21 October, 2020

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CPA Calls For The Repeal Of The PTA In Its Present Form

With the recent arrest and detention of opposition politician Azath Salley, Sri Lanka’s Prevention of Terrorism Act (PTA) has once again come under critical scrutiny. The Centre for Policy Alternatives (CPA) and other civil society groups have condemned the use of the PTA to stifle dissent and reiterate this call yet again, urging for its repeal and replacement as set out below.

Dr. Paikiasothy Saravanamuttu, Executive Director - CPA

In light of the recent events, the Leader of the Opposition submitted a parliamentary question under Standing Order 23(2) calling for the abrogation of the PTA, which was rejected by the Prime Minister. In the light of Mr Salley’s case and the 2008 arrest and subsequent conviction of journalist J.S. Tissainayagam, the Prime Minister’s assurance to Parliament that “…the government would not use the provisions of the Prevention of Terrorism Act to crack down on political opponents or others who are opposed to the government” is completely implausible and tests the credulity of democratic citizens. CPA is deeply concerned about the use of the PTA when the Government’s own National Human Rights Action Plan (NHRAP) in 2011, pledged to review its application and amend provisions to conform with human rights norms within a period of one year. The arrest and detention of Mr Salley is one of many cases where the PTA continues to be used unchecked.

The PTA has attracted universal condemnation ever since it was enacted (as the Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979, as amended by Act Nos. 10 of 1982 and 22 of 1988), as a measure that is wholly inconsistent with contemporary human rights standards and which not merely permits, but also encourages the pervasive violation of fundamental rights otherwise protected by the Constitution of Sri Lanka. Compounded by Sri Lanka’s endemic law’s delays, it has been deployed to deprive the basic civil liberties and inflict physical harm and mental distress on thousands of Sri Lankan citizens of all communities. In the context of disturbing recent developments including the Eighteenth Amendment to the Constitution, theimpeachment of the 43rd Chief Justice and overwhelming evidence of the politicisation of law enforcement and consequent selective application of the criminal law, the dangers of having an instrument of abuse such as the PTA on the statute book are exacerbated. Moreover, a number of Emergency Regulations that would have lapsed when the state of emergency was terminated have been continued in force by the convenient expedient of re-promulgation under the PTA, illustrating how emergency measures can be continued in perpetuity without the need for the declaration of a formal state of emergency, and the attendant checks and balances that follow such a declaration. The framework in relation to surrendees and rehabilitees in particular needs emphasis in this context, and its implications for post-war reconciliation and normalisation – issues raised in CPA’s challenge of the PTA regulations in the Supreme Court in 2011.

CPA has consistently maintained that the PTA in its current form has no place in a democratic society. CPA strongly reiterates this call in the present context in which the terrorist threat against which the PTA was officially justified for three decades has now been eliminated. We do so for the further following reasons:

The sweeping powers given to the executive by the PTA are in the nature of emergency powers, but the exercise of those of those powers are independent of and not subject to even the limited oversight framework of conventional emergency powers, such as proclamation and periodic parliamentary approval, under Chapter XVIII of the Constitution and the Public Security Ordinance. The PTA’s first point of departure from the rule of law therefore is that it reverses the assumption of exceptional circumstances that is at the root of the conceptual justification for granting extraordinary powers to the executive for dealing with terrorist threats. This means that the permanent regime of exceptional powers envisaged by the PTA falls foul of the important procedural safeguards of declaration, notification, periodic parliamentary approval, and parliamentary oversight, that usually govern the grant of such extraordinary powers to the executive.

CPA notes further that the PTA was enacted in 1979 as a temporary measure, as an aspect of the then government’s political and military strategy in dealing with the early stages of the low intensity insurgency in the north of the island. Section 29 of the original enactment expressly provided that it would be in force only for a period of three years, but this was repealed by the Prevention of Terrorism (Temporary Provisions) Amendment Act No. 10 of 1982, making the PTA a permanent measure, although incongruously, the short title of the Act continues to contain the words ‘temporary provisions.’

