Sri Lanka’s worst law

21 Mar 2022

Sri Lanka’s worst law

21 Mar 2022

A primer on the PTA and reasons for its repeal

BY ERMIZA TEGAL The PTA is an unjust and dangerous law that should never have been enacted, let alone allowed to stand for over 40 years. Whilst there have been recent robust calls for its repeal, the Government insists that limited or gradual reforms are sufficient. Proposed reforms are scheduled to be debated in Parliament today (22). The debate on the PTA often obscures the details of what is at stake for the safety and security of Sri Lankan citizens. This primer seeks to lay out some of the basic facts and respond to questions often asked of those calling for its repeal. When the PTA was enacted as a “temporary measure” in 1979, alarm was raised by parliamentarians and civil society activists about the dangers of placing wide arbitrary powers in the hands of state officials. However, pre-enactment public debate was thwarted by the Bill being presented as urgent legislation and was passed within a day. The Cabinet of the day had decided that the Bill would be approved by over a two-thirds majority in Parliament for the very reason that the provisions of the law were admittedly contrary to the freedoms of citizens enshrined in the Constitution. From the outset, it was clear that the provisions of the PTA contradicted basic fundamental rights guaranteed by the Sri Lankan Constitution. That the PTA is unconstitutional in that it violates the human rights of Sri Lankan citizens need not be debated further. It’s important to note that international standards on countering terrorism also fail to consider the culture of impunity, diminished respect for rule of law, weak judiciary, and generalised public fear in response to legacies of misuse of counter-terror laws and counter-terror narratives that exist in places like contemporary Sri Lanka. What is in the PTA? In many respects, it is a very basic and regressive piece of legislation, concerned only with restricting liberty. I would argue it is not even fit for the purpose of countering or preventing terrorism. The provisions of the PTA also fail international standards required of counter terror laws: 1) The definition of acts of terrorism is broader than internationally prescribed 2) The powers of arrest, detention, and restriction of civil liberties are not subject to judicial supervision 3) Provisions relating to confessions create strong opportunity for torture (See the “Understanding Rule of Law, Human Security, and the Prevention of Terrorism Act in Sri Lanka” report by the Law and Society Trust, Colombo)

A definition for the offence of terrorism which fails to adhere to international standards
Powers of arrest, detention, and restriction orders
Power to prohibit publications
Explicit permission for confessions to be made to police officers whereas ordinary criminal law only permits confessions to be recorded by magistrates
Institution of an Advisory Board that is appointed by the President to essentially replace judicial supervision of detentions

