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Introduction by Nadesan Satyendra:

The 1998 Report on Sri Lanka by  the Centre for the Independence of Judges and Lawyers served to focus attention, yet again, on  Sri Lanka's laws - a  legal framework within which torture and extra judicial killings have flourished for more than two decades.

As long ago as 1981, Virginia Leary commented in her Report (Ethnic Conflict and Violence in Sri Lanka) on a Mission to Sri Lanka on behalf of the International Commission of Jurists:

"The South African Terrorism Act has been called 'a piece of legislation which must shock the conscience of a lawyer.' Many of the provisions of the Sri Lankan Act are equally contrary to accepted principles of the Rule of Law".

She recommended:

"In view of the draconian provisions of the 1979 Prevention of Terrorism Act which violates accepted standards of criminal procedure, the government should urge its parliamentary majority not to to re-enact the Act on its expiration in 1982 or to amend it so that its provisions on arrest, detention and evidence conform with the international commitments made by Sri Lanka in ratifying the Covenant on Civil and Political Rights." (p78)

However, in 1982,  the PTA was re-enacted as a permanent part of the Sri Lanka legal framework.

In July 1983, Timothy J.Moore in his Report (Ethnic and Communal Violence: The Independence of the Judiciary: Protection of Fundamental Rights and the Rule of Law in Sri Lanka - Fragile Freedoms?) on  another Mission to Sri Lanka on behalf of the International Commission of Jurists, commented:

"The author has made a specific finding... that regular and systematic inhumane treatment of detainees under the Prevention of Terrorism Act takes place at the Elephant Pass army camp.... The earlier report by Professor Virginia Leary for the International Commission of Jurists also canvassed this recommendation (the repeal of the Prevention of Terrorism Act). The author does not wish to further pursue what ought to be a self evident step to be taken to reinstate the Rule of Law. The author also realises equally obviously, that this step is not likely to be taken, given the recent permanence imparted to legislation which was originally stated to be 'temporary.

Hence the author would like to make two lesser specific recommendations of changes to the Act in the hope that they might be more acceptable to the government.

First, removal of the reversing of the onus with respect to confessions. The author suggests that Section 16 of the Prevention of Terrorism Act, 1979 should be amended to remove the onus of proving that a confession was obtained by duress, threat or other inducement and reinstating the provisions of the Sri Lanka Evidence Ordinance and firmly place the burden of establishing the voluntariness of a confession upon the prosecution which is the accepted standard of evidenciary procedure elsewhere.

Second, the Act needs to be amended to permit persons who have been charged under its Provisions to be released on bail pending trial. ...As a subsidiary issue, should bail be granted, a guarantee should be given that there would be no re-detaining of persons granted bail unless some further subsequent offence was allegedly committed.

Because of the established and systematic patterns of inhumane and degrading treatment and torture practised by the army, all detention, whether under the Prevention of Terrorism Act, or any other Acts relating to ''normal" criminal law, should be in the hands of the civil authorities when that detention lasts for any period of time. As the author expects the government not to repeal the Prevention of Terrorism Act, he advocates that detention by the armed forces should be limited, at the very most, to a period of 48 hours after which the detainees should automatically be transferred to the civil custodial authorities. Being held in such civil custody should also be accompanied by the right of access for legal advisers and visits by family and friends available to ‘normal’ criminals."

Mr.Timothy Moore's 'hopes' were belied and his recommendations were ignored by Sri Lanka.

Again in 1984, Paul Sieghart Q.C. in his Report (Sri Lanka: A Mounting Tragedy of Errors) on yet another Mission to Sri Lanka on behalf of the  International Commission of Jurists commented:

"These provisions (in the Prevention of Terrorism Act) are quite extraordinarily wide. No legislation conferring even remotely comparable powers is in force in any other free democracy operating under the Rule of Law, however troubled it may be by politically motivated violence. Indeed there is only one known precedent for the power to impose restriction orders under section 11 of the Sri Lankan P.T.A., and that - as Professor Leary rightly pointed out in her Report - is the comparable legislation currently in force in South Africa... such a provision is an ugly blot on the statute book of any civilised country."

Now, 14 years later, yet another Mission to Sri Lanka on behalf of the International Commission of Jurists has  called for the repeal of the powers of detention contained in the  Sri Lanka Prevention of Terrorism Act,  the repeal of the Sri Lanka Indemnity Act and the repeal of section 8 of the Public Security Ordinance which places the declaration of an emergency beyond judicial review.

