SRI LANKA'S LAWS
Legislation and the Emergency
Report by the Centre for the Independence of Judges and Lawyers
9 September 1998
Report by the
Centre for the Independence of Judges and Lawyers
Chapter on Legislation & Emergency
9 September 1998
Summary of Recommendations |
Emergency Regulations - the Statutory Framework |
Detention under the Emergency Regulations |
Detention under the Prevention of Terrorism Act |
Publicity for Emergency Regulations |
Use of Emergency Regulations for Non-emergency Purposes |
The Indemnity Act | Confessions
| Footnotes
Emergency Regulations
- the Statutory Framework
....There has in effect been a civil war in Sri Lanka since
1983, though except in the years 1987-90, this has mainly been confined to the
north and east of the island and to terrorist incidents in Colombo. In this
Chapter, we look at the framework of legislation which the government has relied
on to combat its opponents, the LTTE and other militant Tamil groups and the
JVP.
The Government has relied mainly on Emergency Regulations
made under the Public Security
Ordinance 1947 ...
Part I of the Ordinance confers on the President power to
proclaim a state of emergency in all a part of Sri Lanka if a public emergency
exists or is imminent [12]. When an
emergency has been proclaimed,
Part II of the Ordinance confers on the President power to make such
Emergency Regulations as appear to her to be necessary or expedient in the
interests of public security and the preservation of public order and the
suppression of mutiny, riot or civil commotion, or for the maintenance of
supplies and services essential to the life of the community
[13]
Emergency Regulations may, among other things authorise
the detention of persons. [14] Emergency
Regulations may override existing laws [15]
Neither the existence of an emergency nor an emergency regulation nor an order,
rule or direction made under such a regulation may be called in question in any
courts [16]
No action or prosecution lies against any person for any act in good faith done
in pursuance or supposed pursuance of an emergency regulation or an order or
direction made under it [17]
The Public Security Ordinance dates from 1946, just before
independence. It has been retained and given its present force by
Article 155 of the 1978 Constitution (... as amended by the 10th and 13th
Amendments...). Emergency Regulations may override any existing law except the
Constitution itself. [18] The proclamation
of an emergency takes effect for one month and a further proclamation may be
made before or at the end of that period [19]
A proclamation has immediate effect but must be approved by Parliament within 14
days [20] When a proclamation is renewed,
existing Emergency Regulations are deemed to continue in force unless otherwise
directed by the President. [21]
As mentioned in the last paragraph, Emergency Regulations can
not override the Constitution and, in particular, the provisions of
Chapter III which confer fundamental rights. In the context of the Emergency
Regulations, the most important rights are those conferred by Article 11
(freedom from torture) and Article 13(1)-(4) (freedom from arbitrary arrest,
detention and punishment). However, the rights declared by Articles 13(1) and
(2) (freedom from arbitrary arrest and detention) are, by virtue of Article
15(7), "subject to such restrictions as may be prescribed by law in the
interests of national security, public order and the protection of public health
or morality".
Before looking at the Emergency Regulations
themselves, we must comment on the legislative framework, about which we have
some criticisms.
First, it is in our opinion wrong that the existence or
imminence of a state of emergency cannot be called in question in a court.
[23] The proclamation of a state of emergency confers extremely wide powers
on the President. Those powers are much more easily abused than her ordinary
constitutional powers. While we believe that the President should have
considerable discretion in deciding whether or not a state of emergency exists,
her decision should at least be based on a rational belief that a state of
emergency exists or is imminent.
We therefore recommend that section 3 of the Public
Security Ordinance be amended to permit a proclamation under section 1 to be
challenged in the Supreme Court on the ground that there is no reason to
believe that a state of emergency exists or is imminent.
In making this recommendation, we acknowledge that a state of
emergency has in fact existed continuously since 1983. We
have not considered whether all of the earlier proclamations under the Ordinance
were justified.
