Two journalists have asked the Supreme Court to declare that several clauses of the proposed Prevention of Organised Crimes Bill conflict with the Constitution, adding to a growing number of petitions against the legislation.
Tharindu Uduwaragedara and Mohamed Fazeer filed a Special Determination petition through Gowry Shankari Law Associates. They say the Bill, as drafted, gives law enforcement officers and executive officials excessive powers and limits judicial supervision of investigations and detention.
The petitioners single out Clause 56, which makes it an offence to disclose information likely to prejudice an investigation conducted or planned under the Act. They say it has no express protection for public-interest reporting, could leave journalists and family members unsure what they may disclose, and conflicts with Articles 12(1) and 14(1)(a) of the Constitution.
Clause 4(2) allows membership of an organised criminal group to be inferred from factors such as association with known members, dress, hand signs, language, tattoos, visits to certain premises and repeated arrests in the company of such members. The petitioners say these factors do not establish membership and could lead to arbitrary treatment.
On police powers, they point to Clause 17, which allows officers with reasonable suspicion of a serious crime to stop, search, question and arrest people, search premises without a warrant and seize items. Under Clause 20, a suspect could be held for up to 72 hours, excluding journey time, before being produced before a Magistrate, with a further 24 hours of police custody if authorised. The petitioners say this limits the Magistrate’s discretion over bail or discharge.
Clause 21 lets the Secretary to the Ministry responsible for Police order the detention of a suspect for up to two months at a time, to a maximum of one year. The petitioners say an executive official, rather than a court, would decide this. They add that Clause 23 restricts bail to the High Court in certain circumstances and allows remand for up to one year before indictment.
Under Clause 44(4), a Deputy Inspector General of Police or a more senior officer could obtain subscriber details, call records and tower-location data from service providers without prior authorisation from a Magistrate. The petitioners say this could expose people with no link to organised crime to surveillance. They also object to provisions on encrypted services, interception of communications and the admissibility of evidence.
The petitioners want a determination that the Bill, or one or more of its provisions, is inconsistent with the Constitution and can be enacted only with the special majority required under Article 84(2) and approval by the people at a referendum. Counsel Hejaaz Hizbullah appears for them.
Background
Under the Constitution, a Bill can be challenged in the Supreme Court by way of a Special Determination petition after it is gazetted and placed before Parliament. The court then gives a determination on whether the Bill, or parts of it, is consistent with the Constitution. A Bill found inconsistent can become law only if it is passed with a two-thirds majority in Parliament, and in some cases only with approval at a referendum.
What it means
The Supreme Court’s determination will shape what Parliament can pass. If the court finds particular clauses inconsistent with the Constitution, Parliament would have to amend them or meet the higher threshold before the Bill can become law.
The petitions concern how long a person can be held before seeing a Magistrate, who can authorise longer detention, when police can search without a warrant and whether call records can be obtained without a court order.