Meanwhile, the torture and extra judicial killings of Tamils by the Sri Lanka authorities continue with impunity.

The 1998 report on behalf of the ICJ is by the Centre for the Independence of Judges and Lawyers which was established by the International Commission of Jurists in 1974. A Mission from the Centre visited Sri Lanka during 14 September 1997 to 23 September 1997 and reported on Judicial Independence in Sri Lanka. The members of the mission were Lord William Goodhart Q.C. (a member of the executive committee of the ICJ), Justice P.N.Bhagawati (former Chief Justice of India) and Phineas M.Mojapelo (a member of the Judicial Service Commission and Law Commission of South Africa.) The following is extracted from the chapter on Legislation and the Emergency in the 186 page report published on 9 September 1998.

SRI LANKA'S  LAWS

Legislation and the Emergency
Report by the Centre for the Independence of Judges and Lawyers
9 September 1998


Report by the Centre for the Independence of Judges and Lawyers
Chapter on Legislation & Emergency
9 September 1998

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Summary of Recommendations | Emergency Regulations - the Statutory Framework | Detention under the Emergency Regulations | Detention under the Prevention of Terrorism Act | Publicity for Emergency Regulations | Use of Emergency Regulations for Non-emergency Purposes | The Indemnity Act | Confessions | Footnotes

Emergency Regulations - the Statutory Framework

....There has in effect been a civil war in Sri Lanka since 1983, though except in the years 1987-90, this has mainly been confined to the north and east of the island and to terrorist incidents in Colombo. In this Chapter, we look at the framework of legislation which the government has relied on to combat its opponents, the LTTE and other militant Tamil groups and the JVP.

The Government has relied mainly on Emergency Regulations made under the Public Security Ordinance 1947 ...

Part I of the Ordinance confers on the President power to proclaim a state of emergency in all a part of Sri Lanka if a public emergency exists or is imminent [12]. When an emergency has been proclaimed, Part II of the Ordinance confers on the President power to make such Emergency Regulations as appear to her 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, or for the maintenance of supplies and services essential to the life of the community [13]

Emergency Regulations may, among other things  authorise the detention of persons. [14] Emergency Regulations may override existing laws [15] Neither the existence of an emergency nor an emergency regulation nor an order, rule or direction made under such a regulation may be called in question in any courts [16] No action or prosecution lies against any person for any act in good faith done in pursuance or supposed pursuance of an emergency regulation or an order or direction made under it [17]

The Public Security Ordinance dates from 1946, just before independence. It has been retained and given its present force by Article 155 of the 1978 Constitution (... as amended by the 10th and 13th Amendments...). Emergency Regulations may override any existing law except the Constitution itself. [18] The proclamation of an emergency takes effect for one month and a further proclamation may be made before or at the end of that period [19] A proclamation has immediate effect but must be approved by Parliament within 14 days [20] When a proclamation is renewed, existing Emergency Regulations are deemed to continue in force unless otherwise directed by the President. [21]

As mentioned in the last paragraph, Emergency Regulations can not override the Constitution and, in particular, the provisions of Chapter III which confer fundamental rights. In the context of the Emergency Regulations, the most important rights are those conferred by Article 11 (freedom from torture) and Article 13(1)-(4) (freedom from arbitrary arrest, detention and punishment). However, the rights declared by Articles 13(1) and (2) (freedom from arbitrary arrest and detention) are, by virtue of Article 15(7), "subject to such restrictions as may be prescribed by law in the interests of national security, public order and the protection of public health or morality".

Before looking at the Emergency Regulations themselves, we must comment on the legislative framework, about which we have some criticisms.

First, it is in our opinion wrong that the existence or imminence of a state of emergency cannot be called in question in a court. [23] The proclamation of a state of emergency confers extremely wide powers on the President. Those powers are much more easily abused than her ordinary constitutional powers. While we believe that the President should have considerable discretion in deciding whether or not a state of emergency exists, her decision should at least be based on a rational belief that a state of emergency exists or is imminent.

We therefore recommend that section 3 of the Public Security Ordinance be amended to permit a proclamation under section 1 to be challenged in the Supreme Court on the ground that there is no reason to believe that a state of emergency exists or is imminent.

In making this recommendation, we acknowledge that a state of emergency has in fact existed continuously since 1983. We have not considered whether all of the earlier proclamations under the Ordinance were justified.

