See also https://www.sangam.org/2008/05/Sieghart2_1984.php & https://www.icj.org/ethnic-conflict-and-violence-in-sri-lanka-report-of-a-mission-to-sri-lanka-in-july-august-1981-on-behalf-of-the-international-commission-of-jurists-with-a-supplement-by-icj-staff-for-the-period-1981-1/ — Ed/
By: Kumarathasan Rasingam
PTA: A true example of draconian legislation?
Under Section 9 of the Prevention of Terrorism Act (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.
Police and the security forces have extensive powers under the PTA to arbitrarily arrest people, detain them without charge for up to 18 months and obtain forced confessions. The laws provide immunity for government officials responsible for torture and other acts.
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.”
Every person who commits an offence under this Act shall be triable without a preliminary inquiry, on an indictment before a Judge of the High Court silting alone without a jury.
Sri Lanka’s constitution prohibits arbitrary detention and torture, in line with international law.
Sri Lanka’s security regime violates the spirit of its own constitution, while decades of unlawful arrest and detention have damaged the criminal justice system immeasurably,
The former Special Rapporteur on the promotion and protection of human rights while countering terrorism Ben Emmerson QC, who visited Sri Lanka at the invitation of the Sri Lankan government from 10-14 July 2017, in the 18-page report said none of the measures so far adopted to fulfil Sri Lanka’s transitional justice commitments are adequate to ensure real progress.
“The counter-terrorism apparatus is still tainted by the serious pattern of human rights violations that were systematically perpetrated under its authority,” the Special Rapporteur concluded in the report.
He said the draconian Prevention of Terrorism Act (PTA) is still in the statue book and the new legislation drafted in place largely reflects the interests of the security sector and is far from being adequately grounded in international human rights law.
“Individuals are still held in detention under the PTA, impunity is still the rule for those responsible for the routine and systemic use of torture, and countless individuals are the victims of gross miscarriages of justice resulting from the operation of the PTA. The Tamil community remains stigmatized and disenfranchised, while the trust of other minority communities is being steadily eroded,” the report said.
While making several recommendations, the Special Rapporteur in his report said the counter-terrorism legislation requires a complete overhaul to bring it into line with international human rights law.
A failure to address these issues promptly and effectively will provide fertile ground for those intent on resorting to political violence, as real and perceived grievances are exploited by militants to garner support amongst vulnerable and alienated sections of the population, he pointed out.
“The price that Sri Lanka’s future generations will have to pay for the continuation of this legal repression may prove as costly or even costlier than that which has so far confronted the present generation,” the UN official warned.
Sri Lanka’s security detainees reveals that arbitrary and illegal detention and enforced disappearances remain routine in Sri Lanka, where human rights abuses of all types go un-investigated and unpunished.
Counter-terrorism legislation allows authorities to arrest people without evidence and to hold them without charge or trial for extended periods. For years, the Sri Lankan government justified this legislation as necessary for combating the Liberation Tigers of Tamil Eelam (LTTE).Now it is almost ten years after the end of the war in 2009 there is no justification to this draconian PTA law to continue further. https://sangam.org/tackling-sri-lankas-torturers/
There is little doubt that the findings of United Nations Special Rapportuer on Countering Terrorism, Ben Emmerson on the sorry fate of Sri Lanka’s justice system, particularly in regard to the continuance of a ‘culture of impunity’ are significantly troubling.
‘A fate worse than death’
Reporting to the Human Rights Council, the Special Rapporteur reflected on a recent visit to Sri Lanka with angst. He expressed serious apprehensions that ‘the most senior judge responsible for terrorism cases in Colombo informed the Special Rapporteur that in over ninety per cent of the cases he had dealt with so far in 2017, he had been forced to exclude essential evidence because it had been obtained through the use or threat of force’ (at paragraph 25). It was also pointed out that the National Human Rights Commission’s (HRCSL) view was that ‘torture in custody was widespread, systemic, institutionalised and formed a major priority in its work.’
A particular focus was that Prevention of Terrorism Act (PTA) pre-trial detainees languish in prison for years without being actually tried for an offence. According to the Emmerson report (at paragraph 15), reflecting statistics provided by the Office of the Attorney General, ‘out of 81 prisoners at the time in the judicial phase of their pretrial detention, 70 had been in detention without trial for over five years and 12 had been in detention without trial for over ten years.’
As he rightly notes, such lengthy administrative detention without judicial review violates rights. The risk of torture in these cases is correspondingly higher with eighty per cent of those arrested under the PTA in late 2016 complaining of torture and physical ill-treatment (at paragraph 25).
Locked Up Without Evidence
Key Recommendations to prevent abuse under the PTA
- Repeal the Prevention of Terrorism Act (PTA) and replace it with rights-respecting counterterrorism legislation that meets international standards for due process.
- Undertake a consultative process with victim rights groups, civil society, human rights lawyers, and relevant experts to assist in drafting the new legislation.
- Implement the recommendations of the UN special rapporteur on counter-terrorism and human rights following his July 2017 country visit, including a prohibition on the use of confessions made to the police, unfettered access for the Human Rights Commission of Sri Lanka to all places of detention, and abolishing the attorney general’s right of veto over the granting of bail.
- Implement the recommendations of the UN special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment following his 2016 country visit, including ensuring that any new counterterrorism law provides protections against arbitrary arrests and detentions, strong judicial overview of law enforcement and security agencies, and safeguards to ensure legal counsel from the moment of arrest.
- Accept and implement the recommendations of the Office of the United Nations High Commissioner for Human Rights investigation on Sri Lanka, including reviewing all cases of detainees held under the PTA, and investigating and prosecuting all allegations of torture committed by law enforcement and security agencies.
- Implement all recommendations made by the UN Working Group on Arbitrary Detention in its December 2017 preliminary findings report.
- Fully comply with the Human Rights Commission’s guidelines on arrest and detention procedures in all cases, especially PTA cases.
If Sri Lanka is serious about ending impunity and committed to reconciling communities torn apart by conflict, the rule of law needs to be a large part of that equation. While governments have the right to address national security concerns, human rights abuses are never justified.
The war crimes alleged in Sri Lanka in the final stages of the war are of such magnitude that if unchallenged risk fundamentally undermining international justice mechanisms – the UN must support an independent international investigation into these alleged crimes.
When people are divided and unequally positioned, democracy is meaningless. Ensuring an end to caste, ethnic, gender and class oppression in everyday life is central to building a plural, equal, and just society. To democratise state power, people must participate in changing the system of rule and state structures.