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The presumption of guilt and the trials of the wronged

24 Feb 2022

  • Lawyers shed light on the challenges faced by the unlawfully detained and maliciously prosecuted in the fight for their rights
By Sumudu Chamara In the past few years, Sri Lanka saw several high-profile incidents of questionable prolonged detentions, many of which took place under the Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979 as amended (PTA).  Former Western Provincial Governor Azath Salley’s arrest and detention is one such example. He was arrested in March 2021 under the PTA over a statement he made during a press briefing, and was in detention for nearly nine months until he was acquitted. Following his release, he sought compensation from three parliamentarians who had filed a complaint against him over his statement, and the Colombo High Court (HC), on 21 February 2022, stated that it would deliver its verdict on the same in March of this year. Last year, it was also reported that writer Shakthika Sathkumara, who was arrested and detained under the International Covenant on Civil and Political Rights (ICCPR) Act, had sought compensation from several parties for damages. He was arrested in April 2019, and spent around 130 days in detention before being granted bail.  In addition, several media outlets also reported that poet and teacher Ahnaf Jazeem, who was arrested in May 2020 under the PTA and was detained until December last year, was also planning to seek compensation for the violation of his fundamental rights (FR). Another incident that was discussed at the national level is the detention of Attorney-at-Law Heejaz Hizbullah. He was arrested in April 2020 under the PTA over charges related to the Easter Sunday bombings and was granted bail early this month. The PTA is an often discussed topic in the discussion of arrests and/or detentions that have caused the arrestees years, and at times, decades, of their lives. While human rights activists have raised grave concerns about the existence and enforcement of this law which is to be amended as per a recent Bill that was gazetted and tabled in Parliament by the Government, there are concerns about the impact this law has caused on those who have been arrested and/or detained and/or tried under this law. Legal experts argue that while amending or abolishing the PTA is necessary, it is also crucial to address the impact on people, because of the massive amount of time they spend in prisons which sometimes extends to over a decade.  PTA and malicious prosecution According to President’s Counsel (PC) Singhanathage Tharapathi Jayanaga, economic and psychological impacts of being detained for a prolonged period of time, especially under the PTA, as it allows bail only under strict circumstances and often involves detentions that last for years or decades, is a real issue Sri Lanka has not identified properly. Speaking of the arrest and months-long detention of a well-known figure, Jayanaga said that the wife and child of that person had to deal with depression during the detention, and that such matters do not get adequate attention. “Detentions do not affect only the arrested/detained person; they can have a chain reaction, and affect their families in many ways,” he said, emphasising the importance of having some mechanism to reduce that impact, especially when indefinite detentions of a person affect that family’s economy. Jayanaga also stressed that such persons should receive immediate relief, and that therefore, whatever the mechanism introduced to address such impacts should provide for requests for immediate relief. “However, at present, filing a FR petition is the only option, and it is an ineffective measure in the described circumstances, especially because it can take a long period of time to provide some relief,” he explained. Citing Article 13 of the Constitution, Jayanaga further said that even though it provides a very broad interpretation with regard to arrests, the actions that can be taken under the PTA are not really consistent with the Constitution. He added: “The PTA is a very bad piece of legislation. If that was not in place, then, according to the law, the authorities cannot keep a person detained for more than 24 hours without presenting before a court. The PTA must be abolished. We do not need this now, as the country’s situation does not require such a law. In fact, Sri Lanka did not have the PTA when the 1962 coup and the 1971 insurrection took place. But, without the support of any additional legislation, under the normal law, those situations were dealt with. But of course, we have the Public Security Ordinance which allows us to declare a state of emergency, and we can apply emergency regulations if there is a necessity.” To ensure accountability for the time that people lose while in detention and to provide some relief for the impact it causes, Jayanaga suggested two steps – abolishing the PTA and replacing it if necessary with another law that respects the fundamental norms of justice and FR, and including a provision in the Constitution to provide for the provision of compensation by the State in the event of a wrongful or illegal arrest and detention. He also spoke of the concept of malicious prosecution, which may be applicable in cases where arrests are made