By 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 Successive governments thought it should be amended, and not repealed.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 GL Peiris said that the PTA would not be repealed, due to the continuing security needs.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.