The Need to Repeal the PTA

by Centre for Policy Alternatives, Colombo, May 9, 2013

The provisions of the PTA fly in the face of almost every conceivable human rights norm pertaining to the liberty of the person, including most prominently, detention without charge for extended periods of time at irregular places of detention, the broad denial of detainees’ rights, admissibility of confessions in judicial proceedings subject only to the most tenuous of safeguards, the shifting of the evidential burden of proof to the defendant, and disproportionate penalties. The unchecked detention powers, special trial procedures and absence of meaningful judicial review in the PTA facilitate arbitrary and capricious official conduct, including torture. The PTA also makes serious incursions into the freedom of expression and the media by requiring in certain circumstances governmental approval for printing, publishing and distributing publications and newspapers. For these reasons, the PTA represents an aberration of the rule of law upon which the constitutional order of Sri Lanka is ostensibly based, and has been the gateway to systematic abuse of human rights, giving rise especially to gross ethnic discrimination in its implementation.

Centre for Policy AlternativesThe Need to Repeal and Replace the Prevention of Terrorism Act (PTA)

With the recent arrest and detention of opposition politician Azath Salley, Sri Lanka’s Prevention of Terrorism Act (PTA) has once again come under critical scrutiny. The Centre for Policy Alternatives (CPA) and other civil society groups have condemned the use of the PTA to stifle dissent and reiterate this call yet again, urging for its repeal and replacement as set out below.

In light of the recent events, the Leader of the Opposition submitted a parliamentary question under Standing Order 23(2) calling for the abrogation of the PTA, which was rejected by the Prime Minister. In the light of Mr Salley’s case and the 2008 arrest and subsequent conviction of journalist J.S. Tissainayagam, the Prime Minister’s assurance to Parliament that “…the government would not use the provisions of the Prevention of Terrorism Act to crack down on political opponents or others who are opposed to the government” is completely implausible and tests the credulity of democratic citizens. CPA is deeply concerned about the use of the PTA when the Government’s own National Human Rights Action Plan (NHRAP) in 2011, pledged to review its application and amend provisions to conform with human rights norms within a period of one year. The arrest and detention of Mr Salley is one of many cases where the PTA continues to be used unchecked.

The PTA has attracted universal condemnation ever since it was enacted (as the Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979, as amended by Act Nos. 10 of 1982 and 22 of 1988), as a measure that is wholly inconsistent with contemporary human rights standards and which not merely permits, but also encourages the pervasive violation of fundamental rights otherwise protected by the Constitution of Sri Lanka. Compounded by Sri Lanka’s endemic law’s delays, it has been deployed to deprive the basic civil liberties and inflict physical harm and mental distress on thousands of Sri Lankan citizens of all communities. In the context of disturbing recent developments including the Eighteenth Amendment to the Constitution, theimpeachment of the 43rd Chief Justice and overwhelming evidence of the politicisation of law enforcement and consequent selective application of the criminal law, the dangers of having an instrument of abuse such as the PTA on the statute book are exacerbated. Moreover, a number of Emergency Regulations that would have lapsed when the state of emergency was terminated have been continued in force by the convenient expedient of re-promulgation under the PTA, illustrating how emergency measures can be continued in perpetuity without the need for the declaration of a formal state of emergency, and the attendant checks and balances that follow such a declaration. The framework in relation to surrendees and rehabilitees in particular needs emphasis in this context, and its implications for post-war reconciliation and normalisation – issues raised in CPA’s challenge of the PTA regulations in the Supreme Court in 2011.

CPA has consistently maintained that the PTA in its current form has no place in a democratic society. CPA strongly reiterates this call in the present context in which the terrorist threat against which the PTA was officially justified for three decades has now been eliminated. We do so for the further following reasons:

The sweeping powers given to the executive by the PTA are in the nature of emergency powers, but the exercise of those of those powers are independent of and not subject to even the limited oversight framework of conventional emergency powers, such as proclamation and periodic parliamentary approval, under Chapter XVIII of the Constitution and the Public Security Ordinance. The PTA’s first point of departure from the rule of law therefore is that it reverses the assumption of exceptional circumstances that is at the root of the conceptual justification for granting extraordinary powers to the executive for dealing with terrorist threats. This means that the permanent regime of exceptional powers envisaged by the PTA falls foul of the important procedural safeguards of declaration, notification, periodic parliamentary approval, and parliamentary oversight, that usually govern the grant of such extraordinary powers to the executive.

CPA notes further that the PTA was enacted in 1979 as a temporary measure, as an aspect of the then government’s political and military strategy in dealing with the early stages of the low intensity insurgency in the north of the island. Section 29 of the original enactment expressly provided that it would be in force only for a period of three years, but this was repealed by the Prevention of Terrorism (Temporary Provisions) Amendment Act No. 10 of 1982, making the PTA a permanent measure, although incongruously, the short title of the Act continues to contain the words ‘temporary provisions.’