In our view, there is insufficient Parliamentary control over Emergency Regulations. A limited degree of control is given by s. 5 (3) of the Public Security Ordinance, which provides that an emergency regulation may be added to or altered or revoked by resolution of Parliament.[24] In addition, Articles 155 (5) and (6) of the Constitution restrict the operation of a proclamation to a period of one month and require such a proclamation to be approved by Parliament within a period of fourteen days. There is, however, no requirement that new Emergency Regulations should be laid before Parliament for approval. We regard this as unsatisfactory, particularly in view of the very inadequate system (discussed in more detail below) for publicising changes in the regulations. Even Members of Parliament may not be aware of new regulations.

We recommend that all new regulations, or new amendments to existing regulations, should be required to be laid before Parliament for approval. Except in cases of necessity, such regulations or amendments should not take effect until so approved.

We are concerned that section 8 of the Public Security Ordinance provides that no emergency regulation shall be called in question in any court. This section has not prevented the Supreme Court from exercising its jurisdiction under Article 126 of the Constitution to protect the fundamental rights set out in Chapter III of the Constitution as discussed below. We believe, however, that there should be a wider power to challenge Emergency Regulations, on the ground (for example) that there is no basis for the President's belief that a particular regulation is necessary or expedient in the interests of public security.

We recommend that section 8 of the Public Security Ordinance be repealed.

We are also concerned that section 9 of the Ordinance excludes civil or criminal proceedings against any person for any act done in good faith in pursuance or supposed pursuance of an emergency regulation. We believe that the test of liability should be objective.

We recommend that so much of section 9 of the Public Security Ordinance as excludes liability for acts done in good faith, but not in fact authorised by Emergency Regulations in force for the time being, should be repealed.

We would accept the exclusion of liability for acts authorised by Emergency Regulations subsequently held to be invalid.

The provisions of Article 15 of the Constitution which permit restriction of the fundamental rights set out in Articles 12-14 are not tightly enough drawn.

We recommend that any restriction of fundamental rights on the grounds of national security should only have effect when a state of emergency has been proclaimed and then only to the extent strictly required by the exigencies of the situation.[25]

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Detention under the Emergency Regulations

We now turn to the Emergency Regulations themselves. There are three areas which need particular investigation. These are:

(i) the terms of the regulations, in particular in relation to powers of detention

(ii) the problems of ascertaining what regulations are in force, and

(iii) the use of Emergency Regulations for purposes outside the scope of the emergency.

At the date of the mission, a state of emergency was in force only in Colombo, the Northern and Eastern Provinces, and adjoining districts. Between 4 April 1996 and 4 July 1997 the state of emergency had extended to the whole of the island. It was suggested to us at one meeting that there was no need to extend the state of emergency to Colombo, but (taking into account the bomb explosion in central Colombo in mid-October) we believe the inclusion of Colombo and its suburbs is justifiable.

The main Emergency Regulations concerning detention were, at the date of the mission, contained in the Emergency (Miscellaneous Provisions and Powers) Regulations N 4 of 1994 ("the principal Regulations"). The principal Regulations have been amended from time to time...

Part II of the principal Regulations authorises three different kinds of detention. These are:

(i) preventive detention, under regulation 17;

(ii) detention following arrest, under regulations 18 and 19; and

(iii) detention for rehabilitation, under regulations 20 and 22.

The Secretary of the Ministry of Defence may under Regulation 17 order that a person may be detained in custody if he is satisfied that this is necessary to prevent that person from acting in a manner prejudicial to national security or the maintenance of public order or essential services, or from committing certain offences. Such an order may be made for a period not exceeding three months, and may be renewed for not more than three months at a time for a total period not exceeding a year.

Thereafter, detention may be continued if the detainee is produced before a Magistrate, with a report from the Secretary of the Ministry of Defence setting out the reasons for the detention and why it needs to be extended. Detention can be ordered by the Magistrate for a period of not more than three months, and the order can be renewed an unlimited number of times.[26] Any person aggrieved by a detention order may present his objections before an Advisory Committee appointed by the President; the Advisory Committee reports to the Secretary of the Ministry of Defence, who may confirm or revoke the order. [27]

We were told by the Ministry of Defence that 885 new detention orders under regulation 17 had been made between the beginning of 1996 and the date of our mission. Of those orders, 525 were no longer in effect, the detainees having either been released, transferred to the ordinary prison system following criminal charges, or become the subject of Rehabilitation Orders. This leaves a balance of 360, together with any detention orders made before 1 January 1996 and still in force.

