The ‘kill bite’ of Sri Lanka’s proposed counter-terrorism act

There is a clever but devious strategy employed by big cats on the hunt for a kill. Three of more may approach a wary prey from one direction resulting in the attention of that unfortunate animal being focused on the group danger whereas a single predator will creep unobserved from a completely different direction and within seconds, aim for the neck of the target, administering the ‘kill bite’ as it were.

Problematic policy decisions

This analogy, as grisly as it is, may not be completely satisfactory when viewing Sri Lanka’s proposed draft CounterTerror Act ( CTA), now in the final stages of being enacted into law. The thinking of the Supreme Court on the Bill will be in the public domain in the weeks ahead and detailed examination of contents of the Bill in terms of their constitutional propriety must await that moment. But exuberance over removal of ‘collective dangers’ posed by several highly obnoxious clauses of the CTA draft in its earlier versions which were discussed in depth in these column spaces does not detract from very real dangers in the Bill as currently formulated emanating from policy decisions taken by this Government rather than constitutional conformity.

And to enable a realistic discussion, it is not proposed to go into that intensely polarizing discussion as to whether this country needs a counter terrorism law at all. While good arguments can be made on either side in that particular debate, what is before us in a practical sense, is a different creature and needs to be dealt with pragmatically.

So to return to the general theme of this column, earlier references prohibiting broadly defined ‘seditious’ offences, proscribing writings that threaten ‘unity’ so on and so forth in versions of the draft CTA justifiably aroused enormous concerns. They are not there in the Bill. Also judicial approval is specified for obtaining access to ban records and the Bill, at least on the face of it, has taken out the earlier much abused leeway given by the Prevention of Terrorism Act (PTA) in allowing confessions by alleged terror suspects to be used with the burden of proving that this confession was induced by torture placed on the suspects themselves. However, the danger of such amendments being entered into at the committee stage level has been reported as a significant concern. This is all well traversed ground and need not be gone into at this point.

Serious fears of potential abuse

What should be focused on however is the extraordinary power that this draft law gives to police officers to issue Detention Orders. This raises serious fears in an environment where the implication of very senior police officers in multifarious offences ranging from kidnapping plots to abduction for ransom rackets right down to the ‘terrorising’ of citizens in the normal law enforcement process has become a persistent feature of Sri Lanka’s impunity landscape. This danger was pointed to repeatedly in these column spaces but was overridden to some extent by the outrage manifested at other overtly more preposterous clauses in the CTA versions.

In Sri Lanka’s use of anti-terrorism and emergency laws, the power to issue Detention Orders was vested in the Secretary, Defence given the tremendous potential that it has to impact adversely on constitutional safeguards. In interpreting that power, the Supreme Court has been mindful of exercising strict restraints at a time when its constitutional jurisprudence was alive and thriving. The seminal precedent twenty years ago remains its decision declaring that the arrest and detention of former UNP Minister Sirisena Cooray was arbitrary and wrong. The strictures passed down on senior defence officials were harsh. The Secretary, Defence was held to have relied on misleading advice given to him by senior police officers.

Writing on this decision at the time, I observed that in its effective separation of the legal question in the ‘ political thicket’ of controversy, the Court’s message was loud and clear. In arrests under Detention Order, the reasons for doing so must clearly justify the arrest. Otherwise, the arresting authorities would be held legally accountable.

Exceptionally stern judicial warnings

This was just one such decision out of many. Just a few months later, the Court ruled that rights of eleven police officers arrested and detained in connection with proceedings of the Batalanda Commission had been violated. The judges were exceptionally stern when they warned that “a reasonable suspicion or apprehension of past or future wrongdoing is an essential pre-requisite for the deprivation of personal liberty. Such deprivation can never be justified by resorting to an expedient “balance of convenience” which can be made to tilt towards the executive on the purely speculative assumption that something untoward might happen, but without any reasonable basis for thinking that it would.”

In the opinion of the Court, no material implicating the petitioners had, in fact, been placed before Court. The Secretary, Ministry of Defence could not have formed an independent opinion that the arrests and subsequent detention was necessary. Not only was the tenuous material available to him vague and lacking in particulars but it was pure hearsay. Neither before nor after the Petitioners were taken in, did the police have any material to justify their actions.

Not even the motions of investigating any threat or wrongdoing had been gone through. “The First Respondent ( Secretary, Defence) had been misled into making the impugned orders by means of the exaggerations and distortions of the vague allegations which the police had” the Court ruled.

Dilemmas in the future

The highest responsible officials at the time were directed to observe salutary safeguards in formulating policy in regard to arrests and detentions under emergency law. This had a ripple effect with the tightening of procedures relating to arrests under detention orders. These cautions were however disregarded, of course, in the decade that came later and openly mocked at during the Rajapaksa period.

Given this history, it needs to be pointed out that this clause transferring the power to issue Detention Orders to police officers, despite its seemingly innocuous character has all the potential of dealing the ‘kill bite’ to civil liberties. When the police are demonstrably unable to carry ut their duties professionally even in ‘mundane’ law enforcement situations, what potential does such powers carry in fraught contexts of emergency and who now has the means or the energy to fight these matters in courts of law, expecting positive outcomes?

These are dilemmas that will arise no doubt, if and once the CTA is enacted with this power left intact.