Initial reactions to PTA Amendment Bill: Failure to reform
a year ago
By Ermiza Tegal The Prevention of Terrorism Act of 1979 (PTA) is a draconian piece of legislation that is responsible for the extensive erosion of civil liberties of the people of Sri Lanka. Harm has been caused to persons directly affected by its provisions, as well as specific communities who have been targeted by the PTA. Moreover, it has undermined the safeguards of security and liberty of all Sri Lankans. It was meant as a temporary legislation and was passed under questionable circumstances. The Cabinet at the time decided that it would be passed with a 2/3 majority in parliament recognising that it contained provisions that were unconstitutional. The PTA has remained in force for over 40 years and has given rise to numerous calls nationally and internationally for its reform and repeal. The Bill gazetted on 27 January 2022 to amend the Prevention of Terrorism Act No. 48 of 1979 could have been a genuine attempt to address its most dangerous and historically abused provisions. Very regrettably, it appears on a preliminary reading, that the minimal reforms proposed fail to address the most significant problems identified with the PTA. Indeed, the reforms do not address any of the following four major problems with the PTA:
- Definition of terrorism: The proposals do not include an amendment to the definition of terrorism, which is overly broad and has led to many instances of arbitrary arrest and misuse of the law.
- Lack of judicial supervision: The proposed Bill does not ensure that the powers of arrest and detention are specifically made subject to judicial scrutiny particularly at the first instance, before the Magistrate. The role of Magistrate has not been explicitly enhanced to ensure that arbitrary arrest or detention is prevented.
- Confessions: The very controversial provision – section 16 – that gives cover to the use of torture to obtain confessions from suspects has not been addressed. This section is seen as responsible for the close association of torture with the PTA.
- Failure to recognise the fundamental value of physical liberty of a person: The prohibition of arbitrary deprivation of liberty has acquired customary international law status and constitutes a jus cogens norm. Any curtailment must be demonstrated as not being arbitrary – meaning reasons must be given and it must amount to proportionate action in the circumstances. The introduction of a right to apply for bail after 12 months of detention without trial, means that a person can be held in remand or in detention for a minimum period of 12 months without such person having the possibility to make a case before a judge that there are sufficient reasons for granting bail. While fundamentally any detention, even for a day, is a serious breach of a fundamental freedom, these amendments read as a whole, pay scant regard to this internationally recognised non-derogable right.