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The challenges of challenging a draft Bill in the Supreme Court 

24 Feb 2022

BY Ruki Fernando  The Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979 as amended (PTA) has terrorised many Sri Lankans for over four decades. I have also been detained under the PTA, faced restrictions on the freedom of expression and travel, and the confiscation of equipment. My case dragged on for nearly five years even after my release and I also faced social and political stigma and discrediting.  Catholic priests, human rights activists, journalists, a lawyer and Opposition politicians have been amongst those unjustly detained under the PTA. Many affected by the PTA have been Muslims and Tamils, indicating the disproportionate effect of the PTA on numerical ethnic minorities. Several PTA detainees have only been released as not guilty after years of detention, including up to 15 years, some without even having formal charges filed against them. The PTA has ruined their lives and that of their families, with not even an acknowledgement, apology or reparations for harms caused by prolonged detention including torture, sickness, trauma, stigma, and the loss of livelihoods.   Instead of repealing the PTA, the Government is trying to amend it (the Prevention of Terrorism [Temporary Provisions] [Amendment] Bill) with cosmetic changes which do not meaningfully address many of the PTA’s most serious problems, such as the admissibility of confessions during Police custody to the Police, which is a license for torture, massive executive powers, and minimal judicial oversight and discretion. The amendments are an attempt to hoodwink and appease the European Union (EU), as the PTA, which blatantly violates international human rights standards, may lead to losing the EU’s Generalised Scheme of Preferences Plus trade privileges, which in turn will lead to a massive blow to the economy which is already in crisis.  Seeking court interventions to challenge unjust laws The PTA is reported to have been presented, debated, and enacted in the Parliament on 19 July 1979 by the then United National Party (UNP) Government, without citizens having the opportunity to challenge it before court. Our Constitution does not allow citizens to challenge an existing law in court, even if it violates the letter and spirit of many provisions in the fundamental rights (FR) chapter of the Constitution and international human rights standards, as the PTA does.  But it is possible to go to the Supreme Court (SC) to challenge any draft Bill before the Parliament and this is what a group of 20 Catholics and one Buddhist did, along with other human rights activists, journalists, and lawyers. The majority of the Catholic group which petitioned the court were nuns (sisters), but there were also a few priests and lay persons, including me. Several of us have worked closely with PTA detainees and their families. Our group included Tamils and Sinhalese men and women.  Limits and difficulties in challenging draft laws in court The jurisdiction of the court is limited to determining whether any provisions in a draft Bill will violate any Constitutional provision. In the case of the PTA, only the amendments can be challenged, not the original PTA. The determination of the court will be submitted to the Speaker of the Parliament and not to us, the petitioners.  A few years ago, when I challenged a draft Bill, I came to know about the court’s determination through a Facebook post of one of the lawyers who appeared for the case.   Citizens need to know that a Bill has been tabled in the Parliament, then obtain a copy, examine its contents, and, if they decide to challenge it, seek quality legal representation which is not easily accessible. Legal representation is also very costly, and even when committed lawyers prepare documents and appear in court free of charge (as is the case with our lawyer, Suren D. Perera), there are other expenses involved such as obtaining hundreds or thousands of printouts and photocopies, and payments to instructing attorneys. The documentation is very legalistic and many citizens may need time and legal assistance to understand them well. All these documents are usually in English, a language not understood by many Sri Lankans.  Our petition involved the examination of the draft amendments, the original PTA, and the Constitution, a tough task for us and many citizens who are not lawyers or legal academics. There are also many other documents that need to be attached as annexes.  A major challenge is that petitions must be filed within one week (including weekends and public holidays) of a draft Bill being tabled in the Parliament. Last month, the Young Journalists’ Association challenged the Bill on Data Protection tabled in the Parliament on 20 January through an electronic petition on 27 January, but their petition was rejected, probably because of an administrative requirement that a petition must be filed before 3 p.m. on the last day, even though the Constitution only specifies “within one week” and does not impose a 3 p.m. deadline.   