Last week, with two days to go before the proposed Counter Terrorism Act is subject to debate and vote at its second reading, several petitions against the Counter-Terrorism bill (CTB) were taken up and heard before the Supreme Court bench consisting of Justices Sisira de Abrew, Vijith Malalgoda and Murdu Fernando.
The Bill, which received a conditional cabinet approval in September this year is widely accepted to be a substantial improvement on the existing Prevention of Terrorism Act (PTA). However, the petitioners making submissions before the court referred to several provisions in the Bill, that could be improved. The main concern was that the Magistrate’s discretion is stripped to a large extent, as the magistrate is bound to comply and give effect to the detention order which is determined by the police officer; an executive arm.
Clauses of the bill deal with circumstances in the immediate aftermath of an arrest of a suspect may be produced before any magistrate.
Under the provisions, the magistrate must depend solely on the recommendation of the police officer that produces the suspect or a member of the armed force or coast guards. Under this new law, members of the armed forces and coast guards are allowed to make an arrest, apart from the Police.
“This is stripping the Magistrate of his discretion and supplanting executive discretion,” Niran Anketell, the counsel for one of the Petitioners informed court. He explained that this is a violation of article 13(2) which provides for a statutory protection.
Explaining the conditions under which the Magistrate can grant bail Anketell illustrated how a Magistrate could only do so ‘if the officer in charge has requested the Magistrate for bail and provided that he has no objection to the Magistrate granting bail’. “The sovereignty of the people is violated when judicial discretion is removed,” he said.
The proposed law also puts in place a Board of Review. A Board entrusted with making rulings and directions, they could also determine whether detention of an individual could be terminated or not. Hence a hierarchy has now been kept in place above the magistrate and the Magistrate is more or less a rubber stamp, Anketell noted. Attorney at Law Ermiza Tegal making submissions on similar lines stated that this will pivot on a police officer’s understanding of a crime Another clause that has created concern is clause 81 of the proposed bill.
The Center for Policy Alternatives (CPA) also attempted to bring in objections to the said clause on the basis that it has been given a very broad interpretation and that it can proscribe certain organizations, even those with legal standing.
CPA’s intervening petition, however, was not allowed on the basis that they had not petitioned the court within the stipulated time period.
The argument before the court was that this provision, empowers the Minister to make proscription orders ‘where he has reasonable grounds to believe that any organization is engaged in any act amounting to any offense under the act’.
The counsels indicated that this provision is so broad that it can includes a legal organization involved in any legal protest. According to Nuwan Bopagey, attorney at law, this clause will easily capture any dissenting views that a legal organization may voice about the government.
Failure of the Bill to give a coherent definition to the word terrorism and giving a list of acts that will fall in the ambit of an ‘act of terrorism’ was contended by all petitioners. ‘This Bill, and Human Rights can be complementary and can be mutually reinforce each other, but the state should not be given too wide a power, it should be necessary and proportionate,” Pulasthi Hewamanna submitted to the court. If one postulates an opinion against the government it can be interpreted to be an act of terrorism as the Bill is open-ended. Two other provisions that were questioned by the Counsel were - clause 24 which allows a police officer of the station where the suspect is detained to examine the suspect for any visible injuries. This was contested on the basis that it is insufficiently couched to uphold protection provided under article 11 of the constitution, which refers to freedom against torture. This can be vital in the event the detainees have experienced any sexual torture.
“Although this proposed bill is an improvement on the existing PTA it doesn’t necessarily make provisions of this bill constitutional,” said Heejaz Hisbullah, Attorney at Law. Speaking on detention orders he went on to state that every report that is submitted under this bill is a ‘confidential report’ and that in doing so even a lawyer representing a suspect is only entitled to such information as is sufficient for him to be able to object. He further stated that this provision merely gives a semblance of a judicial hearing but it’s a sham to show the existence of a judicial hearing, which in reality doesn’t exist. ‘We hear of similar ‘closed material procedure’ in Guantanamo Bay where evidence of abuse is abundant’ he said.
Majority of the petitioners conceded that the bill was, in fact, a vast improvement on the existing PTA. President’s Counsel Manohara de Silva, appearing on behalf of parliamentarian Wimal Weerawansa, took a completely different view and sought that court declares that the bill should be passed into law only with a two-thirds majority in Parliament plus the approval of the people by way of a referendum. His main arguments were that the bill does not carry the capital punishment for murder and attempted murder under a terrorist act, however; the domestic law under the criminal justice system carries the capital punishment for both offenses. In reply Additional Solicitor General (ASG) Yasantha Kodagoda stated that in view of contemporary laws imposing of the capital punishment is the most serious violation of article 11 of the constitution. And that if under the current legal system post judicial review is allowed the capital punishment is something that should be struck off without hesitation. Kodagoda at the very beginning of his submissions explained why this instrument carries a list of offences rather than a definition of terrorism. ‘The PTA was based on the activities that took place in the 70’s in this country. That doesn’t necessarily entail more contemporaneous acts of terrorism.The government of the current day has decided to repeal and replace and have safeguards to prevent abuse of laws and violations of Human Rights under the current PTA’.
The court will hear the ASGs remaining submissions tomorrow and subsequently forward its decision on the bill, to the speaker.