- Experts note need for public to take the lead to repeal the draconian PTA without allowing the Government to amend or replace it to suit its needs
The issue with the Prevention of Terrorism (Temporary Provisions) Act (PTA) as amended, is not only the massive potential to use it to violate the people’s rights and freedoms but also the fact that it does not qualify as a proper law in terms of its enforcement being dependent on facts, evidence, and definitions. At the same time, Sri Lanka has witnessed how successive governments have kept and enforced the PTA in a manner that is beneficial to governments and heads of governments despite promises to do away with the PTA, and that is another major reason why Sri Lanka does not need the PTA.
According to several leading activists who discussed the PTA and its adverse impacts on human rights due to the aforesaid situation, the PTA should not be amended or replaced but repealed, and the public, who have experienced the detrimental impacts of the PTA, should take the initiative without relying on the Government to do it. This was emphasised during a recent discussion titled “Repeal PTA! No to Reforms! No to Replace!” which was organised by the Alliance of Trade Unions and Mass Organisations.
PTA: A bad law with a disgraceful history
“The PTA is a bad law,” Attorney-at-Law Ermiza Tegal said, adding that the fact that the PTA remains in Sri Lanka’s law books is something to be really regretful about and that Sri Lankans should be worried and scared about it. “When we got the Constitution in 1978, it gave a Chapter on Fundamental Rights which allows us to go to the Supreme Court (SC) and complain if our rights are violated. So, in 1978, we got a Constitution that gives us justiciable rights. In 1979, we got the PTA that creates a legal situation that potentially allows the Executive and particularly the Police and the defence authorities to violate those rights. When the PTA was enacted, it came in as a temporary law. They said that it would be there for a year, then three years, and after three years, it was used as a permanent law. Since 1979, we have lived in Sri Lanka with a law that is like an emergency law. We have also had emergency proclamations, and we have lived as Sri Lankan citizens in a state of emergency for decades.”
Explaining that there was no adequate debate in Parliament or among the public on the PTA and on how harmful the PTA is when the PTA Bill was passed, Tegal added that although serious concerns were raised regarding the same, it was passed.
“They (Parliamentarians) drew attention to how this law can be used against political opponents, which is happening today and has happened under this law for a long time. The law was discussed and enacted in a day. The then-Cabinet of Ministers took the responsibility to pass this law with a two-thirds majority. This means that the SC did not have to consider that very important question of whether this law violates certain rights,” she further explained, opining that the then-Cabinet coming forward to pass the PTA Bill with a two-thirds majority is an acknowledgement that the PTA already had the potential to violate rights.
Tegal explained in detail the reasons that make the PTA a harmful law. She noted that the PTA provides broad powers for arrest and detention, which allows for, under an Executive order, the arrest and also detainment of a person for a period of up to 12 months without presenting the arrestee to a Magistrate or judicial officer, and that it also does not properly define the term “terrorism” but instead refers to ordinary offences identified in the Penal Code. The PTA, according to her, does not talk about protecting the people but specific categories of persons such as the President, MPs, and judges. Adding further that the PTA creates offences and tells the Judiciary that the latter cannot look into those offences, which she noted is very different from how ordinary laws are enforced, Tegal added that this obstructs the judiciary from looking into facts and evidence pertaining to an arrest made under the PTA.
In addition, the fact that the PTA allows a mere confession to be used as evidence was also highlighted. “I am of the opinion that when taking into account these provisions or powers (of the PTA), the PTA is not a proper law. A law that provides such immense powers without specifying proper limitations to those powers and allows the enforcement of those powers without being subjected to the supervision of a judge is not a proper law.”
She further opined that Sri Lanka has had decades of experience of how the PTA has destroyed people’s lives, especially through the enforcement of the PTA against certain sections of the society based on their identities and against political opponents, and also to threaten ordinary citizens with arrest and detainment under the PTA. What is more, she underscored that the repeal of the PTA is not an issue, since Sri Lanka has in place ample laws to look into matters of terrorism.
Wasantha Mudalige and the PTA
Relating to his recent arrest and detention under the PTA, Inter-University Students’ Federation Convenor Wasantha Mudalige explained how the PTA is being enforced in a manner that violates the fundamental rights of people who are arrested and detained under this law. Describing the manner in which he was treated by law enforcement authorities during his arrest and detention, he stressed that his incident showcases the cruelty and barbarism of the PTA as well as the PTA’s ability to deprive people of individual freedoms and support the crackdown on the Government’s political enemies. He claimed that the Police did not have any plans to look into facts and free him during the 167 days that he was detained and that the Police were attempting to create false evidence against him.
“That is exactly why the Magistrate’s verdict says that the law enforcement authorities created a serious issue by misusing the PTA to create false evidence in order to limit (individual) freedom,” he emphasised. What is more, Mudalige revealed how the Inter-University Bhikkhu Federation Convenor Ven. Galwewa Siridhamma Thera, who was also arrested and detained under the PTA, was deprived of medical treatment when the latter contracted dengue. He opined that the manner in which he and others who were arrested and detained along with him under the PTA were treated despite their case being a high profile case, is sufficient to understand the fate of PTA arrestees and detainees whose cases did not attract the same attention, especially those of Tamil and Muslim identities.
