The National People’s Power (NPP) Government promised to abolish the Prevention of Terrorism (Temporary Provisions) Act (as amended) (PTA) and release all political prisoners in its’ 2024 Election manifesto (Section 4.9, Page 129 of the English version). Both promises remain unfulfilled and there does not appear to be any intent in fulfilling these key election promises.
Instead, the NPP blatantly used the very law they promised to abolish (the PTA) to arrest more people, including in relation to offences that can be investigated and prosecuted using ordinary laws. And are trying to replace the PTA with a draconian law that has even more draconian provisions than the PTA – the Protection of the State from Terrorism Act (PSTA).
What the PTA has done and failed to do
All Governments used the PTA to intimidate Sri Lankans. I was also detained under the PTA, faced court restrictions on my freedom of expression and travel, and the confiscation of my electronic equipment. My case dragged on for nearly five years even after my release and I faced social and political stigma and was also discredited. Human rights (HR) activists like me, student activists, journalists, a lawyer, a Catholic priest and Opposition politicians have been amongst those unjustly detained under the PTA. Our crime was critiquing, challenging, and questioning Governments in power and expressing solidarity with survivors and families whose rights were violated. The vast majority affected by the PTA have been Tamils and Muslims, indicating the disproportionate effect of the PTA on numerical ethnic minorities.
The PTA served as a license to arrest and detain citizens for prolonged periods, torture them and crackdown on their free expression. Several PTA detainees have been released as not guilty after years of detention, extending up to 15 years, some without even having formal charges filed against them. The PTA has ruined their lives and that of their families. Those victimised by the PTA had their rights violated and have not received any reparations. There was no acknowledgement, apology, financial compensation, etc., for the harms caused by prolonged detention including torture, sickness, trauma, stigma, and the loss of livelihoods.
Significantly, contrary to its’ name, the PTA was not able to prevent acts of terrorism. Instead, violence escalated after the enactment of the PTA both during and after the war such as against Muslims in Aluthgama, Digana and the Easter Sunday attacks.
Do we need the PTA, the PSTA or terror laws?
The President has massive powers to declare Emergency Regulations, based on the Public Security Ordinance. Its continuation is subject to Parliamentary approval, which can serve as a check and balance. In a previous article, I noted about 15 laws with legal provisions related to terrorism in Sri Lanka. Despite these, the PTA has created a parallel legal system, its hallmark being granting the Executive extraordinary powers and dramatically weakening the Judiciary’s role and checks and balances on State abuses.
Successive Governments refused to repeal the PTA and instead, tried to either reform (amend) or replace it, such as with the Anti-Terrorism Act (ATA) and the Counter Terrorism Act (CTA). But, no rationale has been presented about the need for such laws.
If there are actual gaps in the legal framework to prevent or respond to terrorism, these must be pointed out to the public. If absolutely necessary, the Penal Code and the Code of Criminal Procedure could be amended, in consultation with survivors of the PTA and their families who have suffered, Opposition parties, academics, lawyers, journalists, mental health experts, activists and international experts such as the United Nations Office of the High Commissioner for HR and Special Procedures.
Some have tried to argue the ATA, the CTA and now the PSTA is better than the PTA, but, comparing any draft law to the PTA is a fundamentally flawed approach. Any comparison must be with national and international HR standards and best practices, not with worst practices and terrible laws like the PTA which makes the benchmark for comparison so low. It is my view that although a few provisions in the PSTA are better than in the PTA, there are many which are worse than the PTA. Essentially, the NPP’s PSTA has retained the fundamental repressive elements of the PTA in spirit (intention) and letter. A careful reading of the PSTA makes it clear that it is a draft that Promotes State Terror Acts (PSTA) against citizens, particularly critics.
What is terrorism, who is a terrorist and what is punishment – Who decides?
Through the PSTA, the Executive (the President, the Defense Ministry Secretary, the Attorney General [AG], the Police, the Military, the Coast Guard, etc.) determines what is terrorism, who is a terrorist and what punishment to mete out. Though the Judiciary might overrule such actions after some time, those affected would have suffered greatly by then, and the harm caused might be irreversible. The situation is aggravated as the PTA and the PSTA do not have any provisions for persons aggrieved by these laws to receive reparations and responsible persons to be held legally accountable.
