Amending the PTA to eliminate the obnoxious provisions and bring it in line with Article 13(2) of the Constitution and international treaties would be the minimum that can be done to restore the country’s image as a modern nation state
Amending the Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979 (PTA) would be an expeditious way of getting rid of the draconian provisions in that law, than experimenting with new legislation.
Blatant provisions in the PTA include, the deprivation of the liberty of the subject by ‘Executive fiat’ without the arrested person having a clear judicial remedy in any court whatsoever, in violation of Article 13(2) of the Constitution and international treaties to which Sri Lanka is a signatory.
A letter from a Superintendent of Police to a Magistrate under section 7(1) of the PTA results in the Magistrate “shall…. make order that such person be remanded until the conclusion of the trial of such person.” This happens at the investigations stage when the police themselves could not reasonably contemplate the prospects of a trial.
Disturbingly, the SP’s letter is perceived erroneously as depriving the Magistrate of his judicial discretion to decide on the matter, notwithstanding the Supreme Court making the legal position clear in several cases including Padmanathan vs SI Paranagama, OIC, NIB, Vavuniya (1999) 2 SLR 225 at 238/9, Weerawansa vs the Attorney General (2000) 1 SLR 387 and Sumanadasa and 205 Others vs Attorney General (2006) 3 SLR 202!
The controversial law enables the detention of persons under section 9 of the PTA, by an order signed by the President, but large numbers of suspects including innocent persons had been incarcerated at times for years, though the PTA provides for a maximum period of 18 months only. Detained persons are kept in the custody of the investigating police itself, at any place in the country, resulting in several cases of torture disclosed in the law reports of our Courts.
It must be noted that in both instances of detention on a presidential order under section 9 and remand order on SP’s letter under section 7, the decisions that prevail are essentially decisions of the Executive and not that of the Judiciary. The PTA is perceived as depriving the Magistrate of his judicial discretion resulting in remand orders decided by the Executive, being rubber stamped by Magistrates.
Even the consent to bail has to be granted by the Executive, namely by the Attorney General acting in pursuance of the proviso to section 7 of the draconian law. Several persons arrested and remanded under the PTA have been discharged for lack of evidence, through the intervention of the Attorney General after sometimes of over a year in remand, a place described by first timers as ‘hell on earth’.
Should persons who are innocent of any crime undergo such suffering and humiliation, affecting them and their family, on account of the inhuman aspects of the PTA? The Supreme Court has never hesitated to grant relief in several Fundamental Rights cases, where the police had abused the PTA and also in instances in which the Attorney General had unreasonably withheld consent to bail. But FR is an expensive and often time-consuming process!
The most ridiculous aspect of the PTA is that a person arrested and dealt with under section 7 or 9 of the PTA is left without any judicial remedy to obtain bail while an accused convicted by Courts under the PTA to serve several years in jail will be eligible to seek bail under section 19 of the PTA from the Court of Appeal! As stated by the Court of Appeal in a recent case, remanding has become a mode of punishment in certain cases, contrary to the exception in Article 13 (4) of the Constitution. Amending the PTA to eliminate the obnoxious provisions and bring it in line with Article 13(2) of the Constitution and international treaties would be the minimum that can be done to restore the country’s image as a modern nation state. Amending the PTA would be more appropriate than replacing it with the much more controversial Counter Terrorism Law, which will lead to further radicalisation and conflicts.