Its enactment through the procedure under Article 84 of the Constitution is also noteworthy. Article 84 is a bizarre provision, which permits bills that are inconsistent with the Constitution to be passed by a two-thirds majority in Parliament. Article 120 (c) precludes the pre-enactment constitutional review jurisdiction of the Supreme Court in respect of the substance of such bills falling within the scope of Article 84. Thus under these provisions of the Constitution, provided the requirement of a two-thirds majority is met, it is possible to enact laws that are inconsistent with any provision of the Constitution, including fundamental rights. As Justice Mark Fernando observed in Weerawansa v Attorney General (2000) 1 SLR 387:

“When the PTA Bill was referred to this court, the court did not have to decide whether or not any of those provisions constituted reasonable restrictions on Articles 12 (1), 13 (1) and 13 (2) permitted by Article 15 (7) (in the interests of national security etc), because the court was informed that it had been decided to pass the Bill with two-thirds majority (SC SD No. 7/79, 17.7.79). The PTA was enacted with two-thirds majority, and accordingly, in terms of Article 84, PTA became law despite many inconsistencies with the constitutional provisions.” (at pp.394-395, emphasis added)

The constitutional provisions mentioned by Justice Fernando are some of the most important fundamental rights guaranteed by the Constitution, including the right to equality (Article 12 (1)) and the freedom from arbitrary arrest, detention and punishment (Articles 13 (1) and (2)).

The provisions of the PTA fly in the face of almost every conceivable human rights norm pertaining to the liberty of the person, including most prominently, detention without charge for extended periods of time at irregular places of detention, the broad denial of detainees’ rights, admissibility of confessions in judicial proceedings subject only to the most tenuous of safeguards, the shifting of the evidential burden of proof to the defendant, and disproportionate penalties. The unchecked detention powers, special trial procedures and absence of meaningful judicial review in the PTA facilitate arbitrary and capricious official conduct, including torture. The PTA also makes serious incursions into the freedom of expression and the media by requiring in certain circumstances governmental approval for printing, publishing and distributing publications and newspapers. For these reasons, the PTA represents an aberration of the rule of law upon which the constitutional order of Sri Lanka is ostensibly based, and has been the gateway to systematic abuse of human rights, giving rise especially to gross ethnic discrimination in its implementation.

CPA therefore calls for the repeal of the PTA in its present form, and its replacement if necessary with legislation that is consistent with international anti-terrorism standards reflected in relevant United Nations instruments and comparative constitutional practice. Such legislation must meet the requirements of anti-terrorism powers that are necessary, legitimate and proportionate to the aims of a democratic society and which must be subject to comprehensive judicial review. In this regard, CPA notes the important principle set out in the Global Counter-Terrorism Strategyadopted by the United Nations General Assembly in 2006, that “…the promotion and protection of human rights for all and the rule of law is essential to all components of the Strategy, recognising that effective counter-terrorism measures and the protection of human rights are not conflicting goals, but complementary and mutually reinforcing, and stressing the need to promote and protect the rights of victims of terrorism” (emphasis added). This salutary conceptual presumption must constitute the foundation of any future legislation dealing with the issue of terrorism in Sri Lanka.

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    yes, yes, yes…lets us have a ‘nice’ UN type PTA.

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    The Patriotic act of the US was passed in 2001 after 9/11 attack on the twin towers New York. Its supporters claim that provisions there were to fight a War on Terrorism, while its detractors argue that many of its sections infringe upon individual and civil rights.

    Now, the Associated Press, Knight-Ridder Newspapers lists followings as Some of the fundamental changes to legal rights of the USA after the Patriot Act in a Nutshell:
    FREEDOM OF ASSOCIATION: To assist terror investigation, the government may monitor religious and political institutions without suspecting criminal activity.
    FREEDOM OF INFORMATION: The government has closed once-public immigration hearings, has secretly detained hundreds of people without charges and has encouraged bureaucrats to resist public-records requests. “Sensitive” information has been removed from government Web sites.
    FREEDOM OF SPEECH: The government may prosecute librarians or keepers of any other records if they tell anyone the government subpoenaed information related to a terror investigation.
    RIGHT TO LEGAL REPRESENTATION: The government may monitor conversations between attorneys and clients in federal prisons and deny lawyers to Americans accused of crimes.
    FREEDOM FROM UNREASONABLE SEARCHES: The government may search and seize Americans’ papers and effects without probable cause to assist terror investigation.
    RIGHT TO A SPEEDY AND PUBLIC TRIAL: The government may jail Americans indefinitely without a trial.
    RIGHT TO LIBERTY: Americans may be jailed without being charged or being able to confront witnesses against them. “Enemy combatants” have been held incommunicado and refused attorneys.

