By Niresh Eliatamby –
Having spent a couple of decades as an investigative journalist, I have an intimate and extensive knowledge of all aspects of law enforcement – lawmakers, police, military, lawyers, judges, detectives, prison officials. But what’s more, I have interviewed large numbers of so-called terrorists, including those involved in the southern People’s Liberation Front (known by its Sinhalese acronym JVP), and also the northern Liberational Tigers of Tamil Eelam (LTTE), both at the senior levels and ordinary members.
As such, I have an extensive knowledge of the Prevention of Terrorism Act (PTA), arguably the most draconian piece of legislation ever enacted in Sri Lanka. The PTA hangs over the heads of all independent journalists like the proverbial Sword of Damocles. But with the dramatic growth of social media sparking extraordinary levels of citizen journalism and ordinary people expressing their opinions quite vociferously, every single citizen runs the risk of falling afoul of the PTA.
Much has been written of the intricate details of the PTA, so I won’t spend time on that. But realistically speaking, the PTA gives extraordinary powers to politicians in office, the police and the military, to incarcerate any citizen for up to 365 days at any location of their choosing, without bringing the arrested person before a judge as required by law. It is a piece of legislation that has been purposefully and deliberately written for the abuse of human rights, and therefore the subversion of the constitution, in particular the chapter on fundamental rights.
A law from cloud cuckoo land
It is a piece of legal nonsense that appears to have been dreamed up in cloud cuckoo land rather than by anyone with their feet on the ground. It completely ignores the cardinal legal principal of ‘innocent until proven guilty’. This is why its use has drawn widespread condemnation from around the world.
Take the examples of activists who have been locked away in recent days under the PTA. The police calmly announced after detaining them under the PTA, that they are now searching for any terrorism related activities that these folks may have committed. That’s exactly the same as arresting a bunch of people for murder, and then looking around to see whether anyone has in fact been murdered! Under this logic, all 22 million people in Sri Lanka could be locked up for a year!
For starters, let’s ask the question why on earth police would need 365 days to investigate anything? In my opinion, 99% of criminal complaints can be solved within a couple of weeks, if the investigators actually have any intention to solve the case. Allowing authorities to grill a suspect for 365 days simply means that the person is actually imprisoned for an entire year without having been found guilty, and in many cases without actually committing a crime.
Another point is that the PTA does away with the requirement of judicial supervision. That means that the entire judiciary is being distanced from a person for a whole year. Considering that the right to go to court is a right that is quite universal, this is an extraordinary power granted by the PTA.
So what happens during these 365 days? Case after case has been brought to the Supreme Court by people detained under the PTA that they were tortured during their incarceration by police and military officers who are safe in the knowledge that the victim has no hope of appealing directly to the judiciary. If at all, such a case must be filed in a roundabout manner, and it is extremely difficult to prove torture. While age old methods of torture such as beating and whipping may leave broken bones and scars, authorities in many countries ranging from the United States to Sri Lanka have distinguished themselves by creating new and unusual methods of torture, both physical and psychological, that leave no lasting trace. Waterboarding, practiced extensively by the US, is one such method. In Sri Lanka, placing a victim’s head in a shopping bag filled with chili powder, has long been a preferred method.
This leads us to the main theme of this article: The manner in which the PTA actually promotes and encourages terrorism, rather than preventing it as its name clearly implies it should.
The kettle and the pressure cooker
Back in 1948, the countries of the world got together and came up with extraordinary statement called the Universal Declaration of Human Rights (UDHR).
Among many other aspects, the UDHR in the 3rd paragraph of its preamble, states: “Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law”.
Any psychologist or psychiatrist would understand what this means; so would any judge, lawyer, or investigator. Human beings are creatures who need to blow off steam once in a while, like a pressure cooker or an ordinary kettle. Close up the orifice that allows the steam to escape, and the pressure cooker will ultimately explode.
This is why it’s essential that ordinary people be allowed opportunities to vent their frustrations in a non-violent manner. We go and meet our MPs; rant to our friends about the government; we toot our horns; we stand on a curb waving a placard, holding a candle or chanting slogans; or we may march on the streets to where our political representatives happen to be and pressure them to do the right thing.
That’s what brought over a million people to Colombo on July 9, 2022 – the need to vent their frustrations. It ended up with the president running out of the back door of his house and fleeing the country.
But what’s happening now? The authorities are using the PTA to lock up key leaders of the protest movement, for 3 months at least if not for a full year. This has the effect of stifling dissent because people are afraid to publicly protest when they are under the threat of being locked up under the PTA with the clear threat of being tortured. The more one stifles dissent, the more the pressure builds and it would only be a matter of time before at least a few people turn towards violence. That in turn would most likely lead to a government crackdown using the military.
Universal Declaration of Human Rights
The number of UDHR articles that the PTA thumbs its nose at is indeed staggering.
* Article 3 – Everyone has the right to life, liberty and security of person.
* Article 5 – No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
* Article 6 – Everyone has the right to recognition everywhere as a person before the law.
* Article 8 – Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
* Article 9 – No one shall be subjected to arbitrary arrest, detention or exile.
* Article 10 – Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
* Article 11(1) – Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
* Article 12 – No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
* Article 13(1) – Everyone has the right to freedom of movement and residence within the borders of each state.
* Article 13(2) – Everyone has the right to leave any country, including his own, and to return to his country.
* Article 19 – Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
* Article 20(1) – Everyone has the right to freedom of peaceful assembly and association.
A relic of a barbaric past
To sum up, the PTA is a relic of a barbaric past. It has no place in the legal regimes of the present species, which has evolved far beyond such draconian instruments. The sooner that it is completely repealed, the better it is for Sri Lankans and Sri Lanka in the eyes of the world.
*Niresh Eliatamby, LL.B., LL.M., spent several decades as an investigative journalist for various international and Sri Lanka media. He is currently a lecturer in law for a UK university