A petition seeking a special determination (SD) of the Supreme Court (SC) concerning the Prevention of Terrorism (Temporary Provisions) (Amendment) Bill which seeks to amend the Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979 as amended (PTA), by way of additions and omissions of text, was filed on 15 February by a group of trade unionists and journalists, who claimed that the said Bill and provisions contained therein are inconsistent with the Constitution, and therefore require to be passed by a special majority in the Parliament and approved by the people at a referendum.

The petition number is SD 16/2022. The petitioners are the Ceylon Mercantile Industrial and General Workers Union General Secretary Sylvester Jayakody, the Ceylon Teachers Union General Secretary Joseph Stalin, and Journalists Ruwan Laknath Jayakody and Kavindya Christopher Thomas. The sole respondent is the Attorney General (AG). The matter is settled by Attorneys-At-Law (AALs) Swasthika Arulingam, D.P. Koushalya Samaraweera, Lakmali Hemachandra, Jayantha Dehiaththage, Migara Doss, Mahbooba Rifaideen and Ermiza Tegal.

The petitioners advocate for the repeal of the PTA due to its fundamentally unconstitutional nature and its erosion of the rule of law, fundamental rights (FR) and freedoms. The petitioners state that if the said Bill is enacted, it would effectively do grave and irreparable injustice and injury. The petitioners seek a determination from the SC that provisions of the said Bill are inconsistent with the provisions of Articles 3 {the inalienable sovereignty of the people including the FR }, 4(c) {the judicial power of the people being exercised by the Parliament through the Courts}, 4(d) {that FR shall be respected, secured and advanced by all organs of the Government and shall not be abridged, restricted or denied}, 10 {the freedom of thought, conscience and religion/belief}, 11 {freedom from torture or cruel, inhuman or degrading treatment or punishment}, 12(1) {the right to equality before the law and equal protection of the law}, 12(2) {freedom from discrimination on the grounds of race, religion, language, political opinion, place of birth or any one of such grounds}, 13(1) {freedom from arbitrary arrest}, 13(2) {freedom from arbitrary detention}, 13(4) {that the arrest, holding in custody, detention or other deprivation of personal liberty of a person, pending investigation or trial, shall not constitute punishment} and 14(1)(h) {the freedom of movement and of choosing one’s residence} of the Constitution.

The PTA was communicated as a Bill that would be in operation for a period of only three years (per Section 29 of the original enactment) when presented to the SC in 1979, in SD No. 7 of 1979 P/Parl/13 pronounced on 17 July 1979. Further, the SC was informed that the Bill would be passed with a two thirds majority in the Parliament. Hence, the SC did not consider Constitutional inconsistencies, particularly on the issue of the restrictions on Articles 12(1), 13(1), and 13(2) permitted by Article 15(7) {in the interests of national security and/or public security}. In Weerawansa vs. AG and Others (SC Application No. 730/96), President’s Counsel and Justice Mark Damien Hugh Fernando stated: “the PTA became law despite any inconsistency with the Constitutional provisions.” Furthermore, since the PTA was introduced as an urgent Bill, citizens did not have an opportunity to challenge the Constitutionality of the Bill. Also, despite Section 29 of the original enactment being repealed by the Amending Act, No. 10 of 1982, the PTA still retained the “Temporary” nature of the Act in its title.

It is a fact that the FR and other Constitutional safeguards have been continually violated in the last four decades that the PTA has been in operation owing to the violations and abuses that have been perpetrated in the implementation of the PTA. The entire PTA introduced a parallel criminal justice scheme, system and mechanism which are triggered by the identification of an offence as an act of terrorism, and which introduced and bestowed a series of broad discretionary and unchecked Executive powers which deny and/or abridge the rights of such suspects to the ordinary guarantees of FR. The Constitution, in its current formation, maintains a prescribed balance of power between the Executive, the Legislature/the Parliament and the Judiciary and the PTA specifically seeks to interfere with the basic structure of this Constitutional balance, particularly by subordinating the Judiciary to the Executive.

The petitioners state that under Clause 3 of the said Bill, the newly inserted Sections 9A and 9B makes provisions for the Magistrate to visit places of detention within the Magistrate’s judicial division. However, the jurisdiction of the Magistrate is conditional upon the Magistrate being given a copy of the detention order within a ‘reasonable’ period. Under this Clause, the Magistrate can only visit the place of detention upon the production of the detention order. The Magistrate’s powers to access detainees granted under this Act is in effect subordinated by the Executive’s discretion to produce the detention order to the Magistrate. Thereby, the Executive becomes the ‘gatekeeper’ who decides whether the Magistrate can access detainees or not. In the absence of the Executive producing the detention order, the Magistrate is effectively barred from entering detention centres, thereby lowering the authority of the Judiciary in relation to the Executive. Thus, this Section, while purporting to grant powers to the Magistrate to visit detention centres, in fact upsets the checks and balances maintained in the Constitution between the Executive and the Judiciary. Therefore, Clause 3 violates Article 3 read together with Articles 4(c), 4(d), 11, 12(1), 13(1) and 13(2) of the Constitution. Taking cognizance of the fact of torture, and arbitrary and prolonged administrative detention under the PTA, the Legislature must enable the Magistrate to access detention centres upon receiving information that a person has been detained within his/her judicial division without conditioning it on the production of the detention order.

The petitioners further contend that Clause 3 introduces Section 9B(2) whereby upon the Magistrate being of the opinion that the suspect was subjected to torture, can take several steps, including referring the suspect for medical treatment. However, the Magistrate is not given the power to remove the suspect from the custody of the alleged perpetrator who had inflicted torture on the suspect or to take the suspect under judicial custody thereby affording him/her immediate protection from torture. Hence, the denial of the Magistrate to take this vital step to protect suspects from torture is a violation of Article 3 read together with Articles 4(c), 4(d), 11, and 12(1) of the Constitution.

