Lawyers slam Emergency, PTA wrongs
[TamilNet, Sunday, 18 March 2001, 17:30 GMT]
(NEWS FEATURE) "The war and emergency cannot be excuses for completely denying all the rights of citizens. Human rights activists who speak of the limits of the government's power are looked upon as enemies of the state", said Mr. V.TThamilmaran, senior lecturer in law at the University of Colombo, addressing a two-day seminar on human rights education in Trincomalee Sunday. "Persons arrested and detained under the Emergency Regulations are remanded few months later by the Trincomalee courts under the Prevention of Terrorism Act, on applications made by the Police. Is this not a violation of human rights? Is it not contrary to the law?" asked Mr. Arumugam Jegasothy, President of the Trincomalee Bar Association, in his inaugural address Saturday.
The reason for having recourse to the Emergency Regulations instead of the Prevention of Terrorism Act (PTA) for arresting persons is made amply clear in Regulation 18 (1) of the Emergency (Miscellaneous Provisions and Powers) Regulation No.1 of 2000 promulgated by the Sri Lankan President on 3 May 2000, which states "Any Police officer, any member of the Sri Lanka army, the Sri Lanka Navy or the Sri Lanka Air Force, or any person authorized by the President to act under this regulation may search, detain for purposes of such search, or arrest without warrant, any person who is committing, or has committed or whom he has reasonable ground for suspecting to be concerned in or to be committing or to have committed, an offence under any emergency regulation, and may search, seize, remove and detain any vehicle, vessel, article, substance or thing whatsoever used in or in connection with the commission of the offence".
Arresting under the PTA is not preferred because it confines arresting authority to specified ranks of the Police. Part 2. 6 (1) of the PTA states "Any Police officer not below the rank of SP or any other Police officer not below the rank of Sub Inspector authorised in writing by him in that behalf may, without a warrant and with or without assistance and not withstanding anything in any other law to the contrary (a) Arrest any person"
Hence the Sri Lankan government finds it particularly convenient to use the ER to make arrests, particularly in the Northeast.
Paragraphs 2 and 2 A of Emergency Regulation 19 which were introduced by an amendment by extraordinary gazette notification No. 1132/14 of 16 May 2000, applied consecutively allow the detention of a person for nine months in the northern and eastern provinces. Regulation 19 (2A) is specifically designed for detaining people in the north and east.
Emergency Regulation 19 (2) (amended) states, "Any person detained in pursuance of provisions of Regulation 18 may, for the purpose of investigating of an offence or offences in relation to which such person was arrested, be kept in detention upon an order made by a Police officer not below the rank of the DIG of Police or if such person has been arrested and detained in any administrative district within the northern or eastern provinces, upon an order made by a Police officer not below the rank of a DIG or a brigadier, commodore or wing commander of the Sri Lanka army, SLN, or the SLAF, as the case may be for a period of ninety days reckoned from the date of arrest. Such person shall at the end of the period of detention, be released unless such person is detained under the provision of regulation 17 or is produced before the expiry before a court of competent jurisdiction".
Regulation 19 (2A) (amended) states, "Where a person who has been arrested and detained in pursuance of regulation 18 is produced before the expiry of the period referred to in paragraph 2, before a court of competent jurisdiction, the court shall on application made in that behalf by a Police officer not below the rank of a SP extend the detention of that person for a further period not exceeding 6 months".
The detention of persons in the north or east under the provisions of Emergency Regulations 17, 18 and 19 is further extended under the PTA at the end of 9 months. The PTA is resorted to at this juncture because section 7.2 of this act provides for remanding a person indefinitely. Section 7.2 of the PTA states "Where any person connected with or concerned in or reasonably suspected to be connected with or concerned in a commission of any offence under this act appears or is produced before any court other than in the manner referred in subsection 1 such court shall order the remand of such person until the conclusion of the trial".
This is how thousands of Tamil youth are detained indefinitely, human rights lawyers in Colombo say.
" Several youths arrested and detained under the Emergency Regulations are brought to Trincomalee courts every three months. The detention orders issued by the Defence Ministry in this respect are renewed every three months. Under the Emergency Regulations no one can be detained for more than a year. But the Police move after nine months that the suspect be detained under the Prevention of Terrorism Act until the case is completed. The Court also allows that application submitted by the Police. Is this not a violation of fundamental and human rights of a person?" asked Mr.Jegasothy in his presidential address.
He further said, "Some legal sources cite a Supreme Court judgement that it is not contrary to law to ask for the detention of a person under the PTA although the person was arrested and detained under the Emergency Regulations.
" However I am of opinion that serious injustice is being done to the suspects arrested and detained under the Emergency Regulations by remanding them by invoking the Prevention of Terrorism Act. It's high time for the human rights groups to take up this matter with the authorities concerned ", said Mr. Jegasothy, a leading Attorney-at-Law in Trincomalee.
The Trincomalee Bar Association has formulated a scheme to educate teachers and students in the Trincomalee district about the fundamental and human rights of a person.
"People in rural areas in the Trincomalee district are badly affected by human rights violations," Mr. Jegasothy said.
Mr.P.Balavadivelu, retired High Court Judge participating as the chief guest said: "Human and fundamental rights enshrined in the constitution have become meaningless as the law enforcement authorities openly violate them."
Professor V.S.Ganeshalingam, attorney-at-Law made the welcome speech. The two-day seminar on Human Rights Education in Trincomalee, which began Saturday morning, was organized by Home for the Human Rights (HHR) at the New Silver Star Hotel under the auspices of in Colombo. Leading lawyers, social workers, representatives of non-governmental organizations and medical professionals attended the seminar. Home for Human Rights is a legal aid NGO based in Colombo.
A spokesman of the HHR said: " One must know at least his or her basic rights such as right to life, liberty and dignity and the fundamental rights that are guaranteed by the Constitution."
"HHR is providing opportunities by holding seminars to all sections of the society to explore their rights to learn those which they are enjoying and those which they are not, the spokesman added.