Facilitating terrorism through the Constitution and the law

The Constitutional Madhouse – Part 7

By C. A. Chandraprema-March 14, 2019, 8:56 pm 

We are living through an era when there is growing unease in the country due to the rise of anti-social gangs in the North. They may still be at an incipient stage, but networks are being built and a lifestyle is evolving. One never knows what it will develop into, given the fact that there are thousands of unemployed youth in the North, who are averse to local work and dream of migrating overseas. Then there is the rise of the drug related underworld in the South. On top of all this, comes the problem of extremists who have graduated from smashing Buddha statues to actually trying to kill detractors within their own community. Their hideouts and weapons have been detected. In such a situation, one may think that the public security laws that we have should not only be protected but even strengthened where necessary.

Concerning the matter of public security, the proposed draft Constitution has the following general provisions. The President may, on the advice of the Prime Minister, declare a state of emergency where there is a clear and present danger to public security or maintenance of supplies and services essential to the life of the community. The declaration of emergency shall state the basis on which such a state of emergency was declared. The Governor of a Province, on the advice of the Chief Minister, may advise the Prime Minister that a situation warranting a declaration of a state of emergency has arisen within such Province. Upon the declaration of a state of emergency, the President may on the advice of the Prime Minister promulgate such Emergency Regulations on any matters as are necessary to address the situation giving rise to the state of emergency.

Where the Emergency Regulations vest special powers or functions in the Police, Provincial Police officers shall, for the purpose of the exercise of such powers and functions, be under the control of the National Police. Where the danger arises only in one or more provinces, the declaration of emergency will be applicable only within that Province. Where a situation has arisen in which a provincial administration is promoting armed rebellion or insurrection or engaging in a violation of the Constitution which constitutes a danger to the territorial integrity and sovereignty of the Republic, the President may on the advice of the Prime Minister assume all or any of the functions of the Governor, Chief Minister and the Board of Ministers in the Province and where necessary even dissolve the Provincial Council. So far, so good. The above mentioned provisions in the draft Constitution appear robust enough for the purpose.

Stay orders in an emergency

It is what comes after this that poses a problem. Under the provisions of the draft Constitution the declaration of Emergency will be subject not only to Parliamentary approval as at present but also to judicial review. What this means is that under the proposed new Constitution, the declaration of emergency will be subject to the whole panoply of court procedures. A case will be filed and a stay order requested on the declaration of emergency. Dates will be given for the hearing. All kinds of objections will be raised and each objection will have a separate hearing. In the meantime, the terrorists will be killing all whom they please. If this proposed Constitution had been in place in 1971, the JVP would have captured power before the government got around to imposing a state of Emergency on the country. Even after running the gauntlet within the courts system to get the declaration of emergency upheld, the government will not have a free run. Such a declaration of Emergency will be valid only for one month at a time. If the declaration of Emergency is to be continuously in force for a period in excess of three months or a period of more than 90 days within a 180 day period, that will have to be approved by a two-thirds majority in Parliament.

So, we see that the proposed draft Constitution seeks to make it virtually impossible to declare or maintain a state of emergency in the country. The ushering in of the new Constitution is to be combined with the repeal of the Prevention of Terrorism Act of 1979 and its replacement with a new counter terrorism law. If a government manages to run the gauntlet of court procedure and parliamentary approval by a two-thirds majority in order to maintain a state of Emergency, the next hurdle it will have to clear is the proposed counter terrorism law. The counter terrorism law that is to replace the PTA is actually not designed to ‘counter’ terrorism but to facilitate it. It seeks to provide terrorist suspects with a degree of safety and comfort not available to suspects being tried under the ordinary criminal law. For example, the punishment for the offence of terrorism is restricted to a maximum of 20 years in prison. It is only if deaths have taken place as the result of a certain act that a life sentence can be handed down. Whereas the ordinary law of the land prescribes the death penalty even for the murder of a single person, any act of mass murder by a terrorist will attract only a life sentence at most.

Aiding and abetting in an act of mass murder by terrorist will attract only a sentence of 15 years and a fine! Under the ordinary law even helping a person to commit suicide attracts the death sentence. Under the proposed counter terrorism law, there is a category of offences called "terrorism related offences", which include the following: a) committing the death of a specified person. b) committing the death of any person in the course of committing a terrorism related offence c) attempting to cause the death of a specified person. d) committing the abduction or wrongful confinement of a specified person. e) taking a specified person or a member of his family or a person of importance to such person hostage f) committing criminal intimidation of any person.

The list includes 36 other offences including killing witnesses, robbery, destroying state property, digital data theft, recruiting people to a terrorist movement. Many people would be hard put to figure out how these terrorism ‘related’ offences differ from terrorism per se. But these ‘terrorism related offences’ carry an even lighter sentence of a maximum of 15 years, a fine and confiscation of property. In the case of a terrorism related offence, too, a life sentence can be handed down only if death occurs as a result of that act. One gets the impression that this category of offences called terrorism related offences has been created only to hand down lighter sentences to terrorist suspects. As for deaths occurring as a result of a certain act, this needs to be proved in court and if the prosecution is unable to prove that a certain person died due to a terrorist attack then the terrorist gets a light sentence.

