To what end is the president hobbling with Gazette No. 2218/68?

“Where the Attorney-General is of the opinion that according to the nature of the offence committed a surrendee or detainee shall be rehabilitated at a Centre in lieu of instituting criminal proceedings against him, such surrendee or detainee shall be produced before a Magistrate with the written approval of the Attorney-General. The Magistrate may make order, having taking into consideration whether such surrendee or detainee has committed any other offence other than offences specified in regulation 3, referring him for rehabilitation for a period not exceeding one year at a Centre.”

This is stated in Part 04 of the President’s Unconstitutional Gazette.

What if the attorney general is wrong?

According to the provisions of the Prevention of Terrorism Act, Gazette Notification No. 2218/68 issued by President Gotabhaya Rajapaksa on March 12 states:

That is, the Attorney General has the power to decide whether to sentence a person without trial. The Attorney General is just another attorney before the court. The judiciary is not bound to accept his opinion in the same way. There are many instances where the Attorney General’s opinion has been proved wrong by the courts.

Parliament was arbitrarily dissolved on 26th October 2018, following a conspiracy to appoint Mahinda Rajapaksa as Prime Minister unconstitutionally. The Attorney General told the Supreme Court that the decision was correct. But after considering the arguments of the other parties, the Supreme Court ruled that the Attorney General was wrong.

A Constitution for what?

Giving the Attorney General the power to make such a decision violates many of the rights of citizens under the Constitution. Everyone arrested has the right to a fair trial. But according to the above gazette notification, that right is lost and is compelled to accept the opinion of the AG without a trial.

Also, in a case where a defendant is of the opinion that he has not received justice in a fair trial, he has two appeals according to the law. Either to go to the Court of Appeal or to the Supreme Court against that decision. This right of appeal of the citizen is also violated in a situation where the above gazette notification compels not to conduct a preliminary trial.

Also, until a person is found guilty after a fair trial, he or she is considered an innocent person. It is called the presumption of innocence. There are many cases in which a person is remanded in custody for several years even with the presumption of innocence, due to the time consumed to process a case in Sri Lanka.

The only suspect arrested and remanded in connection with the assassination of former Foreign Minister Lakshman Kadirgamar, died of kidney disease in May last year. No one else was arrested in connection with the case. The case was closed after his death.

This gazette notification has been issued by the President in his capacity as the Minister of Defense under Section 27 of the Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979. According to that article, the Minister of Defense can issue orders to implement the principles of the Act. They must be gazetted, presented to Parliament and passed.

Simply put, what is done by this gazette is a magistrate setting up the legal background to detain a person in a rehabilitation camp, on a written statement given by the AG on a report composed by the Ministry of Defense . In the first round, that period was a year. It also has the potential to be extended to two years..

Responsibility of the Magistrate

One could argue that there is a judicial procedure because a magistrate is intervening in this process. But first it was mentioned that there was no trial. That is, the Magistrate will not take the relevant decision after a hearing. When an allegation is made against a person, he or she should have the right to make reasoning on it.

The court has the responsibility to consider those matters. It is the responsibility of the plaintiff’s party to prove the relevant allegations beyond a reasonable doubt. But how can the Attorney General fulfill that responsibility?

Is the police telling only the truth?

After the police arrest a person and interrogate him or her, a report is compiled of confessions or all such things. It is then referred to the AG. After the AG has considered those matters, he may inform the court in writing that the person concerned should be referred for rehabilitation.

That is what the Gazette is trying to do. The suspects still try to attack the police with handcuffs on when going to show the hidden weapons. And suspects die in return fire by the police in self defence.

The OIC of the relevant police station is responsible for the security of every suspect arrested under the Anti-Cruel, Inhuman or Degrading Treatment Act, 1994. But how many such murders of suspects have been held responsible for in the recent past?

In such a situation, how reasonable would it be for the Attorney General to make a final decision based on a police report? Although it is called a rehabilitation process, it is an impediment to individuals’ freedom. A confinement. Family members are only able to meet them once every two weeks. It is unconstitutional to make such a decision and imprison without a judicial process.

Are you an extremist too?

Decisions are taken in this case about people who are arrested on extremist charges. The Gazette have explained the term ‘Extremists’ as,

“Any person who surrenders or is taken into custody on suspicion of being a person who by words either spoken or intended to be read or by signs or by visible representations or otherwise, causes or intends to cause commission of acts of violence or religious, racial or communal disharmony or feelings
of ill will or hostility between different communities or racial or religious groups after the coming into operation of these regulations.”

Is there no chance for you to be included at any point in this explanation? A group of religious extremists had lodged a complaint with the Polgahawela Police alleging that the abbreviation that goes by the name ‘Half’ written by Shakthika Sathkumara was an insult to religion.

According to the complaint, Shakthika Sathkumara, a writer, was arrested and charged under the Civil and Political Rights Charter Act. Bail cannot be granted by a Magistrate’s Court when charges are filed under this Act. Therefore, Shakthika Sathkumara had to be remanded for 130 days.

Consideration of the bail application heard in the Kurunegala High Court was also postponed on several occasions as the Attorney General’s Department informed that more time was required to study it. Shakthi was later acquitted and released after a trial.

Only for the benefit!

According to the above gazette notification, if the decision against him is taken by the Attorney General, he will inevitably be sentenced to one or two years. No trials. On the other hand, it is not difficult to force the extremism of the Gazette as explained. The poet Ahnaf Jazeem has been detained for months on similar charges.

Fazal Mohammed Nisar was arrested last January on charges of insulting religious groups in a way that breaks down ethnic harmony. There are many examples of this kind. However, after the April 21, 2019 attacks, the majority of those involved in the planned violence in Nikaweratiya, Panduwasnuwara, Kuliyapitiya and Nattandiya were charged with only damaging property.

The International Covenant on Civil and Political Rights Charter (ICCPR) was not enforced there. Evidence was also uncovered regarding several politicians who led the attacks. The law was not enforced against them either. The Act was also used sparingly in relation to the Kandy, Digana and Akurana riots that took place in March 2018. In a situation like this, what will the President’s new gazette not do?

A bargaining tool

The International Commission of Jurists (ICJ) also noted that the religious and ethnic groups will be discriminated by this gazette.

“The new regulations are likely to be used as a bargaining tool. Instead of a fair trial on a legal charge, an inmate has to make one of two choices: to be in rehab for a year or two, or to face trial indefinitely of time”

This point raised by the Commission is extremely important. These orders, on the other hand, can be used to crack down on dissenters when a social opinion is formed that suspects involved in criminal cases should be released through arbitrary actions such as the Political Revenge Commission. The very definition of extremists mentioned above has the potential to turn a statement made by such an opinion into an advantage. Based on the facts presented by the police, the Attorney General could easily silence him for up to two years.

Gazette that should be reversed!

For all these reasons, the President should be compelled to immediately cancel the relevant unconstitutional gazette notification. So far there has not been enough dialogue for that. Earlier, a similar order was issued regarding the nature of drug offenses, stating that the suspect could be remanded for trial without trial, depending on the amount of drugs in his possession.

It also violates the above rights given to citizens by the Constitution. Anyone can remain silent and happy until they have to experience the consequences. The most important thing is that the gazette revision is not something that the President does not know. More than 10 such gazettes have been revised in the recent past. But they are all about consumer rights. Such orders, which are brought for the direct purpose of maintaining their power, must also be reversed. What is needed is to work together to press the issue.