Under regulation 18 any police officer or any member of the armed forces may detain or arrest without warrant any person who is committing or has committed or whom he has reasonable grounds for suspecting to be concerned in, or to be committing or to have committed, an offence under any emergency regulation. Any person arrested by a member of the armed forces outside the Northern and Eastern Provinces must be handed over to the police within 24 hours.[28] Arrests must be reported within 24 hours to the Superintendent of Police of the Division or to the commanding officer of the area.[29] When any person is taken into custody under this regulation, the arresting officer must issue a "receipt" to the spouse, father, mother, or other close relative of the detainee acknowledging the fact of the arrest. [30]

A person arrested or detained under regulation 18 may be kept in detention on an order made by a police officer not below the rank of Deputy Inspector General or, in the case of arrests or detention by a member of the armed forces in the Northern and Eastern provinces, by a senior officer of the armed forces. Detention must be in a place authorised by the Secretary of the Ministry of Defence. Detention is authorised for a period of up to 60 days in the Northern and Eastern Provinces and up to 21 days elsewhere. At the end of that period the detainee must be released, unless an order for his preventive detention has been made or he has been remanded in custody by a court. [31] The officer in charge of an authorised place of detention is required to provide the local Magistrate every 14 days with a list of the detainees in that place, and the Magistrate is required to display the list on the notice board of his court. [32] The Magistrate is required to visit places of detention in his district at least once a month. [33]

We have no information about the number of people arrested and detained under regulations 18 and 19. In any event, these figures are likely to fluctuate quite rapidly.

Under regulation 20, a person detained under regulations 17 or 19 or under the PTA may be detained for rehabilitation in the interests of his own welfare, under a Rehabilitation Order made by the Minister of Defence or the Secretary of the Ministry, in substitution for the previous form of detention. [34] Rehabilitation takes place in a Youth Development and Training Centre. [35]

A different form of rehabilitation is provided under regulation 22.[36] When anyone voluntarily surrenders to the police or armed forces "in connection with" various offences or "through fear of terrorist activities", steps must be taken within 10 days to assign him to a Protective Accommodation and Rehabilitation Centre, where he is supposed to be provided with appropriate training. [37] The Secretary to the Ministry of Defence is required to order the detention of the surrendering person for a period of up to 12 months, which may be extended for up to four further periods of three months each. He must then be released, without prejudice to any criminal proceedings against him. [38]

We were told [39] that applications for detention orders which have to be approved by the Minister of Defence or the Secretary of the Ministry are considered by a processing committee, which includes the Legal Adviser to the Ministry and a member of the Attorney General’s Department and meets weekly. Applications are submitted by the police or the Criminal Investigation Department. The committee considers whether the applications comply with the Emergency Regulations or (as the case may be) the Prevention of Terrorism Act, and if they are in order submits them to the Secretary or the Minister.

Detention under the Emergency Regulations clearly contravenes Article 9 of the ICCPR .... It can therefore be justified only in so far as the Government has validly derogated from its obligations under Article 4 which permits derogation only "in times of public emergency which threatens the life of the nation,' and then only "to the extent strictly required by the exigencies of the situation".

As we have said above, we are satisfied that a state of emergency exists and that it is one which, within the meaning of Article 4, threatens the life of the nation. However, the regulations go beyond what is strictly required by the exigencies of the situation, and there has been no sufficient derogation.

Preventive detention is a draconian power which can only be justified in exceptional circumstances. We have concluded that the circumstances in the parts of Sri Lanka covered by the Emergency Regulations are exceptional and that preventive detention can not be ruled out in principle. However, we believe that a much greater degree of judicial control is needed than is provided by regulation 17. This is emphasised by Article 3 of the UN Basic Principles on the Independence of the Judiciary, which requires the judiciary to have jurisdiction over all issues of a judicial nature.

We recommend

(i) that the initial preventive detention order made by the Secretary of the Ministry of Defence must be confirmed by a Magistrate within a period of one month

(ii)that all subsequent renewals of the order must be made by a Magistrate

(iii) that there should be a strict limit on the total duration of a detention order

(iv) that the procedure for presenting objections to the Advisory Committee be replaced by a proper and speedy system of appeal to a judicial body having power to give binding directions.

