The petition filed in the Court of Appeal by former President Gotabaya Rajapaksa, requesting an order to prevent the Police from arresting him under the Prevention of Terrorism Act (PTA), is a significant milestone in Sri Lanka’s legal history. This is because it represents a complete reversal of roles.

During his tenures first as Secretary of Defence and later as Executive President, Rajapaksa was severely criticised by international human rights organisations for using the PTA to target political opponents, as well as civil society activists voicing support for human and civil rights. Today, we see this same military-political leader seeking the protection of the court to escape from that very same law.

Rajapaksa’s petition fundamentally seeks an ‘interim relief’. That is, while the legal arguments regarding the allegations and investigations against him remain pending in court, the petition requests a judicial order preventing the Police or the Criminal Investigation Department (CID) from arresting him.

Similar to the arguments put forward by many before Rajapaksa, his lawyers may also argue that any move to arrest him under the PTA is politically motivated or lacks a reasonable legal basis.

One of the most draconian provisions of the PTA is that it has a very low threshold for arresting an individual. This law allows for the arrest and detention of a person purely on suspicion, without an arrest warrant. Sri Lanka has an unfortunate history filled with experiences of many innocent people spending the majority of their lives under the PTA – a law that was initially introduced as a temporary measure but later became permanent and has been in force for 47 years.

The fact that a former President has preemptively approached the court to prevent such an arrest underscores the sweeping scope of power granted to the Executive through the PTA.

If the Court of Appeal grants the order as requested in Rajapaksa’s petition, it will reveal the extent to which a former president enjoys immunity or protection from counter-terrorism laws. This will establish a new legal precedent. Conversely, if the petition is rejected, it will demonstrate that no one is above the provisions of the PTA.

Relying on the Judiciary today to protect himself from the very same PTA he once wielded is viewed as a major irony in the current political landscape.

Repeal of the PTA: Herath’s new announcement 

Amid severe criticism against the National People’s Power (NPP) Government – which came to power promising to repeal the PTA but has continued to use it for over the past one-and-a-half years – Foreign Minister Vijitha Herath has announced that legislation to replace the act will be passed in Parliament within two months. 

The draft Bill for the Protection of the State from Terrorism, which the Government had previously prepared and published on the Ministry of Justice website, had drawn harsh condemnation from local and international human rights organisations, civil society groups, and political parties for being even more draconian than the PTA itself. 

Minister Herath told a Colombo-based English newspaper recently that the new bill had been drafted taking into account the criticisms levelled against the previous draft, as well as the proposals submitted by various organisations. 

The Foreign Minister stated that several proposals from the committee appointed under the chairmanship of President’s Counsel Rienzie Arsecularatne to review the replacement of the PTA had been incorporated into the draft bill. He also noted that the committee had obtained proposals from local civil society groups and international organisations to ensure that the legislative reform process for replacing the PTA considered a wide range of perspectives.

Before being presented to Parliament, the draft bill must receive Cabinet approval and be published in the Government gazette. The Minister’s remarks indicate that the Government plans to complete these processes within two months. 

This marks the third attempt within the last decade to replace the PTA. The replacement bills previously introduced – first by the Yahapalana (good governance) Government and later by President Ranil Wickremesinghe’s Government – contained provisions that were more draconian than the PTA. Similarly, the draft bill presented by the NPP Government last year also contained even harsher measures. 

Criticisms arose that while governments claimed they would repeal the PTA, their true intention was to retain it, which is why they introduced draft bills with provisions stricter than the existing law. If the NPP Government has not drafted this new bill considering past criticisms in good faith, this third attempt will also prove futile. 

Minister Herath also mentioned that the new draft had been forwarded to the relevant United Nations (UN) agencies and to UN Resident Coordinator in Colombo Marc-André Franche.

This demonstrates the Government’s keenness to secure the backing of the international community for the legislation being brought in to replace the PTA. However, only when the new draft bill is made public will it become clear to what extent the Government has genuinely taken into account the constructive criticisms levelled against the previously proposed draft bills.

Conduct of north-east Tamil members in the House 

It has become a common practice for Members of Parliament (MPs) from Tamil parties in the north and east to deliver speeches that are irrelevant to the specific topics being debated in the House.