In our view, there is insufficient Parliamentary control over
Emergency Regulations. A limited degree of control is given by s. 5 (3) of the
Public Security Ordinance, which provides that an emergency regulation may
be added to or altered or revoked by resolution of Parliament.[24]
In addition,
Articles 155 (5) and (6) of the Constitution restrict the operation of a
proclamation to a period of one month and require such a proclamation to be
approved by Parliament within a period of fourteen days. There is, however, no
requirement that new Emergency Regulations should be laid before Parliament for
approval. We regard this as unsatisfactory, particularly in view of the very
inadequate system (discussed in more detail below) for publicising changes in
the regulations. Even Members of Parliament may not be aware of new regulations.
We recommend that all new regulations, or new amendments
to existing regulations, should be required to be laid before Parliament for
approval. Except in cases of necessity, such regulations or amendments
should not take effect until so approved.
We are concerned that
section 8 of the Public Security Ordinance provides that no emergency
regulation shall be called in question in any court. This section has not
prevented the Supreme Court from exercising its jurisdiction under Article 126
of the Constitution to protect the fundamental rights set out in Chapter III of
the Constitution as discussed below. We believe, however, that there should be a
wider power to challenge Emergency Regulations, on the ground (for example) that
there is no basis for the President's belief that a particular regulation is
necessary or expedient in the interests of public security.
We recommend that section 8 of the Public Security
Ordinance be repealed.
We are also concerned that section 9 of the Ordinance
excludes civil or criminal proceedings against any person for any act done in
good faith in pursuance or supposed pursuance of an emergency regulation. We
believe that the test of liability should be objective.
We recommend that so much of section 9 of the Public
Security Ordinance as excludes liability for acts done in good faith, but
not in fact authorised by Emergency Regulations in force for the time being,
should be repealed.
We would accept the exclusion of liability for acts
authorised by Emergency Regulations subsequently held to be invalid.
The provisions of Article 15 of the Constitution which permit
restriction of the fundamental rights set out in Articles 12-14 are not tightly
enough drawn.
We recommend that any restriction of fundamental rights
on the grounds of national security should only have effect when a state of
emergency has been proclaimed and then only to the extent strictly required
by the exigencies of the situation.[25]
Detention under the Emergency Regulations
We now turn to the Emergency Regulations themselves. There
are three areas which need particular investigation. These are:
(i) the terms of the regulations, in particular in relation
to powers of detention
(ii) the problems of ascertaining what regulations are in
force, and
(iii) the use of Emergency Regulations for purposes outside
the scope of the emergency.
At the date of the mission, a state of emergency was in force
only in Colombo, the Northern and Eastern Provinces, and adjoining districts.
Between 4 April 1996 and 4 July 1997 the state of emergency had extended to the
whole of the island. It was suggested to us at one meeting that there was no
need to extend the state of emergency to Colombo, but (taking into account the
bomb explosion in central Colombo in mid-October) we believe the inclusion of
Colombo and its suburbs is justifiable.
The main Emergency Regulations concerning detention were, at
the date of the mission, contained in the
Emergency (Miscellaneous Provisions and Powers) Regulations N° 4 of 1994
("the principal Regulations"). The principal Regulations have been amended from
time to time...
Part II of the principal Regulations authorises three
different kinds of detention. These are:
(i) preventive detention, under
regulation 17;
(ii) detention following arrest, under regulations
18
and 19; and
(iii) detention for rehabilitation, under regulations
20
and 22.
The Secretary of the Ministry of Defence may under Regulation
17 order that a person may be detained in custody if he is satisfied that this
is necessary to prevent that person from acting in a manner prejudicial to
national security or the maintenance of public order or essential services, or
from committing certain offences. Such an order may be made for a period not
exceeding three months, and may be renewed for not more than three months at a
time for a total period not exceeding a year.
Thereafter, detention may be continued if the detainee is
produced before a Magistrate, with a report from the Secretary of the Ministry
of Defence setting out the reasons for the detention and why it needs to be
extended. Detention can be ordered by the Magistrate for a period of not more
than three months, and the order can be renewed an unlimited number of times.[26]
Any person aggrieved by a detention order may present his objections before an
Advisory Committee appointed by the President; the Advisory Committee reports to
the Secretary of the Ministry of Defence, who may confirm or revoke the order.