Definition of terrorism: Section 2 describes an act of terrorism as a series of acts that are offences already recognised under our Penal Code including speaking words causing communal disharmony and erasing or defacing public sign boards. The definition fails to require the acts to actually or intend to cause terror. The defined act of causing death or kidnapping deals with that of a president, judge, official of a foreign state, member of parliament, officer of court, or member of the armed forces. Acts against civilians are not covered. United Nations (UN) Security Council Resolution 1566 (2004) recommends three elements must be present in an terrorist act: (1) it must be an offence recognised in a convention on terrorism, (2) it must seek to invoke terror or intimidate or compel a government to do something, and (3) it must have the intention of causing death, serious bodily injury, or taking of hostages. The PTA does not require (1) and (2), and expands element (3) to encompass many acts which do not on their own amount to terrorism. This why the argument is easily made that the definition of terrorism in the PTA is overly broad, and that any civilian can be subject to the draconian provisions of the PTA without much justification. I will venture to say from my legal experience of the PTA case, the vague and unspecified reasons put forward in many arrests do not ex facie meet even the existing broad definition justifying arrest. Arbitrary arrests and consequent long-term detentions are a familiar feature of the PTA. The fact that judicial supervision is effectively removed has meant that there has been no review or appeal available. The Advisory Board, appointed by the President, which, in actual fact replaces the function of the Judiciary in this piece of legislation, is an affront to the notion of credible checks and balances over protection of civil liberties and completely undermines the Judiciary. Sri Lanka’s Supreme Court, in the cases of Chandrasiri v. Gen. Cyril Ranatunga (1993) and Others, Padmanathan v. Sub Inspector Paranagama (1999), and Weerawansa v. AG (2000), recognised the abuse of power in arrests in the name of national security. Regardless, the failure to give reasons and the failure to justify prolonged detention continues. The UN Working Group on Arbitrary Detentions has recognised that the prohibition of arbitrary deprivation of liberty has acquired customary international law status (jus cogens) and is fully applicable in all situations, including public emergency. Section 16, 17, and 18 permit as admissible, confessions made to police officials, as opposed to a confession to a judge who is better placed to ensure that confessions are voluntary and therefore admissible as evidence. These provisions have resulted in detainees and remandees being tortured for confessions. In some cases, the only evidence against a PTA suspect at the High Court trial has been the suspect’s alleged confession. The UN Special Rapporteur on Countering Terrorism reported that a senior judge had observed that in over 90% of the cases dealt with in the first half of 2017, he had been forced to exclude essential evidence because it had been obtained through the use or threat of force (1). The PTA provisions relating to confessions are a direct violation of the non-derogable right to freedom from torture that the Sri Lankan Constitution and international standards guarantee. The provisions relating to prohibition of publication are plainly a breach of freedom of expression and are completely misplaced as a measure needed for preventing terrorism. They cannot stand as part of the ordinary, permanently applicable law of the country. If the PTA, as shown above, is replete with provisions that do not identify terrorism with some degree of specificity and a blunt weapon by reason of investing broad police powers in institutions plagued with accusations of corruption and impunity and incentivises torture, is it fit for any purpose other than terrorising citizens? Let us briefly look at the track record of the abuse of power and human suffering, and question as to whether it has served the purpose of protecting Sri Lanka’s national security. Under the PTA: Abuse of power, miscarriage of justice, and human suffering Over the four decades that this “temporary” law has been allowed to remain in Sri Lanka’s statute books, it has enabled untold terrible abuses of power and miscarriages of justice. Some of these are documented and a fraction have even been acknowledged by Sri Lankan courts, which have held that arbitrary arrests and detentions have taken place under the PTA. In 2020, Sri Lanka’s Human Rights Commission reported that 15% of PTA prisoners at the time had been in remand (without charge) for between 10 and 15 years and 41% had been detained for between five and 10 years (2). The Commission also reported that 92% of PTA inmates surveyed had experienced ill treatment by police or the arresting authority, and that 76% of PTA remandees and 86% of PTA convicts surveyed reported depression-related self-harm or attempted suicide. A 2007 study of judicial medical records of 100 PTA remandees who claimed to have been tortured (3) found scars consistent with use of non-pliable blunt weapons including rifle butts, batons, wooden sticks, wicket stumps, cement or sand filled PVC pipes, and chair or table legs on the bodies of 87% of persons examined. Signs of pliable blunt weapons, such as belts, wires, and cigarette burns being used were found on 57% of the persons examined. Burns from molten plastic (3%), burns from heated solid objects (9%), ligature marks from being tied up (44%), and scars from razor blades and knives (12%) were also recorded. Abuse of the PTA seriously affected Tamil citizens in the context of over three decades of ethnic armed conflict, and also members of the majority Sinhala community in the context of insurgencies in the late 1980s and beyond. In recent years, it is Muslim citizens who have been subject to its draconian measures as part of countering extremist violence. The PTA has played a role in producing community-level “trauma” by enabling a “repressive ecology” of threat, torture, intimidation, and