By Ruwan Laknath Jayakody –

Ruwan Jayakody

With every passing day, a malignancy spreads its legislative and judicial rot within the annals of our statutory framework and jurisprudence emanating from the courts, in the form of the anti or counter terror law – the Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979 as amended (PTA).

The said piece of legislation which some felt had overstayed its welcome well beyond the post-war years after 19 May 2009, however, has since come to be seen by others as a totem of national security in the reality of the post-Easter Sunday Sri Lanka after 21 April 2019.

Much ink has been spilt and more vocal chords have been shredded raw in explaining the baleful and pernicious impact of the provisions of the PTA which range from – i) the propensity for abuse in terms of unreasonable search and seizure; ii) 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 any number of stretches of three months each, per their discretion, thus subject to abuse per personal whims and fancies; iii) the censorship of reportage of offences and investigations under the Act by subjecting such publication to prior vetting by a ‘competent authority’; iv) 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, and further, 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 statements given and made in such connection; v) regardless of the suspect’s or the accused party’s or the convict’s status of appeal during the legal proceedings, bail 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; vi) conditional release not being permitted; vii) even though Section 21 of the PTA stipulates the prioritization of the trials of suspects or accused parties or the hearing of the appeals of suspects, the reality being the 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; viii) immunity from legal proceedings being instituted against officers or persons acting in “good faith” in connection with an order or directive under the Act; and ix) 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, only being so placed before Parliament “as soon as” it is “convenient” after its publication.

In short, that the PTA is both draconian and repressive and that it needs something more than a mere facelift or nip and tuck, and instead a surgical intervention of the slash and burn type, to use an agricultural metaphor to mean a drastic overhaul or amendment of or the repeal of, is a reality that is slowly dawning, if not impressing upon, members of this pro security State Government led by a Bonapartist strongman. It also goes without a saying that if any repeal of the PTA is to take place, such should follow with the simultaneous replacement of the same with a counter terror law that is in keeping with international norms pertaining to such.

The matter has becoming more pressing for the beleaguered (by the Covid-19 pandemic and dire economic circumstances) Government with pressure from the European Union (EU), following the European Parliament adopting a resolution on Sri Lanka mid this year, calling for the Government of Sri Lanka to repeal the PTA and for the European Commission (EC) to consider the temporary withdrawal of access to the Generalised Scheme of Preferences Plus (GSP+) trade concessions, if the PTA is not abolished. The GSP+ trade concessions Monitoring Mission concluded its visit to the country on 05 October, and the said Mission, which is part of the Third Cycle of Review of Sri Lanka in the GSP+ Monitoring Process for 2020-2021 is to submit its observations on the matter to the EC, to then be reported to the European Parliament and European Council early next year, ahead of the review of all aspects of bilateral cooperation at the 24th Session of the EU – Sri Lanka Joint Commission during the same period where a decision is to be taken on whether or not these concessions which grant preferential access for local industries such as fisheries and apparel to EU markets, are to be extended.

Yet, adversity, domestic or foreign, also comes with opportunity. The opportunity that the PTA provides is for reconciliation.

It is true that the term reconciliation and its connotations have become sullied to the point of almost being an obscenity, spoken of only in irreverence. However, it is entirely up to the leaders of the country, especially President Gotabaya Rajapaksa, to decide which path to take.

No post-war leader has had a more maligned track record on human rights than Rajapaksa, whose cult of personality is tarred by an actual and perceived history of egregious violence including allegedly having a role in massacres.

With the exceptions of the process of resettlement and the release of lands to original owners, the establishment of the Northern Provincial Council during the tenure of former President Mahinda Rajapaksa, which sought to, albeit in part, address the issue of the Tamil people’s political autonomy, former President Maithripala Sirisena’s appointment of K. Sripavan as the Chief Justice, which addressed, again in part, the lament that Tamils were not afforded top opportunities, and the former Premier Ranil Wickremesinghe and late Foreign Minister Mangala Samaraweera’s controversial United Nations Human Rights Council Resolution 30/1, which sought to yet again, in part, address the gorenographic legacy of the war, and a few less significant other measures, no major decisive steps towards achieving meaningful and lasting reconciliation have been taken by post-war Governments.

With regard to the PTA, changes to which have been requested from across the political divide, internal and external, are not as difficult to introduce as the proposed new Constitutional reform project, that is sure to be contentious, bound as it is up with the thorny national ethnic question, the nature of the State and issues of governance in terms of the degree, scope and ambit of federalism to be permitted. Therefore, what should be done apart from hammering out the legal minutiae of the PTA so as to protect and safeguard national safety and security including by addressing terrorism financing and related money laundering whilst ensuring that human rights including prisoners rights, in keeping with the United Nations Standard Minimum Rules for the Treatment of Prisoners or Nelson Mandela Rules, are also protected and safeguarded, is to release and free all PTA detainees after taking into consideration the recommendations to be made by the PTA Advisory Board and under the incumbent Justice Minister, President’s Counsel M.U.M. Ali Sabry’s proposed good behaviour based home leave entitlement framework. This should be done as no Liberation Tigers of Tamil Eelam (LTTE) resurrection can take place despite the media and social media keyboard warriors best efforts to paint every occasional arms cache found in the North and East to the LTTE resurrection cause and also because the majority of the current PTA detainees pose no real threat when one considers the charges against them, and also because their time already spent in detention, constitutes a form of punishment and the serving of a sentence of sorts, owing to systemic delays for which such detainees should not have to pay a price higher than what they have already paid. It is also high time that we as nation shed are white skin (a reference to the colonial burden of Macaulayian divide and rule) and don our black masks (embrace our otherness in humanity).

In November 1949, in his final speech to the Constituent Assembly, social reformer and the principal architect of the Indian Constitution, Babsaheb B.R. Ambedkar, quoted English philosopher John Stuart Mill’s caution to all persons interested in the maintenance of democracy, to not “lay their liberties at the feet of even a great man, or to trust him with power which enable him to subvert their institutions”. While such sage advice holds forever true, we are also reminded of, as the proverb would have it, cometh the hour, opportunity maketh the man. Sri Lanka awaits its man. Over to you, Mr. President.