In June 2021, the Government of Sri Lanka announced it would “reform” the Prevention of Terrorism Act (PTA) and appointed a cabinet subcommittee and a committee of officers for that purpose. It was reported in the media that the Head of the Committee of Officers, Defence Secretary Kamal Gunaratne submitted recommendations to the President last month.
Historically, for decades, the PTA has been weaponised against the Tamil community, and following the Easter attacks, against the Muslim community as well. This has resulted in the victimisation of members of these communities. It was also used against the Sinhalese during the Janatha Vimukthi Peramuna (JVP) insurrection and now against dissenters. Civil society said it reiterates that any process which seeks to tackle issues related to the PTA must address this factor, to ensure that those adversely affected by the law will receive justice, including reparations.
While the Government has not shared its plans for the supposed “reform” of the PTA with the public, civil society notes the Sri Lanka Consensus Collective’s (SLCC) statement of 29 November 2021 sets out proposals for reform that the Government shared with the said group. In the absence of official communication by the Government, civil society considers the elements contained in the SLCC statement as the changes being deliberated by the Government. Civil society notes that nearly all the so-called changes proposed, already exist in law and do not address any of the shortcomings in the PTA that enable grave human rights violations.
Civil society calls for the repeal of the PTA and in the interim, an immediate moratorium on the use of the law. This is in line with the requests of persons and communities adversely affected by the law. Civil society said it reiterates that any law that purports to deal with terrorism must adhere to international human rights standards. In this regard, civil society said it sets out below the provisions of the law that result in egregious human rights violations and the minimum standards that have to be followed to ensure the protection of fundamental rights.
Civil society said that the critical factor to take note of is that the PTA is a human rights deficient law that does not adhere to basic human rights standards enshrined in international conventions, such as the International Covenant on Civil and Political Rights (ICCPR), which the Government of Sri Lanka has ratified and hence has an obligation to respect and protect; nor does it adhere to the many provisions in the Constitution of Sri Lanka. In this context, the following are key provisions in the PTA that result in grave human rights violations:
- The PTA does not contain a definition of terrorism. Instead, the offences stipulated are those found in other laws, such as the Penal Code, to which the PTA makes reference. Hence, the decision as to whether the PTA would apply in a certain instance is a subjective decision that can be shaped by personal prejudice and bias, rather than objective standards. In this regard, the PTA does not adhere to the definition set out by the United Nations (UN) Special Rapporteur on Countering Terrorism while Protecting Human Rights. For instance, post-Easter attacks, even persons with books in Arabic and decorative swords were arrested. Similarly, those memorialising the lives lost at the end of the war had been arrested
- The lack of basic due process safeguards in the PTA enables arbitrary arrest and detention, which continue to date. This is exacerbated by the lengthy periods of administrative detention. For example, for decades, civil society said it witnessed persons who had any connection to a person accused of an offence in the normal course of their employment or personal life being arrested, without investigations being conducted, and detained for months
- There is documented evidence, including Supreme Court decisions and the Human Rights Commission of Sri Lanka’s (HRCSL) reports, which illustrate that the admissibility of confessions made to an Assistant Superintendent of Police (ASP) or above as evidence, has resulted in persons being tortured to extract confessions. This has normalised and entrenched the use of torture. Even if the confession is ruled inadmissible during trial, the existence of the provision creates room for persons to be subject to torture. This not only violates basic due process and fair trial rights of a person accused of an offence, but also calls into question the competence of the criminal justice system that has to rely on confessions to prosecute persons. Such a provision, which is a deviation from the norm, has no place in law. Instead, current provisions in the Code of Criminal Procedure and the Evidence Ordinance should be followed with regard to the admissibility of confessions
- Section 7(3) allows a person to be taken out of judicial custody to any other place for investigation. Section 15A empowers the Secretary to the Ministry of Defence to determine a person’s place of detention even after the person is remanded. This removes a person from the protection of judicial custody and empowers the Secretary to override a judicial order. The incident in September 2021 of the Minister of Prison Reforms and Prisoners’ Rehabilitation entering the Anuradhapura Prison and reportedly threatening persons detained under the PTA with a weapon and verbally abusing them, illustrates the insecurity faced by such persons even when in judicial custody. Removing them from judicial custody would only exacerbate their vulnerability. As the HRCSL’s national study of prisons documented, persons remanded under the PTA were subjected to severe torture when taken out of judicial custody or held in other places upon the instructions of the Secretary of the Ministry of Defence
- Persons detained under the PTA spend a prolonged period of time in pretrial detention because the Act requires such persons to remain in remand custody until the conclusion of the trial, unless the Attorney General consents to the release on bail. For all arrests, provisions of the Bail Act should apply, and bail should be denied only if any of the exceptional circumstances set out in the Bail Act are met
- The PTA allows the Minister of Defence to issue restriction orders for up to 18 months. Restriction orders can be used to prevent people from engaging in political activities, speaking at events, or advising an organisation. Such orders allow civic rights to be curtailed arbitrarily by the Minister with no due process, transparency, or accountability