Foreign Affairs Minister Prof. G.L. Peiris recently ordered the Prevention of Terrorism (Temporary Provisions) (Amendment) Bill which seeks to amend the Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979 (PTA) to be gazetted (Part II of the Gazette on 21 January 2022 with the Supplement issued on 21 January 2022).
A comparative analysis of its content, reveals strides towards addressing that which is baleful, draconian, pernicious and repressive in the provisions of the PTA but major structural shortcomings concerning embedded and entrenched atrocities that have been left unaddressed, by the very silence in the proposed Bill, have the capacity to overhaul any good that can come out of the proposed amendments and additions and omissions of text.
This article seeks to compare the provisions of the existing PTA with the provisions of the PTA (Amendment) Bill and make recommendations in terms of amendments in the form of additions and omissions of text to the PTA (Amendment) Bill to be considered by the legislature/the Parliament, including the Government and the Opposition, and other relevant stakeholders. An overall recommendation is also made for a special determination to be sought from the Supreme Court concerning the Bill by interested parties.
1) The existing PTA has the propensity for abuse in terms of unreasonable search and seizure. The PTA (Amendment) Bill contains no changes in terms of introducing any substantive and procedural safeguards in this regard. Therefore, it is hereby recommended that this aspect be looked into.
2) The existing PTA has the capacity for inordinately lengthy detention, bypassing judicial discretion and scrutiny at the outset of proceedings under this Law, through the empowerment of the Minister in charge of the subject of Defence to detain suspects under detention orders for a number of stretches of three months each, per their discretion, thus subject to abuse per personal whims and fancies, with a proviso only stating that the aggregate period of such detention not exceed 18 months.
The PTA (Amendment) Bill seeks amend this clause so as to reduce the aggregate period of detention of a person under a detention order from 18 months to 12 months. Furthermore, with regard to such detention orders, which per Section 10 of the existing PTA are final and cannot be called into question in any court or tribunal by way of writ or otherwise, the PTA (Amendment) Bill seeks to enable a detainee to apply for a remedy guaranteed under Articles 126 (file a Fundamental Rights petition in the Supreme Court) or 140 (seek the grant and issue of an order in the nature of a writ by the Court of Appeal) of the Constitution.
While the reduction of six months is welcome, it is hereby recommended that even the 12 months be subjected to judicial scrutiny with regard to its practical necessity in terms of the criminal investigative process and the legal justification for the same, specifically the period of detention of 12 months, and that explicit and express provisions be made for such in terms of an addition of text to the PTA (Amendment) Bill. The permit of the judicial scrutiny of detention orders in the above context is also welcome.
3) The existing PTA provides for the censorship of reportage of offences and investigations under the Act by subjecting such publication to prior vetting by a ‘competent authority’.
However, in a welcome move, the PTA (Amendment) Bill has sought to repeal the prohibition on publications, with additionally, the definitions of ‘newspaper’ and ‘printing press’ being deleted from the interpretations under the PTA.
4) The existing PTA allows for the admissibility in courts of law, of confessions given to or obtained by Police officers (some of whom use such as a carte blanche license for torture), the latter according to victim and witness testimony, extracted through the infliction of torture or under duress through coercion, and contrary to the guiding principles contained in the Evidence Ordinance as amended which are not binding only in the context of the PTA. This is also against the right against non-voluntary self incrimination and self incrimination without full possession of the legal facts. And further, the existing PTA allows for the admissibility of a confession made by a suspect not just of their own culpability or the lack of it but of the same regarding other persons where the suspect or the accused party’s confession implicating another or others where they are jointly charged in an offence would be considered as applicable to those others thus named and implicated when supplemented with material proof other than the statements given and made in such connection.
The PTA (Amendment) Bill contains no changes in this regard. Therefore, it is hereby recommended that this aspect be looked into and that the relevant Section/s be repealed in the PTA and the Law be brought in line with the Evidence Ordinance.
5) Under the existing PTA, regardless of the suspect’s or the accused party’s or the convict’s status of appeal during the legal proceedings, bail is only being granted by the Court of Appeal under “exceptional circumstances” even though jurisprudence holds that bail is the rule and jail is the exception.
The PTA (Amendment) Bill has proposed an additional and new provision for the grant of bail by the Court of Appeal to persons remanded or detained, upon application by the suspect or an attorney on the latter’s behalf, if the trial against the person in question has not commenced after 12 months from the date of arrest. This is a most welcome change but should be brought forward before 12 months if required by the law per the recommendations made in point 2).
6) Conditional release is not permitted under the existing PTA. The PTA (Amendment) Bill contains no changes in this regard. Therefore, it is hereby recommended that this aspect be looked into and that explicit and express provisions be made for such in terms of an addition of text to the PTA (Amendment) Bill.
