{"id":225511,"date":"2022-02-19T15:55:54","date_gmt":"2022-02-19T10:25:54","guid":{"rendered":"https:\/\/www.colombotelegraph.com\/?p=225511"},"modified":"2022-02-27T14:42:12","modified_gmt":"2022-02-27T09:12:12","slug":"pta-the-headache","status":"publish","type":"post","link":"https:\/\/www.colombotelegraph.com\/index.php\/pta-the-headache\/","title":{"rendered":"PTA – The Headache!"},"content":{"rendered":"

By Austin Fernando<\/a> –<\/strong><\/span><\/p>\n

\"\"<\/a>

Austin Fernando<\/p><\/div>\n

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<\/em>. <\/em> From a global perspective, it can be narrowed down to country-specific situations.<\/p>\n

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\u2019s statement, i.e., threatening democracy, rule of law, human rights, and stability. We have the Prevention of Terrorism Act<\/a><\/span> (PTA) which is criticized as draconian, violating human rights, anti-rule of law, and undemocratic.<\/p>\n

Solution?<\/strong><\/span><\/p>\n

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 Successive governments thought it should be amended, and not repealed.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.<\/p>\n

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.<\/p>\n

Constitutional obligations <\/strong><\/span><\/p>\n

Violation of fundamental rights was complained of on operationalizing PTA. However, even ignoring international pressures, we should respect our citizens\u2019 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.<\/p>\n

Mixed political responses<\/strong><\/span><\/p>\n

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!<\/p>\n

Ray of hope! <\/strong><\/span><\/p>\n

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\u2019s response could be reinforcement of such attractive political rhetoric. I pray it is genuine.<\/p>\n

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.<\/p>\n

If the HRCSL genuinely and independently deviated from Mnister Peiris\u2019s 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 \u2018pacification\u2019. I pray Justice Marasinghe’s positive stance will not result in similar trepidation and push pacifiers to indulge in \u2018pacification!\u2019<\/p>\n

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\u2019s 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.<\/p>\n

UNHRC – the pathfinder?<\/strong><\/span><\/p>\n

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.<\/p>\n

\u201cDespite 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.\u201d<\/p>\n

Sad admittance, endorsing the critics of PTA. One may question why to bother about the well-being of the \u2018anti-state terrorists\u2019 arrested under PTA. It is because a person is presumed innocent until proven guilty. [Constitution Article 13(5)].<\/p>\n

Again, the study quotes:<\/p>\n

\u201cAs 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 \u2018regimes of power and domination\u2019 in which the state officials have the upper hand, and the individual is most often rendered powerless. \u2026 Violence, when used in this manner, becomes \u2018casual yet endemic\u2019, 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.<\/p>\n

(Chapter 29 \u2018Prisons Study by the HRCSL\u2019)<\/p>\n

The report goes into detail about violence and torture with witnesses\u2019 statements. If it is the way for ordinary prisoners, one could imagine the manner how the anti-state terror suspects are treated.<\/p>\n

I quote from the Executive Summary (page xxii to xxiii) where the specific focus is on PTA prisoners.<\/p>\n