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
Weerawansa’s wife sentenced to RI
Lawyers appearing for Shashi Weerawansa, MP Wimal Weerawansa’s wife, yesterday (27) appealed against a Colombo Magistrate’s Court decision to sentence their client to two years rigorous imprisonment.Colombo Chief Magistrate, Buddhika Sri Ragala found her guilty of submitting forged documents to obtain a diplomatic passport circa 2010. The Colombo Magistrate’s Court also imposed a fine of Rs. 100,000 on Mrs. Weerawansa. If the fine is not paid she will have to serve an extra six months.
Additional Magistrate Harshana Kekunawala announced that the appeal would be called for consideration on 30 May.The case against Mrs. Weerawansa was filed by the CID after a complaint was lodged on 23 January 2015 by Chaminda Perera, a resident of Battaramulla.
Unions predict end of energy sovereignty
By Rathindra Kuruwita
A government decision to allow all privately-owned bunker fuel operators to import and distribute diesel and fuel oil to various industries was a rollback of the nationalisation of the country’s petroleum industry and another severe blow to energy sovereignty of the country, trade union activist of the SJB Ananda Palitha said yesterday.Earlier, Minister of Power and Energy, Kanchana Wijesekera Tweeted that ‘approval was given to all the Private Bunker Fuel Operators to Import and provide Diesel and Fuel Oil requirements of Industries to function their Generators and Machinery. This will ease the burden on CPC and Fuel Stations provided in bulk’.Commenting on the decision, Palitha said that according to the existing law those companies only had the power to import, store and distribute fuel for ships. Those companies did not have the authority to distribute fuel inside the country, Palitha said.
“Only the Ceylon Petroleum Corporation (CPC) and Lanka Indian Oil Corporation (LIOC) can distribute fuel inside the country. There is a controversy about the licence given to the LIOC as well. If the government wants other companies to import fuel, it needs to change the laws. The Minister does not have the power to make these decisions. A few months ago the Gotabaya Rajapaksa administration used to rush Bills that adversely affected the country through Parliament. Now, since they don’t have a majority in parliament, they are using the Cabinet to make decisions that are detrimental to the country’s interests.”
Palitha said that the controversial government move would further weaken the CPC, and that the ultimate aim of the Rajapaksa-Wickremesinghe government was to make the Ceylon Electricity Board (CEB) purchase fuel from private distributors. With a weakened CPC and a CEB under the mercy of private companies, the Sri Lankan state would have little control over the country’s energy sector, he warned.
“The CEB already can’t pay the CPC, and therefore how can it pay private companies? It will have to sell its assets. This is another step in the road to fully privatise the energy sector. When this happens no government will be able to control inflation or strategically drive production through fuel and energy tariffs. The people will be at the mercy of businessmen and the government will only be a bystander,” he said.
Modi government moves to ‘solve’ Katchatheevu issue
The Narendra Modi government is mulling restoring the traditional rights of Tamil Nadu fishermen in Katchatheevu, an uninhabited island of 285 acres, sandwiched between India and Sri Lanka in the Palk Bay, with the BJP hoping the move could lift its political fortunes in the southern state.The government will push Sri Lanka to implement “in letter and spirit” the 1974 agreement reached between Indira Gandhi and Sirimavo Bandaranaike, then prime ministers of India and Sri Lanka, on the island.This will have to be done by withdrawing the “Executive Instructions” issued in 1976 without questioning Sri Lanka’s “sovereignty” over Katchatheevu, sources aware of the internal discussions in the BJP told the Indian newspaper, Deccan Herald.
Sources added that the discussions were “ongoing” at “various levels” including reaching out to Tamil political parties in Sri Lanka. The recent visit of TN BJP chief K Annamalai to Sri Lanka is also part of the outreach. Many feel the instructions issued in 1976 “superseded the provisions of the legally valid” pact between India and Sri Lanka, thus making Katchatheevu a subject of dispute in the Palk Bay.While the 1974 agreement gave away Katchatheevu, which was part of the territory ruled by the Rajah of Ramanathapuram, to Sri Lanka, the 1976 pact drew the maritime boundary between India and Sri Lanka in the Gulf of Mannar and Bay of Bengal.
“We cannot disturb the agreement signed in 1974. We are now finding ways and means to implement the agreement in letter and spirit. All we plan is to ask Sri Lanka to invoke Article 6 of the Katchatheevu pact. If Sri Lanka agrees, the issue can be sorted through Exchange of Letters between foreign secretaries of both countries,” a source in the know said.Another source said the time is “ripe” to push forward on the issue. “With fast-changing geopolitical situation in the region, we believe Sri Lanka will slowly come around and accept the rights of our fishermen,” the source said.
“The opinion within the party is that time is ripe to push this cause, with Sri Lanka beginning to realise that India can always be relied upon, given PM Ranil (Wickremesinghe) is pro-India.”
Articles 5 and 6 of the 1974 agreement categorically assert the right to access of the Indian fishermen and pilgrims to Katchatheevu and state that the “vessels of Sri Lanka and India will enjoy in each other’s waters such rights as they have traditionally enjoyed therein”.
However, fishermen from India were prohibited from fishing in the Sri Lankan territorial waters around Katchatheevu in 1976 following the signing of an agreement on the maritime boundary. The battle for fish in the Palk Bay has often ended in Indian fishermen being attacked by Sri Lankan Navy for “transgressing” into their waters.The BJP, which is yet to make major inroads in Tamil Nadu, feels a “solution” to the long-standing issue will give the party the much-needed momentum ahead of the 2024 Lok Sabha polls and provide a chance to get into the Tamil psyche. Political analysts feel that it might also allow the BJP to needle the DMK and the Congress by pointing out that it has restored the rights “surrendered by them,” to Tamil fishermen
Senior journalist and Lanka expert R Bhagwan Singh said: “If BJP succeeds in its efforts, it will certainly help the saffron party in the coming elections.”
But a source said the move will “take time”. “We don’t want to rush and create an impression we are forcing Sri Lanka. We will take it slow. We will take every stakeholder into confidence and reach an amicable settlement with Sri Lanka. All we want to do is restore traditional rights of our fishermen,” the source said.CM Stalin also raised the issue at an event on Thursday, telling Modi that this is the “right time” to retrieve Katchatheevu.
Weerawansa’s wife sentenced to RI
Unions predict end of energy sovereignty
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