We underestimated the time and effort needed by our lawyer and team of volunteers to prepare the petition, two affidavits (one for the Buddhist and one for the 20 Catholics) and proxy, which required detailed information of each and every petitioner.  We worked till late night on 16 February in Kandy to read, listen to the explanations of our lawyer, understand and sign the documents in the presence of another lawyer who came to help us late in the night. And in the early hours of 17 February, our lawyer rushed back to Colombo, scrambling to make the massive number of photocopies needed and fulfill other procedural requirements. One procedural requirement which the Attorney General (who was named as the sole respondent in our petition) often cites to get petitions dismissed is the requirement to deliver a copy of the petition to the Speaker at the same time as filing the petition.   Draft Bills can only be challenged in the SC in Colombo and this makes it very difficult for citizens living far from Colombo and with difficulties to travel to Colombo at very short notice due to finances, health, work, family or other reasons. Our group was from 11 Districts (Colombo, Gampaha, Kurunegela, Puttalam, Galle, Kegalle, Kandy, Badulla, Mannar, Vavuniya, and Mullaitivu) and we were only able to discuss the draft Bill and sign the documents as we were already in Kandy.  Our learning was that the Constitutional right to challenge draft Bills before court is practically very difficult to be realised and is an uphill task for ordinary citizens not fluent in English, living far from Colombo, without easy and fast access to legal, financial, and other logistical support.  What we challenged in the Bill  Given the many limitations and difficulties, we focused on only two of the many problematic clauses in the Prevention of Terrorism (Temporary Provisions) (Amendment) Bill in our petition. One was the clause that gives the Defence Minister the sole power to detain anyone for up to 12 months (previously 18 months) in a place and condition determined by the Minister, without being produced before a judge and right to seek bail. The second was the clause that allows the Defence Minister to restrict the freedoms of expression, assembly, association, and movement for 12 months (previously 18 months).  The petitioners claim that the Prevention of Terrorism (Temporary Provisions) (Amendment) Bill is inconsistent with the Constitution and therefore requires passing by a special majority in the Parliament (two thirds of the entire number of Parliamentarians) and approval by the people at a referendum.    Clause 2 of the Prevention of Terrorism (Temporary Provisions) (Amendment) Bill seeks to amend the principal enactment by the substitution of the words “18 months” with the words “12 months” and this, per the petitioners, allows a person to be held in remand or in detention for a minimum period of 12 months without such person having the possibility of making a case before a judge that there are sufficient reasons for granting bail.  This clause therefore violates, the petitioners claim, Articles 3 (the inalienable sovereignty of the people including the FR), 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 13(5) (entitlement to the presumption of innocence unless burden of proof is on the accused) of the Constitution. Clause 6 of the Prevention of Terrorism (Temporary Provisions) (Amendment) Bill seeks to amend the principal enactment by altering the aggregate period that a restriction order may be in force from 18 months to 12 months. This clause thus violates, according to the petitioners, Articles 3, 14(1)(a) (freedom of speech and expression including publication), 14(1)(b) (freedom of peaceful assembly) and 14(1)(h) (the freedom of movement and of choosing one’s residence) of the Constitution.  Other provisions in the draft Bill that have a negative effect on the rights, safety, and wellbeing of citizens were addressed by petitions filed by others challenging the Prevention of Terrorism (Temporary Provisions) (Amendment) Bill.   The need to go beyond court in challenging the PTA The court cases also came in a context of an islandwide signature campaign launched, demanding the repeal of the PTA with the support of Opposition politicians, religious leaders including Colombo Archbishop Malcolm Cardinal Ranjith, and human rights activists. There is also increasing international attention on the PTA. The Judiciary is one platform for those struggling against unjust draft laws that affect our rights, dignity, and freedoms, but repealing the PTA will require much more concerted social and political campaigns than going to court.  (The writer is a human rights activist and an Executive Committee Member of the Free Media Movement) …………….………………. The views and opinions expressed in this article are those of the author, and do not necessarily reflect those of this publication.  


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