One of the major purposes of the proposed Anti-Terrorism Law is to diminish the powers and capacities of the Courts and Judges from the ranks of Magistrates, up to Supreme Court (SC) Judges. The range of diminishments proposed by the Bill are many and also far reaching. 

In terms of Articles 3 and 4 of the Constitution, the sovereignty of the people is vested in a legitimately elected Government, on the basis of three powers that are exercised in terms of the Executive, the Legislative and Judicial powers. The three branches are equal and it is not within the power of one branch to cause the diminishment of the powers of another branch of Government. The Executive does not have the power to diminish the power of the Judiciary in any manner and reduce it to a lesser status. The same applies to the Legislature. 

However, under the Anti-Terrorism Law, all the powers that have been conferred on the Judiciary by the Constitution itself, and by other legislations, have been significantly taken away and handed over to officers representing the security branches and sometimes directly to the Executive President himself/herself.  This is, on the one hand, completely opposed to the totality of the Constitution, because Articles 3 and 4 are not just two Articles of the Constitution, but those that represent the core of the Constitution itself. The core of the Constitution is the recognition of the sovereignty of the people and any diminishment of the powers of any of the three branches of Government: the Executive, the Legislature and the Judiciary, amounts to substantially changing the character and nature of the Constitution.  Thus, it is not possible by way of changing some wordings in this or that clause of the Anti-Terrorism Law, to adjust it to fit into the Constitution. If the removal and/or the diminishment of the powers of the Judiciary and/is accepted, then, the totality of the Constitution should be rejected. If the Constitution is to be upheld, then, the totality of the Anti-Terrorism Law should be abandoned, as far as the removal or the diminishment of the powers of the Judiciary is concerned. 

The core of the Anti-Terrorism Law consists of an attack on the Fundamental Rights (FR) Chapter of the Constitution. The entirety of the FR Chapter is undermined and mostly invalidated by the Anti-Terrorism Bill, if it becomes a Law. 

Article 11 of the Constitution deals with the powers on violations relating to illegal arrest and illegal detention. The Anti-Terrorism Law centres around a large area of attacks on these two FR for protection against illegal arrest and illegal detention. The Constitution has provided an umbrella of protections enshrined in other laws, such as the Penal Code, the Criminal Procedure Code and other statutes which create offences and also the Evidence Ordinance.  These are the cornerstones on which the protection of the individuals living in Sri Lanka is guaranteed. The Anti-Terrorism Law attacks this whole range of protections which are provided by the law and also protected by the long tradition of the common law in which the Sri Lankan legal system is rooted and also international laws, all of which create the kind of legality that is enshrined in the Constitution. What the Anti-Terrorism Law does is to replace the idea of legality as contained in all these sources of law, and to replace it with new provisions mentioned in the proposed Anti-Terrorism Bill, which are based on other philosophies and principles, which are alien to the very tradition of constitutionalism and legality, that have been embedded into the Sri Lankan law.  Thus, all clauses of the Anti-Terrorism Law, which take away the ‘basic protections’ enshrined into the legal fabric of Sri Lanka, are creating a kind of legality within which what is now considered as illegal within the constitutional and other legal framework of Sri Lanka, is to be treated as legal. Thus, there is a twist about the very nature of the legality that is created by the Anti-Terrorism Law.  

The whole notion of a fair trial, developed over a century of struggle, centres around the principles of the prevention of illegal arrest, illegal detention and also torture and ill-treatment including also extra-judicial killings, and enforced disappearances. A fair trial presupposes the idea of a criminal enquiry. The legal notion of a criminal enquiry means the inquiries conducted within the boundaries of the law, which in turn have created the strict framework of the protection of the individual. The system of law that we have which is being inherited from the developments which took place in developed systems of the rule of law and democracy, went through a long process of struggle, for which literally tens of thousands of people have paid with their blood and lives to entrench certain fundamental notions of protection, which are also included in Sri Lanka’s constitutional law, jurisprudence relating to criminal law and procedure, and also the Evidence law, and which are also part of the international treaties for which Sri Lanka is a Party to. 

The Anti-Terrorism Law takes those powers given to the Magistrates, the Court of Appeal and also to the SC, which exercises special powers of protection, both by way of FR provisions, as well as by jurisdiction. The powers of Magistrates are radically curtailed. The people who are arrested need not be brought to the attention of the Magistrate, and the Magistrate in any case, does not have the power to scrutinise the legality or otherwise, of the arrest or detention. As it has been pointed out, a Magistrate is the ‘kingpin’ of Sri Lanka’s criminal justice system. In judging the liberty of the individual, it is the Magistrate that plays the pivotal role. Any diminishment of the powers of the Magistrate, to scrutinise the legality or otherwise, of arrest and detention, amounts to a fundamental attack on the rights guaranteed under the Constitution, as well as the laws enshrined in other fundamental statutes, which lay down the structure of criminal justice that prevails in the country. By the taking away of the powers of the Magistrates relating to these matters, on issues which are attempted to be brought under the Anti-Terrorism Law, this entire system of protection is being greatly displaced.  There could be no justification at all for the attack on the jurisdiction of Magistrates to deal with illegal arrests, illegal detention and the direct issues of torture and ill-treatment, and other matters relating to, and leading to a fair trial. 

 (The writer is the Policy and Programmes Director of the Asian Human Rights Commission.)

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The views and opinions expressed in this article are those of the author, and do not necessarily reflect those of this publication.