The Need to Repeal and Replace the Prevention of Terrorism Act (PTA)
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.