President Dissanayake’s government promptly utilized the PTA – the first since the presidential election – to deal with those who had been suspected of allegedly planning to mount an attack on Israelis in the Arugam Bay area. The government couldn’t have ignored the alleged threat, especially against the backdrop of the warning issued by the US Embassy here, of what it called a serious risk. In line with the statement, dated Oct. 23, the Embassy imposed travel restrictions on mission personnel as well, while strongly urging US passport holders to avoid the area.

By Shamindra Ferdinando

The Prevention of Terrorism Act (PTA/No 48 of 1979)) that had been introduced in 1979 as a temporary measure by President JRJ in response to emerging threats from separatist terrorists and made into a permanent law in 1982 (No 10 of 1982) attracted considerable public attention over the past few weeks in the wake of the police making arrests under this draconian law.

The issue at hand should be freshly examined against the backdrop of the Janatha Vimukthi Peremauna (JVP), the dominant partner in the newly elected National People’s Power (NPP), having been at the receiving end of that piece of controversial legislation in the ’80s, particularly during their second violent uprising (1987-1990 period).

The JVP constantly demanded the repealing of the PTA at a time the party never dreamt of an opportunity to win a national election under any circumstances. In fact, the abolition of the PTA had been one of the JVP’s main demands throughout the war/insurgency and thereafter. However, now that the JVP-led NPP having had convincingly won the presidential (Sept. 21) and general (Nov. 14) elections and is in the process of consolidating its power, the powers that be have no option but to revisit its previous highly critical stand on the controversial Act.

Can President Anura Kumara Dissanayake, who is also the Commander-in-Chief of the armed forces, in addition to being the Defence Minister, as well as head of the National Security Council (NSC), do without the PTA.

Can the PTA be abolished and whatever existing/future security threats be dealt with other relevant laws, or replaced with a new law acceptable to all political parties represented in Parliament. But, that does not mean that concerns of those outside Parliament should be discarded without proper examination.

President Dissanayake’s government promptly utilized the PTA – the first since the presidential election – to deal with those who had been suspected of allegedly planning to mount an attack on Israelis in the Arugam Bay area. The government couldn’t have ignored the alleged threat, especially against the backdrop of the warning issued by the US Embassy here, of what it called a serious risk. In line with the statement, dated Oct. 23, the Embassy imposed travel restrictions on mission personnel as well, while strongly urging US passport holders to avoid the area.

The government had no option but to invoke the PTA again to deal with those who sought to humiliate the administration over the Mahaveer Naal events conducted in the Northern and Eastern provinces in memory of LTTE leader Velupillai Prabhakaran’s birthday.

Responding to the Mahaveer Naal events, Public Security and Parliamentary Affairs Minister Ananda Wijepala, first time entrant to Parliamen, accused Opposition activists of exploiting the situation to undermine the government. Wijepala, who had served as Anura Kumara Dissanayake’s private secretary when he served as a lawmaker, alleged that the involvement of the New Democratic Front (NDF) in the conspiracy, while shortly, thereafter, law enforcement authorities arrested the administrative secretary of the SLPP, Renuka Perera, for allegedly disseminating false information with regard to Mahaveer Naal.

It would be pertinent to mention that not all those who were apprehended for disseminating such false information been taken in under the PTA.

The issue is whether the government needs a draconian law, like the PTA, to deal with persons circulating videos of LTTE events during the conflict and after.

Apprehending people for circulating videos of such events seemed ridiculous when the Illankai Thamil Arasu Kadchi (ITAK), having recognized the LTTE as the sole representative of the Tamil-speaking people, received an audience with no less a person than President Dissanayake. The meeting between President Dissanayake and the ITAK delegation took place at the Presidential Secretariat amidst the continuing furore over people being arrested for circulating Mahaveer Naal content. Some of the ITAK members recently had paid tribute to the LTTE publicly while the government struggled to deal with bad press over Mahaveer Naal events.

The writer is of the view that commemoration of LTTE cadres should be permitted, regardless of their status. In fact, such events underscored the futility of the LTTE macabre cause. Mahaveer Naal automatically reminds the country of the atrocities that had been perpetrated by the LTTE over the years until their very end on the Vanni east front.

Let me remind those shedding crocodile tears for terrorists of the cold blooded killing of academic Rajani Thiranagama in Jaffna in late Sept 1989 during the deployment of the IPKF. Dr. Thiranagama was shot dead on Sept. 21 while cycling home from the Jaffna University, where she was Head of the Anatomy Department.

