Prevention of Terrorism Act; We Cannot play to the gallery - Mohamed Ali Sabry

• PTA unlikely to be fully abolished
• Will not compromise on national security
• LGBTQI rights not discussed
• No interference in the judiciary
• President’s right to pardon Duminda Silva
• New courthouses to be established
• Consensus sought on MMDA reforms

The Prevention of Terrorism Act (PTA) continues to be a sticky issue for Sri Lanka with the international community calling for it to be completely abolished. However, in an interview on Daily Mirror ‘On Fire’ Justice Minister Mohamed Ali Sabry said it is unlikely that the PTA will be completely abolished. The Justice Minister also insisted that there is no interference in the judiciary, and also defended the process in dealing with State Minister Lohan Ratwatte. He also spoke on efforts being taken to strengthen the judiciary.  Excerpts of the interview

 Q   One of the most pressing topics that is being discussed on Sri Lanka by the international community and even by local civil society is the Prevention of Terrorism Act. I know your ministry is involved in trying to do some changes there. What is the status of that right now? 

In fact, about a couple of months ago, the Minister of Defense that His Excellency, the President, the honourable Foreign Minister then, Dinesh Gunawardena and myself, we submitted a joint cabinet paper to the Cabinet, saying that the PTA, or at least some provisions of the PTA, need to be revisited, both in terms of enhancing the provisions for our national security, in terms of where this law is outdated, some of the more recent threats, what could be done through the internet and the various forms of currencies and money laundering and all that are not addressed. Similarly, some of the areas have which directly affect the judicial power of the people, as well as the liberty and freedom of the subject, need to be revisited. So in terms of that, we appointed a subcommittee of experts. Those experts primarily comprise personnel from defence establishment and the Ministry of Justice and the Honourable Attorney-General’s Department. So they are in the process of finalizing it. Hopefully, they should provide the initial report in about a month or so.

 Q   So you are looking at amending the PTA and not looking at abolishing it and replacing it with a new law, is it?

Yes, as of now the most probable outcome would be an amendment to the law. Even Justice Nawaz’s Committee which had been appointed in order to look into the previous Acts had also has suggested amendments could be brought in. Whether you call it amendment or otherwise, if the if the controversial or the obnoxious provisions could be revisited, then sort it out. It doesn’t matter or make a huge difference whether you call it a new Act or amended Act.

 Q   Well, the reason I asked you that is because some in the international community, human rights groups and activists feel the PTA needs to be abolished as a whole as opposed to amending it.

People can have different views. And if you see recently the United Kingdom had brought a new law which says that for whatever the work, what they have been outside the country, they cannot be prosecuted. America had brought some laws to prevent their forces from being prosecuted. So, we cant be just catering to the international community, per say. Our national security is foremost and we cannot compromise on that. One needs to understand that. The moment national security is compromised a problem arises for the community and for the people of this country, irrespective of their race or religion or anything. So, therefore it is important. We have seen this in 71, 87 to 89, during the LTTE war and during the Easter Sunday attacks. So, we can’t allow that. We can’t take a chance. National security is too precious for us. So merely because the international community says, or to please the international community we cannot play into the gallery. There has to be a balance between our national security and the rights and the freedom and the liberty of the subject, which invariably is the Sri Lankan citizens. So we need to find that balance between these two and that is how the government and the cabinet is looking at it.

 Q   But how would you respond to concerns that Sri Lanka, the government especially, is using national security as an excuse to bring in certain laws and regulations?

Yeah, this this kind of criticism is not new. It has always been there. When a government is in power the opposition says something. That is always the case. Under J.R Jayawardena’s administration, Premadasa administration, Chandrika administration, Ranil Wickremesinghe administration these were there.  But I know if somebody use it excessively, I think the judiciary should be empowered to have that check and balance that’s how this happens in other countries. So that’s where the balance is necessary. So, we need to have a check and balance. There is always this differences of opinion between the party in power that is the Executive, which is the government and the people. This has been there since the birth of democracy. So in a democracy the judiciary needs to play that important role to check and balance those competing interests. So I think luckily for Sri Lanka, we have a vibrant, strong judiciary. We are in the process of strengthening it further. I have already kind of increased the numbers of judges in the Court of Appeal from 12 to 20 and the Supreme Court from 11 to 17. And they have been pretty vociferous and forceful in their determination. So that’s the way forward. I think we will never be able to get that complete package which the civil society wants or which the government wants. It will always be somewhere in-between, which will anyway be criticized. So that is where the judiciary needs to play the role to balance it.

 Q   There is also criticism that the judiciary is not fully independent, that there is interference in the judicial processes. Is that something that you would disregard?

