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Civil society calls for immediate moratorium on use of PTA

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Civil society groups and individuals have called for an immediate moratorium on the use of the Prevention of Terrorism Act (PTA).
In a statement titled ‘Civil Society Statement on Government Proposals to Reform the Prevention of Terrorism Act’, they said: We reiterate that national security cannot be achieved by creating insecurity for already discriminated against and marginalized communities, and call for the repeal of the PTA. The repeal of the PTA must also be considered in light of the anti-terrorism and public security legal framework that Sri Lanka has in place, and the historical abuse of power by state entities.”

Full text of the statement: In June 2021 the government of Sri Lanka announced it would ‘reform’ the Prevention of Terrorism Act (PTA) and appointed a Ministerial Sub-Committee for that purpose. It was reported in the media that Kamal Gunaratne, the Secretary, Ministry of Defence and the head of the Technical Committee that functions under the Ministerial Sub-Committee, submitted the Technical Committee’s recommendations to the Ministerial Sub-Committee in November 2021.
Historically, for decades, the PTA has been weaponized against the Tamil community, and following the Easter attacks against the Muslim community as well. This has resulted in the victimization of members of these communities. It was also used against the Sinhalese during the JVP insurrection and now against dissenters. We reiterate that any process which seeks to tackle issues related to the PTA must address this factor to ensure those adversely affected by the law will receive justice, including reparations.

While the government has not shared its plans for the supposed “reform” of the PTA with the public, we note the Sri Lanka Consensus Collective’s (SLCC) statement of 29 November 2021 sets out proposals for reform the government shared with the said group. In the absence of official communication by the government, we consider the elements contained in the SLCC statement as the changes being deliberated by the government. We note that nearly all so-called changes proposed already exist in law and do not address any of the shortcomings in the PTA that enable grave human rights violations.
We call for repeal of the PTA and in the interim an immediate moratorium on the use of the law. This is in line with the requests of persons and communities adversely affected by the law. We reiterate that any law that purports to deal with terrorism must adhere to international human rights standards. In this regard, we set out below the provisions of the law that result in egregious human rights violations and the minimum standards that have to be followed to ensure the protection of fundamental rights.

The critical factor to take note is that the PTA is a human rights deficient law that does not adhere to basic human rights standards enshrined in international conventions, such as the International Covenant on Civil and Political Rights (ICCPR), which the government of Sri Lanka has ratified and hence has an obligation to respect and protect. Nor does it adhere to many provisions in the Constitution of Sri Lanka. In this context the following are key provisions in the PTA that result in grave human rights violations:
The PTA does not contain a definition of terrorism. Instead, the offences stipulated are those found in other laws, such as the Penal Code, to which the PTA makes reference. Hence, the decision as to whether the PTA would apply in a certain instance is a subjective decision that can be shaped by personal prejudice and bias, rather than objective standards. In this regard, the PTA does not adhere to the definition set out by the UN Special Rapporteur on Countering Terrorism while Protecting Human Rights. For instance, post- Easter attacks even persons with books in Arabic and decorative swords were arrested. Similarly, those memorializing the lives lost at the end of the war have been arrested.

The lack of basic due process safeguards in the PTA enables arbitrary arrest and detention, which continue to date. This is exacerbated by the lengthy periods of administrative detention. For example, for decades we have witnessed persons who had any connection to a person accused of an offence in the normal course of their employment or personal life being arrested, without investigations being conducted, and detained for months.
We reiterate that arrests should be made based only on evidence following investigation or reasonable suspicion.
The detention period should be that stipulated in the Code of Criminal Procedure and any extension of detention should be made by a judge, who should be satisfied of the reasons for continued detention and exercise discretion as to whether or not to extend detention.

There is documented evidence, including Supreme Court decisions and the Human Rights Commission’s (HRCSL) reports, which illustrate that the admissibility of confessions made to an Assistant Superintendent of Police (ASP) or above as evidence, has resulted in persons being tortured to extract confessions. This has normalized and entrenched the use of torture. Even if the confession is ruled inadmissible during trial, the existence of the provision creates room for persons to be subject to torture. This not only violates basic due process and fair trial rights of a person accused of an offence, but also calls into question the competence of the criminal justice system that has to rely on confessions to prosecute persons. Such a provision, which is a deviation from the norm, has no place in law. Instead, current provisions in the Code of Criminal Procedure and the Evidence Ordinance should be followed with regard to the admissibility of confessions.