Its enactment through the procedure under Article 84 of the Constitution is also noteworthy. Article 84 is a bizarre provision, which permits bills that are inconsistent with the Constitution to be passed by a two-thirds majority in Parliament. Article 120 (c) precludes the pre-enactment constitutional review jurisdiction of the Supreme Court in respect of the substance of such bills falling within the scope of Article 84. Thus under these provisions of the Constitution, provided the requirement of a two-thirds majority is met, it is possible to enact laws that are inconsistent with any provision of the Constitution, including fundamental rights. As Justice Mark Fernando observed in Weerawansa v Attorney General (2000) 1 SLR 387:

“When the PTA Bill was referred to this court, the court did not have to decide whether or not any of those provisions constituted reasonable restrictions on Articles 12 (1), 13 (1) and 13 (2) permitted by Article 15 (7) (in the interests of national security etc), because the court was informed that it had been decided to pass the Bill with two-thirds majority (SC SD No. 7/79, 17.7.79). The PTA was enacted with two-thirds majority, and accordingly, in terms of Article 84, PTA became law despite many inconsistencies with the constitutional provisions.” (at pp.394-395, emphasis added)

The constitutional provisions mentioned by Justice Fernando are some of the most important fundamental rights guaranteed by the Constitution, including the right to equality (Article 12 (1)) and the freedom from arbitrary arrest, detention and punishment (Articles 13 (1) and (2)).

The provisions of the PTA fly in the face of almost every conceivable human rights norm pertaining to the liberty of the person, including most prominently, detention without charge for extended periods of time at irregular places of detention, the broad denial of detainees’ rights, admissibility of confessions in judicial proceedings subject only to the most tenuous of safeguards, the shifting of the evidential burden of proof to the defendant, and disproportionate penalties. The unchecked detention powers, special trial procedures and absence of meaningful judicial review in the PTA facilitate arbitrary and capricious official conduct, including torture. The PTA also makes serious incursions into the freedom of expression and the media by requiring in certain circumstances governmental approval for printing, publishing and distributing publications and newspapers. For these reasons, the PTA represents an aberration of the rule of law upon which the constitutional order of Sri Lanka is ostensibly based, and has been the gateway to systematic abuse of human rights, giving rise especially to gross ethnic discrimination in its implementation.

CPA therefore calls for the repeal of the PTA in its present form, and its replacement if necessary with legislation that is consistent with international anti-terrorism standards reflected in relevant United Nations instruments and comparative constitutional practice. Such legislation must meet the requirements of anti-terrorism powers that are necessary, legitimate and proportionate to the aims of a democratic society and which must be subject to comprehensive judicial review. In this regard, CPA notes the important principle set out in the Global Counter-Terrorism Strategyadopted by the United Nations General Assembly in 2006, that “…the promotion and protection of human rights for all and the rule of law is essential to all components of the Strategy, recognising that effective counter-terrorism measures and the protection of human rights are not conflicting goals, but complementary and mutually reinforcing, and stressing the need to promote and protect the rights of victims of terrorism” (emphasis added). This salutary conceptual presumption must constitute the foundation of any future legislation dealing with the issue of terrorism in Sri Lanka.

Military has Displaced Northern People

Charges Premachandran

In Jaffna District in a place called Valikamam North, more than 10,000 acres of land which belong to people are now controlled by the Army. They are not allowing the people to go back to their land. Now the Government is trying to acquire the land for the purpose of putting up new military camps. These are fertile lands. People who own these lands want their land back. This is only one example. Likewise, there are several hundreds and thousands of people in Mullaitivu, Kilinochchi, Vavuniya and Mannar whose land has been forcibly occupied by the military. We feel that the military is going to permanently keep these lands for themselves…

In Sri Lanka there are 200,000 Army personnel and 150,000 are stationed in the Northern Province. That is unnecessary.

by Chamitha Karuppu, ‘Financial Times Sri Lanka,’ Colombo, May 3, 2013

Tamil National Alliance (TNA) Parliamentarian Suresh Premachandran asserts it is unnecessary to deploy 150,000 soldiers in the Northern Province. According to Premachandran, of the 200,000 Army personnel in Sri Lanka, 150,000 are stationed in the north. “Let the Government have any amount of Army personnel they want, but please withdraw them from north and take them to Hambantota.”

He stresses that the military in north is functioning as a political unit for the Government. “They want to suppress the Tamil people. They want to keep them under threat.” Premachandran further points out that “killing more than 150,000 innocent civilians is not a triumph” and is not the way to eliminate terrorism.

Following are excerpts from the interview:

Suresh Premachandran

Q: Why do you continue to claim that the military is forcibly acquiring land in the north?

A: Hundreds and thousands of people in Northern Province were displaced 25 years ago. They are still in various refugee camps and some are in relatives’ houses. So far, they have not gone back to their land, because those lands are occupied by the Army. In Jaffna District in a place called Valikamam North, more than 10,000 acres of land which belong to people are now controlled by the Army. They are not allowing the people to go back to their land. Now the Government is trying to acquire the land for the purpose of putting up new military camps.

