Part 1
What exactly are emergency regulations?
Emergency Regulations are promulgated by his Excellency the President in terms of section 5 of the Public Security Ordinance. Now public security ordinance is an ordinance which was drafted enacted due to the period of the British. And in certain situations and circumstances the head of the state can act under certain provisions of the public security ordinance and declare a state of emergency. Now one of the lesser known facts in this country, is that Sri Lanka was under emergency from 1971, from the time of the 1971 insurrection Sri Lanka was placed on emergency. Those sorts promulgated under the Public Security Ordinance and it went on until 2009. Then after a few years after 2009 there was a situation where it was removed and then for a brief period owing to the ‘Digana’ incidence in Kandy, it was introduced for a period of two weeks. So public security ordinance permits the head of state now his Excellency the President to promulgate emergency regulations and those are regulations which are identified as a mechanism to deal with situations for which the normal law does not provide.
How can it be triggered and enforced?
It’s triggered the moment the President decides to impose emergency regulations
Does HE need anything in Parliament?
The Parliament gets involved at a particular point. The decision to promulgate the emergency regulations is with the President. And thereafter the extension is by the Parliament because every emergency regulation which is promulgated by the President continues for a period of one month and the Parliament has to vote for the extension of the emergency. Now in ‘Digana’ 2018 it was operative only for a very brief period, since the Parliament did not consider it as fit, right to extend the regulation, so it lapsed. They did not extend, it lapsed.
A question that I’ve heard quite often especially since the events of 21st of April, is people say “Oh look the police have come to search my house, they’ve got no warrant”. Do you need a warrant?
You don’t need a warrant because this is a misconception, As I said before a lot of people even the younger generation are today they don’t realize the fact that since 1971 the emergency regulation was enforced, of course with lapses here and there. Under our normal law there are two situations of arresting a person or searching a place. You can arrest a person without a warrant, which is called a ‘cognizable offence’. Or you can arrest a person with on the strength of a warrant issued by a court, which is a ‘non-cognizable offence’. Now all offences under emergency regulation are ‘cognizable’. So in terms of regulation 18, 19, and 20, 19 more specifically ‘powers of arrest are very wide, wider than the normal situation and you don’t require a warrant to search under the emergency regulation.
So if we didn’t have a state of emergency, then the police can’t just walk in and search a house?
No. It depends again on the nature of the offence. If a person is being look for by the police for a ‘cognizable offence’, that is where you can arrest without a warrant, you don’t require a warrant. But in respect of certain other situations where you have to obtain a warrant from a competent court which is in the case of ‘non-cognizable offences’ you can’t walk in without warrant. But that situation would not apply to situations under the PTA or the emergency regulations which is all offences are deemed to be ‘cognizable’.
So what are these additional powers, that’s vested with the police and the other forces?
There are two types of powers that I would define. At the arresting point, under the normal law a person can be arrested by a police officer. A person can also be arrested by a citizen. If a person is committing an offence in front of you citizens have a duty to arrest and hand over to people.
I thought this is only in the films.
No. Under Section 33 it’s very clear. So citizens have a duty to assist a police officer in arresting a person. So when a person is arrested normally under the normal law you have to forward that person before a magistrate’s court within 24 hours by operation of law now in your recent amendment it is extendable up to 48 hours. Now as far as the PTA and emergency are concerned the concepts are different. The PTA there are two situations where a person could be brought before a court. No.01-When a person is arrested under Section 6 right but that arrest can be made only by certain categories of police officers. Under the normal law any police officer of any rank can walk in arrest the person. But under the PTA when an arrest is made it can only be made by a superintendent of police or above or by a police officer who is over and above the rank of sub-inspector of police who is specifically and in writing authorized by an officer about the rank of SP of Police. As far as the delegation is there the arrest is all right. But of course the normal concepts of arrests would apply even in the case of arrest under the PTA or emergency. That is there must be some reasonable suspicion, you can’t just walk in and arrest people. You must be able to justify your arrest by having material. Now what is this material? If a person is committing an offence in front of you and if it’s a ‘cognizable offence’ and all offences under the PTA and emergency are ‘cognizable’, you can arrest.
And is it true that Sri Lanka really does not have the laws required to arrest people who’ve been engaged in terrorism overseas?
