By Thishya Weragoda –

“The buck must ALWAYS passed FROM here” must be the sign on top of President Maithripala Sirisena’s table. It must also be on the tables of several Ministers of the Government including the Prime Minister. In fact it must have been there on the tables when they got to the respective offices. Their predecessors too must have had it when they got there too. It is a hallmark of Sri Lankan politics to pass the buck. 

However passing the buck in the magnitude we have seen in the last 5 days is unprecedented. The President, Prime Minister and the State Minister of Defense all have dodged their responsibilities. The blame has conveniently been shifted to the Inspector General of Police and the Defense Secretary who are being forced to resign in the aftermath. 

The President, during a discussion with religious leaders on 26^th April 2019 said, inter alia  that there are no laws that allow for the banning of the NTJ. The Prime Minister in an interview with SkyNews (UK) said that there are no laws in place to arrest returning ex-ISIS fighters as joining a foreign terrorist group is not a crime. 

Both these comments by the President and the Prime Minister are highly irresponsible and erroneous and makes Sri Lanka look like a primitive nation whose laws have not caught up with the 21^st century. In fact both statements are outright lies. Although it is true to an extent, that our Parliament has not legislated to catch up with the advancements of the world, we do have the necessary legal framework to cover both situations which were referred to by the President and the Prime Minister. 

National Defense and Maintenance of Public Security 

It is a basic concept that we, the sovereign citizens, waive “our natural rights in favor of the State, which by its protection, reconcile equality and freedom”.[1] This is considered as the social contract of a  functioning democracy. Therefore in exchange for protection, equality and freedom, we abdicate our sovereign rights in favour of the State. 

Article 4(b) of the Constitution of the Republic enacts that “the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People”. Thus there is a direct obligation on the incumbent President to ensure the defence of the Republic both from internal and external aggressions. Further, the President has the sole discretion to declare war and peace, and that discretion is the only discretion exercised by the President which is not subject to judicial review by the Supreme Court[2] in any Fundamental Rights application.[3] 

For the maintenance of good order and peace of any democratic Republic, laws that provide for exigencies and emergencies are essential. Although in ordinary course, the Legislature must make laws that applies for situations, in emergency situation where ordinary public life is in danger, the executive must have the power to make laws that takes back control of the situation. In Sri Lanka this aspect is covered by the Public Security Ordinance.

Article 155 of the Constitution gives legal validity to the Public Security Ordinance. It enacts inter alia  that any regulations, made under the Public Security Ordinance has the legal effect to override, amend or suspend the operation of any law or Statue of the Provincial Councils, except the provisions of the Constitution. – This is an important safeguard in the Constitution. It ensures that an eccentric President cannot suspend the operation of the Constitution and declare himself king, by proclaiming that there is an emergency. There are further safeguards that are placed in the Constitution to ensure that an overzealous President does not arrogate unimaginable powers unto himself. Any proclamation of emergency must be forthwith be communicated with the Parliament, and approved by Parliament within 14 days of being issued. Emergency declared by  Proclamation is valid for a period of 30 days only, and must be extended by the President every 30 days and all such extensions must be approved by Parliament and if Parliament does not approve such proclamation, the proclamation of emergency shall immediately cease to be valid. These important constitutional safeguards and prominence is given to the Public Security because the President is expected to react swiftly and diligently to emergencies only and not to abuse the powers entrusted with him. 

State of Emergency and Emergency Regulations 

It is in this background the Public Security Ordinance must be assessed. In terms of Section 2 of the Public Security Ordinance, the President in his absolute discretion may declare that an emergency situation has arisen and bring Part II of the Ordinance into operation. Until such Order is issued, Part II of the Public Security Ordinance remains inoperative. Although the calamitous events took place on Sunday 21st April 2019, since the President was overseas, Emergency could not be declared until a day later.[4] 

By the aforesaid Order, Part II of the Public Security Ordinance was brought into force, no regulations in terms of Section 5 were issued immediately thereafter. Originally the Government Printer’s website indicated that the Emergency Regulations were to be published under Gazette Extraordinary No. 2120/04. However, it was only available on 24^rd April 2019 at 7AM under Gazette Extraordinary No. 2020/05 giving a strong indication that the Emergency Regulations were in fact not actually published on 22^nd April 2019 as indicated in the Order. Adding further to the mystery the Gazette Extraordinary No. 2120/04 was published on 23^rd April 2019 calling the Tri-Forces to maintain public Order. In fact it was only on 23^rd April 2019, a whole 2 days later that the tri-forces were deployed to maintain public security. Although the changes and delays in publishing the Gazettes seems so trivial in the larger scheme of things, it clearly demonstrates that the President nor his public officials had any preparedness to respond to any form of emergency. 

