Houdini’s illusions

by Kishali Pinto Jayawardene

(August 28, Colombo, Sri Lanka Guardian) Is the emergency really over in Sri Lanka? Or are we celebrating a clever trick, akin to Houdini’s famed illusions whereby we are being made to believe something that is not really the case?

If one may be forgiven for resorting to the scorned double negative, these are not unfair questions to pose following the country being informed by its Head of State this week that he ‘proposes’ that the state of emergency be lifted. To the citizenry, this pronouncement may seem, at first blush, as if the emergency regime will cease. Jubilation naturally would follow on the part of those who are sick and tired of being ruled under extraordinary laws.

The highly critiqued PTA

But this is hardly the case. First, the Prevention of Terrorism (Temporary Provisions) Act, No 48 of 1979 (as amended) or PTA will continue. The PTA is perceived by many in the shadow of the equally obnoxious Emergency Regulations promulgated under a different statute, namely the Public Security Ordinance No 25 of 1947 (as amended) or PSO. The PTA therefore tends to get bypassed in public scrutiny. However, it is as severely problematic as the PSO.

It contains highly critiqued provisions relating to arrest, search and seizure, detention orders and allows statements admitted to higher ranking police officers as admissible in courts of law subjected to a test as to whether the statement had been made under some form of coercion, inducement or promise.

A displaced Tamil woman waiting at a government camp in Vavuniya, northern Sri Lanka Photograph: UN/AFP/Getty Images ( File Photo)

This test is however of little practical use since the burden of proving that there had been undue influence in making the confession is on the accused person and is therefore a difficult if not impossible test to satisfy when the might of the State is ranged against an individual accused. Very often, confessions are obtained by torture but this torture takes place in circumstances privy to only state agents.

No safeguards from torture

As documentation of these cases have shown, when the person who is tortured is asked to prove the fact of torture by state agents to whose custody he or she will be returned after the court hearing is over, it is logical that there will be tremendous reluctance even to allege the same, let alone try to prove torture. Requests by international juristic bodies such as the United Nations Human Rights Committee to Sri Lanka, asking that this provision be changed to provide more safeguards for a suspect held in police or military custody have been rudely brushed aside. Beating the drum of an international conspiracy against the country, those who have called for such changes have been roundly abused by the government’s legal defenders.

Perhaps in the context of the war that the country had to fight against the Liberation Tigers of Tamil Eelam (LTTE), a foe which was as ruthless as it was unscrupulous, such harsh provisions may have been justified by some. But it beggars belief as to why, two years after the war ended and when we are being continually if not abrasively reminded by the government that Sri Lanka is at peace at last, these provisions need to continue.

In contrast, the ordinary law resoundingly shuts out confessions made to senior police officers on the basis that the risk of admitting these statements is far too great to permit such laxity. Our courts have taken a stern view of the matter, even to the extent of saying that a confessionary statement made in the vicinity of a police station or within the hearing of a police officer would be shut out. Such was the rigour imposed by sane judges in sane times.

Sweeping powers of arrest and detention

The admittance of confessions to police officers is not the only problem with the PTA. It defines an “offence” to cover 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, whatever the last may be interpreted to mean. As an irrepressible wag said the other day, if the term ‘communally divisive’ was to be taken seriously, the first persons to be indicted should include the government’s own propagandists, both overt and covert, whose language at times define the very quintessential meaning of communalism.

Further, similar to the Emergency Regulations, the PTA provides legal immunity for actions of public servants in acts performed under the statute, provided that they were done in good faith and in pursuance of official duties. In theory therefore, even if the acts involved grievous human rights violations such as shooting innocent civilians in cold blood, they would be protected. In the past, Sri Lanka’s courts had intervened to state that this protection cannot extend to acts that are clearly illegal, such as for example, killing unarmed civilians. Yet, these judicial standards appear to be of little account in current times. Meanwhile, under PTA (as under Emergency Regulations), arrests need not be with reasons, detentions could be extended without effective judicial scrutiny and suspects have no right to independent legal counsel or medical examination.

These are just some of the many harsh provisions of the PTA which illustrate precisely as to why Sri Lankans should not feel complacent regarding the lifting of the emergency regulations. This does not mean the lifting of the emergency regime which continues in critical aspects.

What are these ‘consequential laws’?

But the second question in regard to this all too easy acceptance of the purported ending of the emergency regime is the recent (unofficial) announcement by (unnamed) government spokesmen that new ‘consequential’ legislation will be brought in to try terrorist suspects. This announcement seems innocuous but the public is in the dark as to what this draft legislation is all about. Is this new law only to deal with those already arrested under Emergency Regulations or will it extend to future arrests? 

We deserve to know in detail what we will face as a result of these ‘consequential’ laws. No citizen should be treated to the ugly spectacle of having to know about the law only when it is presented before the Supreme Court or for that matter, before the House where the President’s party is unequivocally in the majority and the opposition is ludicrously ineffectual in respect of much of the law making process.

Tweedledee goes but Tweedledum remains

It may therefore be concluded with authority that the lapsing of the Emergency Regulations does not mean the end of the emergency regime in Sri Lanka. For too long, there has been the public perception that the PSO and the PTA constitutes one and the same emergency regime. This was a convenient façade for the government as well. The easy ‘switching’ of detention orders signed by the Defence Secretary between the PSO and the PTA, (even though, at some point at least, this was objected to by our judges), is now a matter of common practice.

Notwithstanding this, the PSO and the PTA enforce two separate and quite distinct emergency regimes. One may be gone but the other stays on. The question is, is there sufficient justification for Tweedledee to go but Tweedledum to remain two years after the war has formally ended?