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Prevention of Terrorism Act: Amend to fit the times or repeal to protect rights? 

“The trial in the High Court went on for four years. The problem was the people who appeared for us did not know Tamil and we did not know Sinhala. We did not know what was happening in court. We did not have enough money to retain private lawyers, as we were displaced due to the war and were tortured…” 

These were the words of a person convicted under the Prevention of Terrorism Act (PTA), according to a recent study conducted by the Human Rights Commission of Sri Lanka (HRCSL). This is merely one example that shows the plight of people charged and convicted under the PTA, and the HRCSL in its report reveals many forms of such incidents where people charged under the PTA were deprived of their rights. 

Over the past few years, especially after the war, various parties have expressed opposition to the PTA, claiming that it has been used to violate people’s rights, especially the right to a fair trial. Even though the various governments acknowledged the need to amend it, to date, no concrete steps have been taken in that connection. 

 

What is PTA? 

The Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979 is an act that was enacted in 1979 to take immediate steps to deal with emergency situations such as insurgencies and terrorist activities, especially incidents that may affect national security. 

The PTA allows individuals to be detained without charges for up to 18 months, against which human rights organisations have expressed strong opposition. Also, the approval of the Attorney General (AG) is required to grant bail to a person arrested under the PTA. 

The Foreign Ministry recently said that at the 23rd meeting of the European Union (EU)-Sri Lanka Joint Commission held on 25 January 2021, the EU reiterated the need for Sri Lanka to amend the Prevention of Terrorism Act (PTA) as well as bring it in line with international standards. In response, the Sri Lankan government had confirmed its intent on revisiting the PTA with the aim of making the appropriate amendments. 

This is not the first or the only time the Sri Lankan Government expressed willingness to amend the PTA. In 2015, it was reported that former President Maithripala Sirisena joined a unanimous resolution at the United Nations Human Rights Council to commit Sri Lanka to implement a number of steps with the aim of upholding human rights. These steps included amendments pertaining to the PTA. 

In addition, in the past few years, a number of local and international human rights groups have requested the Sri Lankan Government to repeal or amend the PTA as the allegations of human rights violations committed using the PTA rose. 

 

Why is PTA necessary or unnecessary? 

Former President of the Bar Association of Sri Lanka (BASL) and Senior Advisor to the Ministry of Justice, President’s Counsel U.R. De Silva speaking to The Morning, stated that the PTA was enacted in order to be used in emergency situations such as terrorist activities and insurgencies where the use of the country’s normal laws is insufficient. 

“Certain parts of the normal laws require certain things which in such urgent circumstances may be difficult to do practically. These include that the charges against a certain party be proved beyond a doubt, suspects be presented in court within 24 hours, and that the court be informed if the suspect needs to be detained for more than 48 hours. There is therefore a need for a law to be used in emergency situations. Another law that goes parallel to this law is the emergency regulations. However, it has to be passed in Parliament, and if it is not extended within a month it gets automatically annulled. It is difficult to extend such laws in Parliament repeatedly, and therefore, there is a need for a more permanent law which can be used when necessary. The PTA is special in several ways, the way arrests are made, allowing the military to be actively involved in investigations depending on the need, allowing the detention and questioning of a suspect for a long time with a detention order.” 

He further explained that even though under the normal law, especially the Evidence Ordinance, confessions made by a suspect in police custody cannot be used as evidence, under the PTA, confessions made by a suspect before an officer holding a position higher than an Assistant Superintendent of Police (ASP) can be used. 

Speaking of the need of keeping the PTA, he added that incidents such as the Easter Sunday attack and intermittent extremist activities suggest that such incidents have not stopped completely, and therefore, although the normal law exists, when taking action in emergency situations, it may be difficult under the normal laws. 

 

What’s the solution? 

 

De Silva said that the PTA should be amended to rectify existing issues, not repealed, as the country can use an act like the PTA in cases of emergency. 