Section 7(3) allows a person to be taken out of judicial custody to any other place for investigation. Section 15A empowers the Secretary, Ministry of Defence, to determine a person’s place of detention even after the person is remanded. This removes a person from the protection of judicial custody and empowers the Secretary to override a judicial order. The incident in September 2021 of the Minister of Prison Reforms and Prisoners Rehabilitation Affairs entering Anuradhapura prison and reportedly threatening persons detained under the PTA with a weapon and verbally abusing them illustrates the insecurity faced by such persons even when in judicial custody. Removing them from judicial custody would only exacerbate their vulnerability. As the Human Rights Commission’s national study of prisons documented, persons remanded under the PTA were subjected to severe torture when taken out of judicial custody or held in other places upon the instructions of the Secretary, Ministry of Defence.

Persons detained under the PTA spend a prolonged period of time in pretrial detention because the Act requires such persons to remain in remand custody until the conclusion of the trial, unless the Attorney General consents to the release on bail. For all arrests, provisions of the Bail Act should apply, and bail should be denied only if any of the exceptional circumstances set out in the Bail Act are met.
The PTA allows the Minister of Defence to issue Restriction Orders for up to 18 months. Restriction Orders can be used to prevent people from engaging in political activities, speaking at events, or advising an organisation. Such orders allow civic rights to be curtailed arbitrarily by the Minister with no due process, transparency or accountability.

The SLCC statement mentions the government stated that for the very first time a detained person would be able to challenge administrative detention in the Supreme Court. We point out that the right to challenge arbitrary detention, including under the PTA, is enshrined in the Constitution of Sri Lanka and is not a new right that any proposed reform could bestow. The challenge many detained persons face in accessing this existing right is the administrative restrictions on access to lawyers and lack of financial resources to retain competent counsel.
Similarly, the HRCSL Act already mandates the Commission to monitor the welfare of persons deprived of liberty and empowers it to access any place of detention unannounced. However, following the 20th Amendment to the Constitution in 2020, the HRCSL is no longer a legally independent body as appointment of the officers of the Commission is at the discretion of the President. This adversely impacts the activities of the Commission as well as public trust in the institution.

The Advisory Board established by Section 13 of the PTA, as we have pointed out in the past, is an inadequate protection mechanism that is not independent as its members are appointed by the President. Further, the Minister of Defence has the power to make rules on how the Board deals with representations made by detained persons. It therefore does not act as a safeguard against executive abuse of power. Any non-judicial mechanism that is established to decide on/recommend the release of persons detained under the PTA must be independent and entities, such as the Attorney-General’s Department, should not be able to veto its decisions.
The proposals shared by the government with SLCC fail to address the fundamental shortcomings of the PTA. Instead, they propose changes that already exist but are often observed in the breach.
We note with deep concern that the functioning of the aforementioned committees was not transparent and the recommendations were formulated without any consultation with members of civil society who have been working on issues related to the PTA or persons affected by the law. We call for greater transparency in the reform process from this point onwards and request the government to inform the public of the process for consultation and the proposed timeline for reform.

We reiterate that national security cannot be achieved by creating insecurity for already discriminated against and marginalized communities, and call for the repeal of the PTA. The repeal of the PTA must also be considered in light of the anti-terrorism and public security legal framework that Sri Lanka has in place, and the historical abuse of power by state entities. These entities should not be bestowed with additional power.
The way forward must give due recognition to the protection of physical liberty. Deprivation of physical liberty by the executive must be used only as last resort and strictly require sufficient basis that is determined on objective factors, judicial supervision of such basis, prompt and free access to legal representation including legal aid, prompt trials or release, and an enforceable right to compensation for arbitrary detention. The prohibition of arbitrary deprivation of liberty has acquired customary international law status and constitutes a jus cogens norm which Sri Lanka is duty bound to secure for its citizens.
The balance the government wishes to achieve between personal liberties and national security can only be achieved through addressing the root causes of conflict and violence. Attempts to further curtail civil liberties in the guise of national security will only exacerbate the insecurity of all communities and undermine the rule of law and democracy in Sri Lanka.

