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Reform of the Prevention of Terrorism Act: Old wine in even older bottles?

01 Jan 2022

By Ambika Satkunanathan On 9 December 2021, seven United Nations Special Procedures mandate holders issued a communiqué to the Government of Sri Lanka (GoSL) setting out benchmarks to which any legislative process that seeks to address the human rights deficient nature of the Prevention of Terrorism Act (PTA) must adhere. Due to the need to implement changes to the PTA to retain the European Union’s (EU) Generalised Scheme of Preferences Plus (GSP+) trade privileges, the Government announced it has begun a process to reform the law. However, the process has not been transparent or inclusive. For instance, even civil society groups and activists that have been working with detained persons and their families for decades have not been consulted.    Déjà vu The Government’s response to the Special Procedures’ communiqué states nothing new and in no way responds to the concerns raised by them. Instead, it sets out existing protections that are most often observed in the breach. It goes on to describe the various entities established to review the law and provide recommendations, but does not set out the specific changes the Government intends to make. Along with its response, the Government has attached instructions issued to the police on arrest and detention under the PTA. The instructions only explain the general procedure that has to be followed when making an arrest under the PTA, and mention that the “mental element”, i.e. the intention of the person to commit the crime, should be investigated. Nonetheless, in the context of broad and imprecise definitions in the PTA and the decades-long practice of the state abusing the law and engaging in extra-legal action, the lack of objective factors to assist the police in deciding whether or not to arrest and detain under the PTA means it is doubtful this measure will help stem the abuse of the law or protect human rights.   Weaponising legal uncertainty: The need for precise definitions  A key recommendation of the Special Procedures is the need for a precise definition of terrorism in line with international norms, that does not depend in any way on language, on “extremism”. This is critical given the increasing use of the legally undefined term “extremism” in Sri Lanka to arrest and detain persons. The decades-long trend has been to arrest persons not for offences specified in the law which they are suspected of having committed based on evidence or reasonable suspicion, but for their connection to a person who is suspected of having committed an offence. Based on the connection, the authorities suspect the person too has been involved in the offence even in the absence of any evidence of it or reasonable suspicion. This has resulted in arrests of many 17 and 18-year-old Tamil and Muslim young men during the last two years.  An important observation made by the Special Procedures is that the PTA does not state what speech is prohibited and therefore its “provisions could function to restrict journalists, human rights defenders, civil society actors, and others from reporting or expressing views on anti-terror operations”. The PTA hence hangs like the sword of Damocles over those who criticise the PTA and national security-related issues. This is of great concern given the Government’s contempt for the rule of law, all the while it imposes extra-legal prohibitions on civic activities. The claim of the Co-ordinating Secretary to the Prime Minister several weeks ago that photographing checkpoints is illegal, is an example of this. In these circumstances, the Special Procedures mandate holders’ warning that there is a danger that “the broad scope of the PTA may result in misuse or misapplication, directly or indirectly leading to the silencing of dissent and criticism of the Government”, is valid.  Surveillance and curtailing civic activity  The Special Procedures’ concern “that this law could be used against civil society and humanitarian actors” is particularly relevant at present when civil society organisations, usually from the North, are being summoned or visited by the Terrorism Investigation Division (TID) for “inquiry” related to their financial remittances and work. The organisations that are summoned are not informed of the kind of illegal activity in which they are alleged to have engaged. Instead, inquiries focus on the life history of staff members, the organisation’s vision and mission, work plans and finances. Prima facie, the summons and visits do not seem to be based on evidence or reasonable suspicion of the organisations having received funds from illegal entities or using it for illegal activities. Rather, the intent appears to be to intimidate, harass, and curtail their activities. Organisations that work with families of the disappeared, former combatants, and those detained under the PTA are most vulnerable to being targeted in this manner. During the last couple of months alone several civil society organisations have been summoned by the TID for such inquiries or received visits from them.  Families of persons detained under the PTA, both Tamils and Muslims, are also interrogated by security agencies that visit them at home, are summoned to the police station multiple times for inquiries, and subject to surveillance. For instance, a couple of weeks ago such surveillance was allegedly encountered in the North during a visit to the family of a person detained under the PTA. En route, a stop had to be made to pick up two women who were joining the meeting because their family members were also detained under the PTA. When the two women arrived at the bus stop, which was the pick-up point, two men known in the locality as the “local CID” and noted by residents as regularly engaging in surveillance of particular groups, such as families of the disappeared and families of persons detained under the PTA, arrived on their bikes and alighted at the bus stop. The women walked away from the bus stop to move away from the scrutiny of the men. Although the men too moved away, they returned to the bus stop and were standing a few metres away when the women were picked up.  When the group exited the house they were visiting, two men with their bikes, who had arrived a few minutes after the group arrived at the house, were seen seated a few metres away from the house, looking intently at the group. When the two women were dropped off at the bus stop, the two men who were there that morning were noted seated inside the bus stop. Although the group was not followed when travelling from destination to destination, the fact the men arrived within minutes of the women’s arrival at the bus stop, and thereafter at the house of the detained person, demonstrates there is a network to conduct surveillance in these localities. The network seemingly is activated when a new person arrives in the locality or when persons of interest leave their residence.  Continuing violations The Special Procedures mandate holders express alarm about the lack of means to ensure a person is not detained more than the stipulated initial detention period of 72 hours. More concerning is the lack of safeguards to ensure persons are not detained on a detention order (DO) longer than the stipulated 18 months. Based on the cases of several persons detained in relation to the Easter bombings, it appears the 18 month limit is not always strictly adhered to. Further, based on the narratives of both Tamils detained for LTTE-related offences and Muslims detained in connection with the Easter attacks and their families, several violations, such as the failure to issue arrest receipts, failure to inform families of the place of detention for several days and not informing families when a person is transferred to a different place of detention, appear to be continuing. Furthermore, the use of torture, forcing persons to sign statements in Sinhala and pressurising them to agree to rehabilitation also do not appear to have ceased. Many people have complained to the Human Rights Commission of Sri Lanka (HRCSL) in this regard.  In line with historical patterns, most of those detained under the PTA are from poor families and were the family’s main livelihood earners. Hence, their detention has severely impacted the ability of families to meet their basic needs. Families have no legal knowledge and have difficulty retaining legal representation. Due to their lack of awareness, they are vulnerable to false promises, extortion, or worse. Security agencies informing detained persons and their families they will be released soon and dissuading them from taking any action regarding the detention, such as filing a fundamental rights petition, is another common pattern observed in the cases of both Tamil and Muslim persons detained under the PTA. Families and detained persons believe these promises and are afraid to do anything that might anger the authorities due to the apprehension that it will prevent their release.  National security or insecurity?  The PTA has been retained by successive governments supposedly with the aim of making people safe by targeting those who are deemed deviants and not “proper” citizens, i.e. terrorists. The reality however, is that the PTA has demonised, marginalised, and created insecurity first for Tamils, then for Muslims, and now for dissenters generally. The PTA is a human rights deficient counter-terrorism framework, which enables the expansion of the state’s expanding security apparatus and entrenchment of arbitrary and abusive state action. The Government should be mindful that to prevent terrorism, there is a need to address the multiple drivers of violence, such as discrimination, marginalisation, and state persecution of certain communities. Treating certain communities as second-class citizens who have to live under constant siege in fear of discrimination and violence, only creates insecurity for all.   (The writer is a former Commissioner of the Human Rights Commission of Sri Lanka)


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