7) Even though Section 21 of the existing PTA stipulates the prioritization of the trials of suspects or accused parties or the hearing of the appeals of suspects, the reality is that of prolonged detention, in some cases for up to two decades, only to be released or acquitted thereafter or to die of ill health whilst in detention, which is tantamount to punishment, not to mention the impact on and the struggles of families of such prisoners.
The PTA (Amendment) Bill has sought to provide for trials to be held on a daily basis in order to ensure the expeditious disposal of cases, unless in the opinion of the court, exceptional circumstances warrant the postponement of the commencement or the continuation of the trial, for reasons which shall be recorded by the court. This is most welcome as it will address the ill effects of laws delays.
8) The existing PTA grants immunity from legal proceedings being instituted against officers or persons acting in “good faith” in connection with an order or directive under the Act.
The PTA (Amendment) Bill has sought to make a provision to question under Articles 126 and 140 of the Constitution, an order made or direction given despite the protection afforded to officers for any act or thing done or purported to be done in good faith. This too is a welcome move, but it still does not address the need for or ambiguity of affording immunity to acting in ‘good faith’.
9) Per the existing PTA, Ministerial regulations gazetted under the Act such as the Prevention of Terrorism (De-radicalization from holding violent extremist religious ideology) Regulations, Number 01 of 2021, which must be submitted for Parliamentary approval, are only being so placed before the Parliament “as soon as” it is “convenient” after its publication.
The PTA (Amendment) Bill contains no changes in this regard. Therefore, it is hereby recommended that this aspect be looked into and explicit and express provisions be made to submit the same for Parliamentary approval within a period deemed reasonable in law instead of a nebulous period of hasty convenience.
10) The PTA (Amendment) Bill has proposed additional and new provisions to both enable the relevant Magistrate (in terms of the jurisdiction of the judicial division where the place of detention is situated) to receive a certified copy of the detention order within a reasonable period and to visit the place of detention, once a month, in order to ensure that the suspect is protected to the extent provided for in the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Act, No. 22 of 1994, and for the Human Rights Commission of Sri Lanka (HRCSL) to be informed of such detention so that persons authorized by the HRCSL can visit the place of detention. Furthermore, per the PTA (Amendment) Bill, the Magistrate has to personally see the suspect in question and look into his/her well being, welfare and the conditions under which the suspect is kept, and record his/her observations along with any complaint that the suspect may make. Also, per the PTA (Amendment) Bill, if in the Magistrate’s opinion, the suspect may have been subjected to torture, the Magistrate may direct the suspect to be produced before a judicial medical officer (JMO) for a medical examination and a report from the latter must be in turn submitted to the Magistrate. Moreover, per the PTA (Amendment) Bill, if the JMO’s report reveals subjection to torture, the Magistrate must make an appropriate order to provide the necessary medical treatment to the suspect, and may direct the Inspector General of Police (IGP) to commence an investigation into the alleged torture in order to enable the Attorney General to institute criminal proceedings against the person/s who are alleged to have committed the torture.
The PTA (Amendment) Bill has proposed additional and new provisions to both enable an attorney-at-law to have access to a person in remand or in detention in order to make representations on their behalf, and also for the person in remand or detention to communicate with his/her relatives.
With regard to the restriction orders, the PTA (Amendment) Bill seeks to enable the suspect to be produced before a JMO in order to ensure that such person has not been subjected to torture before the serving of such an order on such a person. Per the PTA (Amendment) Bill, the JMO must submit a report in respect of such a person. Also per the PTA (Amendment) Bill, it is the Magistrate who should serve the said order, while the said JMO report should be produced before the Magistrate, again to ensure that the said person has not been subjected to torture before the serving of the said order. If the JMO’s report reveals subjection to torture, then the procedure is the same as above.
Moreover, the PTA (Amendment) Bill has sought to include a new definition of ‘torture’ under interpretations contained in the PTA by replacing the current definition for the same contained in the PTA with that mentioned in the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Act, No. 22 of 1994.
These are all most welcome moves that should be made mandatory in terms of the Magistrate directing the IGP to probe an allegation of torture. In particular, access to legal counsel is a fair trial related due process right which should be available from the time of arrest with no regulation stipulating otherwise being permitted to be made under the PTA.
In conclusion, in addition to the above recommendations, it is also proposed that the Counter Terrorism Bill gazetted in September 2018 and the Supreme Court’s jurisprudence concerning the subject matter and international norms and best practices concerning the same including an expansive if not exhaustive and all encompassing definition of terrorism and related offences under the Law, the process of investigation and the powers of the investigating officers, and sentencing guidelines, among other aspects, be also considered in order to appropriately expand and/or limit the scope and ambit, and pith and substance of the PTA (Amendment) Bill, so as to address modern day concerns of simultaneously protecting individual civil and political liberties and rights whilst safeguarding national security.