For years, Sri Lanka has occupied the international spotlight for one of its contentious laws—the Prevention of Terrorism Act (PTA). The PTA was introduced in 1979 during the Sri Lankan Civil War using the emergency law provisions in Part II of the Public Security Ordinance. While similar laws exist in other nations, showing widespread acceptance of such laws for national security even in democratic countries, it is of the utmost importance that they are used in a manner consistent with the principle of the rule of law. This idea is encapsulated in the Global Counter-Terrorism Strategy (A/RES/60/288), introduced by the United Nations General Assembly in 2006, which emphasizes that implementing effective counter-terrorism measures whilst protecting human rights are “not conflicting goals, but complementary and mutually reinforcing.”
The government has used this Act for over 40 years in an authoritarian manner to suppress minorities. Initially, it was primarily used to arrest multiple suspects accused of being in the Liberation Tigers of Tamil Eelam (LTTE). Although subsequently individuals in the Tamil ethnic minority were arrested for unjust reasons for years. Some of the most famous cases include the arrests of a Muslim computer engineering student in Kattakundy, a Muslim lawyer, a Muslim poet and a Tamil freelance journalist. Not only have they faced detention for long periods without proper communication with their families, but some did not even have access to proper legal representation. Since 2022, the PTA has been used to detain protestors and anyone who speaks against the government, even if such comments were made on social media. The fact that the right of peaceful assembly is a fundamental right enshrined under Article 14(1)(b) of the 1978 Constitution of Sri Lanka, together with the lack of evidence to suggest that arbitrary arrests under the PTA are justifiable, have resulted in increased pressure to repeal the PTA.
To address growing discontent, the government first attempted to draft a new bill called the “Counter Terrorism Bill” in 2018, which was subsequently deemed a failure. Renewed efforts to replace the PTA led to a committee being formed to draft a new “Anti-Terrorism Bill,” which was gazetted in March 2023.
This article provides an overview of all you need to know about the PTA, the subsequent Counter Terrorism Bill and finally, the newly proposed Anti-Terrorism Bill.
The Questionable Nature of the PTA
Calls to repeal the PTA have been consistent ever since it was enacted. Here are a few notable arguments against the PTA:
The PTA Was Meant to Be Temporary
Section 29 of the PTA expressly notes that the Act would only be in place for three years. This provision, however, was repealed by the Prevention of Terrorism (Temporary Provisions) Amendment Act No. 10 of 1982. While the title of the Act itself notes that it is meant to be “temporary,” ironically, it was through this amendment that the Act became a permanent measure.
A core principle of the rule of law is for all new laws to be consistent with a state’s constitution. While the spirit of any constitution, including Sri Lanka, should embody the principles of a democracy, it is worth noting that the Sri Lanka constitution allows otherwise unconstitutional bills to be made law if it receives a two-thirds majority in Parliament (Article 84 of the Constitution). This means a Bill inconsistent with fundamental rights can be passed if a two-thirds majority votes in favour of it.
It No Longer Represents the Features of an Emergency Law
While the PTA was enacted under the emergency laws of Sri Lanka, the Act does not embody the strict restrictions and requirements that must be adhered to when using of its powers. In other words, any law enacted during a time of emergency is regarded as extraordinary. Since these acts can potentially severely restrict the public’s rights, their use is generally regulated to ensure that they are not misused. However, if one was to assess how the Sri Lankan government have used the PTA, it is clear that it has been exercised without adherence to the norms of conventional emergency powers, such as the proclamation and periodic parliamentary approval as required by Chapter XVIII of the Constitution and the Public Security Ordinance (CPA, 2013). This demonstrates that the PTA is not a legal tool that the government uses in exceptional circumstances, which is the general justification used for granting extraordinary powers to the Executive dealing with terrorist threats.
The PTA Denies Due process and Lacks Safeguards to Protect Detainees from Abuse and Torture
Under the PTA, a person can be detained for 18 months without being brought to court. In reality, however, many suspects have been held on remand for years. As per Human Rights Commission of Sri Lanka’s (HRCSL) 2020 report, the longest period the government held a detainee without trial was 15 years. To make matters worse, many detainees were subjected to torture and forced to make confessions, which afterwards were used to gain convictions. The possibility of getting tortured is increased by the power conferred on the officials to move and keep the detainee in any place for the purpose of interrogation. In 2021, President Rajapaksa increased the detention period to 24 months to gain more power. It is worth noting that even when detainees are facing trial, the average time to reach a verdict was nine years, although many await even longer to be given a ruling.
An important point is that on paper, the PTA includes provisions requiring magistrates to visit detention centres every month to ensure prisoners are not being tortured and requiring authorities to notify the HRCSL of PTA arrests. However, neither of these is done in practice.
Attempts to Revise the PTA
Various international bodies have consistently called on Sri Lanka to repeal or reform the PTA. In January 2021, the European Union required the government to reform the PTA to gain tariff-free access to EU markets. Specifically, it asked the government to make amendments like reducing the detention period from 18 to 12 months. Later in June of that same year, the European Parliament passed a resolution to withdraw Sri Lanka’s trading privileges under the GSP+ scheme if it continued to fail to meet its commitments related to the PTA. In 2022, the UN Human Rights Office of The High Commissioner requested the government revise the legislation to comply with international human rights law. Among the many recommendations made, the government had to employ definitions of terrorism that comply with international norms, ensure precision and legal certainty in protecting fundamental freedoms and establish several processes to prevent arbitrary deprivation of liberty. While amendments to this law were presented to Parliament, they fell short of the UN’s and other Human Rights experts’ recommendations. The government, for instance, failed to define terrorism and did not remove the powers the law provided authorities to charge an individual with speech-related offences. Consequently, instead of attempting to reform, the need to introduce entirely new legislation surfaced.
