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Preventing the terrors of the PTA

22 Feb 2022

  • Lawyers and politicians dissect the myriad issues in Sri Lanka’s controversial anti-terrorism law
BY Sumudu Chamara Even though the Government is attempting to amend the controversial Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979 (PTA) through the Prevention of Terrorism (Temporary Provisions) (Amendment) Bill, and is maintaining that these amendments are a solution to the issues with the PTA, the Bill does not seem to be receiving much support or approval.  Human rights activists and legal professionals did not welcome the Bill due to several reasons, such as the proposed amendments being inadequate to address the issues with the provisions of the PTA and the Bill not paying attention to a number of provisions of the PTA that need to be amended or repealed.  In addition, activists have raised concerns about the constitutionality of the Bill as well as the related proposals. Last week, a group of activists filed petitions in the Supreme Court (SC) seeking a special determination of the SC regarding the Bill, claiming that the provisions of the Bill are inconsistent with the Constitution. On that ground, they said that the Bill must be passed by a special majority in the Parliament and approved by the people at a referendum. However, some human rights activists and legal professionals argue that the PTA needs to be repealed, not amended and kept. While acknowledging that the amendments that have been proposed are inadequate to address the plethora of issues with the PTA, which is a serious situation, they claim that there is no justifiable reason to keep the PTA as part of Sri Lanka’s law because there are adequate legal provisions under other laws that can be enforced to address most of the issues the PTA is expected to address. Some of these concerns, especially whether the PTA needs to be amended and kept, or be repealed and replaced, were discussed during a discussion organised by the National Movement for Social Justice where Attorney-at-Law (AAL)  Ermiza Tegal, Samagi Jana Balawegaya (SJB) Opposition Parliamentarian Eran Wickramaratne, and AAL Rushdhie Habeeb spoke. PTA’s usefulness and necessity During the discussion, panellists questioned the necessity of keeping the PTA in a context where there are other laws to deal with what the PTA identifies as terror acts, noting that the security challenges the country is facing are not as intense as those that existed when the PTA was enacted.  Tegal explained how the PTA came into existence, noting: “The PTA was enacted in 1979, when there was a questionable and violent situation in the country. When the then Cabinet of Ministers approved this law (then Bill), even that Cabinet accepted that the provisions it contained were inconsistent with the Constitution. That is why the Cabinet said that it should be passed with a two-thirds majority. At that time, it was said that the PTA was in place only to face the situation that existed back then.” She explained that although the PTA remained until today despite its original objectives, it does not provide any useful legal provisions as far as their implementation and effectiveness to combat terrorism are concerned. She further pointed out that the PTA identifies as terrorist acts, 10 offences which are already included in the Penal Code.  With regard to interpreting terrorism and terrorist activities, she noted that international security bodies such as the United Nations Security Council have provided a broad definition to terrorism, and that the PTA, however, does not consider all the various factors that are included in that definition. Not having a proper interpretation of what terrorism and terrorist activities are, constitutes a huge weakness, according to Tegal.  Further explaining why the PTA should be repealed, she pointed out the Judiciary’s inability to look into reasons for arrests and detentions in the event the Defence Minister decides to issue an order to detain a person from three to 18 months (as per the PTA), and incidents pertaining to confessions obtained through torture, which on many occasions have been reported by credible sources. “In addition to the said provisions regarding offences, the PTA does not actually contain any legal provision regarding the powers pertaining to preventing terrorism or regarding investigations to prevent terrorism,” Tegal said, adding that in such a context, it is important to ask a question as to whether the PTA is actually an anti-terror law or a law formed to detain people. “A law with unlimited powers, especially with regard to detentions, is what we identify as an anti-terror law, and it is detrimental to the people,” she emphasised.  Fair trials and compensating affected parties The panellists spoke extensively about how the enforcement of the PTA affects the people. One important matter that was raised during the discussion was the need to look into the negative impacts on the people when arrested under the PTA. They noted that although certain PTA detainees are released due to various reasons, which sometimes take place years after the arrest, there is no mechanism to look into and perhaps compensate for the time they lost while they were in detention. In a context where this takes place when there is absolutely no evidence against certain arrestees, they said that forgetting the lives of those who got detained for years is a serious situation.  