Insofar as the President is concerned, he is now empowered to legislate during the emergency period overriding the laws enacted by parliament. Therefore his argument that there are no laws that could be used to proscribe the NTJ[5] is factually false. The first option available to him is to promulgate an Emergency Regulation to proscribe the NTJ. Given that it is an urgent matter, this is the very purpose of Emergency Regulations – to urgently make regulations that could cover situations of the nature we are faced with. In fact, in 1998 after the bombing of the Sri Dalada Maligawa, the then President Kumaratunga proscribed the LTTE by way of an Emergency Regulation.[6] Thus there is precedence of such immediate action being taken in the aftermath of grave tragedies. Similar steps could have been taken by the President, if he so desired and/or if he was duly advised by the eminent counsel who advise him. 

The second option available to the President is to proscribe the NTJ under the Prevention of Terrorism Act. This aspect would be considered subsequently. 

Prevention of Terrorism Act No. 48 of 1979

In the aftermath of threatened and actual violence by the LTTE, in 1978 the National State Assembly enacted “The Proscribing of Liberation Tigers of Tamil Eelam and Other Similar Organizations Law, No. 16 of 1978”, which was in operation for a period of 2 years. In the meantime, repealing the said law, the Parliament in 1979, enacted a temporary legislation – until a better law is drafted – the Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979 with the view of the said temporary provisions being in force for 3 year from date of commencement.[7] Thereafter, in 1982, the said time limit of the Prevention of Terrorism (Temporary Provisions) Act was repealed by an amendment[8] making the Prevention of Terrorism (Temporary Provisions) Act indefinite in its operation. 

Section 27 of the Prevention of Terrorism (Temporary Provisions) Act provides that the Minister of Defense may make regulations under the Act for the purposes of carrying out or giving effect to the purposes and provisions of the Act. In 2011, when the Government decided to lift the State of Emergency which existed, the question arose as to how the LTTE could be continued to be proscribed as the proscription has happened by way of Emergency Regulations in terms of the Public Security Ordinance. Therefore, the then Minister of Defence promulgated new regulations[9] under the Prevention of Terrorism Act.   

Thus it appears that what is needed to proscribe the NTJ is a set of Regulations promulgated by the President. He need not even draft the regulations afresh as he could simply copy, paste and modify the existing regulations which prohibit the LTTE. Subsequently if there are any shortfalls, additional regulations may be brought into effect. 

Therefore the claim by President that there are no laws are in existence to proscribe the NTJ or any other terrorist organizations is grossly false and erroneous. In fact, it is an outright lie. It is nothing more than attempting to shift blame to others for the incompetence of the incumbent. It also appears that the President has no genuine interest in proscribing the NTJ or any other fundamentalist or terrorist groups operating in Sri Lanka. 

Meanwhile speaking to SkyNews, UK, the Prime Minister stated that Sri Lanka has no laws that could have been used to arrest returning ISIS fighters.[10] This too is an outright lie. In fact, the Prime Minister, was part of the legislature back in 1978 when the Prevention of Terrorism Act was enacted, which is one of the laws which could have been used to arrest and prosecute returning ISIS fighters. Someone on Facebook had quite cheekily asked “we have laws to arrest a bunch of boys for showing their asses on top of pidurangala, but no laws to arrest an ISIS terrorist when entering the Country?”. Though the question is an oversimplification of the issue, that is the sentiment shared by the vast majority of the online community. 

For argument’s sake, let us assume the Prime Minister was correct. Even then, have the intelligence community interrogated them on their return to the Country? Have they been put on a terror watchlist? Were their activities after return to the country monitored to see if they engage in illegal activities?  These are the answers the Prime Minister must provide. Instead, the Prime Minister makes such unwise an ill-advised comments to overseas media making the entire nation the laughingstock of the world. 

The Prevention of Terrorism Act defines “unlawful activities”[11]  to cover acts done within or outside of Sri Lanka which would be an offence under the Prevention of Terrorism Act. In fact, many have been arguing for many years that the reach of the Prevention of Terrorism Act is too wide and draconian. The retuning ISIS fighters could have been arrested under the provisions of the Prevention of Terrorism Act if the government was so inclined. Citizens have been arrested and detained under these provisions for much less in the past and it is well documented.

Another aspect that has slipped the minds of the legal luminaries who advise the Prime Minister and the Prime Minister himself is the provisions of the Penal Code. It is a basic principle of law that laws are territorial unless specific extraterritorial jurisdiction is conferred by the legislature. 

