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The Need to Repeal and Replace the Prevention of Terrorism Act (PTA)

The Need to Repeal and Replace the Prevention of Terrorism Act (PTA)

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Published by Sanjana Hattotuwa
9th May 2013, Colombo, Sri Lanka: With the recent arrest and detention of opposition politician Azath Salley, Sri Lanka’s Prevention of Terrorism Act (PTA) has once again come under critical scrutiny. The Centre for Policy Alternatives (CPA) and other civil society groups have condemned the use of the PTA to stifle dissent and reiterate this call yet again, urging for its repeal and replacement as set out below.
9th May 2013, Colombo, Sri Lanka: With the recent arrest and detention of opposition politician Azath Salley, Sri Lanka’s Prevention of Terrorism Act (PTA) has once again come under critical scrutiny. The Centre for Policy Alternatives (CPA) and other civil society groups have condemned the use of the PTA to stifle dissent and reiterate this call yet again, urging for its repeal and replacement as set out below.

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Published by: Sanjana Hattotuwa on May 09, 2013
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1
THE NEED TO REPEAL AND REPLACE THE PREVENTION OFTERRORISM ACT (PTA)
STATEMENT BY THE CENTRE FOR POLICY ALTERNATIVES
9
th
May 2013, Colombo, Sri Lanka
: With the recent arrest and detention of opposition politician Azath Salley, Sri Lanka’s Prevention of Terrorism Act (PTA) has onceagain come under critical scrutiny. The Centre for Policy Alternatives (CPA) andother civil society groups have condemned the use of the PTA to stifle dissent andreiterate this call yet again, urging for its repeal and replacement as set out below.In light of the recent events, the Leader of the Opposition submitted a parliamentaryquestion under Standing Order 23(2) calling for the abrogation of the PTA, which wasrejected by the Prime Minister. In the light of Mr Salley’s case and the 2008 arrestand subsequent conviction of journalist J.S. Tissainayagam, the Prime Minister’sassurance to Parliament that “…the government would not use the provisions of thePrevention of Terrorism Act to crack down on political opponents or others who areopposed to the government” is completely implausible and tests the credulity of democratic citizens. CPA is deeply concerned about the use of the PTA when theGovernment’s own National Human Rights Action Plan (NHRAP) in 2011, pledgedto review its application and amend provisions to conform with human rights normswithin a period of one year. The arrest and detention of Mr Salley is one of manycases where the PTA continues to be used unchecked.The PTA has attracted universal condemnation ever since it was enacted (as thePrevention of Terrorism (Temporary Provisions) Act No. 48 of 1979, as amended byAct Nos. 10 of 1982 and 22 of 1988), as a measure that is wholly inconsistent withcontemporary human rights standards and which not merely permits, but alsoencourages the pervasive violation of fundamental rights otherwise protected by theConstitution of Sri Lanka. Compounded by Sri Lanka’s endemic law’s delays, it has been deployed to deprive the basic civil liberties and inflict physical harm and mentaldistress on thousands of Sri Lankan citizens of all communities. In the context of disturbing recent developments including the Eighteenth Amendment to the
 
2Constitution, theimpeachment of the 43
rd
Chief Justiceand overwhelming evidenceof the politicisation of law enforcement and consequent selective application of thecriminal law, the dangers of having an instrument of abuse such as the PTA on thestatute book are exacerbated. Moreover, a number of Emergency Regulations thatwould have lapsed when the state of emergency was terminated have been continuedin force by the convenient expedient of re-promulgation under the PTA, illustratinghow emergency measures can be continued in perpetuity without the need for thedeclaration of a formal state of emergency, and the attendant checks and balances thatfollow such a declaration. The framework in relation to surrendees and rehabilitees in particular needs emphasis in this context, and its implications for post-war reconciliation and normalisation - issues raised in CPA’s challenge of the PTAregulations in the Supreme Court in 2011.CPA has consistently maintained that the PTA in its current form has no place in ademocratic society. CPA strongly reiterates this call in the present context in whichthe terrorist threat against which the PTA was officially justified for three decades hasnow been eliminated. We do so for the further following reasons:The sweeping powers given to the executive by the PTA are in the nature of emergency powers, but the exercise of those of those powers are independent of andnot subject to even the limited oversight framework of conventional emergency powers, such as proclamation and periodic parliamentary approval, under Chapter XVIII of the Constitution and the Public Security Ordinance. The PTA’s first point of departure from the rule of law therefore is that it reverses the assumption of exceptional circumstances that is at the root of the conceptual justification for granting extraordinary powers to the executive for dealing with terrorist threats. Thismeans that the permanent regime of exceptional powers envisaged by the PTA fallsfoul of the important procedural safeguards of declaration, notification, periodic parliamentary approval, and parliamentary oversight, that usually govern the grant of such extraordinary powers to the executive.CPA notes further that the PTA was enacted in 1979 as a temporary measure, as anaspect of the then government’s political and military strategy in dealing with theearly stages of the low intensity insurgency in the north of the island. Section 29 of the original enactment expressly provided that it would be in force only for a periodof three years, but this was repealed by the Prevention of Terrorism (TemporaryProvisions) Amendment Act No. 10 of 1982, making the PTA a permanent measure,although incongruously, the short title of the Act continues to contain the words‘temporary provisions.’Its enactment through the procedure under Article 84 of the Constitution is alsonoteworthy. Article 84 is a bizarre provision, which permits bills that are inconsistentwith the Constitution to be passed by a two-thirds majority in Parliament. Article 120(c) precludes the pre-enactment constitutional review jurisdiction of the SupremeCourt in respect of the substance of such bills falling within the scope of Article 84.Thus under these provisions of the Constitution, provided the requirement of a two-thirds majority is met, it is possible to enact laws that are inconsistent with any provision of the Constitution, including fundamental rights. As Justice Mark Fernando observed in
Weerawansa v Attorney General 
(2000) 1 SLR 387:

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