alienation (4). In my experience, this continues to date, with family members being repeatedly questioned, required to visit the offices of the Terrorist Investigation Department, and compelled to sign statements (often written in a language that they do not understand). Families and communities are reminded that any physical liberty they experience is a matter of discretion of a state official. Fear is also instilled in suspects held in detention by subjecting them to harassment, humiliation and intimidation, regular body searches, and “punishment” without cause. The scale of the personal injustice and loss that may be perpetrated is also ever present when communities learn of those arrested under the PTA being discharged or acquitted only many years later and with no compensation for the losses they and their families have suffered. This is particularly harmful as it incentivises victims to plead guilty in exchange for a few years of “rehabilitation”. Has the PTA secured the national security of Sri Lanka? What has been the impact of the PTA in terms of securing national security? Has there been evaluations of how effective it has been? What has it prevented? How many have been successfully prosecuted? Based on publicly available information, this is unknown. There have been no arguments made about the effectiveness of the PTA, merely assertions that it is necessary. As Sri Lankans, we do not ask these questions about the effectiveness of our Governments. We presume they must know what’s best, and it is that public trust that is breached by the impunity, misuse of the PTA, and failure to address concerns of victims. Having normalised the PTA, and turning a blind eye to the abuse and injustice perpetuated, we have grown comfortable with the PTA. With the consistent reminders of threats to national security our buy-in is renewed. We are not given any information about the nature of security threats, no Government justifies why they need powers as broad and as unchecked as the powers in the PTA, and those in Opposition do not adequately question it. We have traded in fundamental rights for a false sense of security. We delude ourselves into believing that whoever is touched by the PTA must be some sort of terrorist, and therefore, this law must be keeping us safe. We are satisfied when we are told of unverifiable threats to national security. We fail, perhaps even refuse, to see the human suffering that the PTA causes. We fail to see the long-term implications of this eroded sense of security and the growing frustration of people affected unfairly by this law. There is inadequate acknowledgement of the role of PTA abuses in adding to the grievances that fuel our violent conflicts. Emergencies are the only times when significant curtailment of civil liberties should be even contemplated. Even in such extreme instances, we in Sri Lanka have failed to correct, compensate, and engage in restitution where serious infringements have taken place and loss has been caused due to the wielding of this law unfairly or disproportionately. Unfortunately, there is never an honest debate on whether we need the PTA or not, there is only room for a debate on how much of the PTA any Government of the day is willing to give up. The PTA has sown distrust, insecurity, and caused human suffering. When will these lived realities become central to the conversation? Balancing freedom of physical liberty and national security Laws to combat terrorism or other similar threats have, at their heart, the tension of balancing citizens’ freedom and security. Whilst ordinary criminal law tries to ensure that freedoms are not infringed arbitrarily, laws for “national security” often permit infringements of these same freedoms. The tension is about achieving national security whilst limiting possible abuse and human suffering. It is important to acknowledge the fact that human suffering is a very real consequence of national security powers of arrest and detention. This is why arbitrary powers of arrest and detention must be confined to exceptional or extraordinary circumstances. If we acknowledge their potential for causing human suffering, we must insist that such laws must be purposive, time-bound, contain adequate checks to limit abuse, and include means to compensate for suffering wrongfully caused. Successive Governments since 1979 have failed to give up the arbitrary powers that the PTA affords state officials, using the argument that it is necessary to combat terrorism and secure national security. Despite the end of its civil war, Sri Lankan Governments have successfully presented citizens with claims of a permanent state of threat to national security. They argue that the existence of such threats necessarily mean Governments require access to extraordinary police powers on a daily basis. Human suffering is justified and is also swept under the carpet of “counter-terrorism”, so that people are not agitated at what the laws of their country are doing to their fellow citizens or how society is “policed”. A law said to address threats to national security has become itself a threat to citizens and, over time, to the very fabric of democracy. To be continued… References (1) Human Rights Council Report of the Special Rapporteur on the promotion and protection of human rights while countering terrorism A/HRC/40/XX/Add.3 (23 July 2018). (2) See page 521 of National Study of Prisons of the Human Rights Commission of Sri Lanka 2020 at https://www.hrcsl.lk/wp-content/uploads/2020/01/Prison-Report-Final-2.pdf (3) Perera, P., Scars of Torture: A Sri Lankan Study, Journal of Forensic and Legal Medicine 14 (2007) 138–145 (4) Somasundaram, D., Psycho-social aspects of torture in Sri Lanka, International Journal of Culture and Mental Health (September 2008). (The writer is an Attorney-at-Law. She can be reached via ermiza@gmail.com) …………………………………. The views and opinions expressed in this article are those of the author, and do not necessarily reflect those of this publication.

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Sri Lanka’s worst law

Sri Lanka’s worst law

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