By Kalyananda Tiranagama 

(Continued from yesterday)

Declaration of Prohibited Places

On a recommendation made by the IGP, the President may publish a Gazette notification declaring any public place or any other location as a Prohibited Place, for the purposes of this Act. Prohibitions imposed may include entry without permission, taking photographs, video recording and making sketches of the place. – S. 85,

Wilful contravention of a Prohibition Order by entering or remaining in a prohibited place is an offence punishable with imprisonment for a period not exceeding 3 years and fine not exceeding Rs. 300,000.Any police officer may seize any movable property used for or concerned in committing any offence under this section. On conviction of the offender the Magistrate may confiscate such property. – S. 86

Defence Secretary armed with arbitrary power overriding the Judiciary to detain suspects till the conclusion of the trial

A new provision which was not in the PTA or in the CTB, has been added to the ATB giving arbitrary powers to the Secretary of the Ministry of Defence enabling him to order detention of terrorist suspects belonging certain selected categories facing High Court trials till the conclusion of the trial. It appears to be a provision added with a view to achieve a political objective rather than a legal requirements.It is not the Law, AG or the Judiciary that decides whether a suspect is to be kept in detention till the conclusion of the Trial, but the Defence Secretary.

Notwithstanding any other provision of this Act or any other law, the Secretary of the Ministry of Defence may, if he is of opinion that it is necessary or expedient to do so in the interest of national security and public order, make Order that an accused remanded by the High Court, be kept in the custody of any authority in such place and subject to such conditions as may be determined by him; his Order is only subjected to directions given by the High Court to ensure a fair trial; On the communication of his Order to the High Court and the Commissioner General of Prisons, it is the duty of the Commissioner General to deliver the custody of such person to the authority specified in such Order and the provisions in the Prisons Ordinance shall not apply to such person in custody. – S. 73

PTA did not contain this type of arbitrary, draconian provisions overriding the law, powers of the Court and the AG in respect of suspects indicted before the High Court.

Silencing Critics of Govt by Penalising them through Administrative Process without being charged in or convicted by a Court of LawUnder the PTA, the Attorney General has no option but to indict a person who has committed an offence under the PTA if evidence is available showing the commission of the offence.

Under ATB, the Attorney General can suspend or differ the institution of proceedings against a person alleged to have committed an offence under the Act for a period not exceeding 20 years if the suspect is agreeable to fulfil conditions laid down by the AG. – S. 71

It appears that this a ruse to be adopted to silence the persons engaging in struggles, agitations and campaigns against the Govt by compelling them to admit in public that they have done something that should not have been done and subjecting them to public humiliation and preventing them from participation in any future anti-govt political activities under the threat of being prosecuted years later with offences punishable with long term jail sentences running into 10 – 15 years if they fail to comply with the conditions imposed by the AG.

On application of the AG, High Court shall order the person alleged to have committed the offence to appear before Court, notify such person of the conditions imposed and provide him an opportunity to be heard and consent to the conditions imposed;

If such person fulfils the conditions imposed during the period given for fulfilling such conditions, the AG shall not institute criminal proceedings against the person alleged to have committed the offence. If the person fails to comply with the conditions without a valid excuse, AG may institute criminal proceedings against such person after the lapse of the period given to fulfil the conditions.

Conditions for suspension or deferment of institution of criminal proceedings

The following are the Conditions for consideration of suspension or deferment of institution of criminal proceedings against a suspect:

a. to publicly express remorse or apology before the High Court, using a text issued by the AG:

* In effect this will amount to pleading guilty, though the suspect is not yet charged;

b. paying reparation to the victims of the offence, as specified by the AG;

* This may not be applicable as in most of the cases, there will be no victims:

c. to participate in a specified program of rehabilitation;

d. to engage in specified community or social service;

* This will have a demoralising or humiliating effect on the suspects as most of them will be leading personal in trade unions, professional associations or social organizations when they are sent to a rehabilitation facility with other undesirable elements like drug offenders, or beggars; or required to engage in community or social service work like sweeping roads or cleaning public parks or other public places for 3 – 6 weeks;

e. to publicly undertake to refrain from committing an offence under the Act;

f. to refrain from committing any indictable offence, or act of breach of peace.

* Though breach of peace is not an indictable offence, every public protest, demonstration, agitational campaign with the participation of large group of people may result in acts of breach of peace.

* AG may impose a condition requiring the suspect to give an undertaking to refrain from committing an offence under the Act or any act involving breach of peace for 20 years, He may remain a virtual prisoner for life being unable to participate in any public protest campaign. This will operate like a binding order imposed by a Court of law on a criminal convicted of and sentenced for a criminal offence.

* This may result in subjecting the suspect to long time mental torture as he has to live in constant fear that he may be indicted under this Act any within that period of 20 years for the offence he is alleged to have committed punishable with long term jail sentence of 15 – 20 years.

