Many are the cases where detainees have either perished under dubious circumstances without judicial supervision, which tantamount to extra judicial punishment and where they languish behind bars for months, sometimes years without substantial charges being raised

“Ethics and oversight are what you eliminate when you want absolute power.”  
- Da Shanne Stokes 

The Prevention of Terrorism (Temporary Provisions) (Amendment) Bill, a bill to amend the Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979 (PTA), has been gazetted by the order of the Minister of Foreign Affairs. Despite the government’s claim that the amended bill seeks to remove restrictions the Act places on civil liberties and fundamental rights, the proposed amendment remains a far cry from what has been expected and agitated for by civil rights activists, international agencies, the legal fraternity and the general public, including those who have tasted the real punch of this draconian piece of legislation. The latest well-known victims of the PTA include Lawyer Hejaaz Hezbollah, journalist Keerthi Rathnayake, poet Ahnaf Jazeem, some of whom had to languish in detention for hundreds of days under the provisions of the PTA, which was passed initially as a temporary law at a time when the country was facing a serious insurrection.   

Cosmetic reforms   

To start with, most of the amendments are of a cosmetic nature, not going to the draconian and abusive nature of the impact the PTA has on fundamental rights of citizens, intimidating civil life and justifying impunity. Yet there are a few positive points that could be identified, if the other abusive provisions were done away with, could be meaningful in ensuring protection of civil liberties. The exclusion of the Judiciary from the processes related to arrest detention, interrogation, bail etc. and placing such decision making in the hands of the executive and administrative officers remain, despite some powers given to the Magistrates to supervise prisoners. The Detention orders issued by the Secretary of Defence, still govern the fate of those who are taken under the Act, without bail, judicial review, access to legal representation and in most of the occasions, even the whereabouts of the detainee not being known even to the family members.   

Judicial overseeing of the fate of a person arrested under normal circumstances consist of the fact that the offence being precisely defined by the Penal Code or any other statute, while the procedure is carefully laid down by the provisions of the Criminal Procedure Code. The Judicial discretion conferred by statute ensures that the Courts are able to exercise discretion and utmost caution, not only in deciding whether a person charged with an offence is found guilty based on provable evidence before it beyond reasonable doubt, but also in terms of judicial supervision of adherence to procedural safeguards that are laid to ensure that individual rights of accused are protected within the framework of the law. Yet the PTA takes away all these safeguard from arrest to conviction of a detainee. Many are the cases where detainees have either perished under dubious circumstances without judicial supervision, which tantamount to extra judicial punishment and where they languish behind bars for months , sometimes years without substantial charges being raised. 

Five Requisites of the UN Special Rapporteurs

Even if the proposed amendments go through and become law, they are very unlikely to make an impact on the often abused provisions found in the Act. In fact, the amendments fall way short of the five requisites suggested to the President of Sri Lanka by Seven UN Special Rapporteurs last December. They were:  

1) Adopting definition of terrorism to fall in line with international standards  
2) Ensuring precision and legal certainty, when this legislation impact freedom of expression, opinion, association, religion or beliefs   
3) Institution of provisions and measures to prevent and halt arbitrary deprivation of liberty  
4) Ensuring prevention of torture and enforced disappearance and the absolute prohibition  
5) Enabling overarching due process and fair trial guarantees including judicial oversight and access to justice  

Most abusive provisions  

The bill does not address the issue of confessions obtained during detention being admissible as evidence in a court of law and still enables the law enforcement agencies, including the notoriously abusive intelligent agencies to obtain confessions from detainees under threat or torture. Under the ordinary law of the land, confessions obtained in police custody are not admitted as evidence against a suspect in court proceedings in proving guilt. The media statement made by poet Ahnaf Jazeem after he was released after almost two years in detention after being taken in under the PTA, clearly shows how he was coerced to confess under threat of prolonged detention running up to ‘’15-20 years’’ and the threat that his fiancé would too be arrested. The amendments do not even hint of reforming this provision and will allow abuses to take place undeterred. Although the time period of detention has been reduced from 18 months to 12, it is no relief at all, as it still allows ample time and opportunity for a detainee to be coerced.   

Although it is obvious that pushing through of the draft bill at this point is to appease the international community, especially with the conditions imposed by the EU to give tariff free trade access and ward off mounting pressure in terms of our human rights situation, it is very unlikely that the international community will be satisfied with the proposed amendments. More importantly, it most certainly will not cut in to the abuses, excesses, violations and atrocities that the Act has allowed to be done by the executive and the administrative branches of government. 

No political will   

Since the victory of the present government in November 2019, the PTA has been a handy tool in the hands of the authorities to intimidate opponents, civil rights groups, dissenters, lawyers, journalists and even civilian protesters who voice opposition. It has been used to threaten minorities, specially the Muslim community in to subjugation. It has allowed police and security apparatus to violate human rights and civil liberties of persons, who by no means are associated with any kind of terrorist or violent activity but who, in the eyes of the government are dissenters and trouble makers. Of particular concern is the threatening of past victims of human rights violations specially from the armed forces during the last phase of the civil war and afterwards and also the fear instilled in witnesses that they could be taken in under the guise of prevention of terrorism.  

We have seen how the PTA has been an instrument not of protecting people from terrorism but one of state terrorism with impunity and at the most abusive level, during the 1988-89 insurgency, 30 years of civil war and  after the Easter Sunday attacks. Yet more alarming is the manner in which it is being continually and presently used when there is no war or armed conflict to suppress opposition.   

There does not seem to be any genuine political will to curtail the abuses and violations that are being committed by the state organs and to ensure human rights of those who are accused of offences, terrorism or otherwise. The cry that this draconian law be abolished altogether has fallen on deaf years. In fact, the cosmetic reforms show that the authorities enjoy acting with impunity and without being accountable to the rule of the law and judicial supervision.