Civil society responds to proposed reforms

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

o   Civil society said it reiterates that arrests should be made based only on evidence following investigation or reasonable suspicion

o   The detention period should be that stipulated in the Code of Criminal Procedure and any extension of detention should be made by a judge, who should be satisfied of the reasons for continued detention and exercise discretion as to whether or not to extend detention

•         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

Protections

The SLCC statement mentions the Government stated that for the very first time, a detained person would be able to challenge administrative detention in the Supreme Court. Civil society points out that the right to challenge arbitrary detention, including under the PTA, is enshrined in the Constitution of Sri Lanka and is not a new right that any proposed reform could bestow. The challenge many detained persons face in accessing this existing right is the administrative restrictions on access to lawyers and lack of financial resources to retain competent counsel.

Similarly, the HRCSL Act already mandates the Commission to monitor the welfare of persons deprived of liberty and empowers it to access any place of detention unannounced. However, following the 20th Amendment to the Constitution in 2020, the HRCSL is no longer a legally independent body, as appointment of the officers of the Commission is at the discretion of the President. This adversely impacts the activities of the Commission as well as public trust in the institution.

The Advisory Board established by Section 13 of the PTA, as pointed out in the past by civil society, is an inadequate protection mechanism that is not independent, as its members are appointed by the President. Furthermore, the Minister of Defence has the power to make rules on how the Board deals with representations made by detained persons. It, therefore, does not act as a safeguard against executive abuse of power. Any non-judicial mechanism that is established to decide on/recommend the release of persons detained under the PTA must be independent and entities, such as the Attorney General’s Department, should not be able to veto its decisions.

Way forward

The proposals shared by the Government with the SLCC fail to address the fundamental shortcomings of the PTA. Instead, they propose changes that already exist but are often observed in the breach.

Civil society noted with deep concern that the functioning of the aforementioned committees was not transparent, and the recommendations were formulated without any consultation with members of civil society who have been working on issues related to the PTA or persons affected by the law.  Civil society calls for greater transparency in the reform process from this point onwards and requests the Government to inform the public of the process for consultation and the proposed timeline for reform.

Civil society said it reiterates that national security cannot be achieved by creating insecurity for already discriminated against and marginalised communities, and calls for the repeal of the PTA. The repeal of the PTA must also be considered in light of the anti-terrorism and public security legal framework that Sri Lanka has in place, and the historical abuse of power by state entities. These entities should not be bestowed with additional power.

The way forward must give due recognition to the protection of physical liberty. Deprivation of physical liberty by the Executive must be used only as last resort and strictly require sufficient basis that is determined on objective factors, judicial supervision of such basis, prompt and free access to legal representation including legal aid, prompt trials or release, and an enforceable right to compensation for arbitrary detention. The prohibition of arbitrary deprivation of liberty has acquired customary international law status and constitutes a jus cogens norm which Sri Lanka is duty bound to secure for its citizens.

The balance the Government wishes to achieve between personal liberties and national security can only be achieved through addressing the root causes of conflict and violence. Attempts to further curtail civil liberties in the guise of national security will only exacerbate the insecurity of all communities and undermine the rule of law and democracy in Sri Lanka.

Signatories: S. Annalaxumy, Bisliya Bhutto, S.C.C. Elankovan, Lawyer and Development Consultant Philip Dissanayake, A.M. Faaiz, Brito Fernando, Nimalka Fernando, Ruki Fernando, Aneesa Firthous, Amarasingham Gajenthiran, T. Gangeswary, K. Ginogini,  Ranitha Gnanarajah AAL, B. Gowthaman, THALAM Director S. Hayakirivan, V. Inthrani, Noorul Ismiya, Vasuki Jeyshankar, Dr. Sakuntala Kadirgamar, Social Activist S. Kamalakanthan, Mahaluxmy Kurushanthan, Kandumani Lavakusarasa, Human Rights Activist Jensila Majeed, Buhary Mohamed, Human Rights Activist, Juwairiya Mohideen, Voices Movement Chairman Jaabir Raazi Muhammadh, P. Muthulingam, Thangaraja Prashanthiran, Dorin Rajani, Viluthu Executive Director Maithreyi Rajasingham, A.R.A. Ramees, V. Ranjana, Anuratha Rajaretnam, K.S. Ratnvale, Yamini Ravindran, AAL Kumudini Samuel, Thurainayagam Sanjeevan, Shreen Saroor, Ambika Satkunanathan, Rev. Fr. S.D.P. Selvan, S. Selvaranie, Vanie Simon, P.N. Singham, Usha Sivakumar, N. Sumanthi, Vani Sutha, Ermiza Tegal, Social Activist S. Thileepan, P. Vasanthagowrey, and Rev. Fr. Yogeswaran; the Adayalam Centre for Policy Research, Alliance for Minorities, Centre for Human Rights and Development, Centre for Justice and Change, Eastern Social Development Foundation, Families of the Disappeared, Forum for Plural Democracy, Law and Society Trust, Mannar Women’s Development Federation, Rural Development Foundation, Tamil Civil Society Forum, Viluthu, and Women’s Action Network.