Those who watch parliamentary proceedings live on television might be forgiven for thinking that the House is constantly debating the past armed struggles of the Tamil people and those who led them, given how frequently Tamil MPs bring up these subjects.

Many Tamil MPs spend a significant portion of their allotted time reminiscing about past struggles and speaking about militant leaders. To contribute constructively to the specific bills or motions scheduled for debate on any given day, members must prepare themselves in advance. It is unclear whether some members resort to emotionally charged rhetoric – aimed at their voters outside the chamber – simply to avoid the hard work of such preparation.

There is a growing criticism within the Tamil community itself that this behaviour serves two negative purposes:

• Fuelling extremism: It provides a handle for majority nationalist groups to continue portraying the legitimate political aspirations, rights, and demands for devolution of the Tamil people as secessionism.
• Lack of vision: Instead of proposing a future political roadmap or navigating the rights struggle in a way that aligns with contemporary domestic and international geopolitical realities, these representatives waste time by keeping the people tethered to the past through provocative speeches.

People in the north and east are facing severe economic challenges. Youth are heavily impacted by unemployment. The population grapples with issues ranging from the burden of microfinance loans to infrastructure deficiencies. Tamil MPs must focus intensely on exploring ways to solve these pressing problems.

While the rising new generation respects historical memories, they are also deeply concerned with practical socio-economic progress. Instead of guiding this generation towards a feasible new path informed by the lessons of the past, Tamil MPs are attempting to pull them towards an unproductive path of living in the past. Consequently, these MPs face the risk of becoming completely alienated from the Tamil people over time.

 Hip-hop Sangee’s bail release

Ganeshkumar Sangeethan, a hip-hop artist from Kilinochchi known as ‘Hip-hop Sangee,’ was arrested earlier this month for performing a song praising the Liberation Tigers of Tamil Eelam (LTTE) and detained under the PTA. Following his release on bail recently, various political factions, lawyers, and civil society organisations have been claiming credit, highlighting their respective contributions and interventions in securing his freedom.

As a result of the voices raised both locally and internationally for Sangeethan’s release, multiple parties can be seen claiming that their efforts were the driving force behind removing his case from the PTA and bringing it under the ordinary Penal Code.

Ilankai Tamil Arasu Katchi (ITAK) Jaffna District MP Sivagnanam Shritharan had mobilised the public and led a protest in Kilinochchi. Reports also emerged that Shritharan had contacted and discussed the matter with high-ranking Government leaders, including President Anura Kumara Dissanayake, urging them to release Sangeethan on bail.

Similarly, All Ceylon Tamil Congress Leader Gajendrakumar Ponnambalam and ITAK Parliamentary Group Leader Shanakiyan Rasamanickam strongly condemned the Kilinochchi hip-hop artist’s arrest and detention both inside and outside Parliament, demanding his release.

Meanwhile, ITAK General Secretary and President’s Counsel M.A. Sumanthiran had announced his intentions to file a Fundamental Rights petition in the Supreme Court against Sangeethan’s arrest. Kesavan Sayanthan, a lawyer and former Northern Provincial Council member, appeared and argued on behalf of Sangeethan in court. 

These moves are considered the legal turning point that persuaded the Attorney General’s Department to withdraw the case from PTA provisions and proceed under the ordinary Penal Code, ultimately leading the Chavakachcheri Magistrate’s Court to grant bail to Sangeethan.

In an unexpected turn of events, the political heir of the Rajapaksa family and representative of the Sri Lanka Podujana Peramuna (SLPP) also criticised Sangeethan’s detention, accusing the Government of “selective application” of the law.

Having been released due to the outcry from these various quarters, Sangeethan has now become a famous artist both locally and globally. He now faces his legal proceedings under the ordinary Penal Code rather than the PTA.

While Tamil politicians projected Sangeethan as a contemporary artistic icon of Tamil nationalist liberation sentiment among the younger generation, Minister of Fisheries, Aquatic and Ocean Resources Ramalingam Chandrasekar – who also claimed credit for his bail release – requested that Sangeethan focus on composing socially conscious awareness songs in the future. We will have to wait and see what kind of songs Sangeethan will choose to sing from now on.

(The writer is a senior journalist based in Colombo)

(The views and opinions expressed in this article are those of the writer and do not necessarily reflect the official position of this publication)