30 September, 2020

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Detention Without Trial: Necessity Or Debilitating Addiction?

By Rajan Hoole

Dr. Rajan Hoole

Detention without trial has so prominently been part of our lives, particularly from the 1970s, that we have become inured to it. No doubt it is external pressure that has driven us to think about it afresh and the Government to set about the task of replacing the notorious Prevention of Terrorism Act with another Counter Terrorism Act. The latter has received qualified approval from the Human Rights Watch: “The Sri Lankan government has finally addressed the torture-tarred Prevention of Terrorism Act, but the proposed law needs stronger human rights protections.”

That means the Government could get away with it for a couple of years. But is that adequate for us who live in this country, we who must ensure that each one of our fellow citizens enjoys the full measure of dignity and self-assurance that is his or her due? The State’s right to detention without trial demeans us all, and once we give someone else the facility to play with our lives, it makes us more prone to become manipulators for personal ends. That is the legacy survival under terrorism had left us. 

Should this not give us pause to think whether we really need anything more than the Penal Code on our statute book? A glance at the draft CTA would suggest that the answer is no. The more serious crimes in the Penal Code have been replicated in the draft as acts of terrorism. Something so lengthy and platitudinous does not augur well for the Majesty of the Law. We are told that a person might be rewarded with leniency in sentencing by publicly denouncing terrorism and for expression of remorse. A change of heart in a criminal is welcome and personal, but must we demean him by turning him into a supplicant?

The British Experience

Our long and eventful association with Britain has left us with mixed feelings, but it would be to our loss when we refuse to learn from their experience. What made Britain great was her strong tradition of personal liberty. In Walter Scott’s great novel Old Mortality, set in the context of the 17th Century persecution of Presbyterians by Charles II; Morton, in refusing to answer the questions of Colonel Claverhouse, who holds discretion over his life, says:

“I will not. I will know whether I am in lawful custody, and before a civil magistrate ere the Charter of my country [Scotland] shall be forfeited in my person… I desire to know what right he has to detain me without a legal warrant, Were he a civil officer of the law I should know my duty was submission.” It is this spirit that uplifts a nation. 

The tradition was reiterated by Justice Blackstone in his Commentaries of 1765 – : “Of great importance to the public is the preservation of this personal liberty, for if once it were left to the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper, (as in France it is daily practised by the Crown), there would soon be an end of all other rights and immunities.”!

Britain did not have emergency legislation on its statute book during the one hundred years since the end of the Napoleonic wars until DORA (the Defence of the Realm Act) in 1914 which was repealed soon after the First World War in 1918. It was followed by the Emergency Powers Act of 1920 in anticipation of the coal miners’ strike, in order to maintain essential supplies. But it aroused such misgivings that the Act included the particular commitment that it shall not be an offence to take part in a strike; and existing procedures in criminal cases shall not be altered.

With the onset of the 2nd World War in August 1939, the British Parliament passed the Emergency Powers (Defence) Act, which paved the way for detention without trial:

“2 (a) Make provision for the apprehension,  trial, and punishment of persons offending against the Regulations and for the detention of persons whose detention appears to the Secretary of State to be expedient in the interests of the public safety or the defence of the realm…”

Most of its provisions, including detention without trial, expired after the end of the war on 24th February 1946, in both Britain and the Colonies.

Ivor Jennings and personal liberties

Jennings, in October 1940, five months before he left England to become the first Vice Chancellor of the University of Ceylon, wrote a paper in the Modern Law Review on the Emergency Powers Act. He acknowledged the historical role of ‘Whigs and dissenters’ in securing personal liberties and expressed his satisfaction that the war regulations did not entirely take away the role of the Judiciary and Parliament in safeguarding these.

For instance, when speedy response to criminal action is required of a court exercising delegated power in certain volatile conditions, its actions remain justiciable. Jennings says:

“This is a real restriction, because it is not provided that the power may be exercised when somebody in office is “satisfied” that the conditions exist. The conditions must really exist: that is, when the ordinary courts are open it will be possible to challenge the decision of the special court by prerogative writ or order on the ground that the Order in Council was invalid by reason of the non-existence of the conditions.”

This spirit strongly contrasts with that of our Public Security Ordinance (PSO) passed on 16th June 1947 during the last nineteen days of the Ceylon State Council; which has deceptive similarities to the British Emergency Powers Act. We need to look closely at the PSO because all repressive legislation in the coming decades flowed from it.

