16 May, 2022

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PTA – The Headache!

By Austin Fernando

Austin Fernando

The former Secretary-General of the UN Kofi Annan emphasized that terrorism strikes at the very heart of everything the UN stood for, and it was a global threat to democracy, the rule of law, human rights, and stability, and therefore required a global response. From a global perspective, it can be narrowed down to country-specific situations.

His concerns are ours too, and thus we need to legally manage counterterrorism domestically. However, such laws should not annihilate the core values in Kofi Annan’s statement, i.e., threatening democracy, rule of law, human rights, and stability. We have the Prevention of Terrorism Act (PTA) which is criticized as draconian, violating human rights, anti-rule of law, and undemocratic.

Solution?

The best solution for the criticism was considered repealing the PTA. Successive governments thought it should be amended, and not repealed. Among other reasons for repeal was because the PTA was used to harass political opponents. It was true too. The demand for repeal is mostly from human rights activists, media, foreign bilateral and multilateral organizations. The minority community groups were at the forefront demanding repeal. This highlighted it as a minority requirement. Therefore, creating a majority view against it was easy. Since the law was anti-terrorist, anyone demanding repeal was tagged pro-terrorist.

I observe this issue cautiously since the economic fallout of repealing or not repealing would affect economic performances, as the GSP+ is tagged to the PTA. We have experienced the negative economic effects of GSP+ during Mahinda Rajapaksa’s presidency, later cleared during the Yahapalana regime. Now, we are in the throes of crisis again.

Constitutional obligations

Violation of fundamental rights was complained of on operationalizing PTA. However, even ignoring international pressures, we should respect our citizens’ fundamental rights. Our Constitution has enshrined protection of rights by Article 10- the freedom of thought; Article 11- freedom from torture. Article 12- equality; Article 13- arbitrary arrest, detention, and punishment. These were the very violations pinpointed about by PTA.

Mixed political responses

As usual, we hear mixed responses from government authorities on the issue. Prof. GL Peiris said that the PTA would not be repealed, due to the continuing security needs. (Island- 1-12-2021). True, security is important. When the amendments were presented, Parliamentarian MA Sumanthiran questioned him why amendments are made when the Justice Minister has announced the PTA would be repealed totally, and a Counter-Terrorism Act would be introduced. Minister Peiris responded that the Amendment Bill is presented based on Standing Orders, and anyone opposing could move the Supreme Court. Very slippery!

Ray of hope!

While repealing is rejected by Minister Peiris, a ray of hope shone when the HRCSL stated that notwithstanding the proposed amendments, it advocates the abolition of the PTA. Since the President has spoken supportive of human rights, HRCSL’s response could be reinforcement of such attractive political rhetoric. I pray it is genuine.

The HRCSL supports investigating terrorism under the general laws with necessary amendments and redefining terrorism. HRCSL states that it is not required to exclude the application of the Evidence Ordinance for terrorist offenses. It proposes modifying the Penal Code, the Code of Criminal Procedure Code, the Judicature Act, and the Bail Act.

If the HRCSL genuinely and independently deviated from Mnister Peiris’s standpoint, it ought to create trepidation. I remember previous HRCSL Chairperson Dr. Deepika Udagama reporting to the UN Committee Against Torture, which created consternation and criticisms at the Presidential Secretariat. As an Advisor to the President, I intervened for ‘pacification’. I pray Justice Marasinghe’s positive stance will not result in similar trepidation and push pacifiers to indulge in ‘pacification!’

Another HRCSL document from Dr. Udagama was the proposal submitted to the Committee on Constitutional Reform, wherein a Draft Charter of Rights was incorporated. It carried constitutional obligations. Knowingly or not, the incumbent HRCSL also has endorsed these contents. Minister Peiris’s hard-nosed approach shows that the required prior consultations with the HRCSL have not been tapped, thus forcing him to submit controversial solutions to a grave problem.

UNHRC – the pathfinder?

The PTA issues were addressed by the UNHRC Resolutions from Yahapalanaya days; and, latest in Resolution 46/1. Criticisms are regarding arrest, torture, custody, movement from locations for interrogation, indicting, etc., These have been studied also by others. To wit, I quote the HRCSL Study on Prisons.

