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PTA Bill :Opposition bellows cosmetic, deceitful; Government retorts progressive, substantive

23 Mar 2022

  • The divided standpoints on the recently enacted PTA amendments
BY Sumudu Chamara Amidst strong opposition and demands for the repeal of the controversial Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979 as amended (PTA), the Parliament, on Tuesday (22), passed the Prevention of Terrorism (Temporary Provisions) (Amendment) Bill, claiming that the amendments are merely a first step, and that more comprehensive reforms regarding counter-terrorism laws will be presented in the future. What caused this opposition was the fact that even though the Bill had proposed several notable amendments, compared to the overall amendments required in order to ensure that the PTA does not violate fundamental rights, the amendments were inadequate, according to those Opposition Parliamentarians. However, as was stated during the debate, not passing the Bill would have left Sri Lanka with the original PTA. Nevertheless, passing a Bill that does not deliver what is expected is also an issue. A first step Foreign Affairs Minister Prof. G.L. Peiris said that circumstances, priorities, and objectives of the country have undergone fundamental changes after the PTA was introduced, and that therefore, it is necessary to revisit the provisions of the PTA and to examine the changes that are currently opportune in light of the basic social transformations that have taken place in the country during a period of almost half a century. He noted that the amendments to the PTA, however, are an initial step. “The Government is engaged in a comprehensive review of security legislation in our country. These are amendments to an old Act, which are being brought within the framework of the existing legislations. We are preparing a comprehensive legislation. That is going to take some time, and this is being done with the active assistance and inputs from various other institutions of the Government.” The reason for these amendments at this juncture, which he referred to as an initial step, is the urgent need to amend the PTA. He opined that the Government does not think that it is appropriate to keep the country waiting for a long time when there are urgent amendments that should be brought to this 1979 law, and that more comprehensive amendments will be presented in due course. With regard to claims by MPs that the presented amendments are inadequate, Prof. Peiris said that every amendment that has been presented will significantly further human rights and freedoms in Sri Lanka. He further denied claims that the presented amendments are an eyewash and have no substance. “Section 8 of this Bill states that every trial under this Act shall be held on a daily basis. It is mandatory. Does that not make a difference? There have been some cases where there was an interval of as long as six or nine months between one trial date and the next. This means that the person who is subjected to the detention order is languishing in custody for an unjustifiably long period because the trial period is lengthy. That is the current situation and that will no longer be the future position. As soon as the detention order is made, a certified copy must be made available to the magistrate in charge of the respective area, and he should be immediately informed of it. The legal amendment, as presented, says that the magistrate must be informed within a reasonable period. The Supreme Court (SC), in its determination, suggested that it is vague and that it prefers for a specific timeframe to be referred to in the law. We agree with that, and instead of a reasonable period, we now say within 48 hours, which is compulsory.” According to Prof. Peiris, in addition, the amendments say that the magistrate must take a series of steps once he/she is informed, which are required by the law. One such new initiative, he said, is the requirement that the magistrate must visit the person subjected to detention at least once a month, personally, which is a non-delegable duty, which makes the magistrate responsible for ensuring the wellbeing of the detained person. Adding that the purpose of it is ensuring that a detainee is not being subjected to any maltreatment or torture, he said: “The detainee can complain to the magistrate, and the magistrate is required to record his/her observations. If there is any indication of torture, the magistrate has the power to direct that this suspect be brought before a judicial medical officer (JMO) for a medical examination, and the JMO’s report must be submitted to the magistrate. If the JMO’s report contains any indication of torture, medical treatment has to be provided. What is more, the magistrate must direct the Inspector General of Police (IGP) to commence an investigation in order to enable the Attorney General (AG) to institute criminal proceedings. In addition, today, if a person in detention wants to have a lawyer, he has to go before the SC under Article 126 of the Constitution. In other words, he has to bring a fundamental rights application. There is no specific right to counsel, and he has to go before the SC and persuade the SC that this relief is just and proper in the circumstances of his particular case. Lawyer Hejaaz Hizbullah had to do that. However, that will no longer be necessary. It is now a right that can be demanded. Another significant change is that in the existing law, once a trial commences, until it is concluded, a High Court (HC) judge is compelled to keep the suspect in remand. Once the amendments are enacted, even while proceedings are in progress, the judge has the discretion to grant bail in appropriate cases.” Prof. Peiris also noted that even though the law has to be changed, there is a limit to changes that are permissible as the recent amendments are an initial endeavour. He added that the Government will proceed to introduce comprehensive new legislation governing security. An attempt to mislead Despite the amendments which Prof. Peiris said will lead to substantial changes in the enforcement of the PTA, Tamil National Alliance (TNA) Spokesman, Illankai Tamil Arasu Kadchi MP, and President’s Counsel (PC) M.A. Sumanthiran was of the opinion that those amendments are inadequate to adequately change the status quo. Adding that the PTA was enacted as temporary provisions initially, he expressed concerns about the fact that it has gone on to exist for 43 years. Speaking on how the PTA has been misused to change confessions, based on which arrestees were tried and eventually sentenced, Sumanthiran said that provisions that enable such acts are not being amended. He said that the amendments are not going to make any defence, and should therefore, be abolished. With regard to amendments to provisions on granting bail to PTA detainees, he added: “When the Government says that the Court of Appeal (CoA) can grant bail, the proviso you presented says that subsequently, the HC can remand the person. Where in the world do you have a law where the higher court grants bail and subsequently a lower court remands a person?” He alleged that the Government is using the PTA amendments to mislead everyone by saying that it is a good first step and that more steps will follow. National People’s Power (NPP) MP Vijitha Herath also shared the same opinion. He claimed that the amendments, which he called trivial, are an attempt to deceive the international community, in a context where the EU has paid attention to halting the Generalised Scheme of Preferences Plus (GSP+) trade concession, and not an effort to establish democracy or to protect the people’s rights.  