Focus
on Rights
By Kishali Pinto Jayawardene
Righting our security laws
part-1
Whether as a consequence of the new emphasis on accountability
or otherwise, (slow as it may seem to those who would wish to see justice
realised swifter), it is encouraging to note that the Attorney General
has reportedly called for a comprehensive report from the Inspector General
of Police, setting out the particulars of suspects taken into custody under
the Prevention of Terrorism Act (PTA). This is in order to ascertain the
number of detainees in custody and determine as to whether they are indicted
before the High Court or otherwise. If the latter not be the case, the
investigation report has been directed to be forwarded to the Attorney
General's Department forthwith, presumably in order that appropriate action
be taken to rescue these unfortunates from their state of limbo.
The fate of individuals taken in under the PTA in this country has always
been peculiarly stigmatised, far more than arrests and detentions under
Emergency Regulations, which through the years, became subject to a stricter
degree of judicial control. By a political quirk of fate, we are no longer
governed by emergency which has been supplanted by the PTA, some say, in
a much harsher manner. The present action by the Attorney General is reportedly
in response to the repeated complaints of Tamil political parties that
hundreds of detainees are languishing in indefinite custody. While this
is to be appreciated, it must be understood however that the problem is
more complex and warrants greater attention than the scrutinizing of investigation
reports by the Attorney General. This column, in this week and the next,
examines the context of the operation of the PTA, structural changes that
have been called for in the current prosecution system in Sri Lanka, the
human element of individuals caught up in indefinite detention and recent
judicial orders that have attempted to bring the working of the PTA within
a more defined framework.
Some of the complexities inherent in this debate surfaced somewhat interestingly
this week when the "Island" editorialised midweek that "Justice delayed
is hell." This was in response to the hunger strike staged by five prisoners
arrested under the PTA, demanding that the hearing of their cases be expedited.
The editorialist made the very valid point that unlike prisoners held for
alleged criminal offences, accused detained under the PTA, more often than
not, are under the impression that their cases are not heard, not because
of a faulty system of administration of justice but due to deliberate racist
acts. This, it was summed up, was all the more reason why their cases should
be heard expeditiously.
The point was buttressed by a contribution by an attorney at law, Priyantha
Gamage, again on the editorial page, focussing on the failure of the Attorney
General's Department and the Police Department, to bring perpetrators of
crimes to trial. This, by the way, is a piquant offshoot of the highly
ego driven war of words between the Asian Human Rights Commission, Hong
Kong and Mr. Priyantha Chandraprema on the subject of disappearances in
Sri Lanka and related matters. Regardless, Gamage's focus in turning the
searchlight inwards into the Attorney General's Department is very apt
in the circumstances.
The cases that the writer details are, of course, only some of several
such stories. In a recent publication titled "Charge us or release us",
excerpts from the letters of some three hundred detainees in Welikada and
Kalutara prisons illustrate the immensity of the problem. The age limits
of these detainees vary from five years to seventy one years, many suffer
from illnesses, some are widows and in certain cases, both husband and
wife have been arrested and detained in different prisons. Many of them
allege that they have been remanded without a returnable date. In one letter,
a twenty seven year old woman writing from the Women's Section in Welikada
on October 16, 1999, states that she was arrested in her house in Puttalam
in late 1996 and that she was taken to the Mt Lavinia Magistrate's Court
in early 1997. Since then, she has been in remand in Welikada without any
date set to return to court. She has not been able to engage the services
of a lawyer and writes "I wonder when people like me will be able to breathe
the fresh air of freedom?".
The PTA presently permits statements made to the police to be admissible
as evidence in court. Powers relating to arrest, search and seizure (sec.6),
detention orders (sec. 9), admissibility of statements as evidence (sec.16),
sentence on conviction (secs. 4 & 5) number some of its harsher provisions.
An "offence" or "unlawful activity", (as defined under the Act) covers
not only serious offences such as murder, kidnapping etc. but includes
acts such as mischief to public property, interference with public signs
and notices, and the speaking or writing of religious, racial or communally
divisive language.
The PTA, which is also characterised by the absence of any or minimum
safeguards relating to conditions of detention, has often been compared
to the notorious 1967 Terrorism Act of South Africa (since repealed). Similarly
to the PTA, the South African Act permitted prolonged detention without
access to legal counsel on suspicion of commission of an offence. Section
11 of the PTA permits the Minister, if he has reason to believe or suspect
that any person is connected with any "unlawful activity," to restrict
the residence, employment, movement and activities of such person for periods
up to 18 months. Any person who violates such restrictions shall be guilty
of an offence and liable to imprisonment for a period of five years (Section
12).
This provision has again been likened to the notorious "banning orders"
permitted under the South African legislation.
Meanwhile, the PTA contains no provision for access to a lawyer soon
after arrest. In one particularly notable instance, one remembers a regime
of the past stating that withholding access from lawyers and family members
is one of the important and necessary aspects of the Act. Accordingly,
a government pamphlet stated that;
"If the police are to conduct and complete their investigations successfully,
it is important that these detainees should not have access to their lawyers
and relations for a certain minimum period" It should be noted however
that, in an early case (Senhilanayagam and others v. Seneviratne and another
(1981), the Supreme Court directed that the detenus who were being detained
under the PTA should have access to their lawyers.
Provisions of the PTA permitting the use of confessions, has, in particular,
been heavily criticised as constituting direct incentive to interrogating
officers to obtain information or 'confessions', by any means, including
torture. The stories told by the detainees in "Charge us or release us"
particularises, in horrifying detail, the use of torture in detention.
Similar accounts have also been well documented in the Amnesty International
(AI) report titled "Sri Lanka; Torture in Custody", which questions the
high prevalence of incidents of torture despite the enactment of deterrent
laws such as the Torture Act of 1994. The Act, passed in consequence of
Sri Lanka's international obligations under the Convention on Torture,
makes a person convicted of torture punishable by imprisonment for a term
not less than seven years and not exceeding ten years and a fine. Though
there have been isolated reports that charges have been filed under the
Act against several police officers, the deterrent effect of the Act has
been minimal. AI has meanwhile repeatedly called for an investigative body
fully independent of the police to open criminal investigations whenever
there is reasonable grounds to believe that an act of torture has been
committed.
For the moment, what is clear is that the time is opportune for a thorugh
examination of the PTA and the uses that it has served, together with the
investigation and prosecution structures within which it operates.
The comment is true that, (like all similar anti terrorist legislation),
since the PTA was adopted in 1979, terrorism has not declined but rather
increased.
Increased police and army surveillance of the population have not curtailed
the violence but seemingly stimulated it. This is a thought that we should
do well to ponder at least now. |