S.S. SELVANAYAGAM
The Supreme Court refused to grant leave to proceed with the rights petition of the Centre for Policy Alternatives (CPA) on the impugned five PTA regulations as a whole.
The Bench comprising Chief Justice Shirani A. Bandaranayake, Justices P.A. Ratnayake and Priyasath Dep dismissed the petition without cost.
The Centre for Policy Alternatives (CPA) and its Executive Director Pakiasothy Saravanamuttu cited Defence Secretary Gotabaya Rajapaksa, Commissioner General of Rehabilitation Maj. Gen. Chandana Rajaguru, IGP N.K. Illangakoon, Army Commander Lt. Gen. Jagath Jayasuriya, Navy Commander Vice Admiral D.W.A.S. Dissanayake, Air Force Commander Air Marshal H.D. Abeywickrama and the Attorney General as respondents.
Viran Corea with Bhavani Fonseka and Gehan Gunetileke instructed by Lilanthi de Silva appeared for the petitioners. Deputy Solicitor General Shavindra Fernando with Senior State Counsel Nerin Pulle appeared for the respondents.
The petitioners made this application on their own behalf as well as in the national and public interest, considering the inalienable rights of the public and persons in the country, whose fundamental rights guaranteed under the Constitution are purportedly unduly jeopardized and/or compromised.
The Government decided to bring to an end the long period of emergency that prevailed in the country. Accordingly, several clear public pronouncements have been made, they stated.
However, the Defence Minister purported to promulgate under Section 27 of the Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979, five new regulations by way of Gazette Notifications in August 2011.
They are as follows: the Prevention of Terrorism (Proscription of the Liberation Tigers of Tamil Eelam) regulations; the Prevention of Terrorism (Proscription of the Tamil Rehabilitation Organisation) regulations; the Prevention of Terrorism (Extension of Application) regulations; Prevention of Terrorism (Detainees and Remandees) regulations; and the Prevention of Terrorism (Surrendees Care and Rehabilitation) regulations.
The petitioners contended where a public emergency ceases to exist, the Government is bound to ensure that the rule of law is not undermined by denial and/or weakening of safeguards and due process that would detrimentally affect fundamental rights of persons. Any efforts aimed towards safeguarding national security interests and public order must be compatible with the State’s obligations under the constitution and international law, they maintained.
The Government has derogated from its obligations under the constitution and the law, by promulgating the said Regulations, they bemoaned.
The Defence Minister is empowered by Section 27(1) of the PTA to make regulations ‘for the purpose of carrying out or giving effect to the principles and provisions’ of the PTA, they stated.
But the power to make subordinate legislation is subject to judicial review and must be exercised in strict accordance with the terms of the parent Act and of the Constitution, they maintained.
The PTA contains explicit and extensive provisions dealing inter alia with arrests, seizures and searches, remand orders, detention and restriction orders, detention during trial, admissibility of certain statements as evidence against a person and offences under the Act, they pinpointed.
The Prevention of Terrorism (Proscription of the Liberation Tigers of Tamil Eelam) regulations and the Prevention of Terrorism (Proscription of the Tamil Rehabilitation Organisation) regulations create offences that are punishable with substantial prison terms.
The offences contained in the regulations are couched in such overbroad terms that they would effectively criminalise the provision of even professional legal services, thereby depriving statutorily protected rights and freedoms including the basic right of any citizen to seek legal representation and advice, and the right and mandatory duty of all Attorneys-at-Law to provide legal advice and/or representation services if and when such is sought, they bemoaned.
The Prevention of Terrorism (Detainees and Remandees) regulations purport to strip the Magistrate of discretionary power to make reasonable orders of release in respect of detainees produced before him, they alleged. This purported restriction of judicial discretion is a usurpation of judicial power by the Defence Minister which amounts to negation of the separation of judicial power from the executive arm of government, enshrined in the Constitution, they further alleged.
Source: Daily Mirror – Sri Lanka