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By Ermiza Tegal and Amra Ismail
Does the Prevention of Terrorism Act (PTA) keep us safe? How often is it misused? Does it cause unjust suffering to people? If it does cause suffering, how much suffering are we as a society willing to barter for a sense of security? Whose suffering do we barter? What gives us a sense of security, random arrests or actual accountability? These are some of the questions we as Sri Lankan society have not openly confronted or answered in the past 40 years the PTA has been in force. There is much publicly available documentation that torture has been widely committed under the PTA and that the PTA provisions do not meet human rights standards. Yet, these facts have have not moved Sri Lankan society at large to support its reform or repeal.
In an endeavour to support a conversation on the impact of the PTA, the Law and Society Trust in Colombo (LST) released a report titled “Understanding Rule of Law, Human Security and Prevention of Terrorism in Sri Lanka” in March 2021 that documented some of the ways in that the PTA affected the lives of persons detained following the Easter Sunday bomb attacks. The report looked at the experiences of 47 individuals. The report finds that the familiar draconian patterns of arbitrary arrest and detention, long term detention without steps to expedite investigations and no judicial oversight to check fairness or treatment continued to be experienced by these detainees. It also found that the lives of these ‘suspects’ or detainees and their families were thrown into immediate and lasting hardship. The delays and uncertainties in securing due process and a fair hearing was found to be paralysing and resulting in further mental distress. A few months earlier, LST had also published a report with details of ten case studies detailing the socio-economic and psychological impact on families of detainees in similar circumstances.
It has been two years since suicide bombers attacked three churches, three luxury hotels and a guest house on Easter Sunday 2019,claiming close to 270 lives, leaving hundreds injured and many more personally impacted. Within days of the attacks, in the midst of immense grief and shock on a national scale, a wave of hostility was directed towards the Muslim community in Sri Lanka. The government failed to publicly denounce the rising hate speech and ethno-religious discrimination and violence against Muslims. Instead, it contributed to the hate against Muslim persons, groups and communities through the government’s own language and actions. The emphasis on ‘Muslim’ terrorists, imposition of a face veil ban despite the complete lack of links between face veils and acts of terror and indiscriminate raids on homes of Muslims on spurious grounds all contributed to the demonizing of an entire population of nearly two million citizens. One of the most damaging ways in which the government terrorized Muslim communities across Sri Lanka was through the arbitrary wielding of a familiar tool that had enabled state abuse of power for decades, the PTA.
The PTA was enacted on July 15, 1979. It was presented in Parliament, debated and enacted all in just one day. That was the extent of the scrutiny of this law by the representatives of the people. It was brought in as a temporary law, for just three years, by then president J. R. Jaywardene. Parliamentarian Dr. A. P. de Zoysa, Member of Colombo South, warned, “An unscrupulous Minister, and unscrupulous Prime Minister, could make use of this very law to detain innocent people”. The main opposition speech by Parliamentarian Maithripala Senanayake, Member for Medawachchiya stated, “If it is required for the purpose of dealing with the acts of terrorism in the North, there is already The Proscribing The Liberation of Tigers of Tamil Ealam and other Similar Organizations Law in addition to the State of Emergency declared under the Public Security Ordinance, under which the Government has absolute power to deal with any situation.” It is an observation that holds stronger today, as Sri Lanka has only kept expanding unchecked executive power.
The unbridled power that the PTA placed at the disposal of the executive has been something no government since has been willing to give up. So it remains in effect, an unjust law causing harm and suffering to all those whom the government of the day and its security apparatus deem to be a threat. The PTA provided unrestrained power to be used by the State against armed insurgent JVP but was also extended broadly for use against Sinhala youth and left political opponents. It was most extensively used against Tamil militant groups, especially the LTTE, but was also extended broadly for use against persons of Tamil ethnicity not involved in armed resistance. It was used from time to time against ordinary citizens, including majority Sinhalese, to investigate ordinary criminal offences. Today, it is claimed that the PTA is necessary to bring to book terrorists responsible for bombings in 2019 but in its application has broadly affected people identified as Muslim.
The injustice and suffering caused by the PTA is justified or hidden by cloaking it in the garb of ‘national security’. It delegitimizes those it targets as ‘terrorists’ purely on the grounds of accusation by the authorities. The invocation of fear and prejudice is relied on to trump considerations of human rights, natural justice and the suffering of citizens. Far from ensuring the security of the nation, the PTA places Sri Lanka’s own citizens at risk and imperils the rule of law, and legitimacy of its justice system. Sri Lanka has not evaluated the cost of the PTA, on the legal system or on the lives of the many innocents it has affected.
