A significant ruling by the Sri Lankan Supreme Court on 18th March 2025 (Madurapperuma v Kelum Sangeeth, Sub-Inspector of Police and Others,) has cast a pale of doubt over a range of detention orders issued by former President Gotabaya Rajapaksa under Section 9 (1) of Sri Lanka’s highly critiqued Prevention of Terrorism Act (PTA).
Careless use of the ‘gonibilla’ PTA
This interpretation of relevant constitutional provisions by the Court, taken beyond the legal parameters of this case, points (once again) to the need to replace the PTA by a sensibly drafted and narrowly framed counter-terror law that does not permit routine and haphazard use of its provisions by the executive. Here, the Court was concerned with the legality of a particular detention order (DO) signed by former President Rajapaksa on 6th February 2020 against a Bandaragama resident.
She had been arrested, along with her brother on 30th January 2020 on allegations of being in possession of heroin. The initial arrest by the police, quite correctly, was under Section 82 (3) of the Poison, Opium and Dangerous Drugs Ordinance. It was thereafter, that the adventurous path of law enforcement catapulted the detention process into jeopardy by the detainee being ‘threatened with the PTA’ unless she admitted the involvement of another individual in the offence in question.
True to form, the police then proceeded to obtain a DO under Section 9(1) of the PTA on the spurious grounds that she is ‘suspected of having committed several offences under the PTA.’ I will return to the legality of that DO and the important reasoning of the Court later. At this point however, it begs repetition that this case well reflects the ludicrously ‘catch all’ interpretation that Sri Lanka’s law enforcement routinely gives to a counter-terrorism law that should be strictly confined to its meaning and purpose. That is so, from the North to the South of the land
Radical surgery needed, not bandages
Amendments brought to the PTA (by way of Amendment Act, No 12 of 2022) merely constitute ineffectual Rule of Law bandages plastered over the suppurating wound of an atrociously bad law. The Amending Act provided certain safeguards during the process of detention, for magisterial visits to places of detention, for detentions under Section 9 to be communicated to the Human Rights Commission etc. The magistrate must ensure that no suspect is abused.
The Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment Act, No 22 of 1994 must be strictly complied with. The visits must ensure personal monitoring of the suspect’s wellbeing and record any complaints. It will be interesting to ascertain as to whether these provisions are observed in practice. That is apart from the extraordinary fortitude that a detainee must possess to complain of torture while inside a detention system’ that treats these allegations harshly.
Many of these apparent safeguards are good on paper but do not stem brutal practices of abuse. For that to change, the PTA itself needs to be tossed out of the legal system as the National Peoples’ Power (NPP) Government promised as a pivotal point in its campaign manifesto. In its place, the nation needs a counter terror law that conforms to constitutional safeguards as contained in well -known cursus curiae by the apex court. Alas, there seems to be political foot dragging on that promise.
Legality of the DO struck down
The instant case of ‘Madurapperuma’ is an excellent example in point. The second DO issued on 6th February 2020 was in a much larger group of DOs signed by former President Rajapaksa during a crucial period following the start of his term as the 8th President of Sri Lanka (17th November 2019). At that time, it was the 19th Amendment to the Constitution that was prevalent. By virtue of the transitional provisions in Articles 50 and 51 of that Amendment, the (then) President was authorised to be in charge of the subject of Defence for a finite period.
That period ran from the date that the Amendment came into effect (ie; certified on 15th May 2015) ‘until the next general election.’ At the time of the 19th Amendment, former President Maithripala Sirisena was the 7th President of Sri Lanka. Taking these provisions into account, Justice S. Thurairaja (writing for the Court), noted that the applicability of Article 51 is limited, ‘…very clearly to the President holding office on the date of the commencement of the Act.’
As such, ‘only the 7th President, Maithripala Sirisena could assign to himself – as he did assign to himself – the subject of Defence by virtue of this Section.’ Subject to that exception, Articles 43 and 44 stipulated that, ‘only a Member of Parliament could be appointed a Minister under the Constitution.’ That was the case until the 20th Amendment to the Constitution (certified on 29th Oct 2020) amended Section 44 (3) to provide that the President shall be the Minister in charge of the subject of Defence.
Article 4(b) of the Constitution cannot be casually applied
As the Court observes, ‘the term of the 8th President, Gotabaya Rajapaksa did not begin till 7th November 2019…that is well after the period contemplated in Section 50 of the 19th Amendment.’ In other words, the actions of the former President in purporting to gather to himself the powers of the Minister of Defence during the intervening period, were cast in issue. That included the DOs signed by him during that period, before the 20th Amendment became the law of the land on 29th October 2020.
The Bench was unimpressed with the argument of lawyers appearing for the respondents that the President (ie’ Gotabaya Rajapaksa) had ‘residual power to assume any power under any legislation’ within the purview of the Ministry of Defence. That was an argument relying, inter alia, on Article 4 (b) of the Constitution which states that, the executive power of the people, including the defence of Sri Lanka, shall be exercised by the President of the Republic, elected by the People.’
But finding this position to be ‘unconvincing’ (quite cogently so), the Bench pointed out that, if the ‘general reference’ to the ‘defence of Sri Lanka’ cannot be reasonably read to mean ‘any and all functions of the Minister of Defence.’ Rather, that references the President’s role as the Head of State and Commander in Chief of the Armed Services.
Mechanical signing of DOs must cease
‘If such loose references to ‘defence’ can grant residual power to arbitrarily assume power and authority given by law to the Minister of Defence, what stops the President from assuming any governmental power as the Head of State, the Head of the Executive and of the Government?’ it was asked. The contention by the respondent police officers was found not only to be ‘unsupported by reason but also democratically precarious.’ The impugned DO was ruled to be ultra vires the Constitution and devoid of any legal validity.
The period of detention that followed was consequently visited by that same flaw resulting in a violation of Article 13 (1) and (2) (arbitrary arrest and detention/custody) as well as Article 12 (1) (equality before the law). Quite apart from the legal question in issue, the ‘Madurapperuma’ DO is just one of thousands of other DOs mechanically signed with general citations of ‘terrorism offences. It is these casual ‘PTA” practices of law enforcement that must be stopped in their tracks.
This does not contribute to the maintenance of general law and order but exercises a counter-productive impact on national security. That is a lesson that the Sri Lanka State has yet to learn.
