The Prevention of Terrorism (Temporary Provisions) (Amendment) Bill, a bill to amend the Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979 (PTA) has been gazetted by the order of the Foreign Minister. The proposed amendment still leaves much that has been criticised as dangerous in the PTA which is a threat to the security of persons and leaves the door open for severe abuses of power by the Executive. Above all, these proposed amendments continue to undermine the role of the Judiciary for the protection of the people.
The amendments leave the powers of detention under the detention orders by the Ministry of Defence Secretary virtually beyond the challenge of courts under the normally operative criminal justice system. The administration of justice has been arranged by way of the definition of offences in terms of the penal code or a relevant statute or by the code of criminal procedure which has laid down a very precise and comprehensive system of the administration of arrest, detention and investigation into crime under the control of the whole process through the Judiciary.
Thereby, the administration of justice conforms to the basic principles of the rule of law which gives the ultimate power of the administration of all matters relating to justice to the hands of the Judiciary. The PTA, including the amendment, takes away this overall power of the Judiciary to control the processes of the administration of justice and places it in the hands of the Executive by handing it over to the Ministry of Defence. The impact of this is that the Ministry of Defence Secretary is placed above the Judiciary. This violates the basic norms of democracy where on matters of the administration of justice, the Judiciary is the ultimate authority and not the Executive.
This situation is further aggravated by the fact that the 1978 Constitution and its operation for the period of over four decades has demonstrated that the centre of power in the system of state is a single individual who holds the position of what is called the Executive President. As it has been pointed out by constitutional experts, what exists is a Presidential dictatorship.
When the already overpowering position of the Executive is further enhanced by the PTA by taking away the normal functions of the Judiciary as the protector of the basic rights to the security of the people, then the problem becomes even more grave. What we therefore are dealing with is a situation of terror caused by the instrumentality of the law on the entirety of the people. This is an attempt to rule over the country through various forms of intimidation among which the abuse of the powers of arrest, detention and the withdrawal of the basic rights of prisoners play a very crucial part.
The function of courts in upholding the principles of the administration of justice within the framework of law is primarily for the protection of all individuals whether they be charged with terrorism or torture, ill treatment, extrajudicial killings, and even the causing of mass murders. Suspicion alone is not a ground for punishment. That is a foundational principle of criminal justice. What the PTA amounts to, is to place those who are alleged to have been suspected of committing any offense relating to terrorism to be placed outside the process of the administration of justice by taking that process into the hands of the Executive.
In considering the provisions of this proposed bill, it is not possible to ignore the extreme abuses that have been committed under the PTA law for a long period of time and particularly in recent times.
Already in two cases, the Court of Appeal found that the detention of a senior criminal investigating officer for a long period of time in detention for the alleged commission of crime under the PTA was totally baseless and even accused the Attorney General’s Department about the pursuit of this detention. The Court released this senior investigating officer.
Also, in the recent weeks, there was a release of a prominent Muslim politician who was also kept for a long period under the same legal provisions but finally released by Court as there was no basis at all for such detention to be justified. These are two prominent examples but there are many others of lesser known persons who have been kept for long periods for purposes other than the prevention of terrorism. In fact, the reasons often appeared to be to create a pretext for some political purpose by arresting innocent people and engaging in public accusations that such persons are suspected to be involved in acts of terrorism.
The latest case that demonstrates this situation relates to the grenade placed at the All Saints’ Church in Colombo. Within a short period after a complaint was made, a person assisting the church was arrested as soon as there were media statements by the Police Media Spokesman that the Police have been able to arrest the suspects who were involved in trying to place this grenade in the church. It was even said that one of these persons confessed to the crime.
However, once the church authorities searched the closed circuit television camera (CCTV) footage, they found a stranger entering into the church and doing something near the place where the grenade was found and hurriedly moving away from the church. Thereafter, the Police investigators claimed that they had arrested that person. As several YouTube-based channels pointed out correctly, the position of the Police as well as the Police Media Spokesman in that occasion was to create an impression that they have found the solution to those who placed the grenade in the church.
Thus, the abuse of the PTA is now a very well-known fact in Sri Lanka. When a person is accused of an act under the PTA, now there is more suspicion about possible foul play and an attempt to create a false impression with the view to mislead the public. Simply, the overwhelming impression in the country is that people no longer believe or trust that the allegations made under the PTA are genuine.
When the amendment to the bill allows only an application to the Court under Articles 126 and 140 of the Constitution, what it does is to take away the provisions of the code of criminal procedure which gives powers to the courts to deal with all cases of allegations of crime whether they be very serious crimes or minor crimes.
The justification for the courts to have such power is the presumption of innocence until found guilty. The possibility that a person can be accused of a crime without justifiable grounds and that on the basis of the allegation, persons can be arrested and detained is regarded by the law as a threat to the public security of persons. The function of courts is so developed as to prevent such false accusations and also detention without adequate grounds.