The PSTA creates a broad range of offences called terrorism based on intention and the consequences of actions. So, even if the action itself may not be classified as terrorism, the Executive could conclude the consequences are terrorism. Many of these are offences under ordinary criminal law and reframing those as terrorist offences creates the possibility of using the PSTA on ordinary criminal acts. Below are some of the extraordinary powers conferred by the PSTA to the Executive, which, in practice, are de-facto punishment by the Executive of persons they determine (or suspect) to be a terrorist for acts they determine to be terrorism;
- The Military and Coast Guard can arrest persons and take into custody anything including documents (the PTA does not allow this)
- The Police and the Defense Ministry Secretary can detain persons for up to one year with no judicial discretion to release (the Magistrate may only remand or give bail after two months)
- The Police and a Magistrate can together detain a person for up to two years without trial and even after this, the Magistrate can only give bail and cannot release a person
- The President can create ad hoc detention places and conditions at his/her will, parallel to the existing system of prisons
- The AG can create conditions that may compel persons into admitting guilt and accepting punishment without conviction (guilty and punished without trial)
- The President can proscribe any organisation for an indefinite period
- The Defense Ministry Secretary can declare any place as a prohibited place
- The Police can apply to a Magistrate for orders to restrict movement within the country and overseas travel, communication or association with specified persons, participation in any activity that may facilitate an offence
Challenging the PSTA in Court
Our Constitution does not allow citizens to challenge an existing law in court, even if it violates the letter and spirit of many provisions in the Fundamental Rights (FR) Chapter of the Constitution and international HR standards, as the PTA does. However, it is possible to go to the Supreme Court (SC) to challenge any draft law (Bill) before the Parliament. The PSTA is not before the Parliament as of now, so, it cannot be challenged in court unless tabled in the Parliament.
In the past, I have challenged the amendments and replacements to the PTA in court and my experience is the courts can do very little and it is very difficult for us to challenge it. The jurisdiction of the Court is limited to determining whether any provisions in the draft law will violate any constitutional provisions and if it does, direct that they be passed with a two thirds majority and possibly through a referendum. The determination of the Court will be submitted to the Speaker of the Parliament and not to us, the petitioners. A few years ago, when I and some others challenged a draft Bill in court, I initially came to know about the court’s determination through a Facebook post of one of the lawyers who appeared for the case, Lakmali Hemachandra, now a Member of Parliament from the NPP.
We need to know that a Bill has been tabled in the Parliament and petitions challenging it must be filed within two weeks of tabling. We have to obtain a copy of the draft law, examine its contents and find competent lawyers. And find money. Even when committed lawyers prepare documents and appear in court free of charge, there are other expenses involved such as obtaining hundreds or thousands of printouts and photocopies, and payments to instructing attorneys. The documentation, including the petition and many attachments, are very legalistic, in English, and many citizens may need time and assistance to understand them well. In the past, I had underestimated the time and effort needed by our lawyers to prepare the petition and related documents. We also need to deliver a copy of the petition to the Speaker at the same time as filing the petition. Draft laws can only be challenged in the SC in Colombo and this makes it very difficult for citizens living far from Colombo. Thus, the constitutional right to challenge draft Bills before court is practically very difficult to be realised and is an uphill task for ordinary citizens not fluent in English, living far from Colombo, without easy and fast access to legal, financial, and other logistical support.
Challenging the PSTA outside court
Given the limitations of judicial review and practical difficulties, the focus on challenging the PSTA must be before it is tabled in the Parliament, through social and political initiatives. I believe that it is such campaigns that compelled previous Governments to withdraw the ATA and the CTA. Prominent NPP Leaders were part of such campaigns, such as the present Prime Minister Dr. Harini Amarasuriya and House Leader and Minister Bimal Rathnayake. However, we failed to have the PTA repealed, thus, the withdrawal of the proposed replacements had little meaning. So now, we must have strong focus on both repeal of the PTA and the withdrawal of the PSTA.
The NPP must keep the promise in its Election manifesto and eepeal the PTA. A simple majority in the Parliament is enough for this. And, in the same spirit, the NPP must withdraw the PSTA and not try to replace the PTA with similar terror laws. Those who voted for the NPP must stand up now and demand that the NPP live up to its promise.
The writer is an HR activist
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The views and opinions expressed in this column are those of the author, and do not necessarily reflect those of this publication