We were told by the Attorney-General that, following the recent decision of the Supreme Court in the Cooray case (discussed below), the making of preventive detention orders had been suspended. A revised regulation 17 incorporating the safeguards required by the Cooray decision may be introduced, but he thought it unlikely that it would be used. We believe that the longer periods of detention authorised under regulation 19 following arrests in the Northern and Eastern Provinces are not justified;

we recommend that the 21-day limit on detention under regulation 19 should be reduced to 7 days and apply to all districts subject to the Emergency Regulations.

The provisions for the issue of "detention receipts", for supplying magistrates with lists of detainees and posting those lists on notice boards, and for monthly visits by magistrates to detention camps, have had a valuable effect in helping to reduce the number of people who have "disappeared" following arrest. However, we were told that magistrates were not ensuring that these obligations are observed.

We recommend that steps be taken to ensure that magistrates receive lists of detainees, post them on the court notice boards, and visit detention camps in their districts as required by the regulations.

It appears that only a relatively small number of people are detained for rehabilitation. On 1 January 1997, there were 186 people detained for rehabilitation, 155 of them under regulation 20 and 31 under regulation 22.[42] We were told that, as at 14 September 1997, the number detained for rehabilitation was 118.[43] We heard little criticism of rehabilitation orders under regulation 20. However,

we recommend that Rehabilitation Orders should be made by courts and not by the Minister or the Secretary to the Ministry of Defence and that Orders under regulation 20 should be limited to two years.

In practice, we understand that very few orders are made for a longer period.

Rehabilitation Orders under regulation 22 were more severely criticised, on the basis that there is no reason why those who surrender voluntarily should automatically be required to serve a period of rehabilitation. We agree, and believe that the other powers of detention are adequate to cover the cases where detention is appropriate.

We recommend that regulation 22 be repealed.

The Emergency Regulations do not prescribe minimum standards for the conditions in which detainees are kept.

We recommend that the Emergency Regulations should prescribe minimum standards for conditions of detention which should comply with the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment adopted by the UN General Assembly.

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Detention under the Prevention of Terrorism Act

Detention is also authorised under Part III of the Prevention of Terrorism (Temporary Provisions) Act, N 48 of 1979 ("the PTA"). ...

Where the Minister of Defence has reason to believe or suspect that any person is connected with or concerned in any "unlawful activity", she may order that the person may be detained for a period not exceeding three months' renewable for further three month periods up to a maximum of 18 months.[44] The Minister may, alternatively, make an order for similar periods imposing restrictions falling short of detention, such as house arrest or curfew, travel restrictions, restriction of activities as a member of an organisation, and restrictions on addressing public meetings or holding political office.[45]

Orders of either kind are stated to be final and not to be called in question in any court or tribunal.[46] This provision can not, however, exclude the constitutional power of the Supreme Court to exercise its fundamental rights jurisdiction. Any person against whom an order has been made may make representations to an Advisory Board [47] [which is, in practice, the same body as the Advisory Committee set up under the emergency regulations). Detention is in such place and subject to such conditions as may be determined by the Minister.

We were told by the Ministry of Defence that 99 new detention orders had been made under the PTA between the beginning of 1996 and the date of our mission. Of those, 42 were no longer in force, leaving a balance of 57. As detention under the PTA is limited to 18 months, no earlier orders could remain in force.

There are many differences between the power of detention under the PTA and the power of preventive detention under the Emergency Regulations - for example, the fact that an order under the PTA must be made by the Minister rather than by the Secretary, and that there is a maximum duration for orders under the PTA. Perhaps the most important distinction at the present time is that the PTA power continues to apply to the whole of Sri Lanka, whereas the Emergency Regulations apply only to part of it. It is confusing and, in our view, unnecessary to have two separate and parallel powers of detention. Furthermore, the making of a detention order under the PTA at a time when no proclamation of a state of emergency is in force in the relevant part of Sri Lanka involves a contravention of Article 9 of the ICCPR which is incapable of being the subject of a derogation.

We recommend that the powers of detention under the PTA should be abolished or, failing that, made subject to the same restrictions as we have proposed above for the power of preventive detention under the Emergency Regulations; in particular

(i) the initial order should be subject to confirmation by a court, and renewals should be ordered by a court

(ii) there should be a right of appeal against a detention order to a judicial body

(iii) no order can be made except when and where a state of emergency is in force, and

(iv) minimum standards for conditions of detention should be prescribed.