Many terrorist leaders would be charged with aiding and abetting in the commission of a terrorism related offence and this carries only a sentence of 10 years and a fine whereas under the ordinary law aiding and abetting carries the same penalty as the offence itself. Knowing of the commission of a terrorist or terrorist related offence and failing to inform the authorities carries a sentence of three years imprisonment plus a fine.

When the arrest of terrorism suspects takes place under the proposed counter- terrorism law, at the time of arrest, the person arrested has to be informed of the identity of the person carrying out the arrest and the reason for the arrest. Any person arrested by the armed forces or the coast guard has to be handed over to the Officer in Charge of the nearest police station within 24 hours. The only exception is if the person arrested outside the territorial waters or on a plane or ship and then, too, he has to be handed over to the police as soon as it is practically possible. If the armed forces or coast guard makes and arrest, they have to immediately inform the police of the arrest.

Following the arrest of a person and when he is handed over to the police, the latter will make note of any injuries on the persons arrested and he will be examined by a judicial medical officer or a forensic medical specialist. When female terrorist suspects are arrested as far as possible the arrest is to be carried out by female officers. The law also stipulates that "every practicable measure shall be taken to protect such persons from physical harm." When a person is arrested, in addition to issuing an acknowledgement to a person nominated by the arrestee, the arrest has also to be notified to the Sri Lanka Human Rights Commission within 24 hours. The IGP has to maintain a central register and database of those arrested under the counter- terrorism law. All suspects arrested have to presented before a Magistrate within 72 hours. Detention orders on suspects may be issued by a DIG on an application by the OIC of a police station and will be valid for 30 days. The HRC has to be informed within 72 hours of a detention order being issued. Any Magistrate or officer of the HRC can visit any detention facility at any time and interview detainees without advance notice.

Terrorism a safer career than crime

The maximum number of detention orders that can be issued in respect of one person is six. Detention beyond 90 days will only be with the approval of a Magistrate on the basis of a confidential report which has to be filed before the Magistrate by the police giving reasons as to why further detention is necessary. The decision of the Magistrate in this regard can be challenged in the High Court and the latter is obliged to dispose of the appeal within three weeks. If a detention order has been issued, the Magistrate will direct that the suspect be detained in accordance with the detention order. If not, the Magistrate will remand the suspect if the police make the request. However, to remand a suspect, the Magistrate has to be convinced that the request is reasonable. What this means is that the Magistrate has the discretion to refuse a request to remand a suspect under the proposed law and to personally see the suspect and inquire into his wellbeing and welfare. Such interviews will be held in private in the absence of any police officer investigating the offence.

The Magistrate can direct the suspect to a forensic medical examination and if evidence of torture is found, he may direct the police to detain the suspect in a different place. In such an event, police officers who previously had access to the suspect will no longer have access to him. No person can be held in remand for longer than one year unless criminal proceedings have been initiated against him. If a suspect is to remain in remand beyond one year, the high court will have to issue an order sanctioning it on an application made by the Attorney General. The extension of the period of remand in that manner should not exceed another year and after that bail will be mandatory. After indictment if the High Court cannot conclude the case within two years, the accused will have to be granted bail unless the delay is caused by the accused himself or his lawyer. All detainees on detention orders have to be presented before a Magistrate once every 30 days and the magistrate has to inquire into the welfare of the suspect. In addition to all those relief measures, there is also to be a Board of Review chaired by the relevant Ministry Secretary and two other persons appointed by the Minister in charge of the subject. Any detainee can appeal against his detention to this Board of Review and the latter has to hand down a decision within two weeks. The decision of the Board of review can then be challenged in court if the suspect so wishes.

After the recording of the first statement by police following an arrest, the arrestee will have access to a lawyer after 48 hours. From pages 25 to 40 of the proposed draft law, there are some strict sounding provisions about the formation of a specialized counter terrorism unit in the police force, the manner in which this unit is to function and the powers it will exercise. However, the obvious intention of such window dressing is to camouflage the laxity and indeed the solicitude this proposed law displays towards terrorists. The proposed counter terrorism law has an inbuilt amnesty mechanism through provisions for the suspension or deferment of indictment at the discretion of the Attorney General. If death or grievous bodily injury has not been caused by the terrorist act, and if the security of the state has not been affected seriously, or serious harm to property has not been caused, the AG can defer the indictment for not less than five years and not more than 10 years or even to withdraw the indictment altogether after taking into account the views of the IGP, the views of the victims and the representations made by the accused.

The AG can impose conditions such as a public expression of remorse before a Magistrate, the provision or reparations to the victims as directed by the AG, voluntary participation in a programme of rehabilitation, social service or community services and a pledge to refrain from committing similar acts in the future. A confession made to a police officer will be valid only if the person who made the confession is presented for a medical examination both before and after the statement is given. The burden of proof will be on the prosecution to prove that such statement was made voluntarily. We see from the above that the purpose of the proposed counter terrorism law is to give more protection and lighter sentences to terrorists than ordinary criminals committing the same crimes.