Yahapalana

bid to repeal PTA

While in the Opposition, Ranil Wickremesinghe relentlessly campaigned against the PTA. Wickremesinghe had an opportunity to explore the possibility of doing away with the PTA after he facilitated Maithripala Sirisena’s victory at the 2015 presidential election. Wickremesinghe’s broken promise due to delaying of the required action, should be discussed, taking into consideration Western governments’ unbending interest in abolition of the PTA. They felt that in the aftermath of the LTTE’s eradication, Sri Lanka didn’t require such a law.

Since the successful conclusion of the war in May 2009, the Western governments had been putting pressure on war-winning President Mahinda Rajapaksa to abolish the PTA. The JVP, too, backed the Western call to do away with emergency regulations and the PTA. However, President Rajapaksa resisted relentless Western pressures but the Yahapalana government initiated a high profile project to do away with the PTA over a year after the 2015 January presidential election.

Instead of doing away with the PTA as demanded by various interested parties, Wickremesinghe sought to replace the existing law with what he called the Counter Terrorism Act (CTA).

The committee that had been tasked with drafting the policy and legal framework of the proposed law was headed by Sagala Ratnayake, Minister of Law and Order and Southern Development. Obviously Wickremesinghe couldn’t have done away with the PTA without taking adequate provisions to counter terrorism. Wickremesinghe subjected the whole process to the scrutiny of Western governments. Among those invited for discussions on the CTA and an Amendment to the Code of Criminal Procedure Act on Dec. 16, 2016, were Justice Minister Wijeyadasa Rajapakse, Minister Sagala Ratnayake, British High Commissioner James Dauris, French Ambassador Jean-Marin Schus, EU Ambassador Tung-Lai Margue and several other foreign envoys.

However, the Yahapalana government couldn’t go ahead with the project. Wickremesinghe couldn’t muster the required support for his move as the Yahapalana parliamentary group gradually fell apart. By late 2017, the relationship in the coalition between the UNP and Maithripala Sirisena’s SLFP had deteriorated to such an extent, agreement on such a significant piece of proposed legislation seemed very much unlikely. Their decision to go it alone at Local Government elections in early February 2018 sealed the fate of the Yahapalana alliance, and the much touted bid to introduce CTA in place of the PTA, fizzled out.

The Sirisena-Wickremesinghe alliance had been in turmoil since Wickremesinghe’s nominee for the post of Governor Central Bank, Singaporean Arjuna Mahendran, perpetrated the massive Treasury bond scams in Feb. 2015 and March 2016. The humiliating defeat suffered by both the UNP and the SLFP at the Local Government polls effectively ended their partnership while the CTA was put on the back burner. The government had been in such a desperate situation, the top leadership simply could not deal with the CTA and the matter was quickly forgotten.

Having neglected national security to their heart’s content, the UNP leadership relaunched the CTA project in the wake of the 2019 Easter Sunday carnage. The UNP saw an opportunity to pressure political parties represented in Parliament, as well as other interested parties, over the proposed CTA. However, Wickremesinghe’s move hadn’t received much anticipated support as those who opposed the PTA alleged that the new law never really changed the powers granted to law enforcement authorities.

In spite of the Easter Sunday attacks, the opposition to the PTA, and the proposed CTA, remained unyielding. Political parties, civil society and Western governments haven’t been able to reach consensus on anti-terrorism law legislation though all post-war administrations discussed the issues at hand at length.

President Gotabaya Rajapaksa, too, made an effort to amend the PTA. In late January 2022, President Rajapaksa’s Cabinet approved a spate of amendments to the PTA. But, the proposed amendments failed to secure the backing of those concerned about anti-terrorism law. The introduction of amendments meant that President Rajapaksa had absolutely no interest in at least examining Wickremesinghe’s brainchild CTA.

The civil society, legal scholars and other interested parties simply rejected the amendments on the basis the government failed to address their long standing concerns. The Rajapaksa administration in Dec. 2019 withdrew Wickremesinghe’s proposed Counter terrorism Bill to pave the way for a new initiative that was launched in June 2021. Obviously, it hadn’t been a priority for the Rajapaksa administration though under Foreign Minister Prof. G. L. Peiris’s leadership a Cabinet subcommittee deliberated a report prepared by Defence Secretary Gen. Kamal Gunaratne. That bid, too, failed and during Wickremesinghe’s presidency (July 2022-Sept 2024) nothing really happened with regard to the PTA.

