20 May, 2022

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PTA – Preserving It For A Potential Presidential Dictatorial Rule

By Thambu Kanagasabai

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.

[1] PTA allows authorities to make warrantless arrests without trial and searches of a person if suspected of involvement in a terrorist activity.

[2] PTA allows prolonged arbitrary detentions up to 18 months.

[3] PTA enables extracting false unsubstantiated confessions through torture as the suspects are in the hands and at the mercy of security officials.

[4] PTA particularly targets the minority communities and civil groups under Section 6 [1]. 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.

[5] 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.

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Latest comments

  • 2
    0

    Refusal to repeal the Prevention of Terrorism Act amounts to simply braggadocio on the part of the president and his yes-men, who believe they can continue to deceive the UNHRC, EU, and the International Community indefinitely. Even if international trade sanctions are imposed on the country, those in power know that only the poor citizens will suffer hardships, while they and their hangers-on will not be subjected to any privations. So there is no sense of urgency on the part of the government to address this problem or the other pressing problems of the country.

  • 4
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    The tragedy is Sri Lanka has produced many scheming politicians, but not a single statesman like Lee Kuan Yew) prime minister (1959 – 1920) of Singapore.

    Despite the fact, the Chinese formed 75.9% dominant group, followed by ethnic Malays (15.0%) and ethnic Indians (7.5%) a total of 4 languages – Mandarin Chinese, Malay, Tamil (3%) and English have been declared official languages.

    English is the most widely spoken language (primarily by the population below the age of 50) and the medium of instruction in school. English is also the language of business and government in Singapore.

    Once a fishing village, thrown out of Malaysian Federation on 9 August 1965 to become a sovereign and independent state, today Singapore is a mini-super power. Singapore is the 8th most powerful country in Asia-Pacific; China closes in on US for top spot: think-tank. … The other nations in the top 10 for overall power in 2019 are: the US, China, Japan, India, Russia, South Korea, Australia and Thailand,

  • 4
    0

    PTA today is only applied against non-majority communities. A poet who wrote a poem and a person who wrote a story in the FB were arrested under PTA. But at the same time Sarath Weerasekera’s son who is an ASP in the police writing a nasty comment, almost making most Sri Lankans to believe he is the Mahamolakaru who orchestrated the attack on Chamuditha was not arrested under PTA or even called to the CID. One country one law and biyen thora ratak – my foot!

  • 3
    0

    Singapore ranks the best country in the world in human capital development. Its economy in 2021 expanded by 6.7 % on a year-on-year basis. Singapore’s GDP in 2020 was US $ 390 bn and per capita income USD 59,797.75. In comparison, Sri Lanka’s GDP in 2020 was USD 850.7 bn and USD$ 10,918.72 per capita income.

    The World Bank estimates 500,000 people living in Sri Lanka have fallen below the poverty line since the beginning of the pandemic, the equivalent of five years’ progress in fighting poverty.
    The success of Singapore is its Civil Service, one of the most efficient and uncorrupt bureaucracies in the world, with a high standard of discipline and accountability. The government is efficient and honest. It embarked on a massive accumulation first of capital and then of labour.

    Singapore Prime Minister Lee Hsien Loong (son of Lee Kuan Yew Lee has a first-class degree from the University of Cambridge in Mathematics (1974) had a master’s degree (1980) in public administration from Harvard University’s Kennedy School of Government. His father Lee Kuan Yew enrolled at the London School of Economics and Political before earning a law degree (1949) at Fitzwilliam House, Cambridge.

    In contrast, none of the members of the ruling Rajapaksa dynasty has entered a university. Basil Rajapaksa, the finance minister is a school dropout! Other prime ministers/ presidents did not fare anything better, barring a few.

  • 1
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    Most citizens of Sri Lanka do not seem to believe that justice prevails. They feel that powerful and well-connected people can commit criminal offences and remain free of punishment. An independent external body should have the power to pick up alleged criminals and produce them in an international court and imprison them in other countries if found guilty. It does not matter then, if they were from a ruling party or opposition party or separatist party or have no party. International laws must be changed to make this possible. It would be a great relief to ordinary suffering people of especially third world countries.

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