Adding that the amendments do not present any significant changes except those pertaining to reducing the detention period and a minor change in the provisions pertaining to granting bail, Herath said that all other provisions remain the same.  He added: “The seriousness of this situation is that the Defence Minister has all the powers. If the Minister thinks that a person has been a part of some act coming under the PTA, the Minister can issue orders against such a person. The PTA is being used to suppress any person going against them. Hizbullah is just one such person. There are thousands of youths who are not as famous but who have been arrested using this law.” Furthermore, he said that the PTA not having a definition of terrorism is concerning, Herath questioned the practicality of the PTA. One of the impractical amendments, according to him, is allowing and making it mandatory for a magistrate to visit detainees and accept complaints about torture in detention. In a context where torture does not always happen openly in a way that reveals the assailant’s identity, he said that detainees are highly unlikely to reveal who tortured them and that even JMOs are sent by the Government, and that therefore, this amendment will not resolve the existing issues.  “These amendments are clearly an attempt to fool the international community, not to protect the people’s rights. These amendments do not weaken the PTA, and instead, strengthen State-sponsored terrorism. Therefore, it should be abolished,” he further said. Repeal or moratorium  Sri Lanka Muslim Congress (SLMC) Leader and Samagi Jana Balawegaya (SJB) MP Rauff Hakeem too expressed disapproval of the PTA amendments, and criticised Prof. Peiris’s statement that the amendments are an initial step and are not cosmetic amendments. He said that these attempts are a woefully inadequate, cosmetic exercise, which is a minimalist approach to change the status quo as far as the PTA is concerned, and that they do not serve any significant purpose. He further claimed that these amendments are a puerile attempt to take the focus away from the timely need to do away with the PTA, which he said is a draconian piece of legislation. Hakeem said that the Government should at least offer a moratorium on the enforcement of the PTA. “The biggest culprits are the Police Department and the Attorney General’s Department. They are the people who say that we cannot do away with the PTA and that all draconian laws should remain. They have found a very convenient way to conclude investigations as they please and get promotions,” he claimed, speaking about confessions recorded by law enforcement authorities being used as evidence. “We have resorted to this legislation for so many years. How much have we achieved? It has finally contributed to radicalising people who are held in custody for so many years for no fault of theirs. It is time to totally do away with the PTA or to go for at least a moratorium on the implementation of the PTA.” Human rights and national security Meanwhile, Justice Minister M.U.M. Ali Sabry PC disagreed with the Opposition MPs’ claim that the PTA amendments are inadequate to address the questionable situations concerning the PTA. He stated that the Government is introducing safeguards in order to address some of the long-standing issues that have been identified for a long period of time which require rectification. “If the amendments were not passed, the existing PTA will remain,” he cautioned. Stating that various countries have certain safeguards to ensure national security, Sabry noted that Sri Lanka too needs to have a law to protect national security while also safeguarding the rights of the innocent including those who have been detained under the PTA. “This law has been misused and abused over a long period of time. Therefore, there have to be safeguards and they are necessary. It is also important to have sufficient counter-terrorism laws in the event of extremism. Otherwise, the entire general public will suffer.” Pointing out certain insurgencies that took place in the past, Sabry said that when those attacks happened, some sort of national security law was important. “Not even at the behest of the international community or others are we going to totally abolish anti-terrorism laws without having in place something which is current. We understand that terrorism has different faces. It is no longer about controlling territories or carrying out guerilla attacks. It is now more about cyberspace, brain washing, using political power, and money laundering. To overcome these challenges, we need to introduce a new law. In the meantime, it is equally important that no one is given powers to abuse it.”  However, he agreed that more substantial amendments are necessary, and that the Government is in the process of taking steps to achieve that.  Describing the steps the Government has taken with regard to the enforcement and amendment of the PTA, Sabry further noted that the President has clearly instructed not to use the PTA other than for matters that are clearly connected to terrorism. According to him, as a result, the IGP has issued a circular in September 2021, instructing not to use the PTA indiscriminately. As a result, since September, 2001, there is a de facto moratorium on not using the PTA for offences other than those that directly involve terrorism. While there are a number of provisions in the PTA that need to be amended or repealed, the amendments included in the Bill that was passed can be expected to provide some kind of relief to those being arrested, detained, and tried under the PTA. However, as some Opposition MPs stated, that is possible only if those, such as magistrates visiting PTA detainees, are actually implemented in practice. At the same time, it is necessary to push for the comprehensive counter-terrorism laws that the Government promised.


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