Speaking about this situation, Tegal noted that even though there are reports about people who got detained under the PTA and were released after 12 years due to the unavailability of evidence, no party being answerable regarding the damages that happened to them, especially the time they lost due to being detained, is concerning. Moreover, the PTA being used as a normal law under no restrictions, when there are other laws that can be used to make arrests in emergencies, was pointed out by the panellists. Tegal spoke about unreasonable arrests sans evidence, which she said leads to the above-mentioned situation. “We do not see cases against most arrested under the PTA because the arrests are made without any evidence. Finding evidence usually takes place after the arrest, and even in this case, no adequate or prompt efforts are put into finding the evidence. Also, investigating officers do not consider the damages this delay can cause to the arrestees, and they take a lot of time to find evidence. On several occasions, we have seen that there is a certain fear to release people even after the investigating officers have told the court that investigations have been concluded after years. What takes place then is sending the relevant files to the Attorney General’s (AG) Department, and thereby, the responsibility of the relevant cases is also transferred. The AG’s Department takes some time to look into it and requires more information if investigations have not been conducted properly, which takes more time. That is why after years, the AG’s Department says that there is no adequate evidence and permits the release of the detainees. In most cases, by the time this happens, years and sometimes more than a decade have passed without starting the court proceedings, and those people are forgotten.” Expressing similar sentiments, Habeeb pointed out the concept of the presumption of innocence, which has been guaranteed by the Constitution, adding that PTA detainees’ right to be treated innocent before conviction is often being violated by the way that they are treated. He said that it amounts to a violation of fundamental rights (FR). He noted, however, that the necessary amendments to the PTA need to take place immediately. Meanwhile, civil society activist Lionel Bopage also noted that those who get detained under the PTA and get released with no charges, should get some form of relief to compensate for the time that they lost. Adding that he too was a victim of the PTA who got released without any charges, he queried: “Who will take the responsibility for false allegations levelled against us, and if someone is politically victimised, from where can we get justice and what source of compensation will be available for us?” Replacing the PTA Expressing similar opinions about the enforcement of the PTA at present, Wickramaratne noted that the PTA is being used more against political rivals, human rights activists, journalists, and legal professionals.  “The question is whether it should exist anymore, and I think that it should not exist as it is,” he opined, adding that even though the Government has presented certain amendments due to international pressure, the amendments do not address a number of matters that hinder fair trials. He questioned the difficulties in obtaining bail even under circumstances which allow a judge to grant bail to a suspect. “The PTA provides legal provisions to detain people. However, most of these decisions are taken by the Executive, and the Judiciary has been weakened. In this context, the PTA is a heavy blow to the Judiciary’s independence,” he further said. He said that the proposed amendments should not be approved, and that the PTA needs to be repealed and replaced with a new law. “In 2016, when there was a discussion about the PTA, the Law Commission suggested that the existing PTA be repealed and be replaced with the Protection of National Security from Terrorism Act which was presented as a draft at that time. Unfortunately, the draft was not approved, and until 2019, it was not possible to pass it in Parliament. We suggest that the PTA be abolished and that the Law Commission’s draft be passed to be a new law.” He added that the draft presented by the Law Commission provides some sort of solutions to the existing issues with the PTA, and that therefore, it should be presented to the Government and that the proposed PTA amendments should be rejected. In this regard, activist Prof. Rohan Samarajeewa raised concerns about the use of emergency laws in situations such as the Easter Sunday attacks which a person might feel calls for many arrests, and about the importance of preventing the draft bill that Wickramaratne mentioned from being misused in a context where many laws are being used against their original objectives.  Wickramaratne, in response, said that the main focus is whether the decisions taken by the Executive can be superseded by the Judiciary, and that the Law Commission’s draft bill can be further amended if a need arises later. He noted that the most important step at the moment is taking the initiative to replace the PTA. The Law Commission’s draft bill, according to Wickramaratne, limits powers pertaining to making arrests and entry to places, makes it mandatory to present an arrestee before a magistrate within 72 hours and gives the magistrate the power to decide whether to release or further detain the arrestee, and gives powers to a judge to issue orders to detain a person from 14 to 28 days if the court is informed that more time is needed for investigations. In addition, he said that the proposed law imposes a number of restrictions, including making police and intelligence officers answerable to the court while also giving them the proper space for investigations. This, he said, will lead to more information being revealed regarding investigations.  While the intensifying pressure from domestic and international groups is often mentioned as a reason for the Government’s decision to propose amendments to the PTA, according to human rights activists, even if the amendments were made, there will still be a number of issues to address regarding the PTA. It is in such a context that they are demanding that the PTA be repealed and/or replaced with a more constitutional and human rights-friendly law. The Government has a responsibility to ensure that the said legal changes address the issues with the PTA in actuality; otherwise, the opposition against this law will not end even after the amendments, and the amendments would be just a waste of time.  


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