The petitioners state that Clause 4 of the said Bill amends Section 10 of the PTA whereby the Minister’s detention orders made under Section 9 cannot be questioned in any court of law. Clause 4 only amends Section 10 and provides an opportunity to challenge the Minister’s orders under Articles 126 (the SC’s exercise of the FR jurisdiction) and 140 (the power and authority to inspect and examine the records of any institution and grant and issue writs against such institution or other person) of the Constitution. However, the petitioners contend that the SC can now also determine the Constitutionality of Section 9 of the original enactment, without which Section 10 of the original enactment, which Clause 4 seeks to amend, cannot come into being.

The petitioners state that the Minister’s order made under Section 9 of the PTA which is referred to in Clause 4 has resulted in severe abuses to the FR of citizens including the violations of Articles 11, 12(1), 13(1) and 13(2) of the Constitution. To date, there has been no rationale given which can justify why any person must be brought under administrative custody, when the Magisterial system is flexible enough to remand a detained person at any time of the day.

In fact, this very Bill, under Clause 3, implies that the Magistrate has ample time and flexibility to visit detention centres once a month. If the Magistrate is empowered and taxed to visit detention centres once a month, there is little reason or rationale behind why detention centres exist at all, and why all detainees cannot be brought under judicial custody from the outset.

The petitioners contend that Section 9 read together with Section 10 is fundamentally unconstitutional, and the Constitutionality of it was not looked upon by the SC prior to the enactment of the PTA. However, the petitioners contend that Clause 4 of this Bill refers to the order made under Section 9 and thereby opens the jurisdiction of the SC to consider the Minister’s powers to issue detention orders under Section 9 itself. The petitioners contend therefore that Clause 4 of the Bill read in light of the original enactment and the Minister’s orders under the PTA itself stands in violation of Article 3 read together with Articles 4(c), 4(d), 11, 12(1), 13(1) and 13(2) of the Constitution.

Therefore, the petitioners urge the Court to observe that for Clause 4 to be made consistent with the entrenched provisions and FR provisions of the Constitution, Clause 4 must essentially repeal Sections 9 and 10 in toto.

The petitioners further state that Clause 5 of the said Bill once again grants powers to the Magistrate to provide relief to torture victims; however it does not empower the Magistrate to remove the victim from the place of torture. Therefore, Clause 5 is inconsistent with Article 3 read together with Articles 4(c), 4(d), 11, and 12(1) of the Constitution.

The petitioners further state that Clause 12 of the said Bill repeals Section 26 of the original Act and replaces it with identical provisions for legal immunity from civil or criminal proceedings or prosecution against any officer acting in good faith under this Act, save and except to legally challenge the conduct of officers acting in good faith by way of Articles 126 and 140 of the Constitution. The petitioners state that granting immunity to any officer acting under this Act from criminal and civil jurisdiction makes defunct the powers granted to the Magistrate under Clauses 3 and 5 of the said Bill to refer matters of torture to the AG for prosecution under the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Act, No. 22 of 1994 (CAT Act). This is because even when the Magistrate refers such a matter to the AG, the latter cannot proceed with criminal prosecution against the said officer as per Clause 12. The petitioners state that Clause 12 therefore is provided to make Clauses 3 and 5 impossible to implement and thus further tacitly sanctions torture by protecting officers acting under this Act from criminal prosecution. Therefore, Clause 12 is inconsistent with Article 3 read together with Articles 4(c), 4(d), 11, and 12(1) of the Constitution.

The petitioners bring to the attention of the SC the judgment of Court of Appeal Judge, Justice Neil Iddawala in the case of Hejaaz Omer Hizbullah and Another vs. The AG (CA/PHC/APN/10/2022), decided on 7 February 2022, where it was observed as follows: “However, it is alleged that the PTA has been utilised at times to the detriment of personal liberty by its draconian implementation. In such a context, even the Executive branch of the Government is considering the amendment of the PTA, expressing a willingness to balance the need to eradicate terrorism against personal liberty as enshrined in the FR Chapter of the Constitution”.

The petitioners state that the said Bill does not repeal many of the ‘draconian provisions’ including provisions allowing confessions to be admissible as evidence in prosecution under the PTA and provisions enabling administrative detention.

Given that the PTA was passed as an Emergency Bill and has led to four decades of FR abuses of the people, the petitioners also request the SC to make recommendations to unconditionally repeal Sections from the original PTA such as Sections 16 (admissibility of certain statements), 9 (detention orders) and 26 (the prosecution of officers).

Thus, the petitioners reiterate that the provisions of the said Bill are inconsistent with the aforesaid provisions of the Constitution and Sri Lanka’s international obligations, and discriminatory, unreasonable, arbitrary, unjust and prejudicial and go against the whole purport of the Constitution.

The petitioners therefore pray that the SC determine that one or more of the provisions of the said Bill is/are inconsistent with the provisions of the Constitution and require to be passed by the special majority required under the provisions of Article 84(2) of the Constitution and be approved by the people at a referendum by virtue of the provisions of Article 83 of the Constitution, and also determine and state the SC’s opinion that Sections 16, 9 and 26 of the original enactment of the PTA must also be repealed if effective and practical implementation is to be given to the Bill consistent with Constitutional provisions.

Petitions have also been filed by the Committee for Protecting the Rights of Prisoners’ Chairman and AAL Senaka Perera, activist Shreen Abdul Saroor, the Centre for Policy Alternatives’ Executive Director Dr. Paikiasothy Saravanamuttu and activist cum AAL Ambika Satkunanathan seeking a SC special determination regarding the same PTA (Amendment) Bill.