[27]
We were told by the Ministry of Defence that 885 new
detention orders under regulation 17 had been made between the beginning of
1996 and the date of our mission. Of those orders, 525 were no longer in
effect, the detainees having either been released, transferred to the
ordinary prison system following criminal charges, or become the subject of
Rehabilitation Orders. This leaves a balance of 360, together with any
detention orders made before 1 January 1996 and still in force.
Under regulation 18 any police officer or any member of the
armed forces may detain or arrest without warrant any person who is committing
or has committed or whom he has reasonable grounds for suspecting to be
concerned in, or to be committing or to have committed, an offence under any
emergency regulation. Any person arrested by a member of the armed forces
outside the Northern and Eastern Provinces must be handed over to the police
within 24 hours.[28] Arrests must be
reported within 24 hours to the Superintendent of Police of the Division or to
the commanding officer of the area.[29] When
any person is taken into custody under this regulation, the arresting officer
must issue a "receipt" to the spouse, father, mother, or other close relative of
the detainee acknowledging the fact of the arrest.
[30]
A person arrested or detained under regulation 18 may be kept
in detention on an order made by a police officer not below the rank of Deputy
Inspector General or, in the case of arrests or detention by a member of the
armed forces in the Northern and Eastern provinces, by a senior officer of the
armed forces. Detention must be in a place authorised by the Secretary of the
Ministry of Defence. Detention is authorised for a period of up to 60 days in
the Northern and Eastern Provinces and up to 21 days elsewhere. At the end of
that period the detainee must be released, unless an order for his preventive
detention has been made or he has been remanded in custody by a court.
[31] The officer in charge of an authorised place of detention is required
to provide the local Magistrate every 14 days with a list of the detainees in
that place, and the Magistrate is required to display the list on the notice
board of his court. [32] The Magistrate is
required to visit places of detention in his district at least once a month.
[33]
We have no information about the number of people arrested
and detained under regulations 18 and 19. In any event, these figures are likely
to fluctuate quite rapidly.
Under regulation 20, a person detained under regulations 17
or 19 or under the PTA may be detained
for rehabilitation in the interests of his own welfare, under a Rehabilitation
Order made by the Minister of Defence or the Secretary of the Ministry, in
substitution for the previous form of detention.
[34] Rehabilitation takes place in a Youth Development and Training Centre.
[35]
A different form of rehabilitation is provided under
regulation 22.[36] When anyone voluntarily
surrenders to the police or armed forces "in connection with" various offences
or "through fear of terrorist activities", steps must be taken within 10 days to
assign him to a Protective Accommodation and Rehabilitation Centre, where he is
supposed to be provided with appropriate training.
[37] The Secretary to the Ministry of Defence is required to order the
detention of the surrendering person for a period of up to 12 months, which may
be extended for up to four further periods of three months each. He must then be
released, without prejudice to any criminal proceedings against him.
[38]
We were told [39] that
applications for detention orders which have to be approved by the Minister of
Defence or the Secretary of the Ministry are considered by a processing
committee, which includes the Legal Adviser to the Ministry and a member of the
Attorney General’s Department and meets weekly. Applications are submitted by
the police or the Criminal Investigation Department. The committee considers
whether the applications comply with the Emergency Regulations or (as the case
may be) the Prevention of Terrorism Act,
and if they are in order submits them to the Secretary or the Minister.
Detention under the Emergency Regulations clearly
contravenes
Article 9 of the ICCPR .... It can therefore be justified only in
so far as the Government has validly derogated from its obligations under
Article 4 which permits derogation only "in times of public emergency which
threatens the life of the nation,' and then only "to the extent strictly
required by the exigencies of the situation".
As we have said above, we are satisfied that a state of
emergency exists and that it is one which, within the meaning of Article 4,
threatens the life of the nation. However, the regulations go beyond
what is strictly required by the exigencies of the situation, and there has been
no sufficient derogation.
Preventive detention is a draconian power which can only be
justified in exceptional circumstances. We have concluded that the circumstances
in the parts of Sri Lanka covered by the Emergency Regulations are exceptional
and that preventive detention can not be ruled out in principle. However, we
believe that a much greater degree of judicial control is needed than is
provided by regulation 17.