Well that’s not correct. That is not correct for this reason. The Penal Code was drafted by the British in the 1880s. That is the oldest criminal law statutory piece of legislation in Sri Lanka. So since 1880s with certain modifications and amendments it has been brought into operation, it continues to be in operation. Section 2 and Section 3 at the penal code was amended periodically. One amendment introduced a certain criminal activity committed outside Sri Lanka in the premises of diplomatic missions etc. But the latest amendment has enhanced the scope and even if you commit an offence outside as long as there’s material you can’t just invoke that. There must be positive and substantial material to implicate a person of having committed a criminal act. And furthermore if you go through the provisions of the Prevention of Terrorism Act, there again in outside Sri Lanka the words have been used. So when you say in outside Sri Lanka, any person who advocates remorse that concept is there. So therefore it is partially correct to say, some other situations may not be covered but for the purpose of arresting and detaining the powers are there.
I know that in Britain if you try and go to Syria and you get caught on the way back or something like that you would be arrested. So is that the same here? If somebody goes to Syria is that automatically deemed that you’ve gone into some terrorist infested territory?
I know what you are getting at, but going to Syria is not an offence. Anybody can go to Syria and the answer is, you can go to Syria that is not an offence. But if there’s material that a person has been involved in any terrorist activity or any unlawful activity which is connected to the government of Sri Lanka’s, then there is material.
So if you’ve gone out there to get training?
Who knows? Where’s the evidence? That is why I say it is partially right and partially wrong, because who knows if I suddenly decide to go to Syria, how can somebody attribute and say that I had gone there for training? You can’t say that. There must be material. Just because the man takes a flight and goes to a different nation that doesn’t mean he is going there for such training.
That is not an offence?
No, going out is not an offence. But if there’s material, that is where the law enforcement has to step in. At times of emergency the ordinary law sometimes will have to go down but today Winston Churchill is not there but the concepts of human rights also emerge. So ordinary law can go down subject to the exercise of the rights in that situation.
What are the additional powers that are vested in, not in the police but, in the forces, in the Army, the Navy and the Airforce?
Let me explain this, when the ordinary law is applicable in a nation, Sri Lanka included the forces cannot be taken out. They cannot come onto the street. They can’t get involved in police duties. Because their duties, military forces, their duties are designed under their respective Army, Navy, Airforce act. So if the forces are to be brought out, the President has to make a proclamation and that has been done. Every time an emergency is declared the President makes a declaration in terms of the regulations and the PT also, to draw the forces out. That is permissible. That is legally valid. Now under the PTA arrests can be made by police officers but under the emergency the moment the emergency is declared, two things happen. The forces can come on to the street and exercise powers similar to that of police officers and also secondly there actions are sanctioned by operation of the tribulation.
What about people who normally should be charged under normal law being held under emergency regulations. It has been abused in the recent past specifically?
Now that question is incorrect. It is incorrect to say that it had been abused in the recent past. It had been abused from the time, in 1979 the PTA came. On one hand you have to maintain law and order. If some situation develops in the country where national security is affected, everybody in this country starts blaming the police and the law enforcement. So on one hand we must have a balance where the law and order and the security of a nation is protected. On the other hand the legislation of the laws or the regulations which are passed by reason of this emergency situation cannot be used to suppress to categories of people or individuals. So it’s maintaining the balance. There are instances of abuse even in the past that is why people go to the Supreme Court complained by way of fundamental rights abnegations, so abuses can arise. But when there are abuses you cannot arrest a person who appears to have committed an offence under the normal law by utilizing the PTA or the emergency. That is totally legal and the Supreme Court on several locations have specifically expressed that.
What can the public do if the police or the army turn up and say “we’re going to inspect your house”?
There is nothing that you can do. Powers are wide enough. Unfortunately in this country there is no right called ‘right to privacy’. Only to the extent in the 19th amendment under article 14 (a) you have some concept of right to privacy. Right to privacy has not been recognized specifically. So when the security situation has been declared you can’t ask the security forces or the police to go back. If you obstruct, you can be arrested.
But once the emergency law ceases or lapses, then what do you do?
Then the situation becomes different. Army can’t be doing the arrests and searches. Because the moment the emergency lapses, they are also withdrawn back by the President. So they can’t be involved in the arrests and detention thereafter.
But the Police can?
Police can.
And in a normal situation then if the police turn up and say to you “we’re going to have to check your house”?
It depends on the offence. If they see somebody who has committed murder running into that premises, police can walk in. You don’t require warrants. But for the category of offences where the warrants are required, you can ask them, what is what is the nature of the offence, what is the nature of the allegation.