* This Provision will have a deterrent effect on all social activists concerned with the welfare of the country and the people preventing them from participation in social struggles.

Violation of Fundamental Rights

Other than a few additions made further strengthening the existing provisions, the Anti-Terrorism Bill has reintroduced almost all the provisions in the Counter Terrorism Bill which appear to have the effect of curtailing fundamental rights of the people guaranteed by the Constitution.

Freedom of speech and expression, freedom of peaceful assembly, freedom of association, freedom of engaging in trade union activities, freedom of movement within the country – are fundamental rights of the people guaranteed by Article 14 of the Constitution. In several fundamental rights cases our Supreme Court has held that people exercise their fundamental right of freedom of expression when they exercise their franchise at elections. At a time when elections are continuously being postponed, public protest against the harmful policies of the government is the only alternative avenue left to the people to express their disapproval in an effective manner.

Every organ of Government including the Judiciary is bound to respect, secure and advance the fundamental rights of the people. Fundamental Rights should not be abridged, restricted or denied except in the manner and to the extent provided in Article 15 of the Constitution. Many of the provisions in these Bills may inevitably result in the restriction, denial and infringement of fundamental rights of the people guaranteed by Articles 11, 12 (1), 13 and 14 (1) (a), (b), (c), (d) and (h) of the Constitution in their enforcement without adequate safeguards.

Most of the objectionable provisions in the Counter Terrorism Bill are found

in Sections 3 (1) (a), (b), (c); 3 (2) (c), (d) (f), (h); 4 (1) (c); 14; 62 and 67 of the Bill. Several of these provisions are liable to be abused without any safeguards to prevent such abuse, resulting in the violation the fundamental right to equality before the law and equal protection of the law, guaranteed by Article 12 (1) of the Constitution.

SC Determination on the Counter Terrorism Bill

Seven Determination Applications have been filed in the Supreme Court in respect of the Counter Terrorism Bill. Six of the Applications appear to have been filed by or on behalf of persons or groups seeking to review the PTA with a view to getting its provisions more relaxed and acceptable to NGO groups sympathetic to religious and racial extremists. Only one application has been filed by an opposition political party concerned with protecting people’s rights. It is sad to note that the Joint Opposition or Sri Lanka Podu Jana Peramuna, BASL or any other professional organizations concerned with erosion of human and democratic rights of the people have failed to come forward to challenge this objectionable Bill.

It appears from the Supreme Court decision on the Bill that the Court has not been invited to examine the objectionable provisions contained in Sections 3 (1) (a), (b), (c); 3 (2) (c), (d) (f), (h); 4 (1) (c); 14; 62 and 67 of the Bill.

In its Judgement running into 12 pages (in the Hansard), in 11 pages the Court has examined various other points raised by Counsels concerned with rights of terrorists arrested such as Sections 2 dealing with jurisdiction under the Act; S. 4 (1) (a), (b) – imposing life imprisonment instead of death penalty for murder; S. 5 – imposing jail sentence of 15 years instead of death penalty for abetment of murder; S. 24 (1), 27 (1) – dealing with period of police custody and medical examination of suspects arrested; S. 36 (6), 39 dealing with Magistrate’s power to remand or release a suspect; S. 68 (5) – dealing with Magistrate’s power to remand a suspect declining to make a statement to the Magistrate, and S. 93 (3) defining the term ‘law’ to include international instruments which recognize human rights and to which Sri Lanka is a signatory.

Without much elaboration, regarding S. 62 (1) and 81 (1) of the Bill the Court has held that under Article 15 (7) of the Constitution the Parliament can enact legislation in the interest of national security, placing restrictions on the exercise of fundamental rights guaranteed by Article 14 of the Constitution and enacting such legislation cannot violate the fundamental rights.

It is sad to note that the Court’s attention has not been adequately drawn to the serious impact of Sections 3 (1) (a), (b), (c); 3 (2) (c), (d) (f), (h); 4 (1) (c); 14; 62 and 67 of the Bill on the fundamental rights of the people on various grounds which have nothing to do with national security or terrorism.

The Court has held that other than S. 4 (a) and (b), 68 (5) and 93 (3), the Bill can be passed with a simple majority.

S, 4 (a) and (b) of the Bill – the penalty for murder and abetment to commit murder is life imprisonment. In the Penal Code, penalty for murder is death penalty. This violates Article 12 (1).

S. 68 (5) – When a suspect declines to make a statement to the Magistrate, such fact shall be communicated by the Magistrate to the relevant Police Officer and the suspect shall be kept in remand custody. This violates Article 12 (1).

S. 99 (3) – For the purpose of this section the expression ‘law’ includes international instruments which recognize human rights and to which Sri Lanka is a signatory. This is inconsistent with Articles 3 and 4 of the Constitution. AG had suggested certain amendments to overcome these inconsistencies.