“Despite the directives and safeguards in law, without an oversight or accountability mechanism in place for arresting authorities, or effective judicial oversight, protecting the wellbeing of detainees arrested under PTA will not be possible.”

Sad admittance, endorsing the critics of PTA. One may question why to bother about the well-being of the ‘anti-state terrorists’ arrested under PTA. It is because a person is presumed innocent until proven guilty. [Constitution Article 13(5)].

Again, the study quotes:

“As this chapter will illustrate, violence is used in prisons as a ritual of humiliation and degradation, to subjugate and control the person, i.e., it is used to construct ‘regimes of power and domination’ in which the state officials have the upper hand, and the individual is most often rendered powerless. … Violence, when used in this manner, becomes ‘casual yet endemic’, i.e., it becomes so normalized that it becomes entrenched and its use will not be questioned nor even elicit surprise either from within the system, the state, or sometimes even the public.

(Chapter 29 ‘Prisons Study by the HRCSL’)

The report goes into detail about violence and torture with witnesses’ statements. If it is the way for ordinary prisoners, one could imagine the manner how the anti-state terror suspects are treated.

I quote from the Executive Summary (page xxii to xxiii) where the specific focus is on PTA prisoners.

  • PTA curtails certain rights and freedoms guaranteed by the Constitution and by international human rights norms.
  • PTA prisoners are at risk of suffering violations of rights to enjoy due process safeguards, impacted by a prolonged period in remand.
  • In many ways, the detention of PTA prisoners causes adverse impacts.
  • Suffering discrimination caused by being minorities, language barriers, anti-state consideration.
  • Continued risk of harassment or abuse by fellow prisoners and even Prison officers.
  • Consequentially all PTA prisoners prefer to be housed with other PTA prisoners.
  • Restrictions for access to some entitlements due to special security requirements, (e.g., medical care, clinics), and sometimes due to staff shortage, limitations of language options.
  • PTA prisoners’ conditions become difficult since most originate from the North and East and are held in southern prisons.
  • Financial difficulties for many PTA prisoners to retain legal counsel, due to stigma attached to representing them, as well delays filing indictments and the commencement of the trial.
  • Qualitative and quantitative data highlight the negative effects of long-term incarceration (15-20 years) of PTA inmates.
  • The prisoner narratives illustrate that PTA Section 7 (3) allows change of location for interrogation creating space for the continued violation of their rights, (e.g., torture, undermining protections in judicial custody, and the purpose of judicial oversight of detention.)
  • The role of the Judicial Medical Officer (JMO) is critical for PTA detainees, to prove that forced signed confessions under physical duress had happened. (However, the Commission claimed to have received numerous allegations of alleged collusions between Police officers and JMOs, or JMOs failing to communicate with PTA prisoners due to language barriers.)
  • Thus, PTA prisoners would not enjoy the right to a fair trial due to the ineffective safeguards during periods of administrative detention, which would enable forced confessions under torture to be admissible in court.
  • During the trial process too, PTA prisoners reported facing numerous challenges to the full enjoyment of their right to a fair trial, including long delays and the inability to understand the language of the court proceeding.

These issues are not raised by ‘NGO Dollar earners’ (‘dollar kaakkaas’), terrorist supporters, or Tamil politicians. It is a study by a government institution. Even if these are exaggerated, the gist should have been focused on by lawmaking legal luminaries in the Cabinet (Ministers Peiris/ Sabry), before the Bill was tabled in the Parliament, especially because UN institutions and EU have funded this study, and they would have already studied this 2020 report.

When events such as a State Minister wielding a firearm and threatening PTA prisoners pass by default, criticisms, and demands for safeguards increase. When a DIG was in custody related to murder, asking a terror suspect to confess with a lesser-designated policeman becomes a roaring joke.

Judicial oversight becomes a serious issue then. The demand for liberty from arrest or detention with judicial intervention on reasonable grounds must be an entitlement. When all politicians from the Government and Opposition try to skip custody, remand, and prison through various legal means, to serve others inhumanly is discriminatory.

