The Prevention of Terrorism Act (PTA) has once again been thrust into the limelight. Like the Patriot Act, introduced in the US post 9/11, the PTA lengthens the detention period of terror suspects, detained under Emergency Regulations promulgated under the Public Security Ordinance. The police can detain these so-called ‘terrorists’ for as long as 18 months without filing charges against them.
Yet the irony of this is, despite separatist terrorism being long eradicated, the government still finds a necessity in continuing with the present state of the PTA and does not appear to be calling for ‘amendments’ either. Is the threat of terrorism in Sri Lankan still so tangible, a stringent piece of legislation as the PTA is essential? Or has the PTA become the smokescreen by which the government attempts to stifle political opposition and suppress dissenting voices?
PTA: A true example of draconian legislation?
Under Section 9 of the PTA, people can be arrested in the absence of formal charges filed against them and can be detained for up to 18 months under a detention order issued by the Minister for Defence (in this case the President) as investigations into their alleged ‘terrorist activity’ are carried out.
Speaking to Ceylon Today, constitutional expert and lawyer, J.C Welliamuna, said, “The powers vested under Section 9 are one of the draconian provisions of the PTA. Section 9 authorizes the minister to restrain a suspect without judicial authority. The minister in Sri Lanka, who is the President, is already vested with various powers. In any event there is no justification for defence authorities to detain a person without producing him/her before a Court and charging the person concerned with an offence.”
The PTA goes further as to usurp the powers of the detainee to seek relief from the Superior Courts. Section 10 of the PTA specifically states, “Any order made under Section 9 shall be final and shall not be called into question by any Court or tribunal by way of writ or otherwise.”
These terms wholly violate Article 13 of the Constitution, which stipulates, “Every person held in custody detained or otherwise deprived of personal liberty shall be brought before the Judge of the nearest competent court according to procedure established by law and shall not be further held in custody except upon and in terms of the order the Judge made, in accordance with procedure adopted by law.
Furthermore, not only does the PTA undermine the terms in the Constitution but it also disregards various international instruments to which Sri Lanka is party to and is thus bound by ‘international law’ to uphold. Article 9 of the Universal Declaration of Human Rights states, “No one shall be subject to arbitrary arrest, detention or trial.” Moreover Article 9 of the International Covenant on Civil and Political Rights states, “Everyone has the right to liberty and security, and no one shall be subject to arbitrary arrest or detention.” The very enactment of the PTA and the fact it still is in force is testimony to the low priority the government places on fundamental rights and enshrining civil liberties. While tough legislation may be necessary to counteract an emergency situation, in the absence of such emergency, it is a mystery to the public as to what ‘ghost-war’ Sri Lanka is currently combating.
Can the PTA violate Fundamental Rights?
Despite the clear-cut provisions in the PTA, which undoubtedly contravene both domestic and international legislation, there are still legal luminaries who argue that Fundamental Rights are yet hierarchical despite the terms set forth in the PTA.
Human Rights Commissioner, Dr. Prathiba Mahanamahewa noted that, a Sri Lankan journalist arrested under the PTA during the armed conflict on grounds of alleged terrorist activity was later released following a writ issued by the Supreme Court, and said the charges against her could not be proven and consequently the Court determined that her ‘Right to Liberty’ had been unduly infringed.
Dr. Mahanamahewa pointing out that, under Chapter 3 Article 11 and 13 of the 1978 Constitution, citizens can challenge the validity of the PTA, said even emergency rules can be challenged as Fundamental Rights are supreme. Dr. Mahanamahewa also went on to add that there may not be a necessity to completely repeal the PTA in the context that it infringes Fundamental Rights as the Courts have always intervened to uphold said rights.
Should the PTA be amended?
In the wake of recent political events, the government has once again come forward to reiterate the PTA is here to stay. Premier D.M Jayaratne went to the extent of saying, “While the government will not use the PTA to crackdown on political opponents, we are not considering abrogating the Act.” Thus the question which then comes to mind is whether the terms of the Act can be amended to at least reflect the greatly improved security situation in Sri Lanka post-war.
Under the Sri Lanka Evidence Ordinance, confessions made to the police or other public officers and confessions made while in the custody of police are not admissible as dispositive evidence in ordinary criminal cases, unless they are made in the presence of a Magistrate. But such confessions are admissible under the PTA.
Mahanamahewa argue that the practice of making confessions to ordinary police officers must be changed by which either a Superintendent of Police or a Deputy Inspector General of Police can hear the confessions. “This is because according to English Law, which is very much represented in Sri Lankan Law, only confessions made to a Judge are admissible in court and not confessions made to the Police Department,” he explained.