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Tuesday, May 24, 2022

Sri Lanka: PTA was unconstitutional from the beginning,brought in for 6 months has gone on to live for 43 years. -M.A. Sumanthiran (MP)

The Prevention of Terrorism Act was brought in as a temporary provisions bill. In fact, the title to the act even today has that – “Temporary Provisions”.

That is a joke, because what was brought in for 6 months has gone on to live for 43 years.

Hon. Ranil Wickramasinghe was heard a little while ago to say that at the time it was brought it was constitutional. No it wasn’t! The government of that day, the law that he says he helped draft, was unconstitutional and the government knew it.

That is why it was brought in as an urgent bill with the certificate that it will be passed by a 2/3rd majority in parliament. So the guarantee of 2/3rd majority was given to court, even before the matter was examined by the court as an urgent bill. So from its very inception even those who gave birth to it knew that it was an unconstitutional law that they were enacting.

“The most talked about provision in the PTA, the confessions made to police officers being admissible as evidence against that person and even co accused for that matter, still remains. You haven’t touched it.”

And they continued to do that, and successive governments have allowed it to remain – not just merely allowed it to remain – but abused it. It wasn’t that it was necessary at that time – that it was used initially and later it was abused- it was abused from day 1, because the very provisions in that Act are for abuse, not for anything else, not to prevent terrorism.

I am going to recount one or two personal experiences of mine, because the time is short. When I speak on that I hope it qualifies as my declaration under the etiquette of a personal involvement in a matter that I speak. That will illustrate the absurdity of this law. I have previously mentioned a case, which I’ll mention again; There was a couple; a husband and wife, prosecuted under section 5 for failure to give information about a certain person – a person called Babu.

Now they obtained confession from this couple. They were people who were threatened and gave the confessions. They were not tortured, but were threatened with torture. Threat of torture. Hooks and ropes were brought and they signed and gave their confessions. But the person named Babu, who was also arrested, despite severe beatings, did not sign a confession.

So I appeared for this couple and when the matter came up Babu had been released. Because he did not sign a confession, and Babu came to watch the proceedings of these two persons who were charged for failure to give information about him.

That’s how absurd this law is. And what is more? I pleaded guilty on their behalf, they pleaded with me to plead for guilty, because two years had lapsed. They were both in prison – three children – no one to look after them. And because of the circumstances they were given a suspended sentence and they were able to come out. But after pleading guilty for an offence that they knew very well, we knew very well, the court knew very well, that they did not commit.

Another case, of another person, supposed confession said, he gave food parcels in Jaffna at a particular point to LTTE’ers. On that very day he was getting his appendix removed at Sri Jayawardenepura hospital. That matter was brought to Hon. Thilak Marapana who was the attorney general. Mr. Mohan Peiris was my senior in this case, and we told the prosecutor “don’t embarrass yourself, withdraw the indictment” and the indictment was withdrawn. They write up whatever stories they want and get you to sign the confession.

Hon. Leader of the Opposition mentioned the case of J.S. Tissainayagam. I was a counsel in that case. In his supposed confession he says – he was forced to do that. But even then in one place it said, “they offered me money, I said I did not want.” In Tamil it says, “வேண்டாம் என்று சொன்னேன் “  its written. Its written in black ink, but the correction was made in blue ink over that. The letter “ டா “ was changed to “டு” , “வேண்டும்” என்று சொன்னேன், now in that confession, or supposed confession, there were 50 odd other places he had made corrections, in black ink, and he has initialed on the side. At this particular point where a different ink was used, there’s no initial on the side. The very document was not authentic.

But it was on that document that he was found guilty and sentenced to 20 years’ rigorous imprisonment. That provision still remains; you are not touching that.

The most talked about provision in the PTA, the confessions made to police officers being admissible as evidence against that person and even co accused for that matter, still remains. You haven’t touched it. Detention – you say you are reducing, I mean Prof. Peiris, Hon. Minister, you are embarrassing yourself when you stand up and say you are reducing 18 months to 12 months.

I can’t believe that you can do that. Does it make any difference on the ground? No it doesn’t. Tell me one person who was released because 18 months had lapsed?  Tell me one person who will be released because the 12 months is going to lapse now? Because you have section 7, before the 12 months, all you have to do is to produce that person before the magistrate. And the Law says and still says, magistrate shall remand that person, until conclusion of the trial, and the trial is in the high court not in the magistrate’s court. So that doesn’t change.

You are saying you are providing provisions for bail. Yes, that is for the first time a provision for a bail, a right is coming in. I acknowledge that. But anyway you have been releasing people on bail even without that. As you yourself said, court have interpreted now authoritatively that the word “Shall” must be read as “May”. So what’s this? It is a superfluous thing now. And when you bring it in saying the court of appeal can grant bail, you have a proviso that says subsequently the high court can remand the person.

Where in the world do you have a law where the higher court grants bail and subsequently the lower court can remand a person?

Now I must, since time is short,….. we have started a campaign going country wide, where people from all walks of life, all ethnicities, are calling for the total repeal of the PTA. Listen to the people of this country. We Tamils have said this for 30 or more number of years, 40 years may be. Others have said it, the JVP suffered under this.  When I started my practice, I appeared for many persons who were charged under the PTA in 89, 90, and 91 and so on. Now you are victimizing the Muslim community under this law.

Now all of these people are asking for a total repeal. We will oppose this bill even though there is a provision-  there is a legal right for bail – because you are using these amendments to mislead everyone saying this is some good first step, let us start here, we will move on and so on.

You are pulling wool over the eyes of the world. Or you are trying to. but you won’t succeed in that. you are trying to and therefore to expose you, to expose the puerile attempt by the government to try and show that there is some reform, as I told you Hon. Minister in Jaffna if this is reform, you have to change the word reform in the dictionary and you didn’t counter me on that at that point. So therefore in order to expose this attempt by the government to show something which makes no change on the ground, we will be opposing the passage of this bill today.

[Excerpts from Hon. M. A. Sumanthiran’s Speech made in Parliament on 22.03.2022 on the amendment to PTA (Prevention of Terrorism Act)]

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