Special UN interventions

We are aware that in December 2021, the U.N. Special Rapporteurs and the Working Group on Enforced or Involuntary Disappearances listed prerequisites for the government to make the PTA comply with international legal standards. The advice received listed was to narrowly define terrorism to safeguard freedoms of expression, association, opinion, religion, or belief. They recommended protections to prevent arbitrary deprivation of liberty, torture, and enforced disappearance, and suggested due process and fair trial guarantees through improved judicial oversight and access to counsel. The UN’s Four Ps of Counterterrorism speak of Prevent, Pursue, Protect and Prepare. It is noted such approaches are scant in the draft law.

Critics show loopholes in operations (e.g., Section 9). Secondly, anti-judicial approaches are not changed [e.g., confessions (Sections 16 and 17) provoking to study Mariadas Vs. The State case record, location movement, nonacceptance of Evidence Ordinance provisions. Thirdly, the definition of terrorism remains unchanged. Fourthly Section 2(h) of the PTA permits the arrest of any person whose speech, writings, signs, or visible representations. “causes or intends to cause the commission of acts of violence or religious, racial or communal disharmony or feelings of ill-will or hostility between different communities or racial or religious groups.” The criticism extends to some hate-mongering clergy who are not pursued, tracked by authorities, while some suffer PTA stipulations discriminatorily. The recent case against Ahnaz Jazeer is an interesting case to show current trends.

General criticisms

An important change in the Bill is the reduction of the maximum period of detention without trial from 18 months to 12, and permitting access to judicial review, though expensive.

If a person is unjustly detained, it will cause a severe drain on his family. Moreover, neither the PTA nor the Bill offers any compensation for those wrongfully arrested or detained, as required by ICCPR article 9.5, which could be a deterrent on revenging, unaccountable, investigators/ officials.

Instead, the Bill gives blanket immunity under Section 26 of the PTA for claims against any officer or person for any act or thing done in good faith or purported to be done in pursuance or supposed pursuance of an Order given under this Act.” Unfortunately, the criticism is that this ‘good faith’ is driven by political maliciousness.

The proposal to involve Magistrates is positive but cannot be considered effective when one considers the workload of Magistrates. The whole operation is connected to time management. Further, this power is freely available even now on representations. A question in the Parliament regarding the number of Magistrates’ visits to police cells in a month will prove the ineffectiveness of this provision.

The PTA (Amendment) Bill repeals the prohibition on publications, and the definitions of ‘newspaper’ and ‘printing press’ are deleted, a welcome move.

Is prevention of terrorism addressed fully?

Another aspect that has not been probably considered by draftsmen and critics is how terrorism operates. The PTA and the proposed Bill both focus on a suspected terrorist in custody, and how to handle him until judicial review. That is why arrests without warrants, long-term detention, confessions, etc. become so crucial. But does the law or the Bill seriously consider terrorist operational angles that should be countered for prevention? Similarly, critics must consider the need for laws to handle terrorists.

For example, terrorism has international ramifications. It could be ISIS (e.g., Mozambique, allegedly Easter bomb attack here) or CIA (e.g. Nicaragua), RAW (e.g. Mukthibahini in East Pakistan, supporting Sri Lankan Tamil terrorists), Pakistani SIS (e.g. Mumbai Taj Hotel attack, Pulwama attack and supporting Kashmiri militants as Indians allege), Russians in Syria. Going by the UN’s Counter-Terrorism ingredients prevention from such possibilities should have been considered by the government when amending the PTA.

Having fought the LTTE who used its naval power to procure, kill with its capacity to perform at sea, the lessons learned should have been incorporated into PTA Section 24, which speaks of naval and aerial interventions in three lines.

For example, it limits an offense committed to an act “in relation to any vessel or aircraft registered in Sri Lanka.” My experience with the LTTE was their vessels transferred arms, ammunition, etc. either sailing under other flags or sometimes without any flag. Therefore, they become non-offensive sailors, not covered under the PTA!

