Questions over the proposed counter

terrorism law

Former President Rajapaksa and leaders of the JO at the

Nugegoda rally (Pic by U.K. Abeyratne)

by C.A.ChandrapremaJanuary 28, 2017, 11:57 pm

The crowd at the Joint Opposition rally held last Friday in
Nugegoda was much larger than the crowd that attended the first
Mahinda sulanga rally in Nugegoda in February 2015. Thereby
the Joint Opposition broke its own record for organising what is by
far the largest gathering ever held in Nugegoda. The fact that
there was such a turnout despite overcast skies the whole day
and torrential rains in many parts of the country was telling.
Unlike at previous such meetings that this writer has observed,
this was an uncommunicative and almost unfriendly crowd.
Attempts to engage people in conversation elicited only grunts

and monosyllables. Everybody wanted to listen to the speeches

that were being made even though nothing new was being said.
At previous meetings, people did not seem to have come to listen
to speeches but to express solidarity with a cause. But this time,
people were very serious, with hardly a smile on their faces, they
were listening to the speeches as if their lives depended on it. A
request to raise their hands and cheer elicited a single minded
response even from the fringes of the crowd on the Nawala and
Pagoda Roads with people lustily bellowing their allegiance to the
cause. Each person seemed to be bound to the stage, not to his
fellows around him. In this writers view, two years from now, the
Joint Opposition will continue to draw record crowds. But by that
time, the assembled multitude may not be a crowd but a mob. It
was Dayan Jayatilleke who used the phrase Nugegoda man to
describe the crowd that attended the first Mahinda sulanga rally.
Now it appears that Nugegoda man is multiplying and evolving
and the mood of the multitude is changing.
EU involvement in
drafting SL laws
Last week, Prof. G.L.Peiris said at the Joint Oppositions weekly
press conference that a meeting had been held between the
ambassadors of several EU nations and the Prime Minister to
finalize plans to repeal the PTA and to replace it with a new
counter terrorism law acceptable to the EU. The Joint Opposition
claimed that they had received a record of the discussion with the
Prime Minister and the draft counter terrorism law that is to
replace the PTA by post and shared a copy of what they had got
in the post with journalists including this writer. According to this
document, this meeting had taken place on December 16, 2016

at Temple Trees at 5.00 pm under the chairmanship of the Prime

Minister.
The other participants at this meeting were as follows. Wijeyadasa
Rajapakse - Minister of Justice, Sagala Ratnayaka - Minister of Law
& Order and Southern Development, James Dauris - British HC,
Jean-Marin Schuh - Ambassador of France, Tung-Lai Margue Ambassador EU, Joanne Doornewaard, Netherlands Ambassador,
Joern Rohde - German Ambasssador, Paolo Andrea Bartorelli
Italian Ambassador, Victor Chiujdea Romanian Ambassador,
Jayantha Jayasuriya - Attorney General, Esala Weerakoon Secretary Ministry of Foreign Affairs, Yasantha Kodagoda,
Additional Solicitor General, A.L.A. Azeez, Senior Director General
- Ministry of Foreign Affairs, Roshan Lyman - Economic Counsellor,
Geoffrey Alagaratnam - President Bar Association, Saliya Pieris Deputy President, BASL, Amal Randeniya - Secretary BASL,
Rajitha Hathurusinghe - Assistant Secretary, BASL.
GLP deplored the fact that the Ambassadors of foreign countries
were directly involved in the process of drafting what will be a
part of the public security legislation of this country. Earlier
according to the documentation available, on September 20, 2016
the Prime Minister had submitted a cabinet memorandum stating
that he had appointed a committee headed by the Minister Sagala
Ratnayake to draft the policy and legal framework for a new
counter terrorism law. The PM sought the approval of the cabinet
for the policy and legal framework for the proposed Counter
Terrorism Act submitted by Minister Ratnayake and to refer it to
the Parliamentary Oversight Committee on National Security
requesting their observations within a months time. The Legal
Draftsman was also to be instructed to draft the new law
accordingly.