PSO – A clear deviation from British tradition

We have in 5 (1) and (2) of the PSO: 

“… make such regulations … as appear to [the Governor-General] to be necessary or expedient in the interests of public security and the preservation of public order and the suppression of mutiny, riot or civil commotion… authorize and provide for the detention of persons …” 

This closely follows Article (2) the British wartime Emergency Powers Act above. We now come to the crucial difference.

PSO 8 “No emergency regulation, and no order, rule or direction made or given thereunder shall be called in question in any court.”

PSO 9 “…  no suit, prosecution or other proceeding, civil or criminal, shall lie against any person for any act in good faith done in pursuance or supposed pursuance of any such provision.”

No British Act or Regulation dealing with emergency powers, to my knowledge, sanctions acts done ‘in good faith’. PSO 8 is contrary to what Jennings said about the PSO’s parent, the UK Emergency Powers Act. 

To accept acts ‘done in good faith’ at face value is to demolish the supremacy of the law and open the door to unlimited impunity. In British law, “In so far as acts go beyond strict necessity, they will then be punished unless an Act of Indemnity is passed, which, as Dicey says, amounts to Parliament legalizing illegality” (David Dyzenhaus, Legality in a Time of Emergency).

The ‘good faith’ doctrine carried over from the PSO to the PTA, now appears in the CTA, as also detention without trial (CTA Articles 27 – 31).

PSO challenged in Parliament

Four months after Independence, Dr. N.M. Perera moved a resolution in Parliament on 7th July 1948 to repeal the PSO. He reminded the House that J.R. Jayewardene had told the State Council a year earlier that public opinion in the country was not sufficiently awakened and it would be dangerous not to have a provision of this nature on the Statute Book in case of an emergency. Perera charged that the PSO was a measure by those who were fascist at heart to intimidate the workers and prevent them from getting their full trade union rights. 

D.S. Senanayake responded with what Pieter Keuneman pointed out was the Prime Minister’s variation of the old English adage ‘Prevention is better than cure’, that ‘Precaution is better than cure’. Senanayake promised to come back with amendments to the PSO ‘that would bring the law into line with the English law’. (That never happened.) Both Jayewardene and A.E. Goonesinha promised that detention without trial, which made possible the detention during the war of elected representatives, N.M. Perera and Philip Gunawardana, would go from the PSO. That too never happened.  

The main problem with such legislation is that there is invariably a generalised target group as we have seen. Jayewardene alleged in Council, in July 1947, that, “These speeches [by strikers in Galle Face and elsewhere the previous month] clearly indicate a direct incitement to the people to shoot, to kill. They have shouted in their speeches that the Board of Ministers should be ousted from office.”

This was bordering class war. Other speakers in Parliament pointed out that incitement to violence could have been prosecuted under normal law.   

The Liberation Movement that has challenged the CTA Bill has observed, “the nature of Terrorism legislation in any form is that it allows the State to cause mistrust and suspicion amongst its citizens.”

1947 and the Legacy of Conflict

The Government armed itself with the PSO in 1947 under cover provided by ebbing British rule; and in June 1948 armed itself with the Trade Unions Amendment Bill. Both should be seen in the context of the Citizenship Act of August 1948. The Government must have been alive to the prospect of the latter triggering off a combined strike of the Plantation Unions and other unions taking their cue from government sector unions, particularly the GCSU, whose activists were educated and articulate. The Trade Unions Bill made affiliation or federation of any government sector union with other unions, private sector or public, illegal. 

The PSO came in the aftermath of the strike of 5th June 1947, which Senanayake put down harshly. Leslie Goonewardene reflected in his Short History of the LSSP, that the result of the strike was ‘not just a defeat, but a smash-up’. That partly explains how the minority Government got away so easily with the Citizenship Act. A great part of the blame lies with Tamil politics.

Historically, the rightful role for a party representing a minority is to defend and strengthen personal liberties and individual rights for all. This is where the Tamil parties failed. Communal representation, the Tamil Congress’ 50 – 50, was a mistaken goal. Placed in a quandary of isolation, the Tamil Congress voted with the Government on the Trade Unions Bill and cooperated with the Government on the Citizenship Bill. Although Chelvanayakam redeemed himself on the latter, it was too late. 