    Anyway, most of the provisions of said Patriotic Act supposed to have expired on 31 December 2005. But it was first extended to 3 February 2006 by President Bush, and thereafter it was extended time and again by Presidents Bush and Obama until 2011. Minutes before the midnight deadline, in 2011, President Barack Obama once again signed into law another four-year extension.

    Huffington Post says; “It’s an important tool for us to continue dealing with an ongoing terrorist threat,” as Obama said. Huffington Post also says as Laura W. Murphy, director of the ACLU Washington legislative office said “The Patriot Act has been used improperly again and again by law enforcement to invade Americans’ privacy and violate their constitutional rights,” said.

    Still, coming just a month after intelligence and military forces tracked down and killed Osama bin Laden, there was little appetite for tampering with the terrorism-fighting tools (powers of Patriotic Act). These tools, said Senate Republican leader Mitch McConnell of Kentucky, “have kept us safe for nearly a decade and Americans today should be relieved and reassured to know that these programs will continue.”

    So much for the truth about freedom professing but all powerful USA! But hypocritical US ambassador and NGOs that her government and its allies fund like the CPA ‘Calls For The Repeal Of The PTA In Its Present Form.’ Comparison to ‘Tissainayagams and Salleys’ that Mr. Paikiasothy talks here how many innocent arrests may have been made unjustly in the USA. Within two years of the Patriot Act being imposed after 9/11 bombing, 310 persons were arrested in the USA.How many hay have been in those so-called rendition flights to numerous detention centre throughout the world. It is known ChandrikaK gave a nod for one man to be lifted from Sri Lanka. But dancing mate Mr. Paikiasothy didn’t utter a word.

    Owner of ‘Pufferbelly Toys’ Stephanie Cox of St. Helens, Oregon, USA was arrested by U.S. Department of Homeland Security under the Patriot Act. She claimed she was innocent and there never was a case. CIA had also arrested their very own agent an American named Susan Lindauer who worked for the CIA in Iraq and Libya, Yemen, Egypt and etc, for suspicion of whistle-blowing and kept in custody for over five years. These are only two of hundreds available. But none such arrests have been a problem CPA or its parent/associate Amnesty International. They only wants Sri Lanka PTA be removed. They don’t mind ‘The Patriotic Act’; not that they do not have a point but why selective targeting of a small country that face division by terrorism for over 30 years. They do not know that more the US cronies go against Sri Lanka and Rajapakses, voters tend to glue to him.

    Now, if asked public at large in the US why do they need such a nasty act ( The Patriot Act)that restrict their freedom, the simple answer they give is to secure the greater interest of the US. At least, that’s what the majority representatives who approved to pass the law say. For one thing they all unite to strengthen America and prevent terrorism.

    Now, if Americans use their Patriot Act to thwart instability to their homeland why not Sri Lanka follow suit to secure Sri Lanka interest using our own PTA. We need to keep terrorists and separatists and their backers at bay at all cost.
    Leela

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      I wonder what these proponents have to say, if the current regime changes and all the MR supporters along with the family is locked up under the PTA? To give them a bit of their own medicine.

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      Please enlighten me the act which enables crooks and cheats to put behind bars,so that you who cheated people under the Lee Potter scheme for non existent houses will be put under it and sent to Welikada

      You with such a terrible past has the nerve to talk on these huh!

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        Proper implementation of law = Leela in prison for his role in the Lee Potter scam!

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        bono You not like trueth Sinhala Buddhist man/woman say. Go [Edited out] a duck.

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          ado so called truth seeker ,dont talk like a fool,where on earth did i say anything about sinhalese or Buddhism in this huh,here we are talking about the draconian PTA and you go off track just like your mentor Leela does what a joke is that!

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    This evil statute has been used to harrass and incarcerate so many innocent people. The problem is that there is no judicial intervention at any stage, nor is there accountability for the lives and rights of innocent people who may be caught up by this draconian law. It simply has no place in the legal system of any civilized nation.