The laws provide extensive possibilities for the Police and the investigators to bring to the notice of courts the actual reasons to suspect a person as engaged in a serious crime, for example, in acts of terrorism. It is the same as other crimes like murder, gang rape or robbery. Strangely, an area that is not properly covered is what maybe called the greatest acts of terrorism against the nation which is the illegal disposal of the properties belonging to the nation either by way of various forms of corruption or by the abuse of power.
In terms of the debt crisis, Sri Lanka is faced with the worst breakdown of the economy at the moment. As publicly stated by economists and others who have been dealing with the financial systems, the reason really is the abuse of power and corruption that prevails in the country in a very big way. These are far bigger acts of terrorism on the economy of the nation, on the state structure of the nation and also on the political system of the nation. All these fundamental aspects are today in the worst crisis ever and this crisis is man-made. While such enormously dangerous acts have not received the attention of the law makers, the attention still is in the abuse of power in order to silence critics or to deal with various types of opponents.
This overall phenomenon of the law itself being used in order to deprive the people of their security is far more overwhelmingly dangerous to the nation than anything else.
The law as it stands, provides within its normal procedures for a detention if the courts are satisfied that there is sufficient ground for a possibility of the engagement of persons in serious crimes, thereby threatening the security of the people. Without using these provisions, placing the whole issue of security in relation to the prevention of terrorism on the Executive itself is a dangerous act.
If there is any serious attempt to normalise relationships, the most important aspect to address is to undo all possibilities of creating intimidation and fear by the abuse of laws. The present bill that has been proposed is not aimed in that direction. In fact, it is aimed in the opposite direction.
It is also strange as to why it is the Foreign Minister that is presenting this bill. This also points to the fact that today there is no clarity for the people as to which Ministry is doing what. That too is an extremely dangerous situation.
The way out is to abolish the PTA altogether and if necessary, bring laws without the removal of any of the provisions of the normal law which places the security of the people ultimately in the hands of the Judiciary. The Ministry of Defence Secretary does not lose anything by trusting the Judiciary to do what is required for the security of the nation.
The strengthening of the hands of the Judiciary in dealing with all arrests and detention will create a much more secure atmosphere for the people themselves to be more actively engaged in co-operating with the state authorities to deal with instances of terrorism. Terrorism can only be defeated where it exists through the active co-operation of the people but if the people do not trust the legal process and is suspicious that the legal process would be used as a pretext for something else, then that cooperation will not be forthcoming.
(The writer is the Asian Human Rights Commission’s Policy and Programmes Director)
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The views and opinions expressed in this article are those of the author, and do not necessarily reflect those of this publication.A commentary on the PTA Amendment Bill
17 Feb 2022
A commentary on the PTA Amendment Bill
17 Feb 2022
The Prevention of Terrorism (Temporary Provisions) (Amendment) Bill, a bill to amend the Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979 (PTA) has been gazetted by the order of the Foreign Minister. The proposed amendment still leaves much that has been criticised as dangerous in the PTA which is a threat to the security of persons and leaves the door open for severe abuses of power by the Executive. Above all, these proposed amendments continue to undermine the role of the Judiciary for the protection of the people.
The amendments leave the powers of detention under the detention orders by the Ministry of Defence Secretary virtually beyond the challenge of courts under the normally operative criminal justice system. The administration of justice has been arranged by way of the definition of offences in terms of the penal code or a relevant statute or by the code of criminal procedure which has laid down a very precise and comprehensive system of the administration of arrest, detention and investigation into crime under the control of the whole process through the Judiciary.
Thereby, the administration of justice conforms to the basic principles of the rule of law which gives the ultimate power of the administration of all matters relating to justice to the hands of the Judiciary. The PTA, including the amendment, takes away this overall power of the Judiciary to control the processes of the administration of justice and places it in the hands of the Executive by handing it over to the Ministry of Defence. The impact of this is that the Ministry of Defence Secretary is placed above the Judiciary. This violates the basic norms of democracy where on matters of the administration of justice, the Judiciary is the ultimate authority and not the Executive.
This situation is further aggravated by the fact that the 1978 Constitution and its operation for the period of over four decades has demonstrated that the centre of power in the system of state is a single individual who holds the position of what is called the Executive President. As it has been pointed out by constitutional experts, what exists is a Presidential dictatorship.
When the already overpowering position of the Executive is further enhanced by the PTA by taking away the normal functions of the Judiciary as the protector of the basic rights to the security of the people, then the problem becomes even more grave. What we therefore are dealing with is a situation of terror caused by the instrumentality of the law on the entirety of the people. This is an attempt to rule over the country through various forms of intimidation among which the abuse of the powers of arrest, detention and the withdrawal of the basic rights of prisoners play a very crucial part.
The function of courts in upholding the principles of the administration of justice within the framework of law is primarily for the protection of all individuals whether they be charged with terrorism or torture, ill treatment, extrajudicial killings, and even the causing of mass murders. Suspicion alone is not a ground for punishment. That is a foundational principle of criminal justice. What the PTA amounts to, is to place those who are alleged to have been suspected of committing any offense relating to terrorism to be placed outside the process of the administration of justice by taking that process into the hands of the Executive.