without sufficient evidence or reasonable suspicion. He added that even though people can seek compensation on the ground that their arrest and/or detention was based on malice, sometimes, especially with regard to arrests and/or detentions under the PTA and also cases filed under the PTA which the court or the Attorney General (AG) later decides not to proceed with due to the lack of the availability of evidence, taking such action may not be possible. The reason, he said, is prolonged detention in such cases does not necessarily constitute a prosecution as it does not happen in a court of law. “Proving malice in any case, even in a civil matter, is an extremely difficult task. The prosecutors can wash their hands off claiming that they never had any malice towards the accused. They can simply say that they had some information and that it is a prima facie case, and that therefore, they went ahead and arrested and detained the accused.” Legal redress in illegal arrest/detention cases To discuss what redress mechanisms are available in the event of a wrongful arrest, especially to obtain monetary compensation, The Morning spoke to former Bar Association of Sri Lanka President and incumbent Senior Advisor to the Justice Ministry Udaya Rohan De Silva PC.  According to De Silva, in the existing legal framework, there are a number of ways for a person to demand compensation. He described what he said is the most immediate way of seeking compensation: “If a person feels that a case was filed or was heard on the basis of untrue facts, such a person can seek compensation. He/she can make a request when the relevant case is being concluded in court, and the magistrate/judge can grant compensation after taking into account the relevant facts. Both a Magistrate’s Court (MC) and a High Court (HC) have that power.” In addition to that, compensation can also be sought under civil or criminal laws, by way of the filing of a civil or criminal case. “On the basis that an untrue complaint has been filed, a person can also file a civil case demanding compensation. In such a case, it is under the Civil Procedure Code that compensation can be sought. If a complaint has been filed intentionally with regard to a criminal act, a person who seeks compensation can file a criminal case. In this case, such persons can file a criminal case in the MC for maliciously filing a case against them.” Moreover, FR petitions can also be filed seeking compensation, and unlawful arrests and/or detentions are also grounds on which compensation can be sought. De Silva explained: “In the event of an arrest, if a person feels that he/she was arrested unlawfully, he/she can file a FR case in the Supreme Court. In such instances, which may involve unlawful arrest and/or detainment, among other things, a FR case can be filed for violating Article 13 of the Constitution. If the complainant’s FR were proven to have been violated, it is possible to obtain compensation.”  The provision of the Constitution De Silva referred to – i.e. 13 which refers to freedom from arbitrary arrest, detention and punishment – says, among other things that “no person should be arrested except according to the procedure established by the law and that any person arrested shall be informed of the reason for his/her arrest” and that “every person held in custody, detained or otherwise deprived of personal liberty should be brought before the judge of the nearest competent court according to the procedure established by the law and should not be further held in custody, detained, or deprived of liberty except upon and in terms of the order of such judge made in accordance with the procedure established by the law.” However, De Silva noted that a person will not be entitled to seek compensation on the mere basis that he/she was acquitted on the ground that the charges against them were not proven beyond a reasonable doubt, because he/she was given the benefit of the doubt. “If it was stated before the court that the case/s against the accused has/have been filed maliciously and that it is an intentional act by the complainant, in that case, it is possible to seek compensation,” he further explained. In response to the question whether those arrested and/or detained and/or tried under the PTA are also able to avail themselves of the said redress mechanisms, De Silva said that he/she too is entitled to such, subject to the above-mentioned situations. He further expressed hope that once the proposed amendments to the PTA are passed, the PTA provisions will be less strict.  Moreover, he said that it is important to have a mechanism in place to provide some kind of relief for those arrested and/or detained under the PTA and are released later without filing cases, because sometimes people spend years in prison and it affects their lives in a detrimental manner.  Most of the time, enforcing the law equally and properly is what attracts more attention, and how legal action impacts people economically, psychologically, and socially receives less attention. As a result, even the form of relief sought in unlawful arrests and detentions is limited to monetary compensation, and the full damage to the people is not discussed. As legal experts have pointed out, there is a need for a proper relief and compensation mechanism.


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