Righting our security laws-part 11

Stripping PTA of draconian provisions

This week's column, which concludes a two part analysis of the prevailing security regime under the Prevention of Terrorism Act (PTA) of 1978, is written in the context of increasing protests fasts by prisoners detained under PTA in Sri Lankan prisons. These detainees, some of whom have served over four years in prison, demand that their cases be dealt with expeditiously instead of being continuously postponed. 

They have been assured that the Ministry of Justice and the Attorney General's Department would heed their pleas.

Analysing the context of the operation of the PTA last week, this column made the point that, expediting the cases of detainees under PTA was a matter of immediate urgency. However, what was imperative as a long term measure is a thorough examination of the manner in which the PTA could be stripped of its more draconian provisions that have been, so far, wholly counter productive in restraining terrorists. 

Indeed, the inefficacy of the PTA had been apparent within a very short while of its enactment, when the activities in the North actually worsened, providing the government with a reason to perpetuate the law which was successively made more stringent in the years to come, continuing a predictable vicious circle. 

A little known aside meanwhile is that though the PTA was enacted to deal with northern terrorists in the main, the very first individuals to be detained reportedly under the PTA were not from the North but on the contrary, two SLFP activists in Kandy.

The PTA has, in fact, been used against individuals other then those designated as terrorists, on numerous occasions through the years since its enactment. One notable instance was when detention under it was challenged by none other than an officer of a law enforcing arm of the State. In this case, R.P.A.L. Weerawansa, an Assistant Superintendent of Customs, had been taken in by the CID on April 30,1996 under Section 6(1) of the PTA which allows arrest of any person concerned in and so on in any unlawful activity. 

He was detained thereafter up to May 2, 1996 under Section 7(1). From May 2, May to October 2, of that year, he was detained by ministerial orders under Section 9(1). 

Thereafter, he was transferred into the custody of the Customs and detained from October 3 to December 31, under a magisterial remand order. His argument that his liberty had been deprived in a manner contrary to constitutional provisions guarantees, was accepted by the Supreme Court with a bench comprising Justices Mark Fernando, A.R.B. Amerasinghe and Ranjith Dheeraratne granting him substantial compensation of three hundred thousand.

The Supreme Court held that the evidence put before the Court did not establish the CID defence that Mr. Weerawansa had aided and abetted the illegal importation of containers into Sri Lanka containing weapons and light aircraft parts and their release from the Port on forged documents. 

There was no reasonable suspicion established of any unlawful activity on his part and therefore his arrest was wrong. His subsequent detention was even more problematic. In reasoning that is crucial for human rights defenders in this country, the Supreme Court held that the provisions of Section 7(1) authorising detention applies only to a valid arrest made under the previous section.

Where the arrest has been wrong as in the instant case, the condition imposed by Article 13(2) of the Constitution that the arrestee be brought before a judge of the nearest competent court according to procedure established by law, would continue to apply. This had not happened and therefore the first period of detention of Mr. Weerawansa was also wrong.

Meanwhile, his subsequent detention was by ministerial order, which in the present case, meant an order by the President herself where she "has reason to believe or suspect" that such person is concerned in unlawful activity. Here again, the Court held that there must not only be subjective but also objective reason for such belief.

In this case, the continued detention had been at the instance of the CID, which merely informed the Defence Minister of their wilfully false and unreasonable conclusions, thereby misleading her. 

Thus, there had been no independent exercise of judgment by the Defence Minister. Again, a three month extension was granted on request. All these actions flouted constitutional guarantees of liberty, including past judicial warnings that detention orders, whether under the PTA or Emergency, should not be made mechanically.

It is extremely interesting that the Court, in this instance, used provisions of the Constitution including the Directive Principles of State Policy, to assert that judicial recourse should be had to the provisions of the International Covenant on Civil and Political Rights (to which Sri Lanka is a signatory) when dealing with issues of personal liberty. 

Thus, though a person may be taken in under Section 9 (1) of the PTA or any other provision which specifically dispenses with production before a judicial officer before the making of a detention order, there is an obligation to produce such a person after the making of such an order. Such a production is not merely cosmetic. 

On the contrary, the judicial officer would then be able to make his or her own observations about the ill treatment of the detainee or the conditions of detention and so on. During his entire period of detention, Mr. Weerawansa had not been brought before a judicial officer, thus violating his constitutional rights. 

In addition, it was held that his transfer to the custody of the Customs was a further violation of his rights. The CID was meanwhile reprimanded for its failure to inform the Human Rights Commission of the initial detention of Mr. Weerawansa or the subsequent transfer of his custody.

Given Weerawansa's case and countless others of a like nature, more than sufficient justification presently exists for radical amendment of the PTA. 

Without a doubt, this country has suffered indignities due to the excesses that it permits in the name of the eradication of 'unlawful activity' for far too long.