In addition, presently cyber security has become extremely important and, therefore, non-inclusion can be considered a bad miss. The draftsmen need to study the counter-terrorism law proposed by Yahapalanaya for wider enlightenment. I would have expected the transfer of innovative thinking, especially from the Ministers and Secretaries of Defense and Public Security, who possess vast military experience.

Another example. Though everyone criticized LTTE’s Kumaran Pathmanathan (a distinguished citizen now!) for investing laundered money in the LTTE armory and Sea Tigers, the PTA Act or the amendments do not touch upon money laundering connected to terrorism. Connecting money laundering laws to prevent terrorism needs endorsement in anti-terror laws. Doing such will support the UN’s counter-terrorism pillars by pursuing, protecting, and preparing the relevant institutions.

Conclusion              

No PTA critic says that there should not be legal elements governing preventing terrorism. HRCSL’s view seems to be a good foundation to balance national security with constitutional rights. It supports repealing the PTA, and to modify the Penal Code, Code of Criminal Procedure, Judicature Act, and the Bail Act.

Concurrently, the demand for a moratorium on PTA is proposed by some civil society activists. Incidentally, High Commissioner Michelle Bachelet also has called for an immediate moratorium on the use of the Act, and a clear timeline for a comprehensive review or repeal of PTA. Experts must study to find whether a moratorium could be accommodated by expanding HRCSL’s propositions.

Moratorium on the usage of PTA, if decided has to consider the plight of the affected (a) whose investigations are incomplete, (b) against whom the Attorney General is ready to indict, and (c) those who are already indicted. The yardstick could be the weight of cases, duration of detention, etc. Concurrently, necessary legal reviews should happen. Hence, an Action Plan is essential.

As long as the PTA is in force, unfortunately, all alleged “sins” may happen “legally”. It is painful. Blaming the Police or the Attorney General or the Judiciary is unfair, in that context. Though national security is a priority, the government must not insist only on “national security” while negating the constitutionally provided fundamental rights. The need of the hour is to genuinely stretch the first step to balance the competing interests.

 

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Latest comments

  • 7
    1

    Is the author in favour of the PTA or against it? He is doing a fine act of balancing on the tightrope! That is known as being non-committal. He wants to project himself as an impartial person.
    The worst type of terrorism today is not terrorism against the state but economic terrorism. Everyone in the ruling party is ruining the environment and plundering the resources and wealth of this country. That will be the undoing of all of us, not acts of terrorism directed against the state or the people.

    • 4
      1

      CM , you are absolutely right. Austin conveniently forgot to mention innocent people being jailed for years without any inquiry or evidence. Last week a Tamil was released after 10 years in jail found innocent. Austin is concerned about national security when real terrorists are now within government. Will PTA apply to master minds of Easter killings.??? Austin says President is now supportive of human rights? So what was he before ??? It’s people like Austin who helps drafting PTA

    • 2
      0

      Austin is neutral person. He was in the negotiation with LTTE. The issue is here is an standard established by UN in case if there is terrorism active and well. Remember, Chitanta Aanduwa proscribed Diaspora Organizations using UN Resolution 1373. But No countries in the world agreed with Aanduwa that the resolution was used appropriately, except Sonia’s India. Because all those organizations are registered in the countries where they are operating as either political or Charitable organizations. Further, LTTE is not proscribed in China or Russia.

  • 11
    0

    “When events such as a State Minister wielding a firearm and threatening PTA prisoners pass by default, criticisms, and demands for safeguards increase. When a DIG was in custody related to murder, asking a terror suspect to confess with a lesser-designated policeman becomes a roaring joke.”
    Or when a doctor is remanded for having a large bank account, even though he runs a couple of businesses , while the Prime Minister is still free even with far more in just one account than he could earn in his entire career.
    The problem is not the presence or absence of laws, but how the Police implement them. In practice, the PTA is used when the police want to lock up someone on suspicion, on political instructions. The ICCPR is turned on its head and used to arrest dissidents. Tourists with tattoos of the Buddha are arrested for “insulting Buddhism ” while so-called monks and convicted murderers are released from prison on Presidential pardon. Is there any point in laws when the man at the top can do what he likes, when he likes? Only the other day, Nandasena was shown lecturing cowed officials at some establishment, telling them not to let legal impediments get in the way. Is this idiot for real? Isn’t the Head of State telling government employees to break the law?

