PTA prisoners: Too little, too late

A rare glimpse of bipartisan cooperation emerged this week when Minister Namal Rajapaksa raised concerns in Parliament regarding persons held in detention for prolonged periods of time under the Prevention of Terrorism Act (PTA).

Minister Rajapaksa called for the indictment or release of detainees who have been languishing in prison for many years without a proper judicial process. Opposition MP and former Army Commander Field Marshal Sarath Fonseka, who was once a PTA prisoner himself, endorsed the proposal. Fonseka added an anecdote about how he met one of the alleged conspirators of the suicide bomb attack on his life in 2006 while serving a prison sentence. Fonseka said the individual was yet to be convicted by a court but has remained in detention for nearly 15 years. “I am a victim of his crimes, but I believe this man has paid for his actions by being detained without charge for so long. It’s time that he too got justice.”

The compassion shown by Field Marshal Fonseka in this instance demonstrates the human cost of a deeply flawed justice system. But much more than symbolic gestures of goodwill are required to fix the underlying legal, structural, and procedural problems that have allowed for a suspect to be held in detention, without trial or conviction, for many years. Article 13 of the Sri Lankan Constitution guarantees all citizens freedom from arbitrary detention. This is an absolute right that cannot be restricted or derogated, even during times of emergency. The right is upheld in many other statutes, including the Code of Criminal Procedure Act and the statutes domesticating the International Covenant on Civil and Political Rights and the Convention on Enforced Disappearances. Still, the continuous application of the PTA contradicts these constitutional and statutorily guaranteed rights of the citizen.

For too long, efforts to rectify this blemish on the criminal justice system have been delayed. Sri Lanka is not the only country in the world to balance the needs of fighting terrorism, allowing space for investigators and law enforcement to do their jobs, while guaranteeing minimum standards of the rights of citizens – even those accused of terrorism. It needs to be borne in mind that being accused of terrorism is not the same as being convicted of such a crime, which can only be done by a competent court. An individual subject to arrest should be tried without undue delay. Pre-trial detention should be based on an individualised determination that it is reasonable and necessary, taking into consideration all the circumstances. A vital aspect of the fairness of a hearing, is its expeditiousness.

It cannot be coincidence that the Government, or at least some sections of it, has started conversations about PTA prisoners in the wake of increasing international pressure on the issue. Earlier this month, the European Parliament adopted a strong resolution on Sri Lanka’s human rights record that specifically highlighted the PTA’s dissonance with international law and standards. This resolution could have a direct impact Sri Lanka’s continued access GSP+ trade concessions that makes the country’s exports to the European Union competitive against other exporting nations. The UN High Commissioner for Human Rights, in her opening statement to the Human Rights Council this week, raised concerns on the continuous use of the PTA, a sentiment that was also echoed by the Core Group on Sri Lanka at the UNHRC.

The fact that the PTA continues to be used for administrative detention as seen in the case of lawyer Hejaaz Hizbullah, poet and teacher Ahnaf Jazeem, and numerous politicians including MP Rishad Bathiudeen, does not bode well for the Government’s stated position of ‘revisiting’ the PTA, as it has assured its international partners. An ad-hoc reaction to ward off international pressure may grant some relief to PTA prisoners languishing in detention for several years. From a humanitarian perspective this is most welcome. However, this is no remedy for the structural flaws and injustices the draconian anti-terror laws has created. At a time when there is support from all quarters of the opposition, including minority parties which have clamoured for either the reform or repeal of the PTA for decades, the Government would be wise to seize the moment and enact changes to anti-terrorism laws in a way that would safeguard the rights and freedoms of its citizens as it guards against terror attacks against the nation.