• A new law replacing a repealed law would have transitional provisions: AG

The pre-election manifesto of the National People’s Power (NPP) pledged the “abolition of all oppressive acts including the Prevention of Terrorism Act (PTA)” in September 2024. Seven months later in April, the Government initiated a process of repealing the controversial Prevention of Terrorism (Temporary Provisions) Act No.48 of 1979 through the appointment of a committee to review it. 

In place of the to-be-repealed PTA, a new law is to be introduced to combat terrorist activities. Minister of Justice and National Integration Harshana Nanayakkara said that the PTA would not be repealed until the new law was introduced. 

“The new law with regard to combating terrorist activities is being brought in for the purpose of repealing the old PTA,” he told The Sunday Morning. 

Stating that an anti-terror law was required in order to combat emergency situations of terrorism which could either be local or global, the Minister stressed that the new law would align with the rights guaranteed to individuals under the Constitution and international standards in anti-terrorism legislation. 

“In order to face all global security challenges and emergencies, we need an updated and modern law. However, this law should adhere to all rights of human freedom and expression and all international standards of an anti-terrorism law,” said Nanayakkara. 

Legalities 

However, what the repeal of the existing PTA would mean to those currently detained under it remains to be announced. 

When asked, Minister Nanayakkara said that detention orders were carried out by the Defence Ministry during its investigations. 

Responding to questions by The Sunday Morning, Deputy Minister of Defence Major General (Retd) Aruna Jayasekara said that while detention orders were prepared by his ministry, due to the nature of the information, it was not appropriate to be shared at this moment. 

However, Jayasekara said that an announcement regarding this would be made soon. 

Shedding light on the matter, Attorney General Parinda Ranasinghe said that the repeal of a law did not affect the legality of an arrest. However, he said that the new law would address the concern about those arrested and detained under the old law. 

“When a law is repealed, the new law introduced will have transitional provisions. Just because you are arrested and detained under a law that is being repealed, it does not affect the legality of the arrest,” the Attorney General said. 

PTA detainee statistics 

Posting on X last year, former Commissioner of the Human Rights Commission of Sri Lanka Ambika Satkunanathan said that as of April 2024, six persons were in remand for offences related to the Liberation Tigers of Tamil Eelam (LTTE) and 34 were on bail awaiting indictment. In addition, 49 persons on bail have been indicted or have ongoing trials for offences related to the LTTE. 

Out of those arrested for offences related to the Easter Sunday attacks, according to Satkunanathan, 24 were in remand as of April 2024, 34 on bail without indictment, and 54 on bail with indictment or ongoing trials. She said that the data had been obtained through Right to Information (RTI) requests. 

Multiple attempts to contact Police Media Spokesperson SSP Buddhika Manatunga for updated statistics were unsuccessful. 

Fate of those arrested under current PTA

Speaking to The Sunday Morning, Satkunanathan discussed what the repeal of the current PTA and the introduction of a new law might mean to those who have been arrested under it. 

While noting that what happened would depend on the transitional provisions of the new law that set out how existing cases should be handled, she commented on those who were yet to be indicted. 

“If a person arrested under the PTA has not been indicted at the time the PTA is repealed and a new counter-terrorism law is enacted, because of the principle of non-retroactivity, the new law will not apply to that person as it will apply only to offences committed after the new law comes into effect,” she said. 

This meant that those arrested under the old law would be prosecuted under the old law, she explained. 

“The ideal situation would be for the new law to do away with provisions that violate human rights, such as the admissibility of confessions made to a Police officer, and at the same time set out exceptions to retroactivity so that someone who was arrested under the PTA and against whom the main evidence is a confession made to the Police is not subject to provisions in the old law that violate human rights,” she added. 

Satkunanathan noted that if such exceptions were included, and if the main evidence in a case of a person arrested under the PTA was the confession made to a Police officer, the State would not be able to file charges against that person. This would also impact ongoing trials where the confession is the main evidence.

She further stated that those convicted could be considered for presidential pardons.

When asked whether there were arrests made under the PTA for drug and organised crime-related offences, Justice Minister Nanayakkara denied the use of the law for such crimes. 

“For non-terrorism related activities, I have not seen the PTA being used,” he said, explaining that the Penal Code would apply in the case of such offences, where prosecutions would take place under the normal law. 

Arsecularatne committee 

It was reported earlier this year that a committee headed by President’s Counsel Rienzie Arsecularatne was appointed to review the to-be-revoked PTA. This committee is to have its first working meeting by the end of April, The Sunday Morning learnt from Arsecularatne. 

Arsecularatne, who assured that the PTA would be repealed as the Government had pledged to do, said that as the repeal would leave certain areas exposed, certain security gaps would be created. He explained that the scope of the committee headed by him was to address these gaps.  

“The scope of my committee is to see ways of addressing security gaps for the State when the PTA is repealed,” he said. 

The Attorney General’s Department, Legal Draftsman’s Department, Sri Lanka Police, Sri Lanka Army, Ministry of Foreign Affairs, Ministry of Public Security, and Ministry of Defence are to be represented in this committee.