Saturday, May 11, 2013

Sri Lanka Parliament re-enacts the draconian 48 Hour Detention Bill



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).