These are fertile lands. People who own these lands want their land back. This is only one example. Likewise, there are several hundreds and thousands of people in Mullaitivu, Kilinochchi, Vavuniya and Mannar whose land has been forcibly occupied by the military. We feel that the military is going to permanently keep these lands for themselves.

Q: You have been raising a voice against this issue for a long time. What response have you received from the Government?

A: The Government has never come out with any response. They want the land for military purposes. The President’s brother Gotabaya Rajapaksa, who is the Secretary of Defence, strongly feels that they want these lands; he thinks they can acquire any amount of land, disregarding the concerns of the people. And they are doing it. As far as the Government is concerned, they do not bother about the innocent civilians who are supposed to go back to their houses. Actually from the Government side they are totally working against these innocent civilians and they never come out with any response to this.

Q: The Government maintains they have released more than 12,000 acres of land. So why are you still accusing them?

A: Whether it is 12,000 or 25,000 or 50,000 acres, these lands belongs to the innocent people. The Army has taken a huge amount of land belonging to these people. Little by little they are releasing some of the land. Still they are keeping 10,000 acres of land. Remember, these lands belong to the people. These do not belong to the Government. The Government does not have any authority to forcibly acquire these lands. The Government cannot keep these lands for themselves.

Q: But the Government says it is important for the military to retain these lands?

A: In Sri Lanka there are 200,000 Army personnel and 150,000 are stationed in the Northern Province. That is unnecessary. And for that purpose they are taking all the land. What will happen to the people who own these lands? They are displaced. Let the Government have any amount of Army personnel they want, but please withdraw them from north and take them to Hambantota, Galle or Kolonnawa. There is no need to deploy 150,000 soldiers in the Northern Province. After four years since the end of the war, not even a single violent incident has taken place in the Northern Province. So why does the Government need this many armed personnel in the north?

Q: Why do you think the Government has deployed a large number of soldiers in the Northern Province?

A: They want to suppress the Tamil people. They want to keep them under threat. They want to keep them under Army control. They don’t want to give a democratic state to the people. People here actually can’t open their mouths. They can’t engage in any political activities. They are always under military intelligence. Can you have this kind of a situation in the south? Are they willing to accept it? If they are willing to accept this in the Southern Province, just tell me. Just like you want to have a democratic state in the south, we want to have a democratic state in the north.

We will continue to agitate. People will agitate against the Government and the Army. This peaceful situation will not continue if the Government maintains this kind of behaviour. It all depends upon the Government. If they are not going to release the land, people are prepared to sacrifice their lives. There are over 300,000 people in the north east and they have clearly said that they are prepared to sacrifice their lives to go back to their lands. They will not hesitate to go on a hunger strike or do whatever they can.

Q: Are you prepared for the upcoming elections?

A: So far the Government has not made an announcement. We are waiting for that.

Q: Will you be contesting alone or joining with another political party?

A: We have not decided yet whether to contest alone or whether we should ally with another party.

Q: Do you believe the election to be free and fair?

A: I don’t think so. It is very, very unlikely that the election will be free and fair. The area is virtually under Army control. The Army is now engaged in political activities. Now they are identifying candidates for the Government.

They are disrupting other political party meetings. They are carrying out propaganda for the Government. Actually they are functioning as a political unit for the Government. More than the Army work, they are engaged in political activities. Under these circumstances, how can you expect a free and fair election?
The Government was compelled to announce this election due to pressure from outside and also because the Commonwealth Conference will be held in November. They want to have the election before that and tell the world that “we are very much democratic and we have held elections in the Northern Province too”. This election is only for propaganda purposes.

Q: Are you saying the situation in the north is favourable for the Government?

A: No, the situation is not favourable for the Government; the Army is favourable for the Government. The Army is doing everything that will be favourable for the Government. This Government is using the Army, Navy and Air Force to remain in power.

Q: Do you accept the fact that the Government has carried out many development projects in the Northern Province?

A: The Government is putting culverts here and there; they are giving electricity in some places. Some international organisations are putting up schools in a few places.
The Government is trying to take credit for those projects too so that they could show the world that everything is done by them. I am not denying that this type of work is taking place. But the fact is that development is somewhat different. Settlement is a different matter. Our fight is about settlements.

Q: Why do you always find fault with this government? Don’t you think this regime eliminating terrorism was a major triumph for the country, including the Tamils?

A: I don’t think the price of killing more than 150,000 innocent civilians is any triumph. Killing so many innocent people; is that acceptable? I don’t think that is the way to eliminate terrorism.

Q: Are you saying the Government should have used other methods to eliminate terrorism?

A: But they didn’t do it like that. We do not accept how it was done.

Q: How will the new electricity tariff hike affect the people in the Northern Province?

A: It is a big issue for the people here. Definitely people are not in a position to pay such large amounts of money just for electricity. They always paid much more than Southern Province because they have the diesel generators here.

Q: What has happened to the rift in the TNA?

A: We are a democratic alliance. Normally such democratic alliances face problems and contradictions; we are also having similar situations. But we will solve it ourselves.