The Tamils had burnt their boats. Their drift into national self-determination and separatism was a tragedy. Today their public and academic life is dominated by intellectual ciphers. A return to personal liberties requires courage. The primary goal should be to rescue the country from mediocrity and its fate of citizens as supplicants. A political settlement should flow from that.

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Latest comments

  • 1
    7

    UNHRC report which Rajan Hoole described as a victory is full of allegations without evidences and want army men and civilian leadership penalized based on allegations where the witnesses can remain anonymous for 20 years………….And why did not Rajan Hoole write something similar then?

    Those who are arrested under PTA are accused of terrorism and war crimes. The intelligence agencies are 100% assured about it.

    • 6
      0

      Rajan Hoole

      “Detention Without Trial: Necessity Or Debilitating Addiction?”

      I think you should aim this question at Lord Naseby who is still the colonial master of Sirisena and Champika, who met their lord on their recent visit to the UK.

    • 1
      0

      I am grateful that you are conducting the debate on civilised terms. The UTHR(J) followed the war closely through our own independent informants and I personally knew a few persons in human rights organisations with a global reach who were associated with the UN Secretary General’s Advisory Report. I know that they tried hard to be very objective.
      See my response to Laksiri Fernando below. Sri Lanka has not developed a system of legal accountability that its own citizens could trust. Thus inevitably its own citizens invite and rely on external initiatives. So did Mahinda Rajapaksa himself during the JVP insurgency of the late 1980s.
      If you were more open minded about our intelligence agencies and security forces, you should look into the fate of the Commission of Inquiry President Rajapaksa appointed in 2006 to inquire into the Five Students and ACF Massacre cases among others.

    • 2
      0

      Dear sach,
      .
      There is a great need for people of good will to get together and put this country right for all citizens. We have to stop thinking in parochial terms. Let’s get this straight. There are people in all communities who have consistently fought for decency and justice. There are others, like most of us, who yearn for a better future for our children, and grandchildren, but who may not be as consistent. It is sometimes difficult to categorise people, but it is easy to distinguish between these people who want peace, and those who want to manipulate for their own reasons. Let me try to illustrate from recent articles on this website.
      .
      See what I have said about Prof. Mahesan Niranjan and his family. They began learning our language long before governments tried to “persuade” them to.
      .
      https://www.colombotelegraph.com/index.php/dons-diary-iii-kilinochchi/
      .
      I wish I had been more effective myself all these years, but no, I don’t know any Tamil at all. I made every effort to ensure that my children grew up as trilinguals. My elder daughter has reasonable proficiency of all aspects of Tamil; it was about twenty years ago that she was mentally scarred for life by being locked up as a suicide bomber. She was taken in under PTA because some foolish people reported her as being a suicide bomber. Of course she was released in little more than a day, but that was bad enough for a child as delicately brought up as her. Yes, our intelligence services were 100% sure within a day of her total naivety, but please consider the reactions of less informed people.

      • 2
        0

        Sinhala man, I learnt Sinhala in 1955, long before your Mahesan family members were born. I passed grade 3 (JSC) in Sinhlala in 1979 (8 years after joining service) for confirmation of post. I am sure I am more competent in Sinhala than any of them.

        • 1
          1

          `Dear Dr. Gnana Sankaralingam,
          .
          That is great.
          .
          “long before your Mahesan family members were born.” you say.
          .
          Nirmalan is the man who told me that you are a good man, but sometimes a bit mixed up. He also asked me to be gentle with you, because you have suffered much at the hands of racial goons. Further he asked me not to say he said so! Now I’ve broken my promise to you – because I think that you have recovered your sangfroid.
          .
          Now try to be a bit less critical of others – and don’t make comparisons aimed at showing that you are the greatest.
          .
          You are not the greatest, but you are a good man! Best wishes to you, and to Nirmalan.

      • 2
        0

        Sinhala_Man,

        I am sorry to hear about what happened to your daughter.
        Trilingualism helps a lot, but I don’t think Tamils are asking Sinhalese to learn the Tamil language.
        What we need is that Sinhalese should support pressuring the GoSL to provide a cadre of Tamil language interpreters , including mobile interpreters, in such a way that it tangibly helps people in their daily lives.