I think that’s very unfair. That’s not correct. I mean, our judiciary, comparatively, if you look at anywhere, there is no interference at all. Absolutely, there is no interference, that is for sure. But in terms of being proactive, there is a long way to go. But there is absolutely no interference in the judiciary. Definitely not during the last couple of years. We have never interfered. We will never interfere. The Supreme Court and Court of Appeal could be more proactive if necessary, and look at some of these provisions, because nobody is above the law. No law is above the supervision of the court. So that is the foregone conclusion. If one feels the rule of law is being threatened, the constitutional right of the subject, that could be tested and people can be forced to submit evidence to verify that their continued detention or continuous charging under a particular statute is reasonable or not. So, I’m sure over a period of time Sri Lankan Supreme Court will do. I mean, they have done it. If you look at, when we brought the 20th Amendment, the Supreme Court intervened and very clearly said that certain clauses you cannot pass without a referendum, including the immunity for the President. So without an independent judiciary, you could not have got that kind of a verdict. Similarly, on the Port City there were 17 clauses they said you need 2/3rd, whereas the Honourable Attorney General had said you can go by a simple majority. So I think our democracy is vibrant, of course, challenges are there, but despite those challenges, our judiciary had done a good job as far as being independent is concerned. But I will not say the same thing about the efficacy and efficiency of it in terms of time taken to resolve conflicts and issues and being proactive in some of those most controversial issues involving some of the subjects. But I’m happy, given the ground situation the Judiciary has maintained
its independence.

 Q   You mentioned efficiency. This this delay in cases has been something that has been discussed for a number of years. What is the Justice Ministry doing to address that issue?

This is an area which we have long neglected. For example, we have 800,000 cases pending and we have just 350 judges. There is an index in terms of the world on how many judges per million of a population. So good countries that top the judiciary are very proactive, very efficient. There are about 150, 120, 130 judges per one million. Like countries like Germany, Russia have about 200. Even middle-income countries like Taiwan has about 68-70 judges for one million. But in Sri Lanka, for the entire 22 million people we have 350 judges, which works out to 15 judges per million of the population. So there is a huge dearth in the number of judges and courthouses. So that’s an area we are looking at. It is in that context that I increased the number of Supreme Court judges, thereafter the Court of Appeals judges and we are in the process of increasing the High Court judges and the other court judges. We couldn’t have progressed as much as we would have expected to unfortunately, due to the COVID pandemic. A lot of things had to be reframed and re-energised. Unfortunately, a lot of things we couldn’t achieve during the last 15 months, but we have moved on and we are definitely on an ambitious program to revamp the laws in the country and to revise the outdated laws and to introduce new laws and new courthouses in order to reduce the time period which is taken. 

I will give one example. We are in the process of finalizing the court called a ‘Small Claim Court’ where for upto Rs. 1.5 million of a claim you don’t need to go through cumbersome trials.  You tender documentation and based on the documentation a judgement needs to be given probably in about a year rather than the five, six, seven years what we are taking. Another courthouse, which we are trying to establish is an Investor Court for anything above Rs. 100 million, commercial matters will be separately looked at. So, we are looking at innovative ways of doing it. And we are in the final space of rolling out the digitalization so that we embrace the technology in terms of e-filing, e-hearings. For example, say that government analyst. There is no point going all the way from Colombia to Batticaloa to give evidence in a case and come back, using three days of a time. If you can give evidence online from his office, for half an hour or one hour, that will save time for him and his institution. 
So, we are looking at innovative ways. We are in the process of rolling out the digitalization in the country, we are establishing new courthouses, recruiting more judges. So, all in all, with all those things, I’m sure there will be progress, but it will take time.

 Q   As you know, minority rights, is something that is being discussed widely by the international community and human rights groups and even the Human Rights Council. You yourself are a member of the minority community in Sri Lanka. You are a Muslim. Do you see for your own eyes issues faced the minority community in Sri Lanka?

Minorities or otherwise there are issues. I would use the word yhe marginalised community. It need not be the minority in terms of ethnic or religious background. But maybe even the LGBT community, the ladies, the women, the children, the vulnerable. So, the constitutional law is about equality. Equality is about treating everybody equally. So, there are certain challenges in that, the way things are happening. it is an ongoing struggle. So that is where the judiciary has a massive role to play. If you look at the three arms of the government, whether we like it or not, the Executive and the Legislature is controlled by direct voting of the people. All over the world, weather it is America or UK, this populism comes into the working, on their policies. You like it or not. You take India and Malaysia, you take anywhere for that matter. There is huge policy differences between America under Trump and America under Biden. So these things happen. So it is in that context that the judiciary has a massive, massive role to play in order to being the leveler of the two, to safeguard the rights of all citizens across the board, irrespective of any differences whatsoever. I do concede that are issues and they need to be addressed on the long run.