The power to make an order for a form of restriction falling short of detention might, at first sight, seem more acceptable than a power of detention. However, this is not necessarily the case. The very fact that restrictions do not have such serious consequences as detention may make it easier for a government to abuse the power to make restriction orders. In fact the power to make restriction orders appears to have been very little used and we received no comments about them, either in interviews or written material.

We recommend that the power under the PTA to make restriction orders should be reviewed and that, unless a clear case for retention can be made out, the power should be repealed.

As in the case of the Public Security Ordinance,

we recommend that the exclusion of liability for acts done in good faith, but not in fact authorised by the PTA, should be repealed.

"Unlawful activity'' is defined by the PTA, as amended in 1982, as including any act committed prior to the date of passing of the PTA which act would, if committed after such date, constitute an offence under the PTA. We believe this to be a clear breach of Article 15 of the ICCPR, which prohibits retrospective criminal legislation and is not derogable. In view of the fact that the practical operation of this provision must by now be spent we do not formally recommend a change in the definition, but we wish to draw attention to its impropriety.

Section 7 of the PTA requires the courts to order the remand in custody of persons arrested on suspicion of "unlawful activity". This deprives the court of the discretion to grant bail. "Unlawful activity" includes the commission of any offence under the PTA. Some of those offences - for example, defacing a street sign - are quite trivial. In such cases the exclusion of bail is wholly inappropriate. We were told that the absence of a right to bail leads to extensive plea-bargaining. Persons charged, for example, under section 5 of the PTA with failing to give information to the police will often plead guilty and receive a suspended sentence rather than remain in custody pending a contested trial.

We recommend that section 7 of the PTA be amended so as to allow the courts to grant bail except in the most serious cases....

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Publicity for Emergency Regulations

Publicity for Emergency Regulations is very inadequate. As already mentioned, Emergency Regulations come into effect immediately upon being made and do not have to be laid before Parliament. We have recommended above that all Emergency Regulations should be laid before Parliament for approval and, except in extreme situations, should not come into effect until so approved. This would at least enable Members of Parliament to inform themselves of emergency legislation.

This alone, however, would be inadequate. Emergency Regulations are published in the official Gazette. However, the Gazette has a very limited circulation. The quantity of emergency legislation is very large and it changes constantly. There is no proper system of numbering, listing or indexing the regulations. An independent human rights organisation, the Nadesan Centre for Human Rights through Law, provides an invaluable service in monitoring the Gazette and notifying subscribers of changes in the regulations. However, this should not be left to a private organisation.

We recommend

(i) that all new Emergency Regulations and amendments and rescissions of existing regulations, should be published in Sinhala, Tamil and English language newspapers circulating throughout the areas under the control of the Government

(ii) that the Government should prepare and keep updated and indexed a collection of the Emergency Regulations for the time being in force which would be accessible to the public; as soon as possible this should take the form of a computer database which could be accessed on the internet.

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Use of Emergency Regulations for Non-emergency Purposes

Emergency Regulations are sometimes very wide in scope, and enter into fields which do not have any very obvious connection with the emergency; it is hard to see, for instance, what relevance to the emergency the Emergency (Games of Chance) (Jack-pot) Regulation N 1 of 1995 can have. More seriously, there are some cases in which the Government appears to have been trying to use Emergency Regulations as a short-cut to avoid the need for primary legislation in relation to matters which have no real connection with the emergency. A particularly serious example was the Emergency (Generation of Electrical Power and Energy) Regulation N 1 of 1997. The effect of this regulation was to remove the application of existing environmental protection legislation from the generation of power and energy. The motive for this, it is believed, was the Government’s wish to construct a particular new power station without having to comply with the legislation. As a result of public pressure the regulation was rescinded by the Government after about three months.

We believe that abuses of this kind could be prevented by adopting our recommendation, made above, for the repeal of section 8 of the Public Security Ordinance. This would enable Emergency Regulations to be challenged in the courts on the basis that they could not reasonably be regarded as necessary or expedient for the purposes authorised by the Ordinance.

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The Indemnity Act

We have already referred to provisions in the Public Security Ordinance and the PTA which exclude civil and criminal liability for certain acts done "in good faith". In addition, the Indemnity Act of 1982, as amended by the Indemnity (Amendment) Act of 1988, excludes civil and criminal liability "for or on account of or in respect of any act, matter or thing . . . done or purported to be done with a view to restoring law and order during the period August 1, 1977 to [16 December 1988], if done in good faith" by a person holding government office (including the police and the armed forces) or acting under the authority of such an office-holder.