The Penal Code in its original form only envisaged the punishment of offenders for offences committed within the territory of Sri Lanka. However, by way of the Penal Code (Amendment) Act No. 32 of 1991 the applicability of the Penal Code was extended to offences committed by Sri Lankan Diplomats residing overseas. Thereafter, in 2006 by a further amendment, the Penal Code was made applicable to offences committed by all Sri Lankans in overseas territories.[12] Therefore if the former ISIS fighters had engaged in any activity that violated any provision of the Penal Code, they may have been arrested and prosecuted if the Government so desired.  The Judicature Act provides that the High Court has the jurisdiction to hear such cases.[13]

It is thus evident that the failure to Ban the NTJ or ISIS in Sri Lanka or to arrest returning ex-ISIS fighters were not due to any legislative lacuna but the lack of competence of the government to make use of the available legal provisions to do so. 

Therefore, the narrative extended by the President that there are no laws in place to proscribe the NTJ and the narrative by the Prime Minister that it is not illegal to join an overseas terrorist organization are outright lies. As the two most powerful persons of the Republic, they should not be so callous or ignorant with their words at this juncture. They should be reassuring the public that every step is taken forthwith and not procrastinated. Sadly the reverse has happened over the entire last week. 

Mr. President, Mr. Prime Minister, you two should hear yourselves on media. You two have been providing nothing more than comic relief in this time of grief. Either you two get your act together. Illegally blocking access to some websites and communication applications does not resolve all problems of the Country. Plasters don’t work when one needs surgery. The public have caught on to your lies. 

1. Rousseau’ Social Contract Theory 

2. eg.: Sunila Abesekara v. Ariya Rubasinghe (2001) 1 Sri LR 314. 

3. Proviso (2) to Article 35 of the Constitution. 

4. Gazette Extraordinary No. 2120/03

5. “Commenting on the National Thowheed Jamath, President Sirisena noted that they are looking into banning the NTJ but that they do not have the necessary laws to implement a ban. The President stated that they are looking into the acts passed by the Australian Parliament to help Sri Lanka draft the required Laws.”

{https://www.newsfirst.lk/2019/04/26/no-laws-to-ban-the-national-thowheed-jamath-president/} [last access 27^th April 2019]

6. Emergency (Proscribing of Liberation Tigers of Tamil Eelam) Regulation No. 1 of 1998 published in Gazette Extraordinary No. 1012/16 dated  27^th  January 1998 

7. Section 29, Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979

8. Section 4, Prevention of Terrorism (Temporary Provisions) (Amendment) Act, No. 10 of 1982.

9. Prevention of Terrorism (Proscription of the Liberation Tigers of Tamil Eelam) Regulations No. 1 of 2011 published in the Gazette Extraordinary No. 1721/2 dated 29^th August 2011.

10. “Sri Lanka’s prime minister Ranil Wickremesinghe has told Sky News the country’s government knew Sri Lankan nationals who had joined Islamic State had returned to the country but they could not be arrested as joining a foreign terrorist organisation is not against the law”  https://twitter.com/skynewsbreak/status/1121445572991488000?s=11 [last access: 27^th April 2019] 

11. “unlawful activity” means any action taken or act committed by any means whatsoever, whether within or outside Sri Lanka, and whether such action was taken or act was committed before or after the date of Coming into operation of all or any of the provision of this Act in the commission or in connection with the commission of any offence under this Act or any act committed prior to the date of passing of this Act, which act would, if committed after such date, constitute an offence under this Act.

12. “A national of Sri Lanka shall be liable to punishment under this Code and not otherwise, for every act or omission contrary to the provisions thereof, committed outside Sri Lanka of which he shall be guilty, whether or not such national enjoys diplomatic immunity in respect of such act or omission, which is granted by a foreign State by reason of his diplomatic status in such State.” s. 2(2), Penal Code, as amended by s.2, Penal Code (Amendment) Act No. 16 of 2006.

13 (1) The High Court shall ordinarily have the power and authority and is hereby required to hear, try and determine in the manner provided for by written law all prosecutions on indictment instituted therein against any person in respect of-

(f) any offence wherever committed by any person, who is a citizen of Sri Lanka, in any place outside the territory of Sri Lanka or/on board or in relation to any ship or aircraft of whatever category.

s.9(f), Judicature Act No. 2 of 1978

* The author would like to thank and appreciate several legal experts who provided material and guidance to write this article. Though they wish to be unnamed, their contribution is acknowledged.