The Cabinet has approved a draft Counter Terrorism Act (CTA) that requires suspects to be produced before a magistrate within 48 hours and limits detention orders to a maximum of eight weeks. It also grants a magistrate the discretion to refuse an extension after two weeks and entitles suspects to bail six months after arrest [...]


Sweeping changes in new Counter-Terrorism Act


The Cabinet has approved a draft Counter Terrorism Act (CTA) that requires suspects to be produced before a magistrate within 48 hours and limits detention orders to a maximum of eight weeks.

It also grants a magistrate the discretion to refuse an extension after two weeks and entitles suspects to bail six months after arrest if criminal proceedings are not instituted during that time frame.

The CTA places an obligation upon the magistrate to “personally see the suspect, and look into his wellbeing and welfare through a private interview; and record any comment the suspect may provide”. Any magistrate shall also be entitled, without advance notice, to enter an approved place of detention as well as inspect such place, registers, detention orders and other books and documents and interview persons being held therein.

The bill, once enacted, will replace the draconian Prevention of Terrorism Act (PTA) which gives police a 72-hour window to produce a suspect before a magistrate; allows detention orders to be extended every three months up to 18 months; and confines suspects to remand till the end of their trials, many of which take years to conclude.

The draft ‘Policy and Legal Framework relating to the proposed Counter Terrorism Act of Sri Lanka’ was approved by the Cabinet on Tuesday. It was drawn up over the past one-and-a-half years with select provisions in earlier versions drawing critical comments from rights activists. The latest draft, a copy of which was obtained by the Sunday Times, has addressed many of these concerns.

For instance, some previous drafts made confessions to police admissible in court. The latest version does not. Only confessions made to a magistrate are admissible; that, too, provided the magistrate who took the confession immediately prior to and after recording it causes the person who made the statement to be examined by a Government forensic medical specialist.

Such report must be produced by the prosecuting authority during the voir-dire inquiry (a preliminary examination of a witness or a juror by a judge or counsel) that may be conducted for verifying the admissibility of the confessional statement.

It is reported, however, that the Cabinet sanctioned the draft CTA only on the understanding that it will be amended during the committee stage debate in Parliament to bring back admissibility of confessions made to police officers. Legal analysts pointed to other issues with the proposed law.

For instance, the provisions on abetting terrorism make it illegal to gather any “confidential information” with the intention or purpose of supplying it to a person who commits an offence or is conspiring, preparing, abetting or attempting to commit and offence under the Act.

“Confidential information”, as defined by the CTA, would also include “any information relating to the police or the armed forces, on the conduct of any official activity, including law enforcement or military measure which is intended to be carried out or is being carried out, or has been carried out”. This application, one analyst said, is very broad and could impact on defence columns.

But the draft law does have a proviso excluding as an offence anything “published in good faith with due diligence for the benefit of the public or in national interest in registered print and electronic media, or in any academic publication”.

Another point of concern is a clause authorising Deputy Inspectors General of Police to issue detention orders which activists say confers great discretion on the police. “This is problematic given the patterns of abuse of detention orders to coerce money from people,” the analyst pointed out. “Technically, there is provision for a board of review but these things don’t work in practice.”

On the whole, the new draft contains several aspects deemed welcome by the rights community. While it does contain a long list of offences, the Act strictly provides for identification, detection, apprehension, arrest, taking into custody of, detention, investigation or prosecution only of persons committing offences within the meaning of the Act.

It also states: “Any action taken by any person in good faith in the lawful exercise of a fundamental right, or in pursuance of, or to give effect to a lawful order given to him, or in accordance with or to give effect to a judicial order, shall not amount to an offence under this Act.”

At the time of an arrest, the arresting officer shall inform the suspect the identity of the arresting officers; the offence alleged to have been committed by the suspect; and the right of access of the suspect to an attorney-at-law as provided for in written law.  Every arrest shall be carried out with due regard to the privacy of the suspect.

The next of kin or an adult member of the suspect’s family shall be issued an acknowledgment of arrest and custody within 24 hours. It must include the date, time and place of arrest; reasons for arrest; location of custody or detention; name identification and rank of arresting officer; and so on.

The Officer-in-Charge (OIC) of the police station wherein the suspect is detained shall within 24 hours notify the Human Rights Commission of Sri Lanka (HRCSL) with all of the above as well as other information. The HRCSL is also entitled to prompt access to the suspect.

The draft CTA mandates the Inspector General of Police (IGP) to establish and maintain a central database and register containing information with regard to each arrest, detention, remanding, grant of bail, discharge, prosecution, conviction or acquittal, and punishment of persons arrested under the Act. It shall include such other information as required to determine the lawfulness of the arrest, custody and detention; lawfulness of the deprivation of liberty of the suspect; and the need for continued detention or remand. The IGP shall provide information included in the database and register to the HRCSL upon request.

No person shall be held in remand for a period exceeding six months from the date of arrest without instituting criminal proceedings. If such proceedings are not instituted within six months, the magistrate shall release the suspects on conditions to be stipulated by the magistrate.

A board of review will be set up to grant administrative relief for appeals against detention orders. Rulings must be made within two weeks. Whenever a suspect is released from remand or detention, the HRCSL shall be informed.

The police must obtain a judicial order to gain access to information relating to any financial service provided by banks, non-banking financial institutions or designated non-finance business to a suspect; details of any financial transaction carried out by any person; details relating to bank accounts, deposits, remittances and withdrawals and financial services provided by such bank institution or business; details relating to securing of financial services by any person; and a certified statement of any account or other information pertaining to any account or transaction.

Judicial orders are also required for the police to, among other things, intercept, listen or record any postal message or electronic mail or any telephone, voice, internet or video conversation or conference or any communication through any other medium.

The draft CTA gives discretion to the Attorney General (AG) to suspend and defer the institution of criminal proceedings on a suspect for a period of not less than five years and not exceeding ten years. In such instance, the AG shall apply to the High Court for the imposition of one or more conditions on the suspect: to publicly express remorse and apology before the High Court using a text issued by the AG; to provide reparation to victims of the offence, as specified by the AG; to participate in a specified programme of rehabilitation; to publicly undertake that such person refrains from committing an offence under this Act; to engage in a specified community or social service; or to refrain from committing any indictable offence or breach of peace.

The law also proposes day-to-day trials, other than during weekends, public holidays and court vacations.

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