    • 6
      0

      OC Austin is not concerned about Panama papers, off shore accounts, port city projects, off shore funds used against national security, Nirupama / Nadesan saga, Avantgarde mid sea arms dealing , military involved in contract killing of business people, Navy involved in human smuggling —Austin, Sir Fail didn’t have change of mind it is time for Geneva. Dan Sepada.

    • 0
      4

      Old codger
      You are a man knowledgeable in many things.
      Is there an equivalent of PTA in India?

      Soma

      • 5
        0

        Soma,
        Yes there is.
        “https://www.loc.gov/item/global-legal-monitor/2008-12-19/india-new-anti-terror-law/#:~:text=The%20amendment%20provides%20for%20a,the%20opportunity%20to%20be%20heard.”

        But the difference is that only foreigners are denied bail. Indian citizens can be bailed out after the prosecutor has been heard.
        The Indian police too carry out extra-judicial killings, but these are condemned in the press, unlike here. In any case, they don’t lock up tourists with tattoos.

        • 0
          0

          OC
          Thanks a lot.
          Sri Lanka must adopt this ( whatever that is – I don’t want to read it ) word to word and be done with.

          Soma

      • 4
        0

        soman

        “Is there an equivalent of PTA in India?”

        Search Google for following information:
        Terrorist and Disruptive Activities (Prevention) Act, commonly known as TADA

        http://hrlibrary.umn.edu/research/terroristpreventionact-1987.html

        You must be the laziest person in this island.
        Grow up.

        • 0
          0

          NV
          Thanks a lot.
          Sri Lanka must adopt this ( whatever that is – I don’t want to read it ) word to word and be done with.

          Soma

      • 3
        0

        soman

        Do you know why Chamuditha was targeted by four men who arrived in White Car?
        What was the message?
        By whom?

  • 8
    0

    PTA – The Headache! Whose headache?

    PTA was brought in 1979 as a temporary Act to last not more than 3years, but it had lasted for more than four decades.

    The primary goals of the criminal justice system are: accurate identification of the person responsible, fair adjudication, retribution, deterrence, rehabilitation and restoration.

    Was any of the objectives achieved or the severity mitigated?

    . Real terrorism by LTTE commenced only after the PTA came into being.

    Easter Sunday massacre took place while PTA was operational.

    On the contrary PTA was criticized for being draconian, violating human rights, anti-rule of law, and undemocratic..

    Why should it continue even one day more?

    • 2
      7

      Wonder if bumping off Tamil politicians does not qualify as terrorism.
      On 27 July 1975 Duraiappah was shot dead in Ponnalai.
      Canagaratnam was shot outside his home in Kollupitiya, Colombo on 24 January 1978.

      • 6
        0

        Keep on wondering as bumping off of Sinhala politicians also does not qualify as terrorism. First political murder after independence took place on 25th September 1959 when SWRD Bandaranayake was shot inside his home in Rosmead place, Colombo. Several Sinhala politicians such as Nanda Ellawala, Sripathi Sooriyarachchi and Baratha Premachandra have been killed since then and none of the perpetrators were charged under terrorism.

      • 1
        0

        SJ,
        How could you say such things as,
        “Wonder if bumping off Tamil politicians does not qualify as terrorism.?”
        According to JRJ’s theory, on evolution of Humans and civilisation, based on Darmista ideals,
        “Friends of a friend is a beholden Friend; Enemies of a Friend is a Ruthless Enemy itself!!
        You may draw your conclusions?!!
        JRJ is beloved, when opportunity suits the situation!!
        “Pigs might Fly” when that changes!!!

        • 1
          0

          Mahila

          SJ has a selective memory.
          Have you noticed he has deliberately left out the following names:

          A Amirthalingam
          Kumar Ponnampalam (was not an MP)
          A. Thangathurai
          Lakshman Kadirgamar[
          S. Shanmuganathan
          Nimalan Soundaranayagam
          Neelan Tiruchelvam
          G. Yogasangari[
          V. Yogeswaran,
          ….
          Perhaps his Mao’s (Crystal) b***s were missing.