International human rights standards are clear. Arbitrary detention is unacceptable. The fundamental guarantee to all people is liberty. The UN Human Rights Committee has observed that “liberty and security of person are precious for their own sake…” (See ICCPR General Comment No. 35 (CCPR/C/GC/35) para. 2). As such, an individual should only be deprived of her or his liberty where absolutely necessary. In fact, the prohibition of arbitrary deprivation of liberty has acquired customary international law status (a jus cogens norm) (See General Assembly, Human Rights Council report A/HRC/22/44, para. 43 and 51).
Five key safeguards against arbitrary detention are:
- A person arrested should be informed of the reason for arrest at the time of such arrest and he should be promptly informed of any charges against him.
- Anyone arrested or detained on a criminal charge should be brought promptly before a judge and is entitled to trial within a reasonable time or release.
- Anyone deprived of liberty by arrest or detention is entitled to judicial review of the lawfulness of his detention and to an order of release where the detention is unlawful.
- In cases of unlawful detention, the victim has an enforceable right to compensation.
- The right to bring proceedings to challenge the arbitrariness and lawfulness of detention and to receive without delay appropriate and accessible remedies is applicable to all situations of detention including military detention, security detention and detention under counter-terrorism measures.
The LST report sheds light on some experiences under the PTA, a few of which are elaborated below:
The basic safeguard of informing arrestees of reasons for arrest at time of arrest
There is no provision in the PTA mandating that reasons be informed to detainees. It is, however, a constitutional right of Sri Lankan citizens. It is important that at the point of arrest the arresting officer is able to state the offence clearly, including where and when it took place. Insights from lawyers with experience on cases involving civil liberties and also the National Human Rights Commission report on prisons suggest that this right is often breached. Therefore it is not surprising that many families of persons arrested allegedly in connection with the Easter attacks reported that they were not told of the reasons for arrest at the time.
Those arrested were either detained pursuant to a detention order, given by the Minister of Defence, or arrested for allegedly committing an offence under the PTA. In the cases studied, detention orders had not been shown to the detainees at the time of arrest or even thereafter when their lawyers had requested it. Those under detention order do not have to be produced before a Magistrate so there was no judicial supervision of this detention.
Of those arrested for alleged offences under the PTA, because of the legal requirement to produce the suspect before a Magistrate within 72 hours, facts reported to the Magistrate at this point ought to have provided information about reasons for the arrest. However, a perusal of the reports (known as B-reports) filed in Magistrate courts in five provinces only refer to vague reasons all broadly referring to supporting terrorism or communicating with terrorists. Reasons given include attending a bayan (sermon), writing poetry, forwarding a WhatsApp message, Facebook post allegedly inciting violence in 2014, providing food at a meeting, creating a website, financially supporting construction of hundreds of tube wells, being the wife, mother, brother or father of another suspect, ‘on suspicion for questioning’, ‘involved in spreading extremism’, and ‘having financial transactions’ with no specifics given. As a result these suspects and detainees face the impossible task of having to defend themselves without any information about what they have been accused of.
Arrest and detention on the basis of non-specific reasons were followed by interrogations and investigations such as calling for phone and bank records. It seemed as if the investigating officers were hunting for possible offences after the arrest. Very few of these detainees were released on bail, that too was possible only if they had access to legal representation. However, even for those released on bail, the case continues to hang over their heads, the stigma of the case follows them in their daily life, and with no information about their presumed offenses being presented even after two years, they live with extreme uncertainty and insecurity.
Other safeguards that were not complied with at the time of arrests
The safeguard of being promptly brought before a judge is not adequately provided for in the PTA. There are two ways in which an arrest can take place; one is pursuant to a detention order which specifically names the person and second is if the police have reasonable suspicion that a person has committed an offence of terrorism. If a suspect is held under a detention order there is no provision to bring them before a Magistrate. If they are arrested for an alleged PTA offence, they are required to be brought before a Magistrate within 72 hours. However, the Magistrate is not permitted to decide on bail or release or even to review the legality of the arrest. Essentially under the PTA, there is no judicial oversight of arrests and detentions at the initial stage of arrest or detention.
In one case where even one month after a person’s arrest the police failed to produce in court the detention order that they claimed authorized the arrest, the Magistrate did not release the person even though there was no demonstrated legal basis for his detention in the first place. Magistrates did not appear to have received judicial guidelines on the PTA during this time when so many persons were brought before them under that law.