With regard to the PTA allowing confessions to be used as evidence, Mudalige revealed that while he was in detention, he was threatened to provide a confession to the Police in order to be released. He raised concerns about the Police’s ability to distort confessions, even by using violence against PTA detainees.
“The PTA is an Act that is extremely cruel and barbaric, and can limit freedom and be used to create an environment to take revenge. That is why when a Government was overthrown through an ‘aragalaya’ (a reference to the 2022 anti-Government protests and people’s struggle) of hundreds of thousands of people, the Government labelled that movement as terrorism.” Moreover, expressing happiness about the fact that a wider discourse has emerged surrounding the PTA, he demanded that the PTA be repealed, and opposed any attempts to amend or replace the PTA.
State, Govt., the PTA, and terrorism
Activists further discussed the relationship between governments’ and politicians’ historic tendency to protect themselves at any cost against any party that goes against them, sometimes even by labelling them as “terrorists”, and the use and misuse of laws to achieve it.
According to Attorney-at-Law Swasthika Arulingam, this process greatly involves changing the public perception of who a terrorist is and what terrorism is. “In order to effectively implement the PTA, the idea of who a terrorist is is first created by the Government. The moment the Government says that these (people and groups) are the terrorists and that the people have to be protected from terrorism, we also put that in our heads and we become okay with whatever happens to these so-called terrorists thereafter. After this, the PTA is implemented. Before anyone gets arrested under the PTA or before the Government starts using the PTA, what the Government does is it creates an ideology regarding who terrorists are. For 30 years, because of the war in the North and the East, terrorists were Tamil, and the Government created this idea in society. So, when Tamils, even the people who were not part of the Liberation Tigers of Tamil Eelam, got arrested in the thousands, large sections of society did not speak about it. Even when they were tortured, forced to confess, and charged with false accusations, no one spoke about it, because, in our heads, they were already terrorists.”
Another example of labelling people and communities as terrorists presented by Arulingam was the Government’s response to the 2019 Easter Sunday attacks, which were carried out by Muslim extremists. Adding that the then-Government framed the entire Muslim community as responsible for the attacks within a mere week following the attacks and arrested over 2,000 Muslim persons in connection to the same, she pointed out that it was with the support of many others in society who believed that Muslim persons were terrorists and the media that reported incidents in a manner which portrayed the entire Muslim community as violent, that these arrests were made acceptable.
“That was with the support of many of us, and to date, none of us questioned this,” she stressed. In this context, she noted, the only solution to the issues pertaining to the PTA is the abolition of the PTA. “We are not just against the PTA or only for the abolition of the same. We are against any counter-terror legislation. Therefore, whether the Government brings a Counter-Terror Bill like they attempted in 2018 or whether they bring a National Security Act like they are planning to do now, our position is that we need to oppose counter-terror legislation.”
Furthermore, she pointed out some of the detrimental qualities of anti-terror laws in the world, which she noted the PTA also has. “The first rule is that when you arrest a terrorist, the terrorist does not need any protection from courts. So, most often than not, judicial protection is removed from being given to terrorism suspects. The second one is that governments need long periods of time to investigate and that therefore, they need to keep the (arrested) person in prolonged detention, claiming that only then can governments investigate and prevent acts of terrorism.” She emphasised that when it comes to the fight against terrorism laws, the people cannot rely on States or other external parties such as the European Union (EU) or the US, and that the people are on their own and that they, therefore, need to recognise the detrimental aspects of the PTA.
Meanwhile, Attorney-at-Law Nuwan Bopage described how governments have misused the concept of terrorism to counter forces against them, and how it goes against the fundamental values of democracy. He further explained how governments use the concept of the State and the idea that it needs to be protected, and also use laws such as the PTA, in order to protect the benefits and protection that they get from the State. This, he stressed, has undermined the importance of freedoms, rights and the safety of the public, which should rightfully be the priority of a government or of the State.
Quoting the Constitution’s interpretation of the State, which states that Sri Lanka is a free, sovereign, independent, and democratic socialist republic, he added that in today’s context, Sri Lanka has neither democracy nor socialism and that the concept of the State, therefore, does not exist in reality in society. Bopage pointed out that historically, rulers have considered and labelled any party that goes against them as terrorists, and that that tradition could be observed in the implementation of the PTA.
“We should obey the Government only if the Government protects the public’s sovereignty, freedoms and fundamental rights in accordance with the Constitution, not because President Ranil Wickremesinghe wants. A society obeys a government only if that government acts as the public’s protector. However, today, the Government has become the terrorist. The society taking a stance against that terrorist is not engaging in terrorism but a rebellious uprising,” Bopage said, claiming that the Government’s conduct and the results of that conduct come under several elements of the EU’s definition of who a “terrorist” is (According to the EU law, terrorist offences are acts committed with the aim of seriously intimidating a population, unduly compelling a Government or international organisation to perform or abstain from performing any act, and seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation) and that the Government, therefore, is the terrorist that threatens the country. Adding that the PTA should define the term “terrorist” and how “terrorist acts” differ from ordinary crimes if the objective of introducing the PTA is to prevent terrorism, he opined that this lack of clarity is intentional and that it exists in order to allow the Executive to interpret who a terrorist is as they wish.