        That means, sending letters in Tamil or at least English to people who identify themselves as Tamils. Providing Tamil language interpreters in government offices, police stations and military detention centers. Buses in the South sometimes used to have their boards in Tamil as well, but most of the time in Sinhala only and this affected the people.

        There is a ministry under Mano Ganeshan but it should be provided adequate funds and power to actually do some things useful. If the state can spend billions for the military in a time of relative peace, why can’t the GoSL allocate sufficient funds for this purpose and make it a reality?

        And Sinhalese human rights groups and lawyers should join some Tamil lawyers in aggressively defending citizen rights in the face of state thuggery and military atrocities and make the country better for everyone. That can gradually make Tamils feel they are physically safe in the country. Right now, Tamils still feel riots and atrocities can descend on them at any time, and living in peace with the Sinhalese in peace is not possible in the long term. Doing nothing about that and then shouting about keeping the unitary status of the country, as many Sinhalese hardliners do, is not the way to reconciliation.

        • 2
          0

          Thanks, Agnos.
          .
          Let us do what we can, where we can.
          .
          The news right now, of course, is that Mahinda R. has been sworn in as Prime Minister. This chaos is not good for any of us.

    • 1
      1

      Part Two
      .
      There are fools among the Tamils – see the initial response to this story.
      .
      https://www.colombotelegraph.com/index.php/sri-lanka-claims-top-spot-in-lonely-planet-travel-destinations-for-2019/comment-page-1/#comment-2218267
      .

      Please note who has been the first to contradict him – a Tamil; a man with whom Dr Hoole normally seems to be at loggerheads with. I thought it sensible to just agree with him – to me that seems to make more sense than persist with arguments to save face. Let us not make it a matter of principle amongst us to oppose everythinjg said by a Tamil.
      .
      The British High Commissioner has “interfered” in our affairs. He is doing his job. “A historical necessity”. Yes, had he been around at the time of the the Amritsar Massacre in 1919, he may have done his “job” – or who knows, he may have emulated Bracegirdle. We have to accept that Provincial Council Elections not being held is an undermining of Democracy, but Champa is quite right in asking of what use these Provincial Councils are.
      .
      I respect Champa; a guy like him may actually make a good President, although most revile him. Many call him a racist; I don’t. His concerns are genuine. I consider them misplaced. See what he says of me in comments on me towards the end:
      .
      https://www.colombotelegraph.com/index.php/mr-abruptly-ends-press-conference-when-questioned-about-shirani-bandaranayakes-hastened-impeachment/
      .
      Let us recognise that Rajan Hoole, just as much you and I, has been doing all that he can to prevent terrorism from succeeding.

  • 5
    0

    Detention without trial is a sign that ‘Law and Order’ is being eroded. When one attempts to legalise the detentions with some sort of act like for example PTA, it is a sure sign that ‘Law and Order’ is no more.
    Acts like for example PTA are NECESSARY if there is direct interference like letting off someone for grave offences including for example drug trafficking.
    It is an ADDICTION if acts like for example PTA is replaced with near identical acts like for example CTA.
    We reach the ‘Realm of Terrorism’.

  • 3
    0

    Rajan’s question: “Should this not give us pause to think whether we really need anything more than the Penal Code on our statute book?” is partly correct. However, even in that case terrorism offenses could be included, in my opinion.

    For example, Australia’s laws against terrorism are in Part 5.3 of the Criminal Code Act 1995. Therefore, there is more protection for dignity and rights who could be suspected and arrested. There is also no possibility of detention without trial like in Sri Lanka’s case as Rajan has clearly explained. However, the scope of cover is vast including (1) terrorist offenses (2) terrorist organizations (3) preventing the financing of terrorism (4) urging violence and advocating terrorism offenses and (5) foreign incursions and recruitment offenses.

    • 2
      0

      Laksiri, I agree with you that the law cannot be stationary and must develop answers to modern challenges such as high-tech terrorism. It is widely recognised that under conditions of war or debilitating violence, the rule of law cannot be maintained and extra-judicial measures are inevitably used to restore order. What I stress is the principle widely accepted in the British tradition that once peace is restored, those who used extra-judicial measures may be challenged legally to show that the conditions under which these measures were justified, really existed. That is how legal accountability maintains its sway. Without that we sink into barbarity. It is by trying to evade this principle that Sri Lanka has plunged itself into a multi-faceted crisis. This is the great damage done by the ‘good faith’ doctrine which has survived since independence in Sri Lanka’s jurisprudence to discredit our law enforcement and sap judicial initiative.

