by C. A. Chandraprema

In comparison to the provisions in the Anti-Terrorism Bill to confer on Magistrates the discretionary power to place terrorist suspects in custody, the provision for judicial review in the amendment to the PTA passed last year appears to be a much more practicable alternative because it is the Supreme Court and the Appeal Court that has been accorded the power to review detention orders. Judges of the higher judiciary live in the Capital, in much more secure environments than the local Magistrates and it is easier to provide extra security to members of the higher judiciary and to insulate them from any threats coming from terrorists.

The government has gazetted an Anti-Terrorism Bill to repeal and replace the Prevention of Terrorism Act (PTA) of 1979, and it is to be presented to Parliament in the coming several weeks.  This is an altered version of the 2018 Counter Terrorism Bill of the yahapalana government. The government should give serious thought to the implications of some of the changes proposed in this Bill. During the most important operational period of the existing Prevention of Terrorism Act, issuing detention orders on terrorist suspects was the preserve of the Executive branch. It was only in 2022 that judicial review of detention orders issued under the PTA was allowed. However, under the provisions of the proposed Anti-terrorism Bill, the judiciary becomes an integral part of the counter-terrorism mechanism in the country.

Under Section 28 of the Bill, a suspect under arrest has to be produced before the nearest Magistrate within 48 hours. If by that time, a Detention Order has been issued, the Magistrate is obliged to make an order to give effect to that Detention Order. (Detention orders are issued by a Deputy Inspector General of Police and may initially be issued for a period not exceeding three months.) If a Detention Order has not been issued, the Magistrate has the discretion to decide whether the suspect is to be remanded or granted bail. If a detention order is to be extended beyond three months, the Magistrate is once again given the discretion to decide either way. If he decides not to extend the detention order, he will have to consider whether there are grounds to continue to hold the suspect in remand. If he decides there are no such grounds, the suspect can be released on bail.

By vesting Magistrates with such powers over terrorism suspects, the Anti-Terrorism Bill seeks to place the local Magistrates right at the forefront of the fight against terrorism. ‘Judicial supervision’ sounds nice, but is it feasible?  We have experienced outbreaks of terrorism in the form of the attempts at seizing state power in 1971 and 1987-89, the protracted campaign of separatist terrorism in the North and East between 1970-2009, and in the run-up to the 2019 Easter Sunday bombings by a Kattankudy-based terrorist group.

We have to consider the situation that would inevitably have arisen at that time if the local Magistrates had been vested with the exclusive power to remand/detain or release terrorist suspects. Terrorists have no interest in an independent judiciary. Their only aim is to force everyone to toe their line. We have all heard of the way the Kattankudy terrorists summoned even the powerful politicians of the area and imposed various conditions on them. In such circumstances, one cannot prevent Magistrates who hold complete authority over remanding/detaining or granting bail to terrorist suspects from becoming prime targets of the terrorists.

In 1987-89, the JVP killed the Grama Niladharis at every opportunity that presented itself on the accusation that the latter were representatives of the government. One can well imagine the situation that would have arisen at the time if it had been the local Magistrate who was vested with the sole discretion to either remand/detain or release the JVP suspects. Nobody seems to have given much thought to such practical issues. Members of the executive branch such as military and police units barricade themselves behind walls of sandbags and checkpoints when they operate in terrorist-infested areas. But the Magistrates cannot do that. They have to hear cases in open court and to go about in the community attending to various duties.

Vulnerable civilian officials such as Magistrates are hardly in a position to play a frontline role in combating terrorism. Someone may argue that Magistrates routinely remand even murder suspects, drug dealers and other dangerous criminals, therefore adding terrorists to the list will not be a problem. However, dangerous criminals are more often than not, presented before a magistrate for non-bailable offences and the Magistrate has little discretion, if any, in deciding whether to remand/detain the suspect, and criminals know this. In such circumstances, remanding a suspect does not turn the Magistrate into a target.

If, however, the Magistrates are vested with exclusive discretionary power to decide on either remanding/detaining or granting bail to all criminal suspects brought before them, then the criminals too will begin to zero in on the local Magistrates. Like the Magistrates, the police also live in the community they serve, but unlike the Magistrate, all policemen are armed, and work with armed colleagues.