What we do not know at this stage is what comments the

Parliamentary Oversight Committee on National Security has
made on this draft legislation. This committee is Chaired by
parliamentarian Malith Jayathilake and the following are its other
members: Palitha Thewarapperuma, Chamal Rajapaksa, Douglas
Devananda, Vijitha Herath, Chandrasiri Gajadeera, M. S.
Thowfeek, Dharmalingam Sidharthan, A. A. Wijethunga, Buddhika
Pathirana, Ramesh Pathirana, M. A. Sumanthiran, Shehan
Semasinghe, Chandima Gamage, Kavinda Jayawardana, Mayantha
Dissanayake, Bandula Lal Bandarigoda, Muhammad Mansoor,
Ashu Marasinghe, S. Viyalanderan.
Why we have
anti-terroism laws
To see what should replace the Prevention of Terrorism Act, one
has to get clear in ones own mind why anti-terrorism laws are
necessary and what such a law is supposed to achieve. The
preamble of the existing PTA states the truism that men and
institutions remain free only when freedom is founded upon
respect for the rule of law. It follows naturally that when public
order is endangered by groups that advocate violence as a means
of accomplishing governmental change, that society has to do
whatever is necessary to restore order or risk the possibility of
anti-democratic forces gaining the upper hand. Laws like the PTA
were meant to deal with such extraordinary situations.
The existing PTA sought to give the government additional teeth
to combat offences such as killing, abducting or
intimidating specified persons such as politicians, members of the
armed forces, police and government servants, the robbery of
state property and banks, the collection, possession or

manufacture of firearms and explosives or carrying out

propaganda promoting the commission of acts of violence or
causing religious, or communal disharmony etc. Prison sentences
ranging from five years to life could be handed down for offences
coming under this Act. The PTA conferred powers on police
officers above the rank of Sub-Inspector to carry out arrests,
searches of premises and any vehicle including aircraft and to
seize anything related to unlawful activity.
Persons arrested under the PTA have to be presented before a
magistrate within 72 hours unless a detention order has been
taken out on him. The magistrate can order such person to be
kept in remand continuously until the conclusion of the trial. He
may be released on bail if the Attorney General consents. The
Minister can issue detention orders on persons arrested lasting
three months at a time for a maximum period of 18 months. Such
orders cannot be called into question in any court. The minister
can also impose restrictions on persons suspected of terrorism
related offences in terms of movement, place of residence,
employment and travel within and outside Sri Lanka and in
holding memberships in any organization or addressing public
meetings etc. such orders will be valid for three months and can
be extended for up to 18 months. These orders too cannot be
called into question in any court.
The PTA also established a three member advisory board which
could hear appeals in relation to detention orders or orders
imposing other restrictions on terrorism suspects. Under the
terms of the PTA, statements made by suspects in custody can be
admitted as evidence in courts, and the burden of proving that
any such statement is irrelevant shall be on the person asserting
it to be irrelevant. In other words, a suspect who asserts that the
statement he made was not voluntary, will have to prove that his
statement was not voluntary. A person convicted under this Act
will remain in remand until the determination of any appeal he

may make against his conviction. Under section 12 of the Public

Security Ordinance: No. 25 of 1947, the Minister had the power to
vest members of the armed forces with police powers.
A law to protect terrorists?
There are primarily three areas that are problematic in the so
called draft counter terrorism law. These relate primarily to the
procedures relating to the arrest, detention and trial of terrorism
suspects. It should be borne in mind that the PTA was a piece of
legislation designed to deal with extraordinary situations not to
deal with isolated incidents of violence that may occur in normal
times. The counter terrorism law that has been proposed as a
replacement for the PTA, fails to recognize that such a law would
be needed only in extraordinary situations where there has been
a break down in law and order. The proposed counter terrorism
law envisaged an arrest procedure for terrorism suspects as
follows:
Any person arrested by a member of the armed forces has to be
handed over to the OIC of the nearest police station or to a police
officer designated by the IGP within 24 hours. Any visible injuries
on the person arrested will be noted and the police OIC will refer
him to a Judicial Medical Officer for a medical examination. The
arrest has to be carried out with due regard to the privacy of the
person arrested. Where possible, female terrorists should be
arrested by female officers. Searches of female terrorists has to
be necessarily carried out by female officers. When a person is
arrested, an acknowledgement of arrest has to be provided to the
next of kin or associates of the person within 24 hours. In addition
to notifying the OIC of the nearest police station, the Human
Rights Commission also has to be notified within 24 hours. The
IGP has to maintain a central data base of all persons, arrested,

