Written by Esha Ali
Edited by Mizla Shrestha, Hannah Fuchs, and Juliette Draper
Sri Lanka’s history has always been quite distinctive because of its geographical location. This has helped pave the pathway to what the country is today. For the longest time, Sri Lanka has been largely shaped by the Indian subcontinent and by Indian influence on art, literature, architecture, and other spheres.[1] Despite how close Sri Lanka is to its Indian neighbor, it inevitably developed a unique identity that set itself apart from the Indian subcontinent; for instance, even though Buddhism had, in essence, disappeared from India, the religion continues to thrive in Sri Lanka today. However, it is important to note that, like most countries, Sri Lanka is not an exception to human rights abuses, especially in regard to the realm of torture and arbitrary detention. The Prevention of Terrorism Act (PTA), issued in 1979, is a prime example of Sri Lanka violating liberty and taking advantage to detain individuals without any cause. The recently reformed law proved to be nothing but a failure as the most abused provisions of the law were not abolished. Instead of continuing to try and reform an act that is inherently dangerous and infringes on the rights of human beings, it is better off being repealed.
The Prevention of Terrorism Act is a law that, in essence, gave the police broad powers with searching, arresting, and detaining suspects without charges for unspecified “unlawful activities.” Under the presidency of J. R. Jayewardene, it was first enacted as a temporary law in 1979 as a wartime measure. However, three years later, it became permanent. Under the PTA, an individual can be detained for up to eighteen months “without producing the suspect before a court.”[2] Unfortunately, this can lead to many suspects being held on remand for years while awaiting trial—a trial that, sometimes, they never end up receiving. A 2020 report by the Human Rights Commission of Sri Lanka (HRCSL) found that about 84 percent of PTA prisoners who are detained are tortured in custody, and more times than not, convictions end up relying on confessions that are obtained under torture.[3]
Ever since Gotabaya Rajapaksa won the presidential election in November 2019, he and his administration have rejected pledges by the previous governmental administration of Maithripala Sirisena to repeal the PTA.[4] Instead, they have employed the PTA to target religious and ethnic minority groups, such as Tamil and Muslim minorities.[5] However, in January 2021, the Rajapaksa governmental administration finally promised to review the PTA after receiving much pressure from the European Union (EU) “as it is a key condition in Sri Lanka’s tariff-free trading access to the” EU.[6] The reformation of the PTA was finally published on January 27, 2022, and it received much backlash from global human rights organizations, such as Human Rights Watch and Amnesty International. It was heavily criticized that the Rajapaksa government failed to address critical gaps in the law. For it to be in accordance with international law, Amnesty International contends, the PTA must be substantially amended “beyond what has already been determined by the Sri Lankan Supreme Court.”[7] Even the United States has provided its thoughts on the amended law, asking Sri Lanka to stop terror law detentions and improve the overall rights of the detainees. In response to the detention without judicial supervision being reduced from eighteen months to twelve months, the U.S. Undersecretary for Political Affairs, Victoria Nuland, stressed that it was crucial for “non-governmental sector, journalists and civil society” to end detention under the PTA and terminate all harassment of the detainees.[8]
Listed below are examples of some critical gaps within the reformed bill:
The law allows confessions to be deemed as admissible for evidence. This is inherently egregious and ultimately infringes on the rights of Sri Lankans because many convictions, as discussed above, rely on confessions that are obtained through torture. Thus, this goes against the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (a human rights treaty under the jurisdiction of the United Nations that deals exclusively with torture), which prohibits cruel degradation and punishment.[9]
The Act allows arbitrary arrests and prolonged detention, which strictly goes against Article 9 (1) of the ICCPR (the International Covenant on Civil and Political Rights), which is a multilateral treaty in which states must respect the civil and political rights of individuals, including the right to a fair trial. Since Sri Lanka has signed the ICCPR, it must adhere to the provisions outlined in the treaty. ICCPR says, “No one shall be subjected to arbitrary arrest or detention.”[10]
The Act doesn’t make it obligatory for law enforcement authorities to inform the suspect at the time of arrest of their charges, which is a guarantee of Article 9 (2) of the ICCPR.