This Act was not raised with us as an issue during our mission, perhaps because any acts covered by it must have been at least nine years old. In any event, the incidents which have caused particular concern involve acts which could not by any stretch of the imagination be described as having been done in good faith. However, legislation of this kind giving retrospective immunity from suit or prosecution for unlawful acts is in our view wholly unjustifiable. Even though the Act now has little practical importance, it should not remain on the statute book.

We recommend that the Indemnity Act be repealed.

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Confessions

The normal rule in Sri Lanka is that confessions to police officers are not admissible in evidence; confessions are only admissible if made before a Magistrate. Confessions to police officers are suspect because of widespread use of torture. However, confessions to a police officer of the rank of Assistant Superintendent or above are admissible on the trial of offences both under the Emergency Regulations [58] and under the PTA. [59]

We believe that the admissibility of confessions in such cases encourages the use of torture and that such confessions cannot be regarded as reliable. We were told that in many cases the courts have in fact refused to admit confessions made to police officers on the ground that they were not made voluntarily.

We recommend that the ordinary rules as to the admissibility of confessions should apply to the trial of offences under Emergency Regulations or the PTA.

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Summary of Recommendations

We  recommend

1. that section 3 of the Public Security Ordinance be amended to permit a proclamation under section 1 to be challenged in the Supreme Court on the ground that there is no reason to believe that a state of emergency exists or is imminent.

2. that all new regulations, or new amendments to existing regulations, should be required to be laid before Parliament for approval. Except in cases of necessity, such regulations or amendments should not take effect until so approved.

3.  that section 8 of the Public Security Ordinance be repealed.

4. that so much of section 9 of the Public Security Ordinance as excludes liability for acts done in good faith, but not in fact authorised by Emergency Regulations in force for the time being, should be repealed.

5. that any restriction of fundamental rights on the grounds of national security should only have effect when a state of emergency has been proclaimed and then only to the extent strictly required by the exigencies of the situation.

6. that the initial preventive detention order made by the Secretary of the Ministry of Defence must be confirmed by a Magistrate within a period of one month; that all subsequent renewals of the order must be made by a Magistrate; that there should be a strict limit on the total duration of a detention order ;  that the procedure for presenting objections to the Advisory Committee be replaced by a proper and speedy system of appeal to a judicial body having power to give binding directions.

7. that the 21-day limit on detention under regulation 19 should be reduced to 7 days and apply to all districts subject to the Emergency Regulations.

8. that steps be taken to ensure that magistrates receive lists of detainees, post them on the court notice boards, and visit detention camps in their districts as required by the regulations.

9. that Rehabilitation Orders should be made by courts and not by the Minister or the Secretary to the Ministry of Defence and that Orders under regulation 20 should be limited to two years.

10. that regulation 22 be repealed.

11. that the Emergency Regulations should prescribe minimum standards for conditions of detention which should comply with the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment adopted by the UN General Assembly.

12. that the powers of detention under the PTA should be abolished or, failing that, made subject to the same restrictions as we have proposed above for the power of preventive detention under the Emergency Regulations; in particular - (i) the initial order should be subject to confirmation by a court, and renewals should be ordered by a court - (ii) there should be a right of appeal against a detention order to a judicial body - (iii) no order can be made except when and where a state of emergency is in force, and - (iv) minimum standards for conditions of detention should be prescribed.

13. that the power under the PTA to make restriction orders should be reviewed and that, unless a clear case for retention can be made out, the power should be repealed.

14. that the exclusion of liability for acts done in good faith, but not in fact authorised by the PTA, should be repealed.

15. that section 7 of the PTA be amended so as to allow the courts to grant bail except in the most serious cases....

16. that all new Emergency Regulations and amendments and rescissions of existing regulations, should be published in Sinhala, Tamil and English language newspapers circulating throughout the areas under the control of the Government

17, that the Government should prepare and keep updated and indexed a collection of the Emergency Regulations for the time being in force which would be accessible to the public; as soon as possible this should take the form of a computer database which could be accessed on the internet.

18. that the Indemnity Act be repealed.

19. that the ordinary rules as to the admissibility of confessions should apply to the trial of offences under Emergency Regulations or the PTA.


Foot notes

 

 

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