In considering the provisions of this proposed bill, it is not possible to ignore the extreme abuses that have been committed under the PTA law for a long period of time and particularly in recent times.
Already in two cases, the Court of Appeal found that the detention of a senior criminal investigating officer for a long period of time in detention for the alleged commission of crime under the PTA was totally baseless and even accused the Attorney General’s Department about the pursuit of this detention. The Court released this senior investigating officer.
Also, in the recent weeks, there was a release of a prominent Muslim politician who was also kept for a long period under the same legal provisions but finally released by Court as there was no basis at all for such detention to be justified. These are two prominent examples but there are many others of lesser known persons who have been kept for long periods for purposes other than the prevention of terrorism. In fact, the reasons often appeared to be to create a pretext for some political purpose by arresting innocent people and engaging in public accusations that such persons are suspected to be involved in acts of terrorism.
The latest case that demonstrates this situation relates to the grenade placed at the All Saints’ Church in Colombo. Within a short period after a complaint was made, a person assisting the church was arrested as soon as there were media statements by the Police Media Spokesman that the Police have been able to arrest the suspects who were involved in trying to place this grenade in the church. It was even said that one of these persons confessed to the crime.
However, once the church authorities searched the closed circuit television camera (CCTV) footage, they found a stranger entering into the church and doing something near the place where the grenade was found and hurriedly moving away from the church. Thereafter, the Police investigators claimed that they had arrested that person. As several YouTube-based channels pointed out correctly, the position of the Police as well as the Police Media Spokesman in that occasion was to create an impression that they have found the solution to those who placed the grenade in the church.
Thus, the abuse of the PTA is now a very well-known fact in Sri Lanka. When a person is accused of an act under the PTA, now there is more suspicion about possible foul play and an attempt to create a false impression with the view to mislead the public. Simply, the overwhelming impression in the country is that people no longer believe or trust that the allegations made under the PTA are genuine.
When the amendment to the bill allows only an application to the Court under Articles 126 and 140 of the Constitution, what it does is to take away the provisions of the code of criminal procedure which gives powers to the courts to deal with all cases of allegations of crime whether they be very serious crimes or minor crimes.
The justification for the courts to have such power is the presumption of innocence until found guilty. The possibility that a person can be accused of a crime without justifiable grounds and that on the basis of the allegation, persons can be arrested and detained is regarded by the law as a threat to the public security of persons. The function of courts is so developed as to prevent such false accusations and also detention without adequate grounds.
The laws provide extensive possibilities for the Police and the investigators to bring to the notice of courts the actual reasons to suspect a person as engaged in a serious crime, for example, in acts of terrorism. It is the same as other crimes like murder, gang rape or robbery. Strangely, an area that is not properly covered is what maybe called the greatest acts of terrorism against the nation which is the illegal disposal of the properties belonging to the nation either by way of various forms of corruption or by the abuse of power.
In terms of the debt crisis, Sri Lanka is faced with the worst breakdown of the economy at the moment. As publicly stated by economists and others who have been dealing with the financial systems, the reason really is the abuse of power and corruption that prevails in the country in a very big way. These are far bigger acts of terrorism on the economy of the nation, on the state structure of the nation and also on the political system of the nation. All these fundamental aspects are today in the worst crisis ever and this crisis is man-made. While such enormously dangerous acts have not received the attention of the law makers, the attention still is in the abuse of power in order to silence critics or to deal with various types of opponents.
This overall phenomenon of the law itself being used in order to deprive the people of their security is far more overwhelmingly dangerous to the nation than anything else.
The law as it stands, provides within its normal procedures for a detention if the courts are satisfied that there is sufficient ground for a possibility of the engagement of persons in serious crimes, thereby threatening the security of the people. Without using these provisions, placing the whole issue of security in relation to the prevention of terrorism on the Executive itself is a dangerous act.
If there is any serious attempt to normalise relationships, the most important aspect to address is to undo all possibilities of creating intimidation and fear by the abuse of laws. The present bill that has been proposed is not aimed in that direction. In fact, it is aimed in the opposite direction.
It is also strange as to why it is the Foreign Minister that is presenting this bill. This also points to the fact that today there is no clarity for the people as to which Ministry is doing what. That too is an extremely dangerous situation.
The way out is to abolish the PTA altogether and if necessary, bring laws without the removal of any of the provisions of the normal law which places the security of the people ultimately in the hands of the Judiciary. The Ministry of Defence Secretary does not lose anything by trusting the Judiciary to do what is required for the security of the nation.
The strengthening of the hands of the Judiciary in dealing with all arrests and detention will create a much more secure atmosphere for the people themselves to be more actively engaged in co-operating with the state authorities to deal with instances of terrorism. Terrorism can only be defeated where it exists through the active co-operation of the people but if the people do not trust the legal process and is suspicious that the legal process would be used as a pretext for something else, then that cooperation will not be forthcoming.
(The writer is the Asian Human Rights Commission’s Policy and Programmes Director)
………………
The views and opinions expressed in this article are those of the author, and do not necessarily reflect those of this publication.