War on rights: Protection from Organised Crimes Bill

Progressive rhetoric but regressive actions 

The rhetoric of the National People’s Power (NPP) on the drug issue, prior to being elected, like their position on numerous issues, appeared progressive. It created hope that if elected they might adopt a health and human rights-based approach. After nearly two years in power, similar to their actions regarding other issues, the NPP Government is following in the footsteps of previous governments by enacting repressive laws that increase State power at the expense of the rights of citizens. 

Globally, the complex nature of drug use and drug dependence is often ignored when addressing drug trafficking, which has resulted in severe violations against persons who use drugs or have a drug dependency. These measures also restrict and undermine the rights of all citizens. Yet, the public mistakenly assume the law will only impact those who are connected to the drug trade. Hence, they, against their self-interest, usually support measures that undermine everyone’s human rights. 

The most recent addition to the basket of anti-human rights laws presented by the NPP Government is the Prevention of Organised Crimes Bill (POCB). Instead of addressing the root causes of drug trafficking and the violence associated with it, the proposed law will exacerbate the problem and lead to adverse consequences for several marginalised groups while enabling police impunity. 

Broad definitions: Building blocks of oppression

An organised criminal group (OCG) is defined in the UN Convention against Transnational Organised Crime (Palermo Convention), as ‘a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit’. The POCB uses the same definition in the interpretation (definition) section of the Bill, but section 4 of the Bill that describes the offence states that any person who acts with one or more person to commit a serious crime to obtain a material benefit will be liable to prosecution. The Bill also makes no mention of the need for the group to be structured as opposed to a random group of persons. It is pertinent to note the Palermo Convention’s definition has been critiqued for being broad, vague and failing to include adequate human rights safeguards. The outcome of this is demonstrated by the war on drugs’ disproportionate negative impact on marginalised communities, such as women, the poor and persons who have a drug dependence. 

According to the PCOB, the term ‘serious crime’ refers to offences which already exist in several Sri Lankan laws but become serious crimes when they are committed by a member of an organised criminal group. The purpose of the 72 page Bill is therefore not to create new offences but to increase the penalties for these offences along with the powers of the police, while lowering due process and fair trial safeguards to make prosecution and conviction easier. 

Under the PCOB a person can be deemed a member of an organised crime group based on broad, arbitrary, subjective factors. For instance, persons can be identified as gang members based on the style of dress, hand signs, language or tattoos if they correspond to those of an organised criminal group. Whether a person associates with members of an OCG or habitually visits places used by OCGs with knowledge the place is owned or occupied by an OCG are also criteria which can be used to determine a person’s membership of an OCG. These broad, arbitrary, sweeping identifying factors can be weaponised to label anyone a gang member. A person can also be identified by other members as a member of an organised criminal group. However, being identified by other members alone should not be accepted as adequate evidence of membership; passive membership without active participation in the group’s criminal activities is not an offence in many jurisdictions. In countries such as El Salvador, where people report persons they suspect of gang association with no evidence, the informant culture has led to mass arbitrary detention and wrongful prosecution. 

According to the PCOB, the term ‘serious crime’ refers to offences which already exist in several Sri Lankan laws but become serious crimes when they are committed by a member of an organised criminal group. The purpose of the 72 page Bill is therefore not to create new offences but to increase the penalties for these offences along with the powers of the police, while lowering due process and fair trial safeguards to make prosecution and conviction easier

The offences listed as serious crime if done by a member of an OCG include offences under the Excise Ordinance, advertising unlawful gambling, infringement of copyright, patents and marks, harbouring a military deserter, obstructing a public servant in the discharge of their public duties and exploring for mines without a license. Just as the PSTB elevates a broad range of offences to terrorism, the PCOB elevates a broad range of offences to organised crime. 

In practice, this law can be used to target persons with drug dependence, a serious health issue. For example, if three young persons who are dependent on drugs but do not have money to purchase drugs meet with a member of an OCG to obtain drugs, they may be forced by the dealer to undertake tasks for him in lieu of payment. They may do this often and hence would visit places frequented by the OCG and obtain a material benefit, i.e. drugs. They might hence be prosecuted for engaging in a serious crime in concert with members of an OCG instead of being treated as persons with a substance use disorder and provided treatment and assistance to deal with drug dependence and its physical and psychological effects. 

Freedom of expression and right to privacy

The Bill prohibits making the name of a victim of a serious crime public but allows the Officer-in-Charge of a police station or the police officer undertaking the investigation to make it public in good faith for the purposes of investigation. The Bill does not require the police to obtain the consent of the victim to do so. This instrumentalises the victim for investigatory purposes, violates the victim’s privacy and denies them agency to decide whether or not to go public. 

The PCOB prohibits reporting court proceedings concerning an offence under this Act without the approval of the court, which effectively makes trials under this law secret trials. It undermines media freedom and prevents highlighting any due process issues and shortcomings in the trial process and thereby lessens the accountability of the State. 

Entrenching impunity of State entities

Militarisation of law enforcement which has been included in the Protection of the State from Terrorism Bill (PSTB) is replicated in the POCB with the police empowered to obtain the assistance of the military to conduct an arrest. The rank of the police officer who has the power to make such a request, nor the criteria/reasons for requesting assistance have been stipulated. This can lead to broken or even non-existent chains of command: turning the current culture of impunity into a legalised state of impunity. 

