By Thambu Kanagasabai –
The much widely criticized Prevention Of Terrorism Act (PTA) of 1979 described as draconian is doomed to live as long as Rajapaksas hold the reins of power in Sri Lanka. The demise of it by repealing will certainly ring the death knell of any designs of dictatorship in Sri Lanka and their hold on power.
PTA – 1979 was legislated as a result and consequence and aftermath of Janatha Vimukthi Peramuna [JVP] insurgency in 1971 to contain the rise and dominance of the Liberation Tigers of Tamil Eelam [LTTE] which embarked on armed resistance to stop the state sponsored violence and pogroms after the peaceful agitations and campaigns were ruthlessly crushed by the Sri Lankan Governments employing the full force of the armed forces.
PTA – 1979 was enacted to remain in force for three years to deal with the then situation. The continuing application of PTA meant to prevent terrorism is by all means and reasons is questionable and does not hold any compelling reasons under the current circumstances when no reports of terrorism threatening the security of Sri Lanka have been reported or detected except for the few acts of violence unleashed by some misled Muslim extremists who launched attacks on Christian worshippers and selected Churches in Colombo on 21st April 2019.
Security Forces succeeded in arresting some of those involved under the provisions of PTA though criminal laws of Sri Lanka and criminal procedure code could have been resorted to.
The wide powers granted to the Minister, Defense Secretary and Security Forces under the PTA which are dictatorial and the 20th Amendment of January 2021 have further clothed the President with impunity for any act or commission or neglect of duty while exercised by him during his term in Office.
Section 6 of PTA grants the security officials extensive powers to search and seize any property including arbitrary arrests and detention while Section 15 A allows the Defense Secretary to decide the place of detention even after the conviction of an accused and also when the subject person is in remand.
According to the Amendment, during the detention period of 12 months the Defense Secretary is vested with full discretion to choose the place of detention as he wishes without proper notification providing openings for torture without judicial supervision during the 12 months period.
The new Amendment states that “If a magistrate thinks if a person might have been to subject to torture he may refer the person to the JMO for further examination.”
It is to be noted that this Provision is not a mandatory one for the Magistrate to strictly comply with but only a discretionary and regulatory one which which he can choose to execute or ignore it when he does not think to execute it. As such this provision of judicial supervision is farcical and an eyewash to shield but only to license the practice of torture which is a common and entrenched practice in Sri Lanka.
The following powers granted to the Defense Secretary and security officials under the: PTA – 1979 and under the recent Amendments are absolute and exercisable at the sole discretion of the Security Officials without supervision and reviews by the courts for any abuses.
 PTA allows authorities to make warrantless arrests without trial and searches of a person if suspected of involvement in a terrorist activity.
 PTA allows prolonged arbitrary detentions up to 18 months.
 PTA enables extracting false unsubstantiated confessions through torture as the suspects are in the hands and at the mercy of security officials.
 PTA particularly targets the minority communities and civil groups under Section 6 . Under this section. a person can be arrested for nothing and for anything like printing pamphlets or posting pictures in the media while indefinite detention is bring permitted.
 There is no definition of terrorism in the Act and this enables security officials to make their own definition and decision with opportunities for killings and unenforced disappearances to happen due to their prolonged period of detention as happened to several detainees. It is learnt that more than 200 persons are under detention for several years like the several Tamil political prisoners.
As expected, the International Commission of Jurists [ICJ], Human Rights Watch and Amnesty International [AI] have voiced their concerns. Human Rights Watch has particularly called for sanctions against Sri Lanka when 7th February 2022 it “It requested Sri Lanka’s trading partners to consider imposing sanctions on officials accused of human rights violations and to leverage trading schemes in order to pressure Colombo to comply with human rights objectives.
About the proposed Amendments, Human Rights Watch stated that “They leave the most often abused provisions of law intact and if enacted will do little to bring the PTA into compliance with Sri Lankas’ international human rights obligations”.
The Minister’s powers are founded on his “Reasonable belief” which is purely a subjective matter and would be difficult to ascertain objectively for any challenge in the courts on the grounds of unreasonableness. The power to arrest any person notwithstanding anything in any other law to the contrary” clearly nullifies the provisions of Criminal Procedure Courts including Articles N0. 11, 12 &13 of the Constitution which enshrines the fundamental rights of freedom of thoughts, equality and prohibition of arbitrary arrests, detention and punishment.
The prolonged detention of a suspect without trial results in serious consequences including physical and mental health, suicidal tendencies and uncertain future for him/her and his/her family, besides ample opportunities for abuses like torture, degrading punishment and treatment including forced confession by prison and or security officials.
The possibility of being in detention and/or remand beyond 12 months does exist depending on the discretion of the Minister who is allowed to obtain extension. The Minister is also free from any liability even if he abused his discretion.
To sum up, the top machinery of the Government, the President, Defense Secretary and Defense Minister enjoying untrammeled powers and discretion to resort to the PTA provisions to carry out arbitrary arrests, prolonged detention, seizure of properties or anything including the powers to silence the media and channels of communication would enable creating the pathway to envelope Sri Lanka under an entrenched dictatorial rule on the guise and pretext of national security which is also emboldened by the entrenched culture of impunity statutorily granted under the PTA 1979 and 20th Amendment and Presidential Impunity Act.
*Thambu Kanagasabai, LLM London, Former Lecturer in Law, University of Colombo, Sri Lanka.