ATB could not be part of a quality democracy: Submissions to Court against ATB – Part 02

Our Reporter.

This is the Part 02 of the article we commenced posting on Tuesday (30), detailing the submissions made to Supreme Court of Sri Lanka against the Anti-Terrorism Bill, challenged by PTA victim poet Ahnaf Jazeem. Read Part 01. Read Part 03.

Democratic Quality

ATB “fails to reach even the minimum threshold of  democratic quality required of a law of a democratic society,” stated the counsel, who then continued to explain to court the concept, on which we interviewed him.

Jayasekera stated as follows:

“The provisions of the law should be assessed in its possible implementation in order to see how such provisions could be anticipated to be abused or arbitrarily applied. Law and law enforcement  or legal administration are two different spheres, where rule of law is a matter of the latter. But, in the process of law-making, both the law and law enforcement, that is the sphere of  rule of law, are indispensable considerations to make. Pre-enactment review is part of law making. Then, rule of law cannot be assessed without past experience. A court therefore has to assess a proposed law in light of both the basic laws and principles and the law in its future practical application. Such assessment is possible only when we carefully take into consideration how the previous laws of the same type have been used in the past arbitrarily against individuals in the jurisdiction, in Sri Lanka and in other countries. So, the past experience is an unavoidable consideration. Past experience shows how the PTA was used against ethnic minorities in the country during a nearly thirty year racist civil-war in the North and East and thereafter against Muslim community just for political agendas. Hundreds were kept incommunicado detention, for years without trial, some abducted, some forcibly disappeared. This is the well documented general assessment of this law, and the number of research in this regard is general knowledge of the population of this country. In light of this past experience of close to 45 years , it is a very reasonable assessment to arrive at, I submit, that the proposed law, with provisions granting overreaching powers to law enforcement officers, the executive and administrative officers, to police officers, to the IGP, to the Secretary to the Ministry of Defence, to the Attorney General, to the President, in respect of arrest, detention or administrative custody, place of detention and rehabilitation of suspects, would, if enacted, pose  imminent threats to the realization of the constitutionally enshrined fundamental rights, freedoms and liberty of the individuals including presumption of innocence, even without any emergency situation declared. This law therefore lacks the required democratic quality of  a quality democracy.”

In explaining this to court, the counsel also referred to academic authority. He quoted it to us as follows: 

“Larry Diamond and Professor Leonardo Morlino, in ‘The Quality of Democracy: An Overview’. (Journal of Democracy, Oct. 2004), illustrate that a quality or good democracy is ‘one that provides its citizens a high degree of freedom, political equality, and popular control over public policies and policy makers through the legitimate and lawful functioning of stable institutions. A good democracy is thus first a broadly legitimated regime that satisfies citizen expectations of governance (quality in terms of result). Second, a good democracy is one in which its citizens, associations, and communities enjoy extensive liberty and political equality (quality in terms of content). Third, in a good democracy the citizens themselves have the sovereign power to evaluate whether the government provides liberty and equality according to the rule of law. Citizens and their organizations and parties participate and compete to hold elected officials accountable for their policies and actions. They monitor the efficiency and fairness of the application of the laws, the efficacy of government decisions, and the political responsibility and responsiveness of elected officials. Governmental institutions also hold one another accountable before the law and the constitution (quality in terms of procedure).’

Then they identify ‘eight dimensions on which democracies vary in quality. The first five are procedural dimensions: the rule of law, participation, competition, and accountability, both vertical and horizontal. Though also quite relevant to the content, these dimensions mainly concern the rules and practices. The next two dimensions of variation are substantive in nature: respect for civil and political freedoms, and the progressive implementation of greater political (and underlying it, social and economic) equality. Our last dimension, responsiveness, links the procedural dimensions to the substantive ones by measuring the extent to which public policies (including laws, institutions, and expenditures) correspond to citizen demands and preferences, as aggregated through the political process.’

These dimensions are closely linked and tend to move together, either toward democratic advancement and deepening, or toward decay.”

Jayasekera further explained: “in another article Megen and Prof. Morlino write that the rule of law should be understood as the ‘foundation upon which every other dimension of democratic quality ultimately rests.’ [Magen, A., and L. Morlino. 2008. International actors, democratization and the rule of law. London: Routledge. 2008, 7, Quoted by Dr. Marko Kmezić in ‘Rule of law and democracy in the Western Balkans: addressing the gap between policies and practice’, 2019]

“Therefore, the degree of freedom, rule of law, and equality are indispensable dimensions of assessing the quality of a democracy. As such, to make it a terrorist offence to compel Sri Lanka government or any other government of the world (like that of Benjamin Netanyahu’s for instance) or an international organization (like IMF or NATO for sure), ‘to do or abstain from doing any act’, by acts or omissions which may possibly be interpreted to extend to activities in a workers’ or farmers’ strike or protest or student demonstration, could not constitute an element of a higher degree of a democracy. Administrative detention or custody (Clause.72) on the orders of a secretary to a ministry without judicial assessment as proposed could not constitute a legitimate element of a quality democracy. Obtaining consent from an intimidated, exhausted, helpless suspect to tacitly admit guilt without proof thereof and under duress, and subjecting him to “rehabilitation” under degrading  conditions do not constitute an element of a quality democracy. So too are the powers granted to the executive president, the highest political authority to interpret principles and lay down regulations and determine the liberty of the person at his will; and this list goes on.    

Therefore, such a piece of legislation could not be part of a quality democracy.”

[featured image: Poet Ahnaf Jazeem, as a remandee, being escorted out of Puttalam High Court premises by prison police in November 2021]