They live in barracks or secured compounds and given the spirit de corps within the service, an attack on one member will bring down on the criminals the wrath of the entire service, and therefore the police are not a soft target for organized criminal gangs or terrorists to take on. Under the 1979 PTA, the power to detain terrorism suspects was vested in members of the Executive who carried arms and could resist force. One has to seriously consider how practical it would be to vest that power in an exposed, vulnerable civilian judicial official.

In comparison to the provisions in the Anti-Terrorism Bill to confer on Magistrates the discretionary power to place terrorist suspects in custody, the provision for judicial review in the amendment to the PTA passed last year appears to be a much more practicable alternative because it is the Supreme Court and the Appeal Court that has been accorded the power to review detention orders. Judges of the higher judiciary live in the Capital, in much more secure environments than the local Magistrates and it is easier to provide extra security to members of the higher judiciary and to insulate them from any threats coming from terrorists.

Fast-tracked release for terrorism suspects

Under Section 71 of the anti-Terrorism Bill, the Attorney General may suspend and defer the institution of criminal proceedings against a suspect for a period not exceeding twenty years if death or grievous hurt has not been caused to any person; or the security of the State and the people of Sri Lanka has not been seriously compromised or affected by the conduct of that suspect. In return, the suspect is expected to fulfill one or more of a set of conditions including the expression of remorse for his deeds, provision of reparations to victims, participation in a rehabilitation programme, public undertaking not to commit crimes in the future, engaging in community service, etc. Under Section 77, at any time before the judgment is given by the High Court, if the charges in the indictment do not relate to causing death or grievous bodily injury to any person; or endangering the security of the State and the people of Sri Lanka; or causing serious harm to property, the Attorney General may, withdraw the indictment against the accused on the basis of the same conditions mentioned above.

These provisions give rise to two questions. Firstly, if death or grievous hurt has not been caused to any person, and the security of the State and the people of Sri Lanka has not been seriously compromised or affected, and property has not been damaged, why should a given suspect be indicted before the High Court, at all? Secondly, even to file charges against a suspect, there has to be sufficient evidence to show that the person concerned has caused death or grievous hurt to some person or that he has endangered the security of the state or caused damage to property.

The difficulties encountered in gathering enough evidence to secure a conviction under the normal law of the land with regard to terrorism related offences is well known. Very often there are no witnesses, or laboratory evidence that can link a suspect to a particular terrorist attack is not available. Even if weapons and explosives are found on the suspect, charges can be filed only for the possession of the same and very often investigators are left with a lot of unproven allegations.

The reason why even the most dangerous LTTE terrorists held under the PTA were released from time to time was because in many cases sufficient evidence could not be found to secure a conviction or even to file charges. Thus, in most cases, terrorism suspects will become eligible for release without prosecution under Sections 71 and 77 of the Anti-Terrorism Bill. Under the provisions of the proposed new legislation, terrorism suspects can be detained only for one year. After filing charges, the period given to conclude cases against a terrorism suspect is also one year. If the case is not concluded within this period, the suspect has to be granted bail except in exceptional circumstances where the High Court can order that he be kept in remand for a further period not exceeding three months at a time.

In circumstances, where there is an ongoing terrorist issue in the country, provisions such as these will become a serious problem. Today, we are able to release even the most dangerous LTTE cadres because the LTTE was eliminated many years ago and these terrorists no longer have a terrorist movement to return to. But had the LTTE still been active in Sri Lanka, releasing even long-term PTA detainees would not have been feasible.

When it comes to terrorists, only the very naïve will believe any talk of expressing remorse and undertaking to refrain from committing offences in the future. Dissimulation is the very stock in trade of the terrorist. Given what we have experienced over the past several decades, the last thing that anybody in this country should be doing is to give out the signal that terrorists will be given special privileges not available to ordinary criminals. However, that is exactly what the proposed Anti-Terrorism Bill does by creating special pathways to enable terrorism suspects to obtain early release without prosecution.