Here are some of the amendments that the Sri Lankan Supreme Court made to the PTA:
Instead of detaining individuals for up to eighteen months, they have reduced the maximum limit to twelve months. This still violates the ICCPR.[11]
There are no mechanisms put in place to report or prevent torture that detainees are receiving at the hands of their officers, as the Magistrate has no obligation to move the detainee (who makes a complaint of torture) to a safe location. Therefore, this provision is inconsistent with constitutional safeguards.[12]
The amended law does not make it mandatory for detainees to receive medical examinations from a Judicial Medical Officer, even if the Magistrate believes that a detainee has been tortured and needs a proper medical examination.[13] This is wrong because the law doesn’t make it compulsory to look after the well-being of the detainees.
Thus, the few amendments to the law that were highlighted above breach fundamental human rights, the Convention against Torture treaty, and the ICCPR. Nowhere in the amended bill does it define terrorism or acknowledge that the law promotes terrorism rather than help prevent its widespread misuse. It is evident that the law still gives authorities the power to charge individuals with speech-related offenses and does not “change the status of confessions given to police as evidence of PTA cases.”[14] Furthermore, the amended bill adds a requirement to notify the Human Rights Commission of PTA arrests, but this requirement already exists and is often ignored by the police.[15]
Ultimately, the PTA cannot be amended. As we have seen from the “efforts” of the Sri Lankan Supreme Court, the amended bill continuously breaches the fundamental rights of all Sri Lankans. It creates consequences that force individuals to be afraid to exercise their rights of free speech as they can be detained at any time. In addition, the PTA makes no mention of ending its use of torture on detainees, and prolonged arbitrary detention and unfair trials continue to prevail within the country. This is a law that should not have been put into effect in the first place. It deprives Sri Lankans of their liberty, and victims are “routinely denied full and confidential legal access.”[16] As Ian Seiderman, ICJ’s (International Court of Justice) Legal and Policy Director, states, “The Sri Lankan authorities should dispense with special regimes like the PTA and instead address terrorism through criminal procedures that comply with the rule of law.”[17] Indeed, there are other ways for Sri Lanka to address terrorism, but doing so through the PTA is immoral and accomplishes nothing but violates the rights of its citizens. In essence, the Sri Lankan Supreme Court needs to take this into consideration and, for once, think about its people rather than the political objectives it wants to achieve.
[1] History of Sri Lanka, Eɴᴄʏᴄʟᴏᴘᴇᴅɪᴀ Bʀɪᴛᴀɴɴɪᴄᴀ (Apr. 3, 2022), https://www.britannica.com/place/Sri-Lanka/History.
[2] “In a Legal Black Hole”: Sri Lanka’s Failure to Reform the Prevention of Terrorism Act, Hᴜᴍᴀɴ Rɪɢʜᴛs Wᴀᴛᴄʜ (Feb. 7, 2022), https://www.hrw.org/report/2022/02/07/legal-black-hole/sri-lankas-failure-reform-prevention-terrorism-act.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Sri Lanka: Commentary on the Prevention of Terrorism Act Amendment Bill, Aᴍɴᴇsᴛʏ Iɴᴛᴇʀɴᴀᴛɪᴏɴᴀʟ (Mar. 18, 2022), https://www.amnesty.org/en/documents/asa37/5372/2022/en/.
[8] US asks Sri Lanka to stop terror law detentions, improve rights, Aʟ Jᴀᴢᴇᴇʀᴀ (Mar. 24, 2022), https://www.aljazeera.com/news/2022/3/24/us-asks-sri-lanka-to-stop-terror-law-detentions-improve-rights.
[9] Amnesty Int. Public Statement, Amnesty International Commentary On The Prevention of Terrorism Act Amendment Bill (Mar. 18, 2022), https://www.amnesty.org/en/wp-content/uploads/2022/03/ASA3753722022ENGLISH.pdf.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Aᴍɴᴇsᴛʏ Iɴᴛᴇʀɴᴀᴛɪᴏɴᴀʟ, supra note 2.
[15] Id.
[16] D.B.S. Jeyara, Sri Lanka’s “fatally flawed Pevention of Terrorism Act cannot be cured by these disingenuous reform attempts but must be entirely repealed.” says the International Commission of Jurists(ICJ), ᴅʙsᴊᴇʏᴀʀᴀᴊ (Feb. 2, 2022, 12:38 AM), https://dbsjeyaraj.com/dbsj/archives/75933.
[17] Id.