This is emphasised by Article 3 of the UN Basic Principles on the Independence
of the Judiciary, which requires the judiciary to have jurisdiction over all
issues of a judicial nature.
We recommend
(i) that the initial preventive detention order made by the
Secretary of the Ministry of Defence must be confirmed by a Magistrate
within a period of one month
(ii)that all subsequent renewals of the order must be made
by a Magistrate
(iii) that there should be a strict limit on the total
duration of a detention order
(iv) that the procedure for presenting objections to the
Advisory Committee be replaced by a proper and speedy system of appeal to a
judicial body having power to give binding directions.
We were told by the Attorney-General that, following the recent decision of
the Supreme Court in the Cooray case (discussed below), the making of preventive
detention orders had been suspended. A revised regulation 17 incorporating the
safeguards required by the Cooray decision may be introduced, but he thought it
unlikely that it would be used. We believe that the longer periods of detention
authorised under regulation 19
following arrests in the Northern and Eastern Provinces are not justified;
we recommend that the 21-day limit on detention under
regulation 19 should be reduced to 7 days and apply to all districts subject
to the Emergency Regulations.
The provisions for the issue of "detention receipts", for
supplying magistrates with lists of detainees and posting those lists on notice
boards, and for monthly visits by magistrates to detention camps, have had a
valuable effect in helping to reduce the number of people who have "disappeared"
following arrest. However, we were told that magistrates were not ensuring that
these obligations are observed.
We recommend that steps be taken to ensure that
magistrates receive lists of detainees, post them on the court notice
boards, and visit detention camps in their districts as required by the
regulations.
It appears that only a relatively small number of people are
detained for rehabilitation. On 1 January 1997, there were 186 people detained
for rehabilitation, 155 of them under regulation 20 and 31 under regulation 22.[42]
We were told that, as at 14 September 1997, the number detained for
rehabilitation was 118.[43] We heard little
criticism of rehabilitation orders under regulation 20. However,
we recommend that Rehabilitation Orders should be made
by courts and not by the Minister or the Secretary to the Ministry of
Defence and that Orders under regulation 20 should be limited to two years.
In practice, we understand that very few orders are made for
a longer period.
Rehabilitation Orders under
regulation 22
were more severely criticised, on the basis that there is no reason why those
who surrender voluntarily should automatically be required to serve a period of
rehabilitation. We agree, and believe that the other powers of detention are
adequate to cover the cases where detention is appropriate.
We recommend that regulation 22 be repealed.
The Emergency Regulations do not prescribe minimum standards
for the conditions in which detainees are kept.
We recommend that the Emergency Regulations should
prescribe minimum standards for conditions of detention which should comply
with the Body of Principles for the Protection of All Persons under Any Form
of Detention or Imprisonment adopted by the UN General Assembly.
Detention under the Prevention of Terrorism Act
Detention is also authorised under
Part III
of the Prevention of Terrorism (Temporary
Provisions) Act, N° 48 of 1979 ("the PTA"). ...
Where the Minister of Defence has reason to believe or
suspect that any person is connected with or concerned in any "unlawful
activity", she may order that the person may be detained for a period not
exceeding three months' renewable for further three month periods up to a
maximum of 18 months.[44]
The Minister may, alternatively, make an order for similar periods imposing
restrictions falling short of detention, such as house arrest or curfew, travel
restrictions, restriction of activities as a member of an organisation, and
restrictions on addressing public meetings or holding political office.[45]
Orders of either kind are stated to be final and not
to be called in question in any court or tribunal.[46]
This provision can not, however, exclude the constitutional power of the Supreme
Court to exercise its fundamental rights jurisdiction. Any person against whom
an order has been made may make representations to an Advisory Board
[47]
[which is, in practice, the same body as the Advisory Committee set up under the
emergency regulations). Detention is in such place and subject to such
conditions as may be determined by the Minister.
We were told by the Ministry of Defence that 99 new detention
orders had been made under the PTA between the beginning of 1996 and the date of
our mission. Of those, 42 were no longer in force, leaving a balance of 57. As
detention under the PTA is limited to 18 months, no earlier orders could remain
in force.