What is the ICCPR?
The United Nations Declaration of Human Rights was passed by the General Assembly of the United Nations on the 10th of December 1948. The reason which compelled the United Nations at that time to come out with this Universal Declaration of Human Rights was the abuses that the world experienced during the Second World War. So in view of that certain rights were been recognized by the legal systems and civilized societies as basic human rights. A further extension to this came through the International Covenant on Civil and Political Rights which was adapted by the United Nations General Assembly on the 16th of December 1956. Thereafter it was presented and adapted in 1966. Sri Lanka became a signatory and on the 11th of June 1980, we accepted that. And when a nation accepts a Convention you have a duty and the nation is under obligation to put out domestic legislation on par with the international convention. If you look at the ICCPR (International Covenant on Civil and Political Rights) the primary purpose of that convention is to introduce Human Rights which otherwise has not been introduced into that country.
Sri Lanka, in 1972 we had our first republican constitution which just passed on the 22nd of May. That introduced a particular category of Human Rights. Then in 1978, the Constitution that we have now was enacted during President Jayewardene’s time and the 1978 Constitution introduced further categories of rights, a bundle of rights as human rights. And the Constitution made it justiciable that is you can go to court, 1972 you couldn’t have gone to court. 1978 we can go to court in terms of article 17 and article 126, if you allege a violation of Human Rights you go before the Supreme Court within one month. Now ICCPR the intention is to cater to human rights which are not otherwise already provided. So there is some recognition of certain rights relating to children, fair trial and other concepts and hate speech.
Can we speak about Tissa Attanayake’s case because when he was in the High Court, it was something to do with the statement made by him in the run-up to the Presidential elections and then also similarly we have some cases filed during the incidence of ‘Digana’ in 2018.
Now in Tissa Attanayake’s case there was an indictment filed by the Honorable attorney general alleging an offence under Section 3 of the ICCPR Act. Now what does section 3 of the ICCPR Act say? ICCPR Act was passed in 2007. What does it say? It basically says no person can propagate war. So that is one species of that offence, one species of that section. Other one says no person can do anything and thereby you incite people to hostility violence or religious and other discrimination. Now in Tissa Attanayake’s case on the 22nd of December 2014, at a press conference he made a statement reading out from a script. Then when he was originally producing the Magistrate’s court at Colombo Fort, that ICCPR allegation was not there. It was about forgery and using as genuine a forge document, but somewhere down the line the ICCPR allegation came and the indictment also contempt. The question you asked me, brings out a very important aspect, that is who decides whether to file under ICCPR or not.
That was actually going to be one of my questions.
In regard to ICCPR one of the things which is of contemporary relevance is Section 3. Section 3 is the section which is spoken of today. We will forget about the propagating of war because nobody in this country would go to propagate war. Now the question is social media, the media and so called freedom of expression is being used by people to make statements. The statements I would say would be of three categories, oral speech or written statement, you distribute a leaflet discriminating a particular ethnic group or attacking a religion or inciting people to hostility, inciting people for to discrimination, inciting people to resort to acts of violence. Whether you make an oral speech or a written communication where by people are incited, that is an offence.
The police have a misconception that if it is on Facebook you cannot do anything about it, that’s wrong. Because publication means either speech or in writing, a newspaper, that’s publication. Similarly if I have a Facebook account and if I publish something that post is also a publication. Even though the police have this misconception of coming out and saying that you cannot do anything published on Facebook, that is wrong. Because that Facebook statement is only a mechanism of proof. The moment the account holder publishes something on Facebook that is published. You have to prove that it was published, so the mechanism of proof is the only issue and the answer lies in the Evidence Special Provisions Act No.14 of 1995. Nobody has looked at it and I think the police should look at it.
What you’re saying is we do have legislation to cope with this hate speech business?
Of course we do.
So there’s no need for additional legislation?
No, there are certain further amendments needed. In any case even before the ICCPR Act on 2007 came into operation, sections 291, 291 (a), 291 (b), 290 at the Penal Code covered these situations, but not in full. Certain amendments should be considered to be introduced to those sections. Furthermore, even the ICCPR at the biggest problem, here in Section 3, there are two words what is advocating not interpreted, what is incitement not interpreted.
People think just by using Facebook they can get away with it. But there are laws to control that?
Of course there are.
