activity on the part of the detainee and therefore his arrest as well as his subsequent detention was unconstitutional. PTA Section 7(1) authorising detention applied only to a valid arrest made under PTA Section 6(1).

Where the arrest had been wrong as was the case in this instance, the condition imposed by Article 13(2) of the Constitution that the arrestee be brought before a judge of the nearest competent court according to procedure established by law, would apply. Thus, the subsequent detention in terms of PTA Section 9(1) by ministerial order, on the basis that there was “reason to believe or suspect” that such person is concerned in unlawful activity was also unconstitutional. The CID had merely informed the Defence Minister, (who was also the Executive President) of their willfully false and unreasonable conclusions, thereby misleading the President.

There had been no independent exercise of judgment by the President. Most palpably, the Court’s finding supports the Fort Magistrate’s position this week, in his very correct assertion that magisterial authority is not automatically deprived of all its supervisory aspects just because the PTA is involved. A person may be taken in under Section 9 (1) of the PTA which specifically dispenses with production before a judicial officer before the making of a detention order but such person must be produced after the making of such an order.

Beloved judicial cautions very much a part of our law

Crucially, such a production was not cosmetic, which is precisely what the Fort Magistrate observed. On the contrary, the judicial officer is empowered to make his or her own observations about the ill treatment of the detainee or the conditions of detention and so on. In fact, a Magistrate may be liable for absence of due diligence if such inquiry is not made. And that is exactly what happened here as, the Court took the view that the later remand orders by the Magistrate, Harbour Court made under the ordinary law was in violation of Mr Weerawansa’s rights.

Several such orders of remand had been made even though the Magistrate did not visit or communicate with the detainee. The Court observed that this offended a basic constitutional safeguard in Article 13(2), that judge and suspect must be brought face to face before liberty is curtailed. This was not an obligation that could be circumvented by producing reports from the police or criminal investigators. Interestingly, such remand orders with a ‘patent want of jurisdiction’ was held not to be afforded the protection of ‘judicial acts’ with consequent immunity from fundamental rights challenge.

These are beloved judicial cautions that are very much part of our constitutional rights regime. If the officers of the Attorney General’s Department need to be reminded of these principles, so be it. Regardless, it must also be said bluntly that Sri Lanka is not yet a land where a wagging political finger may suffice to direct the course of justice in all cases. In fact, the positions taken by judicial officers at the lower rung of the ladder to uphold the authority of the law strikes an eerily familiar tone with what we saw when the institution of the judiciary was under attack during the Mahinda Rajapaksa Presidency.

Deja vu with a vengeance

This is deja vu with a vengeance. What started as subversion of the legal process with the deprivation of civil liberties, deaths and disappearances of activists, journalists and critics finally reached all the way to the Supreme Court and the merciless harrassment of a Chief Justice before a Parliamentary Select Committee, much like or perhaps worse than how a common criminal is treated.  The point is that, when the executive emboldened by extraordinary power, subverts justice through its agents,  that process does not stop half way.

On the contrary, judges and the judicial institution itself is not immune against such attacks, internally as well as externally. Surely we have learnt that lesson very well, from JR Jayawardene’s games with the judiciary to far cruder exercises during the Presidencies of Kumaratunga and Rajapaksa? Even so, despite the historic degradation of the country’s judicial institution, including instances where a Chief Justice apologized for giving a judgement partial to politicians, there are brave judges who will continue to stand up to political pressure.

This is notwithstanding vicious tides of racial and ethnic hatred instigated by politicians to bend the law to suit their own purpose. Such profiles of judicial courage, even if this may relate merely to the restatement of common enough legal principles, must be saluted unreservedly. As history has already shown us, it is this individual and collective fortitude which will endure, not the passing political cacaphony of the moment.

That fact is indisputed, despite the horror of the covid inflicted, liberties-deprived and politico-military nexus that continues to visit us in all its force.