Need to reform PTA ahead of UNHRC session

Given recent developments, non-compliance with promises to reform will be a major issue at the September UNHRC session

The demand in the UN Human Rights Council (UNHRC) for the repeal of Sri Lanka’s Prevention of Terrorism Act (PTA) and its replacement with a law consistent with international norms has been persistent. In the September 2022 session of the council, it is likely to get top billing, given the recent events related to the civil disturbances in the island.

In February, the Gotabaya Rajapaksa government had drafted a ‘Counter-Terrorism Bill’ (CT bill) to be in conformity with international standards. But the CT bill was not substantively different from the PTA. The Ranil Wickremesinghe government has said that it is working on a new “National Security Act” deleting the “undesirable” parts of the PTA.

In February, the Gotabaya Rajapaksa government had drafted a ‘Counter-Terrorism Bill’ (CT bill) to be in conformity with international standards. But the CT bill was not substantively different from the PTA

Opinion in Sri Lanka is divided on the nature of PTA reform. At one end of the spectrum is the notion held by Tamil National Alliance MP M.A. Sumanthiran, who says that in the absence of a threat of “terrorism” now, Sri Lanka does not need a PTA. The many crimes listed as ‘terrorist’ under PTA could well be tackled by existing laws. The definition of a terrorist act in the PTA and CT bill is so vague that any criminal act could be deemed a ‘terrorist’ act and the perpetrator subjected to very harsh treatment and denied relief given under the normal criminal law and the constitution.

At the other end of the spectrum is the opinion that while Tamil militancy has been crushed, the 2019 Easter Sunday blasts showed that new threats of great magnitude are possible, requiring a stringent anti-terror law.
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. 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 HRW said that the CT Bill did not provide a definition of terrorism as called for by UN experts. The bill did not alter the sweeping powers given to authorities to charge people. It did not change the status of confessions given to the police as evidence in PTA cases. While such evidence is inadmissible under other Sri Lankan laws, it is admissible under the PTA. This has led the police to routinely use torture and other ill-treatment to extract confessions from PTA prisoners.

Other proposed amendments merely replicated existing provisions of Sri Lankan law that have done little to date to prevent abuses, HRW says. Magistrates had made no visits to Criminal Investigation Department and Terrorism Investigation Division detention centres, HRW said. The Human Rights Commission of Sri Lanka (HRCSL) has to be informed of an arrest, but the police often ignore it.

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 organisation, 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.

The definition of a terrorist act in the PTA and CT bill is so vague that any criminal act could be deemed a ‘terrorist’ act and the perpetrator subjected to very harsh treatment and denied relief given under the normal criminal law and the constitution

UN Benchmarks

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 existing PTA and the CT Bill, the definition of terrorism is too wide. A terrorist is (1) any person, who commits any act with the intention of (a) intimidating a population; (b) wrongfully or unlawfully compelling the government of Sri Lanka, or any other government, or an international organisation, to do or to abstain from doing any act; (c) preventing any such government from functioning; or (d) causing harm to the territorial integrity or sovereignty of Sri Lanka or any other sovereign country, shall be guilty of the offence of terrorism.

Additionally, an act will be “terrorist” if it is (a) a murder, attempted murder, grievous hurt, hostage taking or abduction of any person; (b) endangering the life of any person other than the person committing the act; (c) causing serious damage to property, including public or private property, any place of public use, a State or Governmental facility, any public or private transportation system or any infrastructure facility or environment; (d) causing serious obstruction or damage to essential services or supplies; (e) committing the offence of robbery, extortion or theft, in respect of State or private property; (f) causing serious risk to the health and safety of the public or a section thereof; (g) causing obstruction or damage to, or interference with, any electronic or automated or computerised system or network or cyber environment of domains assigned to, or websites registered with such domains assigned to Sri Lanka; (h) causing obstruction or damage to, or interference with any critical infrastructure or logistic facility associated with any essential service or supply; (i) causing destruction or damage to religious or cultural property or heritage; and (j) causing obstruction or damage to, or interference with any electronic, analog, digital or other wire-linked or wireless transmission system including signal transmission and any other frequency based transmission system.

UN and UK Definitions

The UN’s definitions of terrorism are more narrow. Violence and large-scale disruptions to bring down governments seem to be critical. In 1994, the General Assembly’s Declaration on Measures to Eliminate International Terrorism stated that terrorism includes “criminal acts intended or calculated to provoke a state of terror in the general public, by a group of persons or particular persons for political purposes.”

Ten years later, the Security Council, in its resolution 1566 (2004), referred to “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 organisation to do or to abstain from doing any act”.
Later that year, the Secretary-General’s High-level Panel on “Threats, Challenges and Change” described terrorism as any action that is “intended to cause death or serious bodily harm to civilians or noncombatants, when the purpose of such an act, by its nature or context, is to intimidate a population or to compel a Government or an international organisation to do or to abstain from doing any act”

In the General Assembly proposed definition the following characteristics were identified: (a) injury to personal (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 organisation to do or abstain from doing any act.”

The Ranil Wickremesinghe government has said that it is working on a new “National Security Act” deleting the “undesirable” parts of the PTA

In the UK, the Terrorism Act 2000 defines terrorism as the use or threat of violence for the purpose of advancing a political, religious, racial or ideological cause. However, most importantly, in the UK, terrorism crimes and terrorist-related offences are subject to the criminal justice system in the same way as all other crimes.