Columns

The Supreme Court’s Determination on amendments to Sri Lanka’s Prevention of Terrorism Act (PTA, 1979) announced by the Speaker in the House on Tuesday 8th March 2022 is largely predictable, some would mutter sotto voce, pedestrian even.    

Not timorous amendments but solid revisions needed

Undoubtedly the Court itself was limited by the patent lack of imagination if not foresight by the Government in presenting amendments of such a tepid nature in the first place. If the intention was to placate critical comments in Geneva and Brussels, than that exercise badly backfired.  Strategically speaking, if this package of uninspiring amendments had been bolstered by at least one strong revision of the law which would have signified commitment to recognising the tsunami of injustices that the PTA had resulted in through the decades, one might have been a little more forgiving.

As such, the lament of Sri Lanka’s Minister of Foreign Affairs in Geneva that this is only the ‘first step’ and is an improvement on what existed, evokes little sympathy. Equally, the President’s directive to the police not to misuse the PTA is like telling crabs not to walk sideways. It is the nature of policing in Sri Lanka that harsh laws will be misused, indeed, Sri Lanka’s law enforcement is famous for not even needing laws to abuse. Our law books reflect the plethora of cases where even judicial reprimands to the police not to torture have had no impact.

The remedy here is not in executive directives or timorous amendments but solid revisions to a law that has terrorised the country since its enactment. Clause 2 of the Bill had proposed to reduce the time period of detention of persons assessed by the Minister of Defence to be engaging in ‘unlawful activity,’ from eighteen months to twelve months. Holding this to be constitutional, the Bench very clearly articulated the position that, while it could look into procedural matters such as, for example, time periods of detention, it could not review the substantive provision itself for constitutionality.

Unconstitutional laws must be judicially reviewed

In other words, the Court shook off the (overly) optimistic plea by the petitioners that Section 9 of the PTA could be assessed in regard to the substantive powers that it confers on the Minister to issue detention orders. Such an argument was destined for obvious dismissal. But the fact that this was even made speaks to the desperate need for serious overhaul of the PTA. It illustrates a major paucity in our constitutional framework which does not allow the Court to review enacted law for unconstitutionality.

Enthusiastic ‘yahapalanaya-ites’ (2015-2019) may have been better served in insisting on the substantive incorporation of judicial review into the Constitution in line with our regional neighbours. That at least, would have earned the sincere well wishes of many and would have been difficult to reverse even with the political upsets in 2019 and 2020. But what we had were the indulging if not colluding in political power games between Prime Ministers, (past and present) and Presidents, (past and present).

Section 9 Detention Orders had long been the bitter core of the PTA. Under all Governments. That power had been abused to the extent that hundreds of persons died in detention without knowing why they had been detained. However, the nation’s apex court cannot examine the constitutional validity of the exercise of such powers. Of course for that, even if the powers exist, we need independent and strong judges. That is a vigorous discussion which merits a different space. The point is that bad laws, including the PTA, will remain on our statute books notwithstanding the affront that this constitutes to the country’s legal order.

Sops thrown by the Government to PTA reformists

That has always been the case. The best opportunity to rectify this would have been the slim governance moment that dawned in 2015. But that was not to be. That said, returning to the Court’s Determination, the judges jibbed at examining the constitutional validity of Section 9 on the basis that, what a court is prohibited from doing directly, cannot be done indirectly. Of some import is the Bench’s recommendation that Clause 10 of the Bill relating to the granting of bail to PTA detainees be further amended.

In instances where a trial of a PTA detainee has not commenced even after twelve months, along with the Court of Appeal being enabled to release the person on bail, the High Court was conferred the power, ‘in exceptional circumstances’ to exercise that power, subject to such conditions that the Court thinks fit. Where the trial against an accused whose indictment has been forwarded to the High Court has not commenced for twelve months, here too, the High Court ‘may’ consider to release such person on bail. Other interventions were unremarkable.

Sops thrown by the Government to those agitating for change of the PTA, allowing detained persons to have access to lawyers and to their relatives were held to be constitutional. Section 9 Detention Orders were recommended to be subject to challenges under habeas corpus as well as fundamental rights and writ jurisdictions of the superior courts. Copies of the Orders were ruled as needing to be served on magistrates not within a ‘reasonable period’ but forthwith and in any event, not later than forty-eight hours from their issuance. That change was emphasized in order to enable magistrates to visit places of detention speedily.

‘Karapincha’ leaves treatment of reform movements

The judges also ruled that the specific authority responsible for serving copies of Detention Orders on magistrates must be named. The magistrate was enabled to order a ‘change in a place of detention’ when he/she forms an opinion on the report of the Judicial Medical Officer (JMO) that the suspect may have been tortured. Aside from the welcome use of gender neutral language in judicial orders, it is positive that an amendment was directed to mandatorily require magistrates to direct the Inspector General of Police (IGP) to commence an investigation in such instances of torture.

That said, there are thousands of cases where, the IGP has not proceeded to conduct such inquiries even when the Supreme Court itself has found evidence of torture. This is the result of decades long political undermining of legal systems and courts of law. Rectifying a grievously systemic subversion of the Rule of Law needs far more than merely tinkering with the PTA. Again this was an opportunity missed in 2015-2019 which merely resulted in a Counter Terror draft that was (unforgivably) cut and pasted from the US Patriot Act and in some respects, far worse than the PTA.

Indeed, the manner in which Sri Lanka’s miserable politicians collectively pulled the good governance rug from under the feet of its supporters in this and other contexts, is a repeat of history. That is unsurprising, of course. Politicians have periodically used civil society for legitimacy and then discarded them, much like ‘karapincha’ leaves. But we never learn from history, as they say. The bitter repercussions of that colossal failure of governance still haunts this land.

Yet the same faces dominate our public spaces, the same games of musical chairs are played with the same actors. Is it any wonder that the State of Sri Lanka faces an existential crisis today?