Colombo, August 31 (Counterpoint): As September (or March) approaches every year, the Sri Lanka government gets the jitters. This is because it is hauled over the coals for its war-related and post-war human rights record at the March and September sessions of the UN Human Rights Council (UNHRC). Rights organizations both on the island and overseas, raise issues, the government indulges in some window-dressing, trots out excuses for not implementing promises made, and seeks a grace period. This appears to be an unending cycle.
Meanwhile, new issues crop up adding fuel to the fire. This September it will be the non-implementation of the promise to annul or radically modify the draconian Prevention of Terrorism Act (PTA). This is because it was used to lock up people for long periods just for seeking the ouster of the President or for minor transgressions of the law during an agitation. The definition of terrorism in the PTA (even in amendments) is so imprecise that transgressions which can be dealt with under ordinary law with due process, are dubbed as terrorist.
In a statement issued on Wednesday, Human Rights Watch (HRW) sought an immediate end to the use of the PTA. It pointed out that three student activists who participated in an August 18, 2022 demonstration, under PTA, which allows up to a year’s detention without trial. “President Wickremesinghe’s use of antiterrorism legislation to lock up people peacefully calling for reform sends a chilling message to Sri Lankans that rights won’t get priority during his administration,” said Meenakshi Ganguly, South Asia director at Human Rights Watch.
In 2015 and 2017, as Prime Minister, Wickremesinghe had pledged to the UNHRC that he would amend the law. In 2017, the EU had restored Sri Lanka the GSP Plus trade concessions on the basis of this promise. But Wickremesinghe reneged. The three men booked recently (Wasantha Mudalige, convener of the Inter-University Students’ Federation (IUSF); Hashantha Jeewantha Gunathilake, a member of the Kelaniya University Students’ Union; and Galwewa Siridhamma Thero, the convener of Inter University Monks Federation) were arrested under PTA following a protest on August 18 that the police dispersed using teargas and water cannon. Condemning this, the Human Rights Commission of Sri Lanka (HRSL) said that “no suspect exercising their fundamental rights under the Constitution should be wrongly treated as a terrorist.”
Opinion in Sri Lanka is divided on the nature of PTA reform. However, given the unenviable economic situation in which Sri Lanka is presently, abjectly dependent on Western trade concessions, it has no option but to please the West by reforming the anti-terror law here and now. The government which formulated a Counter Terrorism Act recently is now thinking of going in for a National Security Act to replace the PTA.
What needs to be done?
Any new anti-terror law should get rid of the flaws mentioned in the Human Rights Watch (HRW) document of February 2022 entitled: In A Legal Black Hole. The most frequently abused provisions include:
The act defines terrorism offenses so broadly as to include, for example, causing or intending to cause “racial or communal disharmony or feelings of ill‐will,” or interfering with “any board or other fixture on, upon or adjacent to, any highway, street, road or any other public place.” It is also an offense, punishable by up to seven years in prison, to be aware of an action that appears to be in breach of the act and fail to report it.
Section 6(1) empowers the police—without a warrant, and notwithstanding anything in any other law to the contrary—to arrest any person; enter and search any premises; stop and search any individual or vehicle, and to seize any document or thing.
Section 7(1) provides that a magistrate will remand any person in custody until the completion of their trial, if requested by the police. There is no provision for bail, unless approved by the attorney general.
Section 7(3) empowers the police to take “any person” arrested under the act “to any place for the purposes of interrogation.” This provision has frequently been used to facilitate torture.
Section 9(1) provides that if the defense minister suspects “any person is connected with or concerned in any unlawful activity,” he can order them detained for up to 18 months.
Section 10 states that “[a]n order made under section 9 shall be final and shall not be called in question in any court or tribunal by way of writ or otherwise.”
Section 15(a) gives discretion to the secretary of defense to order that a PTA suspect “be kept in the custody of any authority, in such place and subject to such conditions as may be determined by him having regard to such interests [of national security or public order].” The provision does not set out any criteria for making this determination, and the decision is not subject to judicial oversight.
Section 16 reverses the burden of proof, stating that “any statement” made by the accused in any circumstances, and recorded in any manner, is admissible as evidence and “[t]he burden of proving … [it] is irrelevant … shall be on the person asserting it to be irrelevant.” This, along with other provisions of the act, has contributed to convictions based on confessions obtained under torture.
Section 17 states that provisions of the Evidence Ordinance, which make confessions given to a police officer inadmissible, do not apply in PTA cases.
Section 26 grants immunity to officials for “for any act or thing in good faith done or purported to be done in pursuance or supposed pursuance of any order made or direction given under this Act,” giving broad cover to security forces to engage in torture, arbitrary arrest, and other abuses.
According to section 28, “The provisions of this Act shall have effect notwithstanding anything contained in any other written law and accordingly in the event of any conflict or inconsistency between the provisions of this Act and such other written law, the provisions of this Act shall prevail.”
The HRW quotes a 2020 report by the HRCSL which said that, as of September 2018, at least 29 PTA prisoners had spent 5 to 10 years on remand (pretrial detention), and 11 had spent 10 to 15 years on remand. The HRCSL said that the longest period a person had been in remand before trial was then 15 years. The longest period a trial had been ongoing was 16 years. The study also found that about 84% of PTA prisoners were tortured after their arrest.
In September 2021, the Committee for Protecting Rights of Prisoners, a Sri Lankan human rights organization, wrote to the UN High Commissioner for Human Rights, Michelle Bachelet, listing 11 PTA suspects they said had been in detention for 12 to 14 years, and were facing trials that have so far lasted between seven and nine years without reaching a verdict. On January 7, 2022, the HRCSL told HRW that it had recorded 109 arrests under the PTA in 2021.
UN experts had set out five benchmarks for PTA reform. These are: (1) Employing definitions of terrorism consistent with international norms. (2) Ensuring legal certainty, especially where it may impact rights to freedom of expression, opinion, association, and religion or belief. (3) Including provisions to prevent and halt arbitrary deprivation of liberty. (4) Including provisions to prevent torture and enforced disappearance. (5) Guaranteeing due process and fair trials, including judicial oversight and access to legal counsel.
In the UN General Assembly proposed definition the following characteristics were identified: (a) injury to persons (b) serious damage to public or private property, including a place of public use, a State or government facility, a public transportation system, an infrastructure facility or the environment; or (c) damage to property, places, facilities, or systems…, resulting or likely to result in major economic loss, when the purpose of the conduct, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or abstain from doing any act.
In the light of the above definition, the PTA would have to be repealed and a new anti-terror act fashioned on totally different lines.