Signatories of the statement were: S. Annalaxumy, Bisliya Bhutto, S.C.C. Elankovan, Lawyer and Development Consultant Philip Dissanayake, A.M. Faaiz, Brito Fernando, Nimalka Fernando, Ruki Fernando, Aneesa Firthous, Amarasingham Gajenthiran, T.Gangeswary, K. Ginogini, Ranitha Gnanarajah AAL, B. Gowthaman, S. Hayakirivan, Director, THALAM, V. Inthrani, Noorul Ismiya, Vasuki Jeyshankar, Dr. Sakuntala Kadirgamar, S. Kamalakanthan – Social Activist, Mahaluxmy Kurushanthan, Kandumani Lavakusarasa, Human Rights Activist, Jensila Majeed, Buhary Mohamed, Human Rights Activist, Juwairiya Mohideen, Jaabir Raazi Muhammadh, Chairman, Voices Movement, P. Muthulingam, Thangaraja Prashanthiran, Dorin Rajani, Maithreyi Rajasingham, Executive Director, Viluthu , A.R.A. Ramees, V. Ranjana, Anuratha Rajaretnam, K.S. Ratnvale, Yamini Ravindran, AAL, Kumudini Samuel, Thurainayagam Sanjeevan, Shreen Saroor, Ambika Satkunanathan, Rev Fr S D P Selvan,
S. Selvaranie, Vanie Simon, P. N. Singham, Usha Sivakumar, N. Sumanthi, Vani Sutha, Ermiza Tegal, S. Thileepan – Social Activist, P Vasanthagowrey, Rev Fr Yogeswaran, Adayalam Centre for Policy Research, Alliance for Minorities, Centre for Human Rights and Development, Centre for Justice and Change, Eastern Social Development Foundation, Families of the Disappeared, Forum for Plural Democracy, Law and Society Trust, Mannar Women’s Development Federation, Rural Development Foundation, Tamil Civil Society Forum, Viluthu and Women’s Action Network



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Professionals’ National Front opposes MILCO appointment

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… questions rationale behind Basil’s actions

By Shamindra Ferdinando

The Professionals’ National Front (PNF) has questioned the appointment of Renuka Perera as the Chairman of MILCO at the expense of Lasantha Wickremasinghe, a senior member of the outfit as well as an associate of the patriotic civil society outfit ‘Yuthukama’ organisation.

The ruling SLPP accommodated ‘Yuthukama’ leader Gevindu Cumaratunga on its National List whereas Anupa Pasqual also of the civil society grouping successfully contested the Kalutara district.

PNF Secretary and its spokesperson Kapila Renuka Perera told The Island that the government owed an explanation as to why Wickremasinghe who transformed the loss making public sector enterprise in spite of severe difficulties, was removed.

At the time Wickremasinghe received the appointment following the 2019 presidential election, Milco was reported to have suffered losses amounting to Rs. 2,000 million, the PNF spokesperson said. Thanks to Wickremasinghe’s interventions and the tireless efforts of the management team, MILCO earned annual profit of Rs 400 mn regardless of significant increase in the revenue received by milk farmers, Perera said.

Responding to another query, Perera pointed out that no less a person than Prime Minister Mahinda Rajapaksa, who had also served as the Finance Minister till July last year emphasized the pivotal importance in transforming the public sector. Therefore, the recent removal of Wickremasinghe to accommodate Renuka Perera, the Administrative Secretary of the ruling Sri Lanka Podujana Peramuna (SLPP) was contrary to the government position articulated by the Premier, the PNF official said.

Renuka Perera received his letter of appointment from Finance Minister Basil Rajapaksa on the afternoon of January 20 at the Finance Ministry.

Acknowledging that public campaigns undertaken by the PNF since its inception in 2016 helped the then Joint Opposition (JO) now represented in Parliament as the SLPP, PNF Secretary Perera said they were quite horrified by the way the powers that be behaved at a time the country was experiencing severe economic difficulties. Declaring the public had lost faith in the parliamentary system, those who were skeptical of the concerns expressed by professionals should inquire into the sharp increase in the number of families, individuals, particularly the youth seeking to migrate.

Asked whether the PNF questioned the Milco appointment as Lasantha Wickremasinghe happened to be a member of the organization as there had been a number of other controversial appointments since Nov 2019 though they largely remained silent, the official pointed out their opposition to the appointment of Milinda Moragoda as Sri Lanka’s High Commissioner to India. “We raised the issue with the Parliamentary High Post Committee and campaigned vigorously against the former minister given such a crucial diplomatic posting. However, the political leadership thought otherwise,” the PNF spokesperson said.

Amidst the controversy, President Gotabaya Rajapaksa issued a statement defending Moragoda’s appointment.

The PNF official said that the SLPP Administrative Secretary being appointed as the Milco Chairman should be examined against the backdrop of a failed attempt to appoint him as Chairman and the board member of Litro Gas. However, an irate President Gotabaya Rajapaksa rescinded a letter issued by the Secretary to the Finance Ministry S. R. Attygalle in respect of the top Litro appointment. Having done so, President Rajapaksa went to the extent of inspecting the Litro’s main facility at Kerawalapitiya in the company of Theshara Jayasinghe, the incumbent Chairman.