There are many differences between the power of detention
under the PTA and the power of preventive detention under the Emergency
Regulations - for example, the fact that an order under the PTA must be made by
the Minister rather than by the Secretary, and that there is a maximum duration
for orders under the PTA. Perhaps the most important distinction at the present
time is that the PTA power continues to apply to the whole of Sri Lanka, whereas
the Emergency Regulations apply only to part of it. It is confusing and, in our
view, unnecessary to have two separate and parallel powers of detention.
Furthermore, the making of a detention order under the PTA at a time when no
proclamation of a state of emergency is in force in the relevant part of Sri
Lanka involves a
contravention of Article 9 of the ICCPR which is incapable of being the
subject of a derogation.
We recommend that the powers of detention under the PTA
should be abolished or, failing that, made subject to the same restrictions
as we have proposed above for the power of preventive detention under the
Emergency Regulations; in particular
(i) the initial order should be subject to confirmation by
a court, and renewals should be ordered by a court
(ii) there should be a right of appeal against a detention
order to a judicial body
(iii) no order can be made except when and where a state of
emergency is in force, and
(iv) minimum standards for conditions of detention should
be prescribed.
The power to make an order for a form of restriction falling
short of detention might, at first sight, seem more acceptable than a power of
detention. However, this is not necessarily the case. The very fact that
restrictions do not have such serious consequences as detention may make it
easier for a government to abuse the power to make restriction orders. In fact
the power to make restriction orders appears to have been very little used and
we received no comments about them, either in interviews or written material.
We recommend that the power under the PTA to make
restriction orders should be reviewed and that, unless a clear case for
retention can be made out, the power should be repealed.
As in the case of the Public Security Ordinance,
we recommend that the exclusion of liability for acts
done in good faith, but not in fact authorised by the PTA, should be
repealed.
"Unlawful activity'' is defined by the PTA, as amended in
1982, as including any act committed prior to the date of passing of the PTA
which act would, if committed after such date, constitute an offence under the
PTA. We believe this to be a clear breach of
Article 15 of the ICCPR, which prohibits retrospective criminal legislation
and is not derogable. In view of the fact that the practical operation of this
provision must by now be spent we do not formally recommend a change in the
definition, but we wish to draw attention to its impropriety.
Section 7 of the PTA requires the courts to order the remand
in custody of persons arrested on suspicion of "unlawful activity". This
deprives the court of the discretion to grant bail. "Unlawful activity" includes
the commission of any offence under the PTA. Some of those offences - for
example, defacing a street sign - are quite trivial. In such cases the exclusion
of bail is wholly inappropriate. We were told that the absence of a right to
bail leads to extensive plea-bargaining. Persons charged, for example, under
section 5 of the PTA with failing to give information to the police will often
plead guilty and receive a suspended sentence rather than remain in custody
pending a contested trial.
We recommend that section 7 of the PTA be amended so as
to allow the courts to grant bail except in the most serious cases....
Publicity for
Emergency Regulations
Publicity for Emergency Regulations is very inadequate. As
already mentioned, Emergency Regulations come into effect immediately upon being
made and do not have to be laid before Parliament. We have recommended above
that all Emergency Regulations should be laid before Parliament for approval
and, except in extreme situations, should not come into effect until so
approved. This would at least enable Members of Parliament to inform themselves
of emergency legislation.
This alone, however, would be inadequate. Emergency
Regulations are published in the official Gazette. However, the Gazette has a
very limited circulation. The quantity of emergency legislation is very large
and it changes constantly. There is no proper system of numbering, listing or
indexing the regulations. An independent human rights organisation, the
Nadesan Centre for Human Rights through Law, provides an invaluable service
in monitoring the Gazette and notifying subscribers of changes in the
regulations. However, this should not be left to a private organisation.
We recommend
(i) that all new Emergency Regulations and amendments and
rescissions of existing regulations, should be published in Sinhala, Tamil
and English language newspapers circulating throughout the areas under the
control of the Government
(ii) that the Government should prepare and keep updated
and indexed a collection of the Emergency Regulations for the time being in
force which would be accessible to the public; as soon as possible this
should take the form of a computer
database which could be accessed on the internet.
