Lanka’s mighty labours in bringing forth a wee PTA mouse

All the efforts of Sri Lanka’s Foreign Affairs Minister in declaring amendments to the country’s Prevention of Terrorism Act (PTA, 1979) with a grand flourish a few days ago, akin to the desperate magician pulling a bedraggled rabbit out of his hat to amuse a lacklustre crowd, are to little avail.

Redemption only in changed state practice

First, theoretical amendments to any law are limited in impact. So let us hold on the congratulatory hand clapping however much the Government appears to anxiously hunger for that. Our history of impunity teaches us a sober truth. It is in the actual revised practice of the State that redemption awaits. And Sri Lanka is yet to discharge that burden in conformity even with existing constitutional safeguards on fair trial, let alone potential amendments. On the contrary, what we see is violation and more violation. This bodes ill for t he good health of any statutory amendment, let a lone amendments to the PTA.

Some of these changes, such as amending Section 9 to reduce the time in detention to twelve months from eighteen months and providing for day to day trials under Section 15 are welcome. Even so, these are but the merest sop in the face of the horrendous sweep of abuses that the PTA permits. Further, some amendments, such as the proposed revision of Sections 10, 11 and 26 to do away with ouster clauses preventing the courts from questioning detention orders, restriction orders and ‘good faith’ protections will only give statutory effect to long established practice in the Supreme Court.

For decades, the Court had been summarily throwing out that bar in any event and reviewing acts of state agents to assess if the Constitution had been violated. There is rich cursus curiae to that point, utilising well known principles of statutory interpretation. Nothing very new arises in the amendment of this Section, except perhaps that writ challenges under Article 140 will be allowed along with fundamental rights petitions under Article 126. Secondly, the proposed amendments ensure that persons in remand or in detention will have access to legal counsel, provide for magisterial visits thereto and examination by a judicial medical officer.

Bare minimum safeguards to prevent abuse

But these amendments are the bare minimum which should have been reflected in this law and followed by officers of the state decades ago, in accordance with what the Supreme Court had stressed in several well known cases. It says much for our state of impunity that such minimalistic victories have to be announced in the fashion of magnificent concessions in the face of upcoming United Nations Human Rights Council ( UNHRC) sessions in Geneva. The repeal of Section 14 is also proposed. This Section prohibits publications inter alia, inciting violence or causing ‘religious, racial or communal disharmony or feelings of ill-will or hostility between different communities or racial or religious groups.’

This repeal is veritably a dead letter, these prohibitions are anyway contained in penal statutes including the atrociously titled International Covenant on Civil and Political Rights Act (2007). Writers, critics, poets and dissenters have been clapped into prison on much the same grounds. One does not need the PTA for this. Such unconstitutional practices have firmly become part of our ordinary law. The Court of Appeal meanwhile is given the power to grant bail in respect of persons in instances where trial has not commenced after the lapse of twelve months from the date of arrest. Here too, the High Court retains the authority to remand such person till the conclusion of the trial.

Now a bold step such as reversing the admissibility of confessions to police officers, long established as the reason for torture of detainees under the PTA may have been a reason to throw one’s hat in the air. But that is not the case. In sum, these amendments must be looked at in the context of our history of impunity. Let us take just one current example. This week, the Attorney General agreed not to object to the granting of bail to attorney Hejaaz Hizbullah initially accused of most serious allegations of involvement in the 2019 Easter Sunday jihadist attacks.

Irrational actions of the State

Later, he was charged with the vastly less spectacular crime of inciting communal disharmony. The fact that the Puttalam High Court did not accede to the granting of bail in the context of Section 15 (2) of the PTA is a different matter. That Section stipulates that, once an indictment is received by the High Court, the Court is compulsorily required to remand the suspect till the conclusion of the trial, wh ich remained intact in the proposed amendments. But this act of the Attorney General in agreeing not to object to bail being given is of particular interest in the context of the case.

Put simply, this is a lawyer who had been held for close to twenty one months with the state prosecutor strenuously objecting to bail being given. But lo and behold, we see that energetic caution being thrown to the winds this time around. So, reasonably, one must ask what occasioned this sudden change of heart? Was the State privy to a new piece of evidence that suddenly made the accused no longer so threatening, pray? That does not seem to be the case. Consequently, does this not even raise a reasonable suspicion that the act of objecting to bail earlier was entirely irrational?

Was the entire arrest part of a grand charade, no more? As we may recall, Hizbullah’s arrest and detention included the frequent violations of fair procedure extending to even the basic right to confidential counsel with his lawyers being refused. Thus would the citizenry be lulled into believing that those responsible for the 2019 Easter Sunday atrocities were being brought to justice. Now of course, that illusion has been summarily dispensed with by the Catholic Church as its Cardinal and his bishops rain down Biblical fire and brimstone on the political and security establishment, parts of which have been publicly accused of complicity in preventing investigations.

Weakening of the constitutional State

Each time, this sorry circus of rights violations and cover ups take place, the nation’s legal and constitutional systems get weaker and weaker. The core objective of safeguarding the security of the State is lost. This has been the perennial case, irrespective of whether the nation was grappling with terrorism in the North, insurgency in the South or Islamist fundamentalism post 2019, regardless of which regime is in power. Proposed amendments to the PTA in the face of ‘ Geneva pressure’ as UNHRC sessions loom later this year are scarcely reassuring therefore.

Indeed, it is the Government of Sri Lanka and the Government alone which makes the UNHRC relevant to the nation, not Western nations or agent provocateurs in their pay as our politicians like to shrilly proclaim. If Lanka’s state agencies behaved in adherence to minimum Rule of Law and constitutional standards, none of these unedifying dramas need to be enacted. But that is not a caution that the political hand of the State directing prosecutorial and law enforcement processes is apt to take heed of.

And so we repeat the cycles of impunity as yet another ‘Geneva session’ will come - and go.