It would be pertinent to mention that Renuka Perera lost his position as Chairman, NHDA (National Housing Development Authority) last July when former lawmaker and convict Duminda Silva moved in soon after he received presidential pardon.

President Rajapaksa brought in Theshara Jayasinghe in July last year following the controversy over Litro successfully blocking government audits even after the Auditor General and the then COPE (Committee on Public Enterprises) emphasized the need for state-owned Litro to undergo state audit.

Litro hired Romesh de Silva, PC and Sanjeeva Jayawardena, PC, who is also member of the Monetary Board to represent Litro in the controversial as well as unprecedented case, parliamentary sources told The Island.

Sources said that the government audit resumed after Theshara Jayasinghe replaced Finance Ministry appointee Anil Koswatte, who called Treasury Secretary Attygalle to inquire into allegations directed at him by Theshara Jayasinghe.

The PNF official said that during yahapalana administration the grouping strongly opposed ETCA (Economic and Technical Cooperation Agreement) with India as well as SLSFTA (Sri Lanka Singapore Free Trade Agreement) and high profile US MCC (Millennium Challenge Corporation) project as they were inimical to Sri Lanka’s national interests.

In a statement issued on January 20, the PNF also raised the appointment of Gamini Senarath as the Secretary to the President in spite of accusations as regards his culpability over the disastrous Chinese carbonic fertiliser deal that ended up with cash-strapped Sri Lanka having to pay USD 6.7 mn regardless of the rejection of allegedly contaminated fertilizer stock. The PNF spokesperson pointed out that a close relative of Gamini Senarath managed the Chinese exporter, Qingdao Seawin Biotech Group Co., Ltd’s local agent Chelina Capital Corporation (CCP).

However, following allegations in this regard, both in and outside Parliament late last year, Senarath issued a statement denying his involvement whatsoever in the transaction while declaring his readiness to cooperate fully in case of an investigation.

The PNF noted that the former Secretary to the President Dr. P.B. Jayasundera, too, had allegedly interfered in liquid fertilizer imports from India and a CID investigation was underway following him complaining against the reportage of the developments.

The PNF Secretary said as many others, they, too, were disappointed with the way appointments were made under controversial circumstances at different levels. Asked whether the PNF ever contemplated moving court against unacceptable actions of the government, the spokesperson pointed out that the creation of more than 30 separate ministries in violation of the Constitution was challenged and the case was pending in court.

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Udaya sounds dire warning

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Sri Lankans would have to experience daily power cuts up to four hours a day, if Sri Lanka could not secure a substantial USD loan by March 2022, Minister of Energy, Udaya Gammanpila said yesterday.

Gammanpila said that the country should brace for any eventuality and politicians should lead by making sacrifices. The country was facing a forex crisis and a lot of other sectors would have to suffer if large amounts of fuel had to be imported to generate electricity.

“Monsoons will begin in April. When that happens we may be able to reduce the use of fossil fuels to generate electricity. It will be a struggle until then,” he said.

The only way for the country to have an uninterrupted supply of electricity is to secure a large foreign loan, the Minister said. If the country does not start enforcing daily power cuts now, there will be a crisis in the coming months, he said.

“Is it not better that we implement one and a half hour cuts from now itself rather than moving onto four-hour power cuts later? Should we starve for 28-days after stuffing ourselves from star-class hotels for two days? Or should we rather cook the meals at home?” the Minister asked.

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PHIs threaten to pull out of duties at BIA

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By Rathindra Kuruwita

Public Health Inspectors (PHIs) yesterday threatened to withdraw from the Bandaranaike International Airport (BIA) because a large number of foreigners arriving in the country do not adhere to health guidelines.

PHIs’ Union head Upul Rohana said that six of their members who were working at BIA had tested positive for coronavirus recently.

“A lot of foreigners and Sri Lankans who come from abroad seldom adhere to health guidelines. Often they do not wear masks. Thus, they are putting health workers and other staffers at risk. PHIs are compelled to communicate with almost everyone. This is a dangerous situation and we had repeatedly told health superiors about this,” he said.

Rohana said that PHIs at the BIA operated with minimal facilities. They did not have adequate restrooms and some powerful health sector unions had ensured that PHIs had to work under difficult circumstances.

“They have to stay in cramped spaces. So, if one PHI gets COVID, a lot more would be infected. This is a serious development. We again urge health officials to look into this. If nothing is done, we will leave our stations at the BIA,” he said.

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