detained, prosecuted, jailed or discharged under the provisions of

the proposed new counter terrorism law.
The suspect has to be presented before a Magistrate within 72
hours of his arrest. He has to be presented before a magistrate in
this manner whether or not a detention order has been issued by
the DIG in terms of this act. If a detention order had already been
issued by a DIG, the Magistrate will respect that order for its
duration. A DIG can on an application made by the OIC of a police
station, issue a detention order on a suspect for 30 days which
cannot be extended beyond six months. Detention orders issued
have to be communicated to the Human Rights Commission
within 72 hours and any magistrate or officer of the Human Rights
Commission can without prior notice visit any place of detention
and inquire into the welfare and wellbeing of the suspects.
If a suspect is to be detained beyond 90 days, that can be done
only with the approval of a magistrate and the OIC of the relevant
police station has to file a confidential report before a magistrate
explaining why further detention is required. The suspect can
make submissions to the magistrate as to why the detention
should not be extended beyond 90 days and if the suspect is not
satisfied with the magistrates decision he can appeal to the High
Court and that court has to decide within three weeks whether it
is going to uphold the magistrates order or transfer the suspect
to remand from detention. Every suspect in detention will have to
be presented before a magistrate once every 30 days and the
magistrate will inquire into the wellbeing and welfare of the
suspect.
If a detention order has not been issued by the time the suspect is
produced before a magistrate, the magistrate can either remand
the suspect or release him on bail depending on the request
made by the OIC. The magistrate before whom the suspect is

produced will look into the wellbeing and welfare of the suspect. If
the magistrate suspects that the person arrested may have been
subject to torture, he will have to be presented to a JMO for an
examination. Suspects cannot be kept in remand for more than
one year unless criminal proceedings have been instituted against
them. It can be extended beyond one year only on an order by a
High Court on an application made by the Attorney General.
If criminal proceedings have not been instituted against a suspect
within one year, he will be released on bail by a magistrate. If the
proceedings in a High Court cannot be concluded within two
years, the High Court judge can enlarge the accused on bail. In
addition to the above, as in the case of the existing PTA, there is
to be a three member administrative appeals body, which will
hear appeals against the arrest and detention of suspects.
Fighting terrorists with
feathers and powder puffs
It can be seen that the provisions relating to the arrest and
detention of terrorism suspects has been designed more with a
view to ensuring the welfare of the terrorist suspect than dealing
firmly with an extraordinary situation to protect the lives of
ordinary people who expect the State to provide them with basic
security. How likely is an ordinary law abiding citizen to be
arrested under law like the PTA? We are not talking about
temporary detention as during a cordon and search operation
when people are questioned and released. We are talking of a
formal arrest and detention as a terrorism suspect. It is very
unlikely that an ordinary person would be formally arrested under
a law like the PTA. While it is true that everyone is innocent until

proven guilty, laws like the PTA are activated to restore law and
order.
Even under the existing PTA, when members of the armed forces
exercised police powers, these related mainly to powers of arrest.
Systems had been evolved where suspects would soon be handed
over to the police for further investigations. But the system was
by no means as rigid as the one mooted under the proposed
counter terrorism law. The executive arm of the state has to have
some leeway to identify and arrest people they deem to be
dangers to society without being put in a straitjacket of
regulations that will afford protection to the terrorist but not to the
ordinary people at the receiving end of that terrorists actions.
Without the executive having that leeway, they will not be able to
perform their duty of maintaining law and order.
Under the existing PTA, the detention order in the first instance is
up to three months and can be extended up to 18 months with no
court of law being able to question such detention. But under the
proposed law a detention order is valid only for 30 days and
cannot be extended beyond six months and if a detention order is
to be extended beyond three months, a magistrate has to grant
his approval. And the suspect can challenge the magistrates
ruling in the High Court which means that after three months a
suspect can appeal to courts against his detention. Furthermore,
anything done under the proposed counter terrorism law will be
subject to judicial review from day one and anybody arrested
under this act will have access to fundamental rights jurisdiction
of the Supreme Court and the writ jurisdiction of the Court of
Appeal from the very moment of his arrest.
Not only are terrorist suspects to be afforded the maximum
protection by putting the security forces in a straitjacket, the new
counter terrorism law is to function as a kind of Truth

