Detention without Trial: Necessity or Debilitating Addiction?

By Rajan Hoole-October 24, 2018, 12:00 pm 

Detention without trial has so prominently been part of our lives, particularly from the 1970s, that we have become inured to it. No doubt it is external pressure that has driven us to think about it afresh and the government to set about the task of replacing the notorious Prevention of Terrorism Act with another Counter Terrorism Act. The latter has received qualified approval from the Human Rights Watch: "The Sri Lankan government has finally addressed the torture-tarred Prevention of Terrorism Act, but the proposed law needs stronger human rights protections."

That means the government could get away with it for a couple of years. But is that adequate for us who live in this country, we who must ensure that each one of our fellow citizens enjoys the full measure of dignity and self-assurance that is his or her due? The State’s right to detention without trial demeans us all, and once we give someone else the facility to play with our lives, it makes us more prone to become manipulators for personal ends. That is the legacy survival under terrorism had left us.

Should this not give us pause to think whether we really need anything more than the Penal Code on our statute book? A glance at the draft CTA would suggest that the answer is no. The more serious crimes in the Penal Code have been replicated in the draft as acts of terrorism. Something so lengthy and platitudinous does not augur well for the Majesty of the Law. We are told that a person might be rewarded with leniency in sentencing by publicly denouncing terrorism and for expression of remorse. A change of heart in a criminal is welcome and personal, but must we demean him by turning him into a supplicant?

The British Experience

Our long and eventful association with Britain has left us with mixed feelings, but it would be to our loss when we refuse to learn from their experience. What made Britain great was her strong tradition of personal liberty. In Walter Scott’s great novel Old Mortality, set in the context of the 17th Century persecution of Presbyterians by Charles II; Morton, in refusing to answer the questions of Colonel Claverhouse, who holds discretion over his life, says:

"I will not. I will know whether I am in lawful custody, and before a civil magistrate ere the Charter of my country [Scotland] shall be forfeited in my person… I desire to know what right he has to detain me without a legal warrant, Were he a civil officer of the law I should know my duty was submission." It is this spirit that uplifts a nation.

The tradition was reiterated by Justice Blackstone in his Commentaries of 1765 - : "Of great importance to the public is the preservation of this personal liberty, for if once it were left to the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper, (as in France it is daily practised by the Crown), there would soon be an end of all other rights and immunities."!

Britain did not have emergency legislation on its statute book during the one hundred years since the end of the Napoleonic wars until DORA (the Defence of the Realm Act) in 1914, which was repealed soon after the First World War in 1918. It was followed by the Emergency Powers Act of 1920 in anticipation of the coal miners’ strike, in order to maintain essential supplies. But it aroused such misgivings that the Act included the particular commitment that it shall not be an offence to take part in a strike; and existing procedures in criminal cases shall not be altered.

With the onset of World War II in August 1939, the British Parliament passed the Emergency Powers (Defence) Act, which paved the way for detention without trial:

"2 (a) Make provision for the apprehension, trial, and punishment of persons offending against the Regulations and for the detention of persons whose detention appears to the Secretary of State to be expedient in the interests of the public safety or the defence of the realm…"

Most of its provisions, including detention without trial, expired after the end of the war on 24th February 1946, in both Britain and the Colonies.

Ivor Jennings and personal liberties

Jennings, in October 1940, five months before he left England to become the first Vice Chancellor of the University of Ceylon, wrote a paper in the Modern Law Review on the Emergency Powers Act. He acknowledged the historical role of ‘Whigs and dissenters’ in securing personal liberties and expressed his satisfaction that the war regulations did not entirely take away the role of the Judiciary and Parliament in safeguarding these.

For instance, when speedy response to criminal action is required of a court exercising delegated power in certain volatile conditions, its actions remain justiciable. Jennings says:

"This is a real restriction, because it is not provided that the power may be exercised when somebody in office is "satisfied" that the conditions exist. The conditions must really exist: that is, when the ordinary courts are open it will be possible to challenge the decision of the special court by prerogative writ or order on the ground that the Order in Council was invalid by reason of the non-existence of the conditions."

This spirit strongly contrasts with that of our Public Security Ordinance (PSO) passed on 16th June 1947 during the last 19 days of the Ceylon State Council, which has deceptive similarities to the British Emergency Powers Act. We need to look closely at the PSO because all repressive legislation in the coming decades flowed from it.

