By Mytili Bala.
- Sri Lanka was advised to more narrowly define terrorism to safeguard freedoms of expression, association, opinion, religion or belief
- The most obvious change in the Bill would reduce the maximum period of detention without trial from 18 months to 12
- The only change proposed in the Bill is to reduce the length of arbitrary detention to 12 months, while doing nothing to make arrests less arbitrary
Another year, another pre-Geneva scramble. At the brink of economic collapse and desperation to maintain GSP+ trade status with the EU, the Government of Sri Lanka has finally begun to feel the heat. Enough, that is, to put forward half-hearted reforms in hopes of appeasing international demands on January 27 the Government gazetted a Bill to amend the Prevention of Terrorism Act No. 48 of 1979 (PTA).
As Sri Lankan Attorney Ermiza Tegal writes in her recent op-ed, “the minimal reforms proposed fail to address the most significant problems identified with the PTA.” From problems in defining terrorism to failing to ensure judicial oversight over arrests and address the root cause of torture, Tegal details several of the Bill’s fatal flaws. (Ermiza Tegal, “Initial reactions to the PTA Amendment Bill: Failure to reform, The Morning (30 Jan. 2022).) To appreciate her points, it is worth returning to basics”.
Last year, the U.N. Human Rights Council passed resolution 46/1 requesting Sri Lanka to review the PTA and “ensure that any legislation on combatting terrorism complies fully with international human rights and humanitarian law obligations.” (U.N. Doc. A/HRC/RES/46/1.) Sri Lanka ratified the International Covenant on Civil and Political Rights (ICCPR) in 1980, and the Supreme Court recognised that its rights extend to all persons in its territory. (Weerawansa v. Attorney General & Others [2000] 1 Sri L.R. 387; Comment: The ICCPR is not to be confused with the oft-misused domestic ICCPR Act No. 56 of 2007.) Article 9 of the ICCPR prohibits arbitrary arrest and detention and defines five core rights:
1.“Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
2.“Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
3.“Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.
4.“Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
5.“Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.”
In December 2021, several U.N. Special Rapporteurs and the Working Group on Enforced or Involuntary Disappearances listed five “necessary prerequisites” for the government to make the PTA comply with international law. (U.N. Doc OL LKA (7.2021).) Sri Lanka was advised to more narrowly define terrorism to safeguard freedoms of expression, association, opinion, religion or belief. The experts recommended protections to prevent arbitrary deprivation of liberty, torture, and enforced disappearance, and suggested due process and fair trial guarantees through improved judicial oversight and access to counsel.
Unfortunately, the gazetted Bill does none of these things. The definition of terrorism remains unchanged. As it stands, section 2(h) of the PTA permits arrest of any person whose speech, writings, signs, or visible representations “causes or intends to cause commission of acts of violence or religious, racial or communal disharmony or feelings of ill-will or hostility between different communities or racial or religious groups.” This astonishing overbreadth facilitated arbitrary mass arrests of ordinary Muslims following the 2019 Easter attacks—precisely what article 9.1 of the ICCPR prohibits.
The most obvious change in the Bill would reduce the maximum period of detention without trial from 18 months to 12. But unless “terrorism” is more narrowly defined, this reduction does little to change the grossly unjust reality for poor families struggling to survive as their breadwinner is arbitrarily detained. In allowing a whole year of arbitrary detention, the Bill fails to recognise the liberty interest central to article 9.1 of the ICCPR. Moreover, neither the PTA nor the Bill offer any compensation for those wrongfully arrested or detained, as required by ICCPR article 9.5.
Substantively, the Bill does nothing to address the rampant torture of detainees that has long alarmed the human rights community. For example, the Bill grants Magistrates the authority to direct police to commence investigations into alleged torture of individuals detained or restrained. Access changes little—during past visits by the Human Rights Commission of Sri Lanka (HRCSL), lawyers reported that police hid tortured detainees from view. Critically, the Bill does nothing to change the admissibility of confessions under section 16 of the PTA, which is what incentivizes the use of torture in the first place. What’s more, the Bill maintains blanket immunity under section 26 of the PTA for claims “against any officer or person for any act or thing in good faith done or purported to be done in pursuance or supposed pursuance of an Order made or direction given under this Act.” In a country where custodial torture is rampant and accountability nonexistent, maintaining such immunity likely forestalls change.
The Bill does not materially change sections 6 through 9 of the PTA, which facilitate arbitrary detention by limiting a Magistrate’s role in making arrests and detentions. These sections allow warrantless arrest by a police officer followed by 72 hours of custody before a detainee is produced before a Magistrate. Bail may be granted to pretrial detainees only if the Attorney General consents. Government Ministers have the power to order up to 18 months of detention if they have “reason to believe or suspect that any person is connected with or concerned in any unlawful activity.” The only change proposed in the Bill is to reduce the length of arbitrary detention to 12 months, while doing nothing to make arrests less arbitrary.
In terms of judicial oversight, the Bill codifies the availability of fundamental rights petitions or writ relief to detainees and explicitly grants Magistrates and attorneys access to detainees. But as Tegal notes, these provisions merely make explicit existing constitutional guarantees, which have failed to offer meaningful remedies or prevent custodial torture. Although the proposed requirement to serve detention orders on the HRCSL is promising, U.N. experts have highlighted how the independence of that body has been compromised following the Rajapaksa Government’s passage of the 20th amendment to the Constitution. (OHCHR, “Sri Lanka: Experts dismayed by regressive steps, call for renewed UN scrutiny and efforts to ensure accountability” (5 Feb. 2021).)
Problems with the PTA are not merely theoretical. Thousands were forcibly disappeared during the war and whole communities are persecuted today, destroying the very fabric of Sri Lanka’s democracy. Just this week, prominent minority rights lawyer Hejaaz Hizbullah was denied bail even though the Attorney General consented to his release. Why? Because section 15 of the PTA strips the courts of jurisdiction to authorise bail once trial begins. A man initially detained on false pretenses of being linked with the Easter bombers, Hizbullah was charged under the PTA a full year into his detention for a speech he allegedly gave on the treatment of Palestinians. A year later, when even the state consented to his release on bail, the courts are without power to do so.
The travesty in Hizbullah’s case, as in so many others, demonstrates why the PTA is incapable of reform and must be repealed. Until that happens, the international community must recognise that the gazetted Bill simply misses the mark. Indeed, at the same time it proposes ineffective PTA reforms, the Rajapaksa Government seeks to enhance its powers of arbitrary detention through proposed “deradicalisation regulations” that would authorise forced incarceration without conviction. Its motives are clear, and the human rights community must demand more.
(Mytili Bala is a California attorney who has been an advisor to the Women’s Action Network)