By P.K.Balachandran
Colombo, August 24: An examination of the Prevention of Terrorism Act (PTA) from the point of Sri Lanka’s own interest, would suggest that it is time the act was either drastically amended or replaced by a more just law that will help tackle the scourge of terrorism without riding roughshod over human rights and other constitutionally guaranteed freedoms. The PTA’s catch-all definition of terrorism and draconian provisions have enabled Lankan governments to abuse the Prevention of Terrorism Act to suppress opponents and minorities.
The Act, brought into being in 1979 as a temporary measure to tackle Tamil militancy, has stayed put in the statute book till date, stubbornly resisting international calls for change. Even threats of crippling trade sanctions by powerful Western nations have failed. Solemn promises to change it have been reneged upon regularly.
Definition of Terrorism
In the PTA a “terrorist” is any person who (a) causes the death of any specified person, or kidnaps or abducts a specified person, or commits any other attack upon any such person, which act would, under the provisions of the Penal Code, be punishable with death or a term of imprisonment of not less than seven years; (b) or causes the death of any person who is a witness to any offence under this Act, or kidnaps or abducts or commits any other attack upon any such person, which act would, under the provisions of the Penal Code, be punishable with death or a term of imprisonment of not less than seven years; (c) or commits criminal intimidation of any specified person or a witness referred to in paragraph (b); or commits the offence of robbery of the property of the Government, any Department, Statutory Board, Public Corporation, Bank, Co-operative Union or Co-operative Society; (d) or commits the offence of mischief to the property of the Government, any Department, Statutory Board, Public Corporation, Bank, Co-operative Union or Co-operative Society or to any other public property; (e) or without lawful authority, imports, manufactures or collects any firearms, offensive weapons, ammunition or explosives or any article or thing used, or intended to be used, in the manufacture of explosives; (f) or possesses without lawful authority, within any security area, any firearms or any offensive weapon, ammunition or explosives or any article or thing used, or intended to be used, in the manufacture of explosives; (h) or by words either spoken or intended to be read or by signs or by visible representations or otherwise causes or intends to cause commission of acts of violence or religious, racial or communal disharmony or feelings of ill-will or hostility between different communities or racial or religious groups; (i) or without lawful authority erases, mutilates, defaces or otherwise interferes with any words, inscriptions, or lettering appearing on any Board or other fixture on, upon or adjacent to, any highway, street, road or any other public place; (j) or harbors, conceals or in any other manner prevents, hinders or interferes with the apprehension of, a proclaimed person or any other person, knowing or having reason to believe that such person has committed an offence under this Act.
This overly broad definition of terrorism includes crimes that can be tackled easily by other milder laws. The PTA is but a sledgehammer used to swat a fly.
Contrast this with the definition of terrorism given by the UN: The UN Security Council Resolution 1566 (2004) defined terrorism as “criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act.”
In the light of this UN definition, the Sri Lankan state appears to be bent on using a sledgehammer to swat flies, exposing it to international censure.
Objectionable Clauses
The objectionable clauses in the PTA are: Section 6 (1) which empowers the police ( notwithstanding anything in any other law to the contrary) to arrest any person without a warrant; enter and search any premises; stop and search any individual or vehicle, and to seize any document or thing. Section 7(1) says that a magistrate will remand persons until the completion of their trial, if requested by the police. There is no provision for bail, unless approved by the Attorney General. Section 9 (1) says that if the Defense Minister suspects “any person is connected with or concerned in any unlawful activity,” he can be detained for up to 18 months. Section 10 states that “an 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).” This provision does not set out any criteria for making this determination, and the decision is not subject to judicial oversight, says the Human Rights Watch (HRW) in its February 2022 document: In a Legal Black Hole: Sri Lanka’s Failure to Reform the Prevention of Terrorism Act.
Section 16 puts the burden of proof on the accused. This, along with other provisions of the act, has contributed to convictions based on confessions obtained under torture, HRW alleges.
Section 17 makes it clear 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 any act or thing in good faith done or purported to be done in pursuance or supposed pursuance of any order made. Section 28, says that “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.”
According to the Human Rights Commission of Sri Lanka (HRCSL), as of January 7, 2022, 392 people were being held on remand under the PTA and another 92 people were held on PTA detention orders.
Contours of Reform
HRW says that any new Act should employ a definition of terrorism that complies with international norms. It should ensure precision and legal certainty, especially when the legislation may impact the rights to freedom of expression, opinion, association and religion or belief. It should ensure that preventive measures are in place to prevent and halt arbitrary detention and deprivation of liberty. Preventive measures must be put in place to prevent torture and enforced disappearances.
Be that as it may, going by past record, the September session of the UNHRC will make precious little difference to Sri Lanka as regards the PTA. Colombo will trot up the excuse that it is doing its best under trying economic circumstances, and that it needs more time to reform the PTA. And for geopolitical reasons (faced with competition from China), the Western nations will let Sri Lanka off the hook.
Many Sri Lankans hate to be dictated to by outsiders, especially when the latter’s rights record is not that clean and the island nation had had a major terrorist problem for three decades. Nevertheless, it is time Sri Lanka realized that, as an avowedly democratic country, it ought to reform the PTA to be fair to its own people.
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