Use
of Emergency Regulations
for Non-emergency Purposes
Emergency Regulations are sometimes very wide in scope, and
enter into fields which do not have any very obvious connection with the
emergency; it is hard to see, for instance, what relevance to the emergency the
Emergency (Games of Chance) (Jack-pot) Regulation N° 1 of 1995 can have. More
seriously, there are some cases in which the Government appears to have been
trying to use Emergency Regulations as a short-cut to avoid the need for primary
legislation in relation to matters which have no real connection with the
emergency. A particularly serious example was the Emergency (Generation of
Electrical Power and Energy) Regulation N° 1 of 1997. The effect of this
regulation was to remove the application of existing environmental protection
legislation from the generation of power and energy. The motive for this, it is
believed, was the Government’s wish to construct a particular new power station
without having to comply with the legislation. As a result of public pressure
the regulation was rescinded by the Government after about three months.
We believe that abuses of this kind could be
prevented by adopting our recommendation, made above, for the repeal of section
8 of the Public Security Ordinance. This would enable Emergency
Regulations to be challenged in the courts on the basis that they could not
reasonably be regarded as necessary or expedient for the purposes authorised by
the Ordinance.
The Indemnity Act
We have already referred to provisions in the Public Security
Ordinance and the PTA which exclude civil and criminal liability for certain
acts done "in good faith". In addition, the
Indemnity Act of 1982, as amended by the
Indemnity (Amendment) Act of 1988, excludes civil and criminal liability
"for or on account of or in respect of any act, matter or thing . . . done or
purported to be done with a view to restoring law and order during the period
August 1, 1977 to [16 December 1988], if done in good faith" by a person holding
government office (including the police and the armed forces) or acting under
the authority of such an office-holder.
This Act was not raised with us as an issue during our
mission, perhaps because any acts covered by it must have been at least nine
years old. In any event, the incidents which have caused particular concern
involve acts which could not by any stretch of the imagination be described as
having been done in good faith. However, legislation of this kind giving
retrospective immunity from suit or prosecution for unlawful acts is in our view
wholly unjustifiable. Even though the Act now has little practical importance,
it should not remain on the statute book.
We recommend that the Indemnity Act be repealed.
Confessions
The normal rule in Sri Lanka is that confessions to police
officers are not admissible in evidence; confessions are only admissible if made
before a Magistrate. Confessions to police officers are suspect because of
widespread use of torture. However, confessions to a police officer of the
rank of Assistant Superintendent or above are admissible on the trial of
offences both under the Emergency Regulations
[58] and under the PTA. [59]
We believe that the admissibility of confessions in such
cases encourages the use of torture and that such confessions cannot be regarded
as reliable. We were told that in many cases the courts have in fact refused to
admit confessions made to police officers on the ground that they were not made
voluntarily.
We recommend that the ordinary rules as to the
admissibility of confessions should apply to the trial of offences under
Emergency Regulations or the PTA.
Summary of
Recommendations
We recommend
1. that section 3 of the Public Security Ordinance be
amended to permit a proclamation under section 1 to be challenged in the
Supreme Court on the ground that there is no reason to believe that a state
of emergency exists or is imminent.
2. that all new regulations, or new amendments to existing regulations,
should be required to be laid before Parliament for approval. Except in
cases of necessity, such regulations or amendments should not take effect
until so approved.
3. that section 8 of the Public Security
Ordinance be repealed.
4. that so much of section 9 of the Public Security Ordinance as excludes
liability for acts done in good faith, but not in fact authorised by
Emergency Regulations in force for the time being, should be repealed.
5. that any restriction of fundamental rights on the grounds of national
security should only have effect when a state of emergency has been
proclaimed and then only to the extent strictly required by the exigencies
of the situation.
6. that the initial preventive
detention order made by the Secretary of the Ministry of Defence must be
confirmed by a Magistrate within a period of one month; that all
subsequent renewals of the order must be made by a Magistrate; that there
should be a strict limit on the total duration of a detention order ;
that the procedure for presenting objections to the Advisory Committee be
replaced by a proper and speedy system of appeal to a judicial body having
power to give binding directions.