Commission for terrorist suspects too. If death or grievous bodily

harm has not been caused to any person or if the security of the
state or people not seriously compromised or if no serious
damage has occurred to property, the Attorney General can
suspend or defer proceedings against terrorist suspects or even
withdraw indictments that have been filed in the High Courts if
the terrorist suspect agrees to fulfill one or more of the conditions
such as tendering a public expression of remorse or an apology,
provision of reparations to victims as specified by the AG,
voluntary participation in a program of rehabilitation, giving a
public undertaking not to commit any offence in this act and
engagement in specific community service.
In most instances involving terrorists, there is a paucity of
evidence and to say that a terrorism suspect will be let off if he
had not killed anybody or done much damage is to essentially say
that cases against them will be discontinued if there is insufficient
evidence. This is a dilemma faced by all countries facing terrorism
as can be seen from the Guantanamo Bay phenomenon in the
USA and the continued detention of some LTTE functionaries in Sri
Lanka. We have to acknowledge that there is a problem here. But
is the solution to that problem simply letting the terrorist suspects
go Scott free? Its not just Sri Lanka that has to find an answer to
this question but the entire world. According to the proposed new
law, the burden of proof that any confession or statement made
by a suspect or accused was voluntary will be on the prosecution.
(It was exactly the opposite in the existing PTA where the burden
of proving the irrelevance of a statement made will be on the
party claiming irrelevance.) Furthermore, according to the new
law, members of the armed forces can be vested with police
powers by the Minister but these orders will be valid for 30 days
and will have to be approved by parliament if it is to be continued
beyond 30 days at a time.

Even when a terrorist is found guilty, the sentencing guidelines

proposed in the new counter terrorism law stipulate that publicly
denouncing terrorism, expression or remorse, young age or old
age at the time of sentencing, coercion or duress under which the
offense had been committed, consent on the part of victims to
pardon to the terrorist, voluntary provision of reparations by the
convict to the victims of the crime, public denouncement of
violence and terrorism, genuine commitment to the preservation
of the territorial integrity and sovereignty of Sri Lanka,
participation in a program of rehabilitation prescribed by the
judge will act as mitigating factors to reduce the sentence. This
gives even a convicted terrorist a way to avoid long jail
sentences. There will be no minimum sentence in the proposed
counter terrorism law, so even convicted terrorists will be able to
get away with minimal punishment by pretending to be
remorseful or undergoing rehabilitation or doing any of the other
things recommended to win lighter sentences.
The new counter terrorism law appears to be tailor made to
protect future terrorists not to combat terrorism. If this law is
passed, it will act as an incentive for interested parties to take up
arms because the government will be so hogtied by legislation
that they will not be able to respond adequately. Everything that
this government does seems to go in a certain direction. It was
Minister Sagala Ratnayke who got this proposed counter terrorism
law drafted. It was also he who headed the Constitutional
Assembly Subcommittee on Police, Law and Order where it was
proposed that all police powers (except in relation to a few
specified and comparatively rare offences) be transferred to nine
provincial police forces which would do their own recruiting from
within the province on linguistic and residential criteria without
transfers between provinces. It was also proposed by this
Subcommittee that an unspecified special majority in parliament
be required to extend a declaration of emergency and that such
declarations and the emergency regulations themselves be

subject to judicial review. (see article on the proposed police

structure in The Island of November 28, 2016.)
If the changes to the structure of the police force and the
restrictions on declarations of emergency envisaged by Minister
Ratnayakes subcommittee are combined with the counter
terrorism law he has proposed, there will be no control at all over
any terrorist problem that occurs in the North and East because it
will be the police in those provinces that will have all powers over
terrorists in their areas with the armed forces having to hand over
all arrested persons immediately to the local police. Besides, the
declaration of Emergency will itself be under siege due to judicial
review, inhibiting the armed forces even further. Another thing
that can be noticed is that even though terrorists suspects can
have indictments against them withdrawn and sentences
mitigated by certain factors, no such leniency is to be shown to
members of the armed forces in the recommendations made by
the Prime Ministers Task Force on Reconciliation and Transitional
Justice which released their report recently. (See A Midsummer
Nights Dream at the PMs Office The Island January 2017).
According to these recommendations, no amnesties are to be
given to members of the armed forces by the so called truth
commission they have proposed nor are their sentences to be
mitigated in any way.
Prof. Peiris told The Island that the Joint Opposition will be
studying the proposed new counter terrorism law further and
alerting the Maha Sangha and the public on its contents.
Posted by Thavam