The report also found that several experienced obstacles to legal representation after the Easter Sunday attacks. Some persons arrested were told not to involve lawyers as it would hinder their release. For some families who sought legal representation, the legal profession failed them. The National Human Rights Commission reported complaints received that certain Bars had refused to represent those arrested and produced in court in connection with terrorism. Some families were referred from lawyer to lawyer, sometimes the lawyer did not turn up and some were asked for exorbitant fees. There was also no legal aid scheme offered for those arrested allegedly in connection with the Easter Sunday attacks. Even if the arrest or detention is challenged in the superior courts, past experience demonstrates that the ‘Supreme Court and the Court of Appeal have fallen woefully short of subjecting the grounds cited for detention to strict review.’ (Anketell, N and Gunatilleke, G, “Emergency Law in the Context of Terrorism”, Venture Associates and South Asia for Human Rights, 2011). In principle and practice, Sri Lanka has failed to ensure a fair legal process for these detainees.
Consequences on families arbitrarily affected by the PTA
The loss, hardship and suffering of the detainees and their families has not received any public or policy attention. Some families face destitution after the arrest of their primary income earners. Amongst other experiences documented, a mother is compelled to tell her son not to inform his friends at school about their father’s imprisonment, a woman engaged in artificial flower making is not able to resume her livelihood because society shuns her after her husband’s arrest, a young child is bullied in school by taunts that his father is ‘ISIS’, a mother finds that the local midwife has stopped visiting her and her infant after the arrest of her husband, a woman is refused a loan necessary for survival and is herself referred to as a ‘terrorist’ because her husband was arrested, a man released on bail is unable to resume his livelihood of providing tuition because his community rejects him. The report also speaks of the additional hardships endured by families as a result of COVID-19 restrictions, and especially the loss of families’ access to their loved ones in detention – against whom no credible charges have been laid.
Significantly, persons arrested under the PTA have no right to be compensated for the losses caused to their lives if they are released or discharged from the case, whether they were detained for several months or for several years. The state must be responsible for its actions, particularly if it resorts to arbitrary action affecting the lives of people. Having failed to prosecute those arrested even after two years, should the state not bear responsibility for the harm and suffering caused to detainees and their families by arbitrary application or abuse of the powers of the PTA?
Many detainees and families live with a grave fear that raising concerns about their arrests, conditions of detention, hardships of visitations and treatment or even challenging the detention of their loved ones, will be met with reprisal or moves to ensure further prolonged detention. This extends to two emblematic cases, those of 40 year old lawyer Hejaaz Hisbullah and 26 year old poet Ahnaf Jazeem, which have recently drawn some public attention to the injustices in the legal process and the personal suffering caused by detention under the PTA, which is sadly routine for all detainees.
The PTA and its application continues to leave a trail of human suffering and tragic injustices in its wake. It is a cost that we have failed to count as a society and consequently no law reform has been undertaken or is contemplated to address this. In fact, by the issuing of further regulations under the PTA, the law grows less certain and more susceptible to politically motivated application and abuse, the most recent being the regulation on de-radicalization from holding violent extremist religious ideology, PTA Regulations No. 01 of 2021, potentially again permitting detention of individuals for years with no judicial oversight.
Sri Lanka must take stock of the unwieldy and problematic legal framework governing national security and must replace this with a coherent framework that values a person’s liberty. It must place strong safeguards against arbitrary and discriminatory application of law, to ensure that preventable abuse is prevented and justice is done. Safeguards include adopting judicially supervised approaches to counterring terrorism and removing administrative detentions from routine law. Administrative detention ought only be activated when a state of emergency is declared, thereby placing time-bound limitations on possible abuse. There is also a need to delineate between powers relating to investigation and powers relating to arrest and detention.
When we as a society demand for accountability for the Easter Sunday attacks, we must not be contented simply with arbitrary arrests and detentions that cause fear amongst a particular community or group. We deserve investigations that lead to effective and timely prosecutions that would hold to account the actual perpetrators and those whose actions enabled the atrocity to be perpetrated. The accountability culture in Sri Lanka is very skewed. Due to a lack of confidence in the judicial system from the public and even those in government, detention, ill treatment, torture, and at times extra-judicial execution have been accepted as a means of serving of justice and punishment. This perverse sense of accountability works in the favour of bad governance, as it undermines demands for a high standard of professionalism in law enforcement, a high standard of care towards people or a high degree of responsibility from people’s representatives.
As citizens, we must hold our representatives and officials accountable for their actions, insist on laws that actually keep us safe, and that those who are wrongfully treated be compensated, and resist forms of governance that use fear and law to discriminate against and terrorize groups of citizens.