3rd February 2002

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Focus on Rights 
By Kishali Pinto Jayawardene

Righting our security laws

Whether as a consequence of the new emphasis on accountability or otherwise, (slow as it may seem to those who would wish to see justice realised swifter), it is encouraging to note that the Attorney General has reportedly called for a comprehensive report from the Inspector General of Police, setting out the particulars of suspects taken into custody under the Prevention of Terrorism Act (PTA). This is in order to ascertain the number of detainees in custody and determine as to whether they are indicted before the High Court or otherwise. If the latter not be the case, the investigation report has been directed to be forwarded to the Attorney General's Department forthwith, presumably in order that appropriate action be taken to rescue these unfortunates from their state of limbo.

The fate of individuals taken in under the PTA in this country has always been peculiarly stigmatised, far more than arrests and detentions under Emergency Regulations, which through the years, became subject to a stricter degree of judicial control. By a political quirk of fate, we are no longer governed by emergency which has been supplanted by the PTA, some say, in a much harsher manner. The present action by the Attorney General is reportedly in response to the repeated complaints of Tamil political parties that hundreds of detainees are languishing in indefinite custody. While this is to be appreciated, it must be understood however that the problem is more complex and warrants greater attention than the scrutinizing of investigation reports by the Attorney General. This column, in this week and the next, examines the context of the operation of the PTA, structural changes that have been called for in the current prosecution system in Sri Lanka, the human element of individuals caught up in indefinite detention and recent judicial orders that have attempted to bring the working of the PTA within a more defined framework. 

Some of the complexities inherent in this debate surfaced somewhat interestingly this week when the "Island" editorialised midweek that "Justice delayed is hell." This was in response to the hunger strike staged by five prisoners arrested under the PTA, demanding that the hearing of their cases be expedited. The editorialist made the very valid point that unlike prisoners held for alleged criminal offences, accused detained under the PTA, more often than not, are under the impression that their cases are not heard, not because of a faulty system of administration of justice but due to deliberate racist acts. This, it was summed up, was all the more reason why their cases should be heard expeditiously. 

The point was buttressed by a contribution by an attorney at law, Priyantha Gamage, again on the editorial page, focussing on the failure of the Attorney General's Department and the Police Department, to bring perpetrators of crimes to trial. This, by the way, is a piquant offshoot of the highly ego driven war of words between the Asian Human Rights Commission, Hong Kong and Mr. Priyantha Chandraprema on the subject of disappearances in Sri Lanka and related matters. Regardless, Gamage's focus in turning the searchlight inwards into the Attorney General's Department is very apt in the circumstances. 

The cases that the writer details are, of course, only some of several such stories. In a recent publication titled "Charge us or release us", excerpts from the letters of some three hundred detainees in Welikada and Kalutara prisons illustrate the immensity of the problem. The age limits of these detainees vary from five years to seventy one years, many suffer from illnesses, some are widows and in certain cases, both husband and wife have been arrested and detained in different prisons. Many of them allege that they have been remanded without a returnable date. In one letter, a twenty seven year old woman writing from the Women's Section in Welikada on October 16, 1999, states that she was arrested in her house in Puttalam in late 1996 and that she was taken to the Mt Lavinia Magistrate's Court in early 1997. Since then, she has been in remand in Welikada without any date set to return to court. She has not been able to engage the services of a lawyer and writes "I wonder when people like me will be able to breathe the fresh air of freedom?".

The PTA presently permits statements made to the police to be admissible as evidence in court. Powers relating to arrest, search and seizure (sec.6), detention orders (sec. 9), admissibility of statements as evidence (sec.16), sentence on conviction (secs. 4 & 5) number some of its harsher provisions. An "offence" or "unlawful activity", (as defined under the Act) covers not only serious offences such as murder, kidnapping etc. but includes acts such as mischief to public property, interference with public signs and notices, and the speaking or writing of religious, racial or communally divisive language. 

The PTA, which is also characterised by the absence of any or minimum safeguards relating to conditions of detention, has often been compared to the notorious 1967 Terrorism Act of South Africa (since repealed). Similarly to the PTA, the South African Act permitted prolonged detention without access to legal counsel on suspicion of commission of an offence. Section 11 of the PTA permits the Minister, if he has reason to believe or suspect that any person is connected with any "unlawful activity," to restrict the residence, employment, movement and activities of such person for periods up to 18 months. Any person who violates such restrictions shall be guilty of an offence and liable to imprisonment for a period of five years (Section 12). 

This provision has again been likened to the notorious "banning orders" permitted under the South African legislation.

Meanwhile, the PTA contains no provision for access to a lawyer soon after arrest. In one particularly notable instance, one remembers a regime of the past stating that withholding access from lawyers and family members is one of the important and necessary aspects of the Act. Accordingly, a government pamphlet stated that; 

"If the police are to conduct and complete their investigations successfully, it is important that these detainees should not have access to their lawyers and relations for a certain minimum period" It should be noted however that, in an early case (Senhilanayagam and others v. Seneviratne and another (1981), the Supreme Court directed that the detenus who were being detained under the PTA should have access to their lawyers.

Provisions of the PTA permitting the use of confessions, has, in particular, been heavily criticised as constituting direct incentive to interrogating officers to obtain information or 'confessions', by any means, including torture. The stories told by the detainees in "Charge us or release us" particularises, in horrifying detail, the use of torture in detention. Similar accounts have also been well documented in the Amnesty International (AI) report titled "Sri Lanka; Torture in Custody", which questions the high prevalence of incidents of torture despite the enactment of deterrent laws such as the Torture Act of 1994. The Act, passed in consequence of Sri Lanka's international obligations under the Convention on Torture, makes a person convicted of torture punishable by imprisonment for a term not less than seven years and not exceeding ten years and a fine. Though there have been isolated reports that charges have been filed under the Act against several police officers, the deterrent effect of the Act has been minimal. AI has meanwhile repeatedly called for an investigative body fully independent of the police to open criminal investigations whenever there is reasonable grounds to believe that an act of torture has been committed. 

For the moment, what is clear is that the time is opportune for a thorugh examination of the PTA and the uses that it has served, together with the investigation and prosecution structures within which it operates. 

The comment is true that, (like all similar anti terrorist legislation), since the PTA was adopted in 1979, terrorism has not declined but rather increased. 

Increased police and army surveillance of the population have not curtailed the violence but seemingly stimulated it. This is a thought that we should do well to ponder at least now. 

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