PSO – A clear deviation from British tradition

We have in 5 (1) and (2) of the PSO:

"… make such regulations … as appear to [the Governor-General] to be necessary or expedient in the interests of public security and the preservation of public order and the suppression of mutiny, riot or civil commotion… authorize and provide for the detention of persons …"

This closely follows Article (2) the British wartime Emergency Powers Act above. We now come to the crucial difference.

PSO 8 "No emergency regulation, and no order, rule or direction made or given thereunder shall be called in question in any court."

PSO 9 "… no suit, prosecution or other proceeding, civil or criminal, shall lie against any person for any act in good faith done in pursuance or supposed pursuance of any such provision." 

No British Act or Regulation dealing with emergency powers, to my knowledge, sanctions acts done ‘in good faith’. PSO 8 is contrary to what Jennings said about the PSO’s parent, the UK Emergency Powers Act.

To accept acts ‘done in good faith’ at face value is to demolish the supremacy of the law and open the door to unlimited impunity. In British law, "In so far as acts go beyond strict necessity, they will then be punished unless an Act of Indemnity is passed, which, as Dicey says, amounts to Parliament legalizing illegality" (David Dyzenhaus, Legality in a Time of Emergency).

The ‘good faith’ doctrine carried over from the PSO to the PTA, now appears in the CTA, as also detention without trial (CTA Articles 27 – 31).

PSO challenged in Parliament

Four months after Independence, Dr. N.M. Perera moved a resolution in Parliament on 7th July 1948 to repeal the PSO. He reminded the House that J.R. Jayewardene had told the State Council a year earlier that public opinion in the country was not sufficiently awakened and it would be dangerous not to have a provision of this nature on the Statute Book in case of an emergency. Perera charged that the PSO was a measure by those who were fascist at heart to intimidate the workers and prevent them from getting their full trade union rights.

D.S. Senanayake responded with what Pieter Keuneman pointed out was the Prime Minister’s variation of the old English adage ‘Prevention is better than cure’, that ‘Precaution is better than cure’. Senanayake promised to come back with amendments to the PSO ‘that would bring the law into line with the English law’. (That never happened.) Both Jayewardene and A.E. Goonesinha promised that detention without trial, which made possible the detention during the war of elected representatives, N.M. Perera and Philip Gunawardana, would go from the PSO. That too never happened.

The main problem with such legislation is that there is invariably a generalised target group as we have seen. Jayewardene alleged in Council, in July 1947, that, "These speeches [by strikers in Galle Face and elsewhere the previous month] clearly indicate a direct incitement to the people to shoot, to kill. They have shouted in their speeches that the Board of Ministers should be ousted from office."

This was bordering class war. Other speakers in Parliament pointed out that incitement to violence could have been prosecuted under normal law.

The Liberation Movement that has challenged the CTA Bill has observed, "The nature of Terrorism legislation in any form is that it allows the State to cause mistrust and suspicion amongst its citizens."

1947 and the Legacy of Conflict

The Government armed itself with the PSO in 1947 under cover provided by ebbing British rule; and in June 1948 armed itself with the Trade Unions Amendment Bill. Both should be seen in the context of the Citizenship Act of August 1948. The Government must have been alive to the prospect of the latter triggering off a combined strike of the Plantation Unions and other unions taking their cue from government sector unions, particularly the GCSU, whose activists were educated and articulate. The Trade Unions Bill made affiliation or federation of any government sector union with other unions, private sector or public, illegal.

The PSO came in the aftermath of the strike of 5th June 1947, which Senanayake put down harshly. Leslie Goonewardene reflected in his Short History of the LSSP, that the result of the strike was ‘not just a defeat, but a smash-up’. That partly explains how the minority Government got away so easily with the Citizenship Act. A great part of the blame lies with Tamil politics.

Historically, the rightful role for a party representing a minority is to defend and strengthen personal liberties and individual rights for all. This is where the Tamil parties failed. Communal representation, the Tamil Congress’ 50 – 50, was a mistaken goal. Placed in a quandary of isolation, the Tamil Congress voted with the Government on the Trade Unions Bill and cooperated with the Government on the Citizenship Bill. Although Chelvanayakam redeemed himself on the latter, it was too late.

The Tamils had burnt their boats. Their drift into national self-determination and separatism was a tragedy. Today their public and academic life is dominated by intellectual ciphers. A return to personal liberties requires courage. The primary goal should be to rescue the country from mediocrity and its fate of citizens as supplicants. A political settlement should flow from that.