The Counter Terrorism Bill
The Counter Terrorism Bill has been in the works since April 2016. Then-Prime Minister Ranil Wickremesinghe set up a committee worked on drafting the Bill for three years without any public consultation. Hence, the entire process lacked transparency. The committee even excluded the HRCSL from the process. The completed draft was subsequently presented to the Cabinet on September 11, 2018 and gazetted on September 17, 2018. During the pre-enactment stage, various provisions were challenged in the Supreme Court of Sri Lanka, which held that the Bill could only become law with a two-thirds majority in parliament and approval by the people in a referendum. Hence, the Supreme Court found many provisions to be unconstitutional, although it rather conservatively upheld the CTA proposal to increase detention periods for suspects. In particular, out of the many clauses included, Section 3 under Part I came under fire in a report by Amnesty International. This is because the Bill defines the mens rea for the crime of terrorism in vague terms, leaving too much space for unjust interpretations. For instance, Section 3(1)(b) notes that it would be an offence if one wrongfully or unlawfully compels the government of Sri Lanka, or any other government or international organisation, to do or abstain from doing any act. This leaves space for trade union strikes and other forms of peaceful protests to be interpreted as wrongful. The report further goes on to mention the worrying nature of sections 6, 10 (g), 18, 21(2) and (3), 31, 54(3)(a), 62, 66(1)(f), 67, 72, 81 and 83. In January 2020, the Cabinet approved the withdrawal of the Counter-Terrorism Bill, understanding the need to amend it.
The Anti-Terrorism Bill
In August 2022, Cabinet member Bandula Gunawardena announced that the Cabinet was informed about drafting a new act, which was for some time referred to as the new National Security Bill. Justice Minister Dr Wijeyadasa Rajapakshe appointed an expert committee led by Additional Solicitor General Nerin Pulle and Nalinda Indatissa PC to draft it. The draft was later handed over to the Minister in January 2023 by Attorney General Sajay Rajaratnam. On 17th March 2023, the Bill was finally gazetted under the name “Anti-Terrorism Bill (ATA).”
The new Bill does have a few improvements, especially in terms of due process. The Bill now requires authorities to produce a document notifying arrest to a person being taken into custody, provide translation services where needed, must mandatorily be produced before the court every 14 days when detained under a detention order and requires females to only be searched by female police officers. However, the negatives of the Bill still outweigh its positives. In fact, the Bill has come under much stronger scrutiny, as many deem it to be more dangerous than the PTA.
For starters, the Bill is not much different from the previous CTA. It still lacks clarity on defining terrorism and even poses risks for those in the media. This latter point is demonstrated by Section 11(1) of the ATA, which notes that those in the field that publish ‘terrorist publications with media (print, electronic, web-based media etc.)’ or sell, circulate or distribute the same or have possession of such content would be liable to prosecution. While Clause 9 of the Bill offers a good faith provision, it fails to give protection to journalists. Hence, the central issue of the ATA lies in the fact that most of the provisions are too vague, with no objective criteria, thereby allowing broad and unfavourable interpretations to be made. This is encapsulated in the following words of Sri Lankan legal analyst Kishali Pinto-Jayawardene: “These are all different types of prohibited behaviour, often overlapping and reflecting a lack of clarity in their definitions as well as applications.”
Moreover, despite the government’s assurance in February 2023 that capital punishment will not be carried out, the Bill introduces a death sentence (Clause 4(1)(a)). The Bill also furthers the armed forces’ powers and has unnecessarily established an Independent Review Panel, whose purported independence is in question, that will consider complaints on fundamental rights violations, a role that is already undertaken by the HRCSL. The Bill additionally empowers the Executive to make regulations. The president can ban organisations and declare places prohibited based on the government’s recommendations. The executive also has the power to introduce “rehabilitation” programs based on the recommendations of the AG, a power which historically has proven to be used unjustly, whereby victims are coerced to agree to rehab even when there is a lack of evidence.
Furthermore, although a detention order will be required to arrest a suspect under the ATA, the fact that such an order, which initially under the PTA was only valid for three months, can now be extended to a period of one year has a drastic effect of restricting the freedoms of those arrested as they do not have to be produced to court. Thus, arrestees could stay in custody for prolonged periods, even if the allegations against them lack substance. In addition, the fact that such an enormous power is conferred to the Deputy Inspector General (DIG) has been the subject of concerns raised by human rights lawyers and organisations.
To the surprise of no one, the Bill has been subject to criticisms by UN experts, the International Commission of Jurists, various international and local organisations, as well as lawyers. The state has, therefore, once again failed to find an answer to the continuous call to repeal the PTA.
Two Down: Will the PTA Ever be Repealed?
With the amounting international pressure to repeal the PTA, its removal in the foreseeable future may be regarded as inevitable. However, the real question is how long it will take for the Sri Lankan government to make a Bill that complies with the requirements and recommendations specified by the UN and other human rights experts while maintaining national security. The scrutiny surrounding the newly proposed ATA makes it clear that it should not be passed in parliament.
Naveera Perera is a law student in her final year at CfPS Law School, Colombo, Sri Lanka, where she is pursuing a University of London LL.B. degree.
Courtesy Jurist