 Q   Since you mentioned about the LGBT community, what is the government position as far as LGBTQ rights are?

The government has not particularly discussed that. But as far as I am concerned, I feel in Sri Lanka, in terms of Article 12, 13, 14, we have ensured the rights of everybody, irrespective of their race, religion or sexual orientation or anything like that. So they are entitled to rights just like anyone else. I am open about it and that’s their right. Who are we to judge them? That’s my position and they are entitled, just like any citizen, to live as equals without any hindrance or any sort of problems.

 Q   But is there a move to include LGBT rights specifically in the Constitution by mentioning it, since they seem to be discriminated when it comes to employment and other matters?

Not right now. Not as far as I am aware. We are still in the process of drafting it. I don’t know whether we can specifically include them or is there is a necessity to specifically include them, but certainly I feel that they should be treated as equals.

 Q   There have been calls in the past also for the drafting of a new Constitution. Is that something that will happen under this administration?

Yes. Actually, last year we appointed a high powered expert committee to draft a new constitution led by Romesh De Silva, the President’s Council, the very well known Sri Lankan lawyer. And that team comprises of top lawyers, academics, jurists and from all genders representing all ethnic groups. So they are in the process of finalizing it. And what I understand is that there they have done their drafting in their language. Now it is being created by the legal draftsman in order to put it into the legal framework. So once that is there, I think we have a document to discuss and the politicians to take it forward.

 Q   I also want to raise two sensitive cases that are being discussed a lot these days as well. One, of course, is about the pardoning of Duminda Silva. This has been raised at the Human Rights Council at the ongoing session. There is this feeling that the Presidential pardon system as a whole is being misused or abused. 

That’s the President’s power, so President has used it. I can only say that he has used that power by following the proper procedure. And beyond that, that’s a question you should ask from the President himself.

 Q   But don’t you feel that the whole confidence in the judicial system is lost when certain individuals are freed using the presidential pardon?

The issue is there are arguments pro and against it. You know there were leaked tape records where the sitting judges were influencing and discussing the cases just before the judgment had been pronounced. Is that correct or is that fair? So there are two sides to every story, and that was a shocker. We knew how they were discussing the cases, and what the judgement is going to be. So this particular case had been in the in the limelight for all the wrong reasons? So beyond that, the President has used his discretion in terms of Article 34. He has used it. As to how and what reason, I have not been informed. 

 Q   I also want to raise the Lohan Ratwatte incident. I know you mentioned this in Parliament that a committee is being appointed. But what is the position of the government on this whole incident?

Yes there had been an incident that is why thehonourable minister himself understood the gravity of it and resigned. So that is the first step. Though we have taken it very lightly in the Sri Lankan context, this is something of a new development. No one had stepped down before. He has stepped down that will ensure an independent inquiry. And the Human Rights Commission has launched its own inquiry. They’ve already gone and recorded a statement, and they will come back. That’s an independent organisation. I’m glad that they are doing it. Then the Victims and Witness Protection Authority had ordered to ensure the safety and security of the victims who are there. And we have given unimpeded access to all the opposition MPs who want to go and visit them. The CID has commenced an inquiry, so those inquiries have to come out. We think as far as the cabinet and the ministry is concerned, at the direction of the cabinet I have already appointed the judge to hear this, and submit a report. So once that report comes, they will transmit it to the relevant authorities.

 Q   Is there a time frame by when you expect this committee to submit its report?

I have given them 60 days, so hopefully we will get it by then.

 Q   But Lohan Ratwatte continues as a State Minister in a different portfolio. Isn’t there pressure on the government to make Ratwatte step down from all posts?

Look, just like anyone else in terms of Article 13, sub-section 5 there is presumption of innocence. So if he asks for that we have to give that.  But in order to ensure a free and fair inquiry, he himself tendered his resignation. Anything thereafter has to take place after giving proper hearing and following the proper procedure.

 Q   What is the status of the Muslim Marriage and Divorce Act (MMDA) reforms?

This matter had been discussed for a long period of time. The community itself had been craving for this kind of reforms for a long period of time. There had been four different subcommittees which had been appointed in the 60s, 70s, 80s and 2000s. So in terms of that, I have submitted a Cabinet paper and on the basis of the Cabinet paper the initial draft had been done. Once that draft is finalized, it would probably go before the Cabinet once again. So we are discussing that. There are some concerns from the community. So we are taking that also into consideration in order to arrive at a decision were we could reach as much consensus amongst the community.

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