  • 0
    3

    “What made Britain great was her strong tradition of personal liberty.”
    *
    Ask her own victims of the past during years of ‘greatness’ and the toilers of the colonies– not the brown sahibs.

    • 2
      0

      SJ,
      The law and the hard won liberties it enshrines are, even in the best of times, a glimmer of hope amidst a sea of violence and anarchy. That does not make the achievement any the less important, whether in Britain or here. It is frequently our only hope.
      Our own country is a good example. If you and I are able to write and speak fairly freely today, it is because of the yeoman work done over many years to check our rulers, by people like Somasundaram Nadesan, and silently, but with great scholarly thoroughness, by others like Suriya Wickremasinghe.

      • 2
        0

        RH
        My comment about your hailing ‘greatness’ of Britain.
        You should know as much as I do about how successive British governments actively supported imperialist oppression and war even after Britain’s ‘great’ bit shrank after WW2.
        If you want me to endorse the achievements of those who replaced MR rule with MS-RW rulle, I am sorry I cannot.
        The freedom that the elite enjoy is conditional and limited. The bigger picture is dull and disappointing. The freedom for empty talk is nothing compared to the lack of it when students and workers take to the streets.
        *
        I was never in trouble for speaking out ‘fairly and freely’ under the MR regime, for I posed no threat the way the likes of Ekneligoda did.
        I doubt if you were harassed either by the MR regime. (I do not say that it was because some people close to you were even great admirers of MR for a while; but because MR regime did not perceive you as a threat.)

  • 0
    0

    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2/

  • 3
    0

    Dear SJ,
    .
    Many horrible things were done by the colonials. You, Sir, are too intelligent for me to bandy words with, and get the better of.
    .
    Can you compare one horror with another? What Hitler did? What Stalin did? What some Chinese leaders probably did? We Sinhalese all believe that Velupillai Prabhakaran was also a horrible man, as was “Colonel Karuna” – what Muralitharan was he?
    .
    What Gotabaya Rajapaksa probably got done. “Probably” because none of it has been “properly” investigated. I’m personally convinced that he deserves the most severe punishment; but my question remains: how can we possibly make objective comparisons?

  • 0
    0

    Britain may have more liberally and logically formulated the emergency measurements in it is statues & might have permitted only during situation really existed or even nothing of that may be there, but the Lankawe case is different. That is something important in the CTA.
    To read above passages, it appears to be that PSO was not there to simply care the expected labor union action from Up Country, but JR had indicated that if their voting rights were disfranchised, a lager commotion could be expected and the law had to be draconian enough to deal that situation that would arise from uneducated, innocents, peasants, the planters who had no idea of what the government was about to look from them (Leave the country). So in addition to that 1947 union action was crushed, when they were disenfranchised, they were duct taped and deported by the PSO.
    Further, the government uses two different dictionaries to interpret the law between Tamils and Sinhalese. So it is irrelevant what is being said in the CTA at this point. This what Appe Aanduwa did when it was using the UNSC’s resolution 1373 and UNHRC’s resolution 30/1. Now only JVP is waking up and saying some of the CTA provisions can be used to interpret Labor Union actions as terrorism. But the Government will not rush to do that if that is an incident taking place in south, unlike Vijayakala’s case. But it will resort to take that defense if something like Weliweriya has happened. Still one cannot expect JVP get serious on this. Further other communists like Vasu, Tissa, and DEW who go against working class will not join JVP to have this bill defeated. There are all indications at this time too Sampanthar going support his darlings in the government.
    So any action to deter CTA having enacted has to come from outside i.e, IC and & NGOs.

  • 1
    0

    Detention without trial should not exist. However arest and temporary detention is a practical necessity depending on the suspected offence. I

    Soma

    • 1
      0

      somass

      “Detention without trial should not exist. However arest and temporary detention is a practical necessity depending on the suspected offence”

      Good idea.
      We never thought of this.
      Thanks.
      However you are too late by say 47 years, (from 1971 to date). You should have put forward your human rights ideas to your wannabe Chackravartin when he was misruling the country from 2005 to 2015.

      I am curious, whether the above condition applies to just one section of the chosen people or people living throughout the country?

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