7. that the 21-day limit on detention under regulation 19
should be reduced to 7 days and apply to all districts subject to the
Emergency Regulations.
8. that steps be taken to ensure that
magistrates receive lists of detainees, post them on the court notice
boards, and visit detention camps in their districts as required by the
regulations.
9. that Rehabilitation Orders should be made by courts and
not by the Minister or the Secretary to the Ministry of Defence and that
Orders under regulation 20 should be limited to two years.
10. that regulation 22 be repealed.
11. that the Emergency Regulations
should prescribe minimum standards for conditions of detention which should
comply with the Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment adopted by the UN General Assembly.
12. that the powers of detention
under the PTA should be abolished or, failing that, made subject to
the same restrictions as we have proposed above for the power of preventive
detention under the Emergency Regulations; in particular - (i) the initial
order should be subject to confirmation by a court, and renewals should be
ordered by a court - (ii) there should be a right of appeal against a
detention order to a judicial body - (iii) no order can be made except when
and where a state of emergency is in force, and - (iv) minimum standards for
conditions of detention should be prescribed.
13. that the power under the PTA to
make restriction orders should be reviewed and that, unless a clear case for
retention can be made out, the power should be repealed.
14. that the exclusion of liability for acts done in good
faith, but not in fact authorised by the PTA, should be repealed.
15. that section 7 of the PTA be amended so as to allow the
courts to grant bail except in the most serious cases....
16. that all new Emergency Regulations and amendments and
rescissions of existing regulations, should be published in Sinhala, Tamil
and English language newspapers circulating throughout the areas under the
control of the Government
17, that the Government should prepare and keep updated and
indexed a collection of the Emergency Regulations for the time being in
force which would be accessible to the public; as soon as possible this
should take the form of a computer database which could be accessed on the
internet.
18. that the Indemnity Act be
repealed.
19. that the ordinary rules as to the
admissibility of confessions should apply to the trial of offences under
Emergency Regulations or the PTA.
Foot notes
- 12
Public Security Ordinance, s. 2 (1 ).
- 13 ibid,s.5(l).
- 14 ibid, s. 5 (2) (a).
- 15 ibid, s. 7.
- 16 ibid, ss. 3, 8.
- 17 ibid,s.9.
- 18 Article 155 (2)
- 19 Article 155 (5).
- 20 Article 155 (6), (8)
- 21
Public Security Ordinance, s. 2 (2A), inserted by the Public Security
(Amendment) Act, No 28 of 1988.
- 23
Public Security Ordinance, s. 3.
- 24 This power has apparently
never been exercised.
- 25 See Article 4.1 of the
International Covenant on Civil and Political Rights.
- 26
The Emergency (Miscellaneous Provision and Powers) Regulation, No 4 of 1994,
reg. 17 (1)
- 27 ibid, reg. 17 (5) - (11).
- 28 ibid, reg. 18 (1).
- 29 ibid, reg. 18 (7).
- 30 ibid, reg. 18 (8).
- 31 ibid, reg. 19 (2), as amended
by Gazette 928/11 of 19 June 1996; reg. 19 (9).
- 32 ibid, reg. 19 (5).
- 33 ibid, reg. 19 (6).
- 34 ibid, reg. 20 (1).
- 35 ibid. reg. 21(2).
- 36 As substituted by Gazette
938/13 of 29 August 1996.
- 37 ibid, reg. 22 (1) - (5).
- 38 ibid, reg. 22 (6), (8) -
(10).
- 39 Interview with the Legal
Adviser to the Ministry of Defence
- 42 Letter of 10 February 1997
from the Commissioner General of Rehabilitation to the Nadesan Centre.
- 43 Interview with the Legal
Adviser to the Ministry of Defence; no breakdown given between detentions
under regulations 20 and 22.
- 44
Prevention of Terrorism Act, s. 9 (1)
- 45 ibid, s. 11 (1).
- 46 ibid, ss. 10, 11 (5).
- 47 ibid, s. 13
- 58 Emergency (Miscellaneous
Provisions and Powers) Regulations, reg. 49
- 59
Prevention of Terrorism (Temporary Provisions) Act, s. 16.
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