After arrest the person must be produced before the Magistrate within 72 hours but the Bill says if the arrest is made “within Sri Lanka’ the travel time shall be excluded when calculating the 72 hours. Since there are over 70 Magistrates courts in Sri Lanka, excluding travel time from the 72 hours within which a person is produced before a magistrate cannot be justified. 

The sections on detention in the POCB have been cut and pasted from the PSTB. For example, a detention order (DO) is issued for 2 months and the Magistrate has no option but to give effect to it. Where there is no DO the Magistrate has to remand the person. Detention is hence the default outcome. The Secretary to the Ministry of Defence (MOD) issues the DO upon request of Inspector General of Police (IGP) or the Deputy Inspector General (DIG) and the maximum period of detention is one year. 

To extend the DO, the police via the Attorney-General (AG) must request an extension from the High Court (HC). If the HC refuses to extend the DO, the HC must remand or release the person on bail. In this instance too the judge has no power to discharge the person, i.e. release the person from the case. The pattern of undermining the authority of the judiciary, which seems to be based on the premise the executive/police know what’s best, is observable in several draft laws presented by the Government. 

Like in PSTB, the POCB says the police officer shall take any measure as appropriate to prevent a crime under this law. Such broad powers can embolden an already power drunk police force to commit violations with impunity. The Bill allows police to send evidence directly to Government Analyst instead of via court; this removes judicial oversight to ensure the chain of custody is not broken and reduce the possibility of evidence tampering. 

The powers of the police are enhanced by empowering the DIG to obtain information from any telecom or data service provider without a court order to determine the identity of the caller, calls or the tower location of a device. The police must only inform the Magistrate in writing, which is a gateway to obtaining a broad remit of information and can pave the way for abuses. The information technology aspect of POCB has been discussed extensively by Dr Sanjana Hattotuwa. 

Restriction of liberty: the default 

A person who is not detained under a DO and is instead remanded immediately may be released on bail. However, the Bill is silent on whether bail can be granted to a person initially detained under a DO. Hence, the assumption is there is no bail for those who are initially detained under a DO. This discrimination/distinction cannot be justified. 

The Bill states a person shall not be held in remand for more than a year and if the indictment is not filed within a year they can be released on bail. Just as in the PSTB, this indicates that a person who is indicted cannot be released on bail until they are acquitted. Therefore, a person who is detained under a DO can be detained for a year then remanded for a year and if indicted within a year then remanded until the conclusion of the trial. In such a scenario if the person is acquitted then the person would have been in detention for many years. 

Similar to the POCB, the PSTB allows the Magistrate to issue restriction orders with no maximum time limit stipulated for the lifetime of such orders, which means it can be in place for years. 

Attack on due process rights: Reintroducing police confession

The admissibility of confessions made to a police officer of the rank of ASP and above, which has been removed from the PSTB has been included in the POCB despite the long history of this provision, which remains in the Prevention of Terrorism Act (PTA), being used by the police to extract confessions under torture. This provision normalised torture as a method of interrogation and the POCB will entrench it further. The burden of proof is reversed and instead of the State having to prove the case against the person, the person must prove the statement was obtained under duress. The PCOB allows the confession to be used against another person as well if it is corroborated by other evidence- can even be circumstantial evidence- to convict a person of a serious crime. 

Under the PCOB a person can be deemed a member of an organised crime group based on broad, arbitrary, subjective factors. For instance, persons can be identified as gang members based on the style of dress, hand signs, language or tattoos if they correspond to those of an organised criminal group. Whether a person associates with members of an OCG or habitually visits places used by OCGs with knowledge the place is owned or occupied by an OCG are also criteria which can be used to determine a person’s membership of an OCG. These broad, arbitrary, sweeping identifying factors can be weaponised to label anyone a gang member

Although the PCOB requires the statement to be video recorded and the person making the confession to obtain advice from a lawyer prior to making the confession, if a person is tortured or subject to threat prior to the statement being recorded these safeguards will not protect them. 

The Bill allows the judge to alter the indictment at any time during trial if the court is of the opinion that the person is not a member of an organised crime group and did not act to further a common criminal objective. Moreover, if a confession has been entered as evidence in the case, the PCOB states it should be excluded and the offence should be tried under other law. There is no justifiable rationale for allowing a police confession to be used if the person is a member of an organised crime group and not if the person is not a member. This demonstrates human rights protections against torture and fair trial standards have been lowered for persons accused of being a member of an OCG, i.e.  if a person is accused of being a member of an OCG then the person can be tortured and a (most likely false) confession obtained to ensure a conviction. If a person contradicts a statement they made, they can be tried for giving false evidence which can be done easily because the Bill says the State only must prove the contradiction between the two statements and does not have to demonstrate which statement is false. These provisions show the aim is to prevent accused persons from challenging confessions given under duress for fear they may be penalised further. The Bill stipulates certain protective measures to be taken when a person makes a statement to the Magistrate but does not require the same protections to be applied when the statement is made to the police officer. The POCB hence deprives a person of protection when they are in the most vulnerable state.