    Following are relevant reccomendations of LLRC. Since Govt has undertaken to implement LLRC it is high time these are put into practice.

    8.201 The present law that deals with the office of the Parliamentary Commissioner for Administration is inadequate to effectively deal with the grievances of citizens arising from State action, even though the amendment introduced by Act No 26 of 1994 has sought to improve the public petitions procedure. Therefore, the Commission recommends that the Government should establish an independent institution to address the grievances of all citizens, in particular the minorities, arising from the abuse of power of public officials and other individuals involved in the governance of the country. This mechanism should be invested with a strong investigative arm in order to enable it to effectively discharge its functions.

    8.202 Any citizen of this country who has a grievance arising out of any executive or administrative act, particularly those based on ethnicity or religion, should have the right to seek redress before the independent institution.

    9.56 The Commission also heard allegations that a number of persons have been taken into custody and detained under the Emergency Regulations although the facts of some cases do not disclose any offence related to public security. In this regard, the Commission takes note of the Government’s decision to lift the Emergency Regulations as a significant and a positive step towards reconciliation and restoration of normalcy. Many representations made before the Commission gave a clear impression that with the ending of the LTTE terrorism, the people’s preference was that the governance be
    carried out under the normal laws of the land that will uphold the supremacy of the Rule of Law. The Commission also expresses the hope that the civilian life will receive the fullest benefit of the lifting of the Emergency Regulations and that any further regulations would not impair the full enjoyment of such benefits.

    9.57 The Commission has observed instances of persons being detained in custody for a long period of time under the Prevention of Terrorism Act (PTA). In this regard, the Commission recommends that an Independent Advisory Committee be appointed to monitor and examine detention and arrest of persons taken into custody under any
    regulations made under the Public Security Ordinance or the PTA.

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    Let the PTA be intact as long as the diaspora are engaged in frolics and rhetoric.

    Pakiis planning a devil dance that he wants the PTA repealed in the current form………. Sadly say NO.

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    Can CPA also let us know what it has done with the MILLIONS sent to it by foreign governments… for what has this money being used for…

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      CPA is a NGO funded by foreign organization. It is funder’s responsibility to check money is utilised for said purpose and CPA website clearly say How much they get, where and on what purpose they spent ect.
      Before asking CPA, can u ask ur own government, what, where, when how much they spend ect. BECAUSE IT IS OUR OWN MONEY, TAX PAYERS MONEY….

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      We don’t care about what CPA does with foreign money. We do care about and have a right to know what Rajapaksa and his family and cronies are doing with our hard earned tax money.

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    National security, sovergenity and Terrtorial Intergrity of Sri Lankan are concern PTA is important factor for nation survival.CPA is NGO they are not concern of PTA or national security,they can proposed repeal of PTA;is irresponsiable move by Saravamuttha.(Dr)

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      Siri

      Any country has a right to main a national security. People like Paki alwasy dances to the tune of western world so that they get their copper for survivial.

      What Paki is suggested in the heart beat of majority Sri Lankan, it can be implemented. Otherwise this is as another lip service from this chap.

      By the way if this Salley is a loose cannon, he has to pay the right price.

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    Sri Lanka should enact a Patriot Act through Parliament, similar to the one in the US. The US faced a minor threat before the act, whereas Sri Lanka still faces a concerted global threat conducted by the LTTE rump in the West.

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    Prevention of Terrorism acts are now used in many countries. Even Canada is moving in this direction.

    With the Tamil extremists in Tamil Nadu and the Tamil Diaspora waiting to destabilize Sri Lanka, it is a waste of time writing about repeal of the PTA. However, it should not be abused. Azath Sallie issue is a borderline case.

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    Nandana W
    CPA is a NGO funded by foreign organization. It is funder’s responsibility to check money is utilised for said purpose and CPA website clearly say How much they get, where and on what purpose they spent ect.
    Before asking CPA, can u ask ur own government, what, where, when how much they spend ect. BECAUSE IT IS OUR OWN MONEY, TAX PAYERS MONEY….

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    can we also call for an inquiry to see how funds come to the CPA and on what it is spent

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