“The country should keep the PTA under certain limitations. It is advisable to introduce amendments such as reducing the detention period. There is a need to keep the PTA under such special amendments. Revoking it completely may lead to problematic situations. For example, if a person was arrested based on intelligence information, there would be difficulties in carrying out investigations to ascertain whether that person was actually involved in terrorist activities.” 

However, Committee for Protecting Rights of Prisoners (CPRP) Chairman, Attorney-at-Law Senaka Perera told The Morning that the PTA is an act that needs to be repealed, not amended, as it is an extremely strict and dangerous law. He added that the PTA does not contain the characteristics of a normal law, and that it limits people’s rights in a way that is not accepted under the normal laws. 

“Using a person’s confession to continue a case and not granting bail to a person until the case against him/her is over are several examples,” he added. 

When queried about the PTA’s importance in emergency situations, Perera added that there are adequate legal provisions under existing laws such as the Penal Code to conduct investigations and take necessary legal action against offenders, and there is, therefore, no need for the PTA. 

 

Misuse of PTA 

Speaking of the disadvantages of the PTA, U.R. De Silva further said that keeping or using the PTA does not lead to issues, but the Police misusing it creates issues. He added that in order to prevent the misuse of the PTA, the Police should be instructed regarding its proper use and directed to study it. 

“If a proper mechanism was devised to allow the filing of cases against those who misuse the PTA and to give compensation to the victims who faced injustice due to such misuse, this act has a practical value, and the Government should pay attention to it. Sometimes, even if a person was arrested for committing a normal offence, the Police, without adequate reasons, tell the court that investigations are being conducted under the PTA. In order to prevent such incidents, in the event no satisfactory facts have been presented in court to support it, magistrates should be given power to not allow the investigations to be conducted under the PTA.” 

He added that there should be legal provisions to take legal action against Police officers who initially seek the court’s permission to conduct investigations against a person under the PTA and later claims they cannot do so due to lack of evidence. He expressed confidence that if steps are taken to address such practical issues, any party would express agreement to keep the PTA for the country’s security needs. He also said that provisions necessary to take action against violating/misusing the PTA need to be included in the PTA itself, as currently there are no provisions to do that. 

“Taking a person’s freedom away by detaining him until they get evidence is unacceptable, and if they have evidence, in that particular situation, it is acceptable to use the PTA to conduct further investigations which involve presenting relevant facts in a court,” he stressed. 

De Silva went on to say: “The court should be more active in this connection and assess whether the PTA can actually be used. The Supreme Court in previous court cases has said that the magistrates should not act mechanically if the Police are requesting permission to curtail someone’s freedom for their satisfaction. Not adopting these instructions is the issue. If the relevant law was changed, any person can seek relief from the court, and in the event facts are presented to suggest that the relevant person had been detained maliciously, it is important to introduce provisions in order to make it possible for them to get compensation.” 

De Silva went on to express confidence that in the future, attention would be paid to amending the PTA, and also said that several laws including the Bail Act, Witness Protecting Ordinance, Public Properties Act and Archaeology Act are currently being amended. 

 

Adverse effects of PTA 

 

Speaking of the adverse effects of the PTA, Perera further said that there are certain people who have been in prisons for 13-14 years as suspects, because of the simple reason that their cases have not been concluded. 

“When a person spends an extended period of time in prison such as 13 years, it is tantamount to that person spending his jail term. When our organisation demanded that suspects be released or given some kind of relief when the Covid-19 pandemic hit Sri Lanka, the circulars that were issues in that regard mentioned that reliefs can be given to suspects other than those who were arrested under the PTA, and as a result, those who had been arrested under the PTA did not receive any relief,” he explained. 

He went on to say that there are issues pertaining to the implementation of laws in Sri Lanka, and that criminal cases usually go on for years. He added that the Attorney General’s Department sometimes takes years to give their reports, which also hinder and delay the case proceedings. 