So what are you saying, that the police need to be educated on this issue?
Police needs to be educated on the fact that publication on Facebook by way of a post is equal to a publication that takes place by way of a newspaper or a leaflet. And the only difference is method of proof. Method of proof is, there are two things, they must have scientific and forensic material to identify who is the account holder. They have the equipment to do that. Secondly they must take a video clip or a photo of that posting and then prove that this was done. So it is only a mechanism a proof which is different, not that the police don’t have the power. But they must be educated on this and they must seriously look at these provisions.
The workers who were arrested at the copper factory, they then made bail. There’s a suggestion that they were not charged properly. How did they get bail?
You see in this country maybe because of social media every other person knows more law than the most knowledgeable lawyers and the juries. So they go on a voyage of discovery, they go on a rampage of making statements and that is incorrect. If you don’t understand that, you must not make comments. Your comments cannot be based on what is called suspicion or your necessity to be recognized by way of making a comment. The law is very clear. I cannot make any comment further up to a point I can make because this matter is under investigation or they are subjudicate. I will take a normal example. When a person is produced before court the magistrate has to decide whether to grant bail or not. First question is whether the offence is bailable. If the offence is bailable and if that is an offence to which the bail act applies, then the magistrate can either grant bail or sometimes even remand, even if the offence is bailable.
In the case of a non bailable offence, that is a general none bailable, not so high offences like the PTA and other things. In the case of a general non bailable offence, even then the magistrate at the same discretion either to grant bail or not grant bail. Now when a man is produced before the court, the police have a duty in to indicate in the report that they file, what is the offence that we are producing them for and they must file what is called summary of evidence, what is the investigation that we have done up to now and whether the investigations reveal a positive finding or room for further investigations that this man has committed that. So if I’m a magistrate, if a man is produced before me, the first thing I will look at is the B report and the further report filed by the police. B report is a report where by proceedings are instituted under Section 136 one B at the Criminal Procedure Code. Then they have to keep on every 14 days filing reports informing the court of the investigations that they have done. That is for the purpose of judicial supervision over the subject. You can’t hold a man without material, you can’t hold a man without any justification. That is not the role of the court.
You can’t hold a man just because you have a suspicion that is done?
No, you can. If there’s a suspicion and the suspicion is reasonable you can hold that man, pending further investigations. But those investigations must confirm the suspicions, they must lead up to that suspicion. If I am a Magistrate, in the police report that they file before me at the time the suspects are produced, if they don’t allege any substantial material revealing an offence against the suspect what am I expected to do. In that situation I must ask the police what you have done, where the material is, I can’t just detain people. Because, there is a very important statement to the law, it had being made by the former Chief Justice Shriyani Bandaranaike, citing an old case; it says “Magistrates are not expected to be rubber stamps to the police.”
They must make remand orders with their judicial mind, they must exercise their judicial mind, and they cannot satisfy the sardonic pressure of an opinion of an investigator or a prosecutor in making such orders. Just because the police ask, you can’t remand. Judges are doing a very sacred duty. They had to balance both sides and look at both sides. Just because people put post on my Facebook without any understanding on the law, that is wrong. The Judicial in this country has always protected and preserved our rights. Unfortunately there have been isolated attacks and that is wrong, that has to stop. So people without any knowledge at the basis, they make allegations. They must understand what they are talking of. So the police have to file that report that report must be with a definite allegation for suspicion.
So the police needs to up the ante?
Yeah, it’s up to them to satisfy the B report they brought into the Magistrate.
So sooner they understand of this business about the magistrate is not a rubber stamp so much the better for professionalism?
Yes, firstly the magistrates have to realize that they are not rubber stamps. Then the police have to realize that they are not rubber stamps.
Is there a need to criminalize false news or fake news?
Yes. You will not agree with me. There was this offence called criminal defamation.
Criminal defamation was removed after Mr.Singha Ratnatunge’s case, Penal Code that section was deleted. Today everyone is attacking everybody else. If you have a newspaper, if you have a channel, if you can get into the channel or the newspaper, if you can use them, you can attack anybody criminally. Their private life, their personal life, you can attack, no solution.
I have seen several media, print media situations where people are attacked. There’s nothing that they can do. Filing civil action won’t do. In my opinion, criminal defamation should be brought back. There must be some mechanism where people are accountable. You can’t just make a statement and get away. You can’t make a false rumor and get away. There MUST be some mechanism.