New challenges

The European Union has linked the repeal of the PTA with its continuing relationship with Sri Lanka. The EU, in Oct. 2021 during Gotabaya Rajapaksa’s presidencyk told Sri Lanka that the country must amend the PTA that gave law enforcement authorities sweeping powers to arrest and hold suspects, without trial, if it wanted to retain the lucrative GSP-plus trade status with the 27-member economic bloc.

President Dissanayake now faced the daunting task of addressing the concerns of the EU and various other members of the Western world with regard to anti-terrorism laws here.

Dissanayake’s administration cannot ignore the renewed calls for the abolition of the PTA or the introduction of suitable amendments. However, the government cannot weaken Sri Lanka’s defences against terrorism though the LTTE rump is unlikely to pose a conventional military threat. But, the 2019 Easter Sunday carnage proved responsibility on the part of the government to ensure the armed forces, the police and intelligence services had legal safeguards when dealing with terrorism.

*One of the major shortcomings in the amendments proposed by President Gotabaya Rajapaksa, according to civil society groups, is the failure on the part of the amended Bill to address problems with the admissibility of statements and confessions under the PTA. They have repeatedly pointed out provisions of the PTA waived the application of the Evidence Ordinance and there were no safeguards to be followed in recording confessions and statements from suspects.

*Another issue of concern is that the period of 72 hours after arrest and before production before a magistrate had not been amended. They have declared this is a loophole in the PTA that facilitated the torture of those arrested under the PTA while in custody.

*They are also concerned about the absence of sufficient judicial oversight during investigations conducted in terms of the PTA.

*As the definition of the acts which came within the offence of terrorism is of a broad and vague nature, those in authority tend to abuse the PTA. The amendments that had been approved by Gotabaya Rajapaksa’s Cabinet in January 2022 hadn’t addressed concerns expressed by interested parties.

The above were some of the concerns raised by those demanding abolition of the PTA/suitable amendments to the law. Anti-terrorism laws in force in all countries regardless of their status always attract public criticism and can be described as a source of intense debate. Critics say that anti-terrorim laws violate even the basic freedoms enjoyed by the people.

Neighbouring India employs a spate of laws meant to deal with terrorism. Amendments have been introduced over the years and like here these laws have been abused though stakeholders accept the need for tough anti-terrorism laws to meet security challenges. India has gone to the extent of neutralizing those living overseas in case New Delhi felt they posed a threat. The ongoing controversy involving India and Canada over the alleged hit ordered by New Delhi in Vancouver is a case in point.

Sri Lanka, under any circumstances, cannot afford to do away with the PTA altogether. However, the government, in consultation with political parties represented in Parliament, should take tangible measures to ensure law enforcement didn’t deliberately abuse PTA for political or private purposes. There is no point in denying the fact that the PTA had been grossly abused over the years by all governments. Perpetrators hadn’t been properly dealt with thereby creating an environment for such abuses. However, the PTA had provided invaluable support for law enforcement operations as successive governments battled Northern and Southern terrorists.

During the war against the LTTE, the PTA had been a critical part of the government arsenal. Interrogation of suspects had been part of the overall security strategy meant to thwart attacks as law enforcement authorities battled LTTE terrorists assigned for covert operations in the South and especially suicide bombings.

Terrorist infiltration couldn’t have been averted without continuous operations, based on available information. The government had no option but to discourage people from the Northern and Eastern provinces from taking up residence in Colombo and its suburbs, as well as other predominantly Sinhala areas, as part of the overall measures to neutralize the threats on soft targets.

The LTTE targeted public transport in a bid to mount pressure on the government as it was retreating on the battlefield.

In spite of allegations of its misuse and abuse, the PTA had been quite useful in combating Southern and Northern terrorism. That is the undeniable truth. Whatever its shortcomings, the PTA cannot be done away with unless the government introduces a new anti-terrorism law that meets security requirements, in a challenging environment.

Though the West impose pressure on countries like Sri Lanka to undo such laws, they themselves have introduced even much harsher laws like the Homeland Security Act 2002 passed by the USA, primarily in reaction to the 9/11 attacks there, in the previous year, by Muslim terrorists, that claimed few thousand lives and somewhat similar draconian laws were introduced in England after the bomb attacks in London soon afterwards. But there is hardly a whimper from our Foreign Ministry that generally plays deaf and dumb like our diplomats about such unfair demands from us by the West.