          • 0
            0

            NV
            I was also confused as to why SJ chose only those two examples.
            Your list is “strategic mistakes” ( the term they use to describe Rajiv Gandhi murder with 14 others ) . No human value.

            Soma

          • 0
            0

            In the absence of long lost ‘Free Peking Trip Tamashas’ as in then travel curtailed Sri Lanka!!! Happily, we have not yet reached that coveted “Ivy league”, this time over! Time will tell!!

      • 3
        0

        SJ,
        A definition of Terrorism is: “The calculated use of unlawful violence or threat of unlawful violence to inculcate fear; intended to coerce or to intimidate governments or societies in the pursuit of goals that are generally political, religious, or ideological”
        The aim of terrorist act is generally political, religious or ideological and not personnel…
        Usually in any society violence is used to solve personal vendetta. One may resort to valance against his relatives or neighbor for personnel reasons.
        So the distinction is clear.
        It is evident that the murder of Alfred Durriappa and Kanageratnam former MP for Puttuvil along with numerous other violent acts including those perpetuated by security forces were acts of terrorism.
        The question is whether the PTA enacted in 1979 were in anyway completely eradicated or mitigated terrorism in any way.

      • 2
        0

        SJ
        So what? Look like you are very accurate about two murders but why you are only bothered about two murders instead of thousands of murders in Sri Lanka? Are justifying that murders are equal to murder of Lasantha or murder of Rohanaweera by the Presidents of Sri Lanka?

  • 5
    0

    PTA is now a talking point because this issue has become a national problem. Since it become law of this country it gave a substantial income for law makers and police and military personnel. There are number of innocent people were arrested after hiding a hand bomb in persons bag or in the back of a car under the PTA then bargaining for large sum to release. Under this regime any one is a threat politically or in order to get into the power they did the same tactics recently. PTA did not stop Terrorist attack on Anuradhapura or Elephant pass Camps or Daladha maligawa or Central bank attack. I don’t know whether we can call Easter Bombing attack was a Terrorist attack or it is political coup because there was no single Terrorist appeared after the bomb attack. Still who was the master mind of the attack is a question mark. If you analyse the Situation, Tasks, Actions and Results (STAR) definitely it is political coup Terrorism.
    But what is the point of removing PTA now under the executive power which is not subject to rule of law or independent judiciary or parliament.

  • 4
    0

    The PTA was essentially a piece of legislation enacted to control and checkmate Tamil Militancy and an Armed revolt by various Tamil groups.
    After a protracted war lasting nearly 30 odd years the Govt:claimed that the LTTE was defeated lock,stock and barrel, on the banks of Nandikadal in May 2009.- well nigh 12 years ago.
    So what is the need to keep this piece of legislation that violates so many other rights enshrined in the Constitution and listed out by the essayist?

    Prof: G.L.Pieris talks of a Security Situation to justify the continuation of the PTA.
    The Govt; wants to keep themselves in Power by chanting LTTE,LTTE,LTTE………….
    Very soon it would be used against political opponents down south of the country…………

  • 2
    0

    The author is a very experienced retired public servant now portrays the situation Sri Lanka is in on account of the Prevention of Terrorism Act. Everyone knows what a lot of “effort” that was taken to extradite the alleged trafficker of drugs, Makandure Madush, from Dubai. Was the PTA used to keep him the custody of the CID for nearly a year for nothing? Thereafter, he is transferred to the custody of another division and was taken out to lead to a haul of contraband and/or persons dealing with it. The shots greeted him with death. It is yet another death which is not spoken of in the “respectable social circles” quite in contrast to the deaths of Lasantha Wickramatunge or Wassim Thajudeen. We all know now that Rohana Wijeweera was cremated alive in the Kanatte crematorium. Do THEY talk of it? “Bullshit! He deserved to be burned alive!” screams a damsel, clothing in such a manner that it amounts next to nothing, while sipping some sweet sherry. Both the PTA and the Emergency Regulations were abused to the hilt. The reality is our own society does not value life of every human but does so selectively

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