 

HRCSL looks into PTA prisoners’ plight 

Meanwhile, the HRCSL, based on the findings of a study conducted on the prisons in Sri Lanka, pointed out that those in prisons under the PTA, among others, face severe difficulties due to a number of reasons. According to the HRCSL, the study in question, titled “Prison Study by the HRCSL”, had been conducted taking into account the lack of information in the public domain about and also the lack of public discourse on the prisons system, with a focus on the conditions and treatment of prisoners. The study had been conducted in twenty prisons around the country, and their conditions and treatment of prisoners had been evaluated within the fundamental human rights standards outlined in the Constitution of Sri Lanka, domestic legal framework regulating the administration of prisons, and the relevant international human rights obligations of the State. 

While overall findings of the study had revealed that the treatment and detention conditions of prisoners fell far below the threshold of basic living standards, the HRCSL had observed that certain categories of prisoners, including those detained under the PTA, were more vulnerable than others. Others identified as more being vulnerable include prisoners on the death row, women, young offenders, foreign nationals and prisoners with disabilities. 

During the study, prisoners charged with offences under the PTA had been identified as a special category of prisoners, as the PTA curtails certain rights and freedoms that are guaranteed by the Constitution and by international human rights norms. The HRCSL further added that they were therefore at risk of suffering violations of their right to enjoy due process safeguards, which in turn impacted the prolonged period of time they spent in remand. 

“In many ways, the detention status of the PTA prisoners directly causes an adverse impact on their treatment and conditions,” the report said, adding that due to being charged under the PTA, PTA prisoners had reported suffering discrimination and feeling that they were at risk of harassment by fellow prisoners and also prison officers. The study had revealed an alarming consequence of the said harassments, i.e. all PTA prisoners had said that they preferred to be housed with other PTA prisoners rather than non-PTA prisoners. 

The report said that in addition the majority of the PTA inmates had very little access to any vocational/skills training, education or prison work. This situation, according to the report, is caused due to the nature of their ‘special’ status and limited outside hours, limitation of language options available in such programmes or because of the type of prison at which they are housed. 

The HRCSL said that during the trial process, PTA prisoners had reported facing numerous challenges to the full enjoyment of their right to a fair trial, including long delays and the inability to understand the language of court proceedings. 

The report added: “Narratives of the prisoners illustrate that the legal provision, i.e. Section 7 (3) of the PTA, which allows them to be taken out of judicial custody to be interrogated, creates space for the continued violation of their rights as many reported being subjected to torture during such periods of being taken out of prison for interrogation. It also undermines the protections afforded by judicial custody and the purpose of judicial oversight of detention. The role of a Judicial Medical Officer (JMO) where PTA detainees are concerned is crucial to ensure PTA detainees are able to prove whether they were forced to sign confessions under conditions of physical duress. However, the HRCSL received numerous allegations alleging collusions between police officers and JMOs, or JMOs not being able to communicate with PTA prisoners due to language barriers. Thus, PTA prisoners would not enjoy the right to a fair trial due to the ineffective safeguards in place during their period of administrative detention, which would enable confessions obtained under torture being admissible in court.” 

In conclusion, the overall findings of the HRCSL’s study reveals a number of lesser known facts, which in the mainstream discourse on the PTA and its adverse effects on the people do not receive adequate attention, due to the inability to access that information. It is evident that in addition to the legal barriers pertaining to the PTA, PTA prisoners face a multitude of issues within the prisons, including but not limited to, discrimination within prisons, lack of access to facilities to which other prisoners are entitled to without any issue, difficulties in obtaining legal assistance due to the stigma attached to appearing for a PTA case, and difficulties in seeing their families/friends as most of them are from the North and East. 

One of the foremost objectives of a government introducing or implementing a law is to protect a country and its people. However, there is a strong need to update and amend these laws as necessary. A law that is useful now, may not be as useful and suitable in a few years. Sri Lanka has recently paid attention to amending a number of laws to make them more people-friendly. However, it appears that the authorities have not noticed that the PTA, which was enacted mainly to deal with separatist insurgencies, is also a law that needs to be updated and amended. Times have changed, and people are now in a position to deal with issues more diplomatically.