(Text of a Statement Issued by the Centre for Policy Alternatives)
9th May 2013, Colombo, Sri Lanka: With the recent arrest and
detention of opposition politician Azath Salley, Sri Lanka’s Prevention
of Terrorism Act (PTA) has once again come under critical scrutiny. The
Centre for Policy Alternatives (CPA) and other civil society groups have
condemned the use of the PTA to stifle dissent and reiterate this call
yet again, urging for its repeal and replacement as set out below.
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, the
impeachment 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 Strategy adopted 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.
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