Sri Lanka Parliament re-enacts
the draconian 48 Hour Detention Bill
By Sanjaya W. Jayasekera. 25th
January 2013
In realization of another step toward the building of the
boundary walls of a police state, Sri Lanka government caused the long awaited
piece of legislation passed in the parliament which allows the detention of a
person arrested without warrant in Police custody for 48 hours for 15 listed
offences which include inter alia murder, attempted murder, kidnapping,
rape, and offences committed with the use of explosives or an offensive weapon
or gun.
Immediately in the aftermath of the saga of infamy
impeachment of the country’s Chief Justice Shirani Bandaranayake in the week
before and appointing President Mahinda Rajapakshe’s kith Mohan Peiris in her place, the immediate next
in agenda of Rajapakshe’s government was to pass the Criminal Procedure Code
(Special Provisions) Amendment Act of 2013.
The act was taken for debate in Parliament on Monday, January 21 and on
the following day, the bill was passed in Parliament 110 voting for and 33
against the Bill. The main opposition, the United National Party (UNP) and
Janatha Vimukthi Peramuna(JVP) and Tamil National Alliance (TNA) voted against
the Bill.
The Bill
was placed before the Parliament by the Justice Minister for the first time on
October 11 last year. An application was filed in the Supreme Court challenging
the constitutionality of the Bill and the Supreme Court decided that Clause 8
of the Bill, as published in the gazette on September 21 last year, was
inconsistent with Article 13(2) of the Constitution which provides that every
person held in custody, detained or otherwise deprived of personal liberty
shall be brought before the judge of the nearest competent court according to
procedure established by law, and shall not be further held in custody,
detained or deprived of personal liberty except upon and in terms of the order
of such judge made in accordance with procedure established by law". The
Court therefore held that the Bill required two-third majority in the
Parliament for it to become law or else the said Clause should be removed
before passage. However, the Bill was
passed on a simple majority without amendment or removal of Clause 8, openly
fllouting and bypassing the determination of the Supreme Court.
Quite undemocratically, section 8 of the Bill provided for
the retrospective validation of all arrests and detentions made or functions
executed during the period from May 31, 2009 to the effective date of the new
Act. Article 13 of the Sri Lankan Constitution provides for freedom from
arbitrary arrest and, under Section 37 of Code of Criminal Procedure prior to
the present amendment, a suspect could be kept in police custody only for 24
hours before producing before a Magistrate, whereat the suspect could be either
granted Bail or remanded in prison for a maximum period of 14 days before a
second production of the suspect before the magistrate.
Now,
section 2 of the amendment Act provides for the police to detain a suspected
person in police Custody for 48 hours upon an order made on that behalf by a
magistrate on a certificate issued by a police officer from and above the rank
of Superintendent of Police. It is obvious that the magistrate's order is left
to be nothing but a rubber stamp on the certificate of the Police. This new law
is even contrary to Article 9 of the Universal Declaration of Human Rights,
which provides that no one shall be subjected to arbitrary arrest, detention or
exile.
The Act
also provides sweeeping powers to the Attorney General who can file direct
indictments in the High Court and forward cases from Magistrate court to the
High Court under "aggravating circumstances or circumstances that give
rise to public disquiet in connection with the commission of an offence".
In such circumstances the Magistrate should not hold a preliminary inquiry and
is bound to forward records to the
Attorney General, wait for his instructions and abide by same. The Attorney General is a government officer appointed
by the President and in 2010 Rajapakshe took over the Attorney General
department under his executive authority. Further, the Act also provides for
the abolition of non-summary proceedings in the magistrate courts, allowing for
hurried prosecution.
It was on May 31, 2005 that this law was originally
implemented for a period of two years and then the same having been extended
for another two years it lapsed in 2009.
The new Amendment goes in line with the similar special provisions Act No.42 of
2007. A belated attempt to review the law by the government was unsuccessful in
the Parliament last year. This new
Amendment too lasts for a period of two years and the same has to be extended
by order of the Justice Minister.
Minister Anura Priyadarshana Yapa backed by several other
ministers and government members of parliament falsely claimed in parliament
during the debate on the bill that the bill was solely intended to curb rising
wave of crimes in the country and to make criminal investigation effective.
Earlier in 2012, issuing a statement on the proposed bill,
Sri Lanka Bar Association had sanctioned the passing of the bill as legitimate.
The government passed the 18 Amendment to the Constitution
in September 2010 effectively abolishing the independent Police Commission. Sri
Lanka Police is notorious for using torture in police custody and custodial
deaths are often reported. The new Act has granted the official license of
legitimacy for such brutality by the Police in the days to come when much
public unrest is expected against the government’s unending austerity
measures. The government is expected to
reduce the budget deficit to 5.8 percent of Gross Domestic Product (GDP) this
year for the new loans to be approved by the International Monetary Fund (IMF),
which requires further cuts on government spending on public welfare and price
rises.
The military occupation in the country’s North and East has
alarmingly been increased by the government forces even three years after the
military defeat of the Liberation Tigers of Tamil Eelam (LTTE) in May 2009 and
Tamil youth have been subject to arbitrary arrests under notorious Prevention
of Terrorism Act. A recent incident was the arrest of several Tamil students of
the Jaffna University Student’s Union, who were detained by police and military
after encroaching in to the University premises and attacking the students who
had organized a memorial function for those who died during the war.
The government is unleashing its vicious crack-down
mechanism and strengthening it against any of the working class struggles in
the near future with the effect of the financial crisis sweeping through the
entire region. In these circumstances Rajapakshe government is ever more
reliant on repressive laws and a subservient judiciary.
The passage of this law implies the deep rooted fears of the
Rajapakshe government about the impending dangers from the working class. The
government has been shown to be silent about the recent anti-Muslim protests
staged by Bodu Bala Sena, a Sinhala-Buddhist extremist organization funded and
taken care of by big Sinhala businessmen with the help of the government
security. These groups are yet to grow as paramilitary groups to crack down
upon country’s ethnic minorities and these repressive laws are to be used
extensively.
The democratic rights of the working people can be protected
not by agitation and protests to pressurize the government to withdraw the
repressive laws and oppressive mechanisms, but by uprooting the capitalist
profit system and the government that serves and is dependent on it. This
requires the independent political mobilization of the working class for
International Socialism, which programme is denied by pseudo-lefts and the JVP
along with its runaway fraction, Front Line Socialist Party (FLSP).