by Inoka Perera 27 January 2022
On March 9, 2021, Azath Salley, former Western Province Governor and leader of the National Unity was arrested and subsequently indicted in the Colombo High Court for committing offences under the Prevention of Terrorism Act (PTA) and International Covenant on Civil and Political Rights Act (ICCPR). At the time the arrest was made, leading Government spokespeople said the decision to arrest was made because evidence had been discovered connecting Mr. Salley to the damages caused to Buddhist statues in Mawanella and implicating him in the Easter Sunday attacks. However when the Attorney General decided to indict him there were no charges framed against him for these two incidents.
Ahnaf Jazeem, a poet and teacher from the East of Sri Lanka, was arrested in May 2020 under the PTA in connection to his Tamil-language poetry anthology, titled Navarasam, which the authorities alleged to be promoting “extremist” ideologies, Jazeem was finally granted bail on 15 December, after over a year in prison.
Initially arrested in connection with alleged involvement in the April 2019 Easter Sunday bombings, Hejaaz Hizbullah was a lawyer who was arrested nearly a year into his detention for hate speech and incitement under the PTA and the ICCPR Act. The State’s case against Hejaaz rests on a single witness who claimed the lawyer made extremist statements at a school. Hejaaz who has been held in detention without bail for nearly two years, is expected to be granted bail on 28th January.
These cases and many more are evidence to the arbitrary and abusive use of the PTA in Sri Lanka and the manner in which the act has jeopardized the rights and liberties of persons, especially those of religious and ethnic minorities.
Prevention of Terrorism Act (PTA) came into effect in 1979 as a temporary measure during the civil war which was later made permanent in 1982. Since the enactment of the PTA, it has been subjected to stark criticism both locally and internationally. The notorious act infringes human rights vested upon Sri Lankan citizens by the constitution, including those such as the right to be free from torture, arbitrary arrest, detention and punishment, and the right to a fair trial. Among other controversial provisions, the PTA makes lawful the detention of suspects for up to 18 months with no charge; and gives the Minister of Defence the power to restrict freedom of association and expression without the possibility of appeal. These powers can in fact result in serious human rights violations as they bypass the need for trials or legal reasons to justify the detention of individuals. Additionally, this allows police and government officials to use the PTA for whatever means they please – far beyond counterterrorism.
Sri Lankan President Gotabaya Rajapaksa seems to carry little credibility as he assures foreign diplomats he will reform the country’s Prevention of Terrorism Act (PTA). In fact, in March 2021, new regulations were put into effect allowing for individuals suspected of causing “religious, racial or communal disharmony” to be sent to military-controlled rehabilitation centres for up to two years. Under the new regulations, religious or racial extremist views may be inferred from spoken word, written texts, or visual representations, which leaves a wide scope for interpretation. Individuals can be referred to these rehabilitation centres, without trial, by the police, military or anyone authorised by the President.
The provision in regards to ‘rehabilitation’ appears to be further concerning in that while the regulations claim to provide for rehabilitation of particular groups, the application of such regulations would result in the deprivation of liberty of individuals for up to two years (an initial order of up to one year which can be extended for up to a year thereafter) without any legal proceedings being conducted before a competent court. Such a provision would in effect deprive individuals of their liberty without any due process guarantees.
In addition, the ambiguity of certain regulations especially those pertaining to ‘rehabilitation’ are alarming and can lead to situations of abuse. For example, little to no details are provided as to what constitutes ‘rehabilitation’, or what rehabilitation procedures are to be adopted at the ‘Reintegration Centres’, which are to be set up as per the regulation. Further, there is a lack of information as to what laws and regulations these centres may be subject to, in terms of the conditions to be maintained and monitoring mechanisms to be in place. Such concerns are amplified in a context of heightened militarized governance and weakening of independent institutions.
While it is imperative that rehabilitation and similar procedures be included in the Sri Lankan criminal justice system, this must be done lawfully, with respect for due process standards, and in adherence with constitutionally guaranteed rights and liberties. These are essential against the backdrop of increased arrests and detentions that take place based on charges of alleged statements to incite communal disharmony.
One thing that needs to be taken into account is that the principal aim of the PTA is to ensure the safety of the citizens by targeting and taking the necessary legal action against those who are deemed deviants and not ‘proper’ citizens, i.e. terrorists, via the law. Notwithstanding, the current implementation of the PTA does not necessarily help achieve this goal, in fact on its contrary, the act has merely created a culture of fear, violence and insecurity particularly targeting minority and marginalized community- first the Tamils, then the Muslims and now dissenters generally. People arrested under this law suffer numerous rights violations as documented in the report of the national study of prisons conducted by the Human Rights Commission of Sri Lanka. Furthermore, those arrested under the PTA are stigmatized and face multiple challenges, including accessing legal representation, which extends their incarceration. This in turn has a devastating impact on the rights of the persons and their families.
The case of poet Ahnaf Jazeem from Mannar who was arrested in May 2020 due to a book of poetry, which supposedly promotes extremism, but actually calls for an end to extremism and anti-violence, is a fine example of a PTA arrest that has gone unnoticed. Ahnaf Jazeem speaks to the Morning newspaper of the violations, threats and false accusation he faced during his arrest, “They accused me of showing videos to chidren about ISIS and terrorism, and that I had given lectures supporting Zaharan. They also accused the Navarasam book of being connected to Zaharan and supporting his ideas… I said that I have read Buddhist books – two or three books – but I do not own them. The officers said because I did not own the Buddhist books, that I am a terrorist.”
Moreover, the PTA allows for the prolonged incarceration, based on mere suspicion, of any person who “causes or intends to cause commission of acts of violence or religious, racial or communal disharmony or feelings of ill-will or hostility between different communities or racial or religious groups.” The same provision has been used in the past to prevent and effectively punish the exercise of freedom of expression, particularly by critics of the government, including journalists.
In the same vein, Hejaaz Hizbullah was allegedly accused of a speech-related offence that resulted in “causing communal disharmony,” one of a number of overly broad offences provided under the PTA. This allegation came after accusations of aiding Easter attack bombers were withdrawn due to lack of sufficient evidence.
Hejaaz Hizbullah is a vocal critic and a minority rights advocate at a time when Sri Lanka’s religious and ethnic minority rights were increasingly abused and violated. He is one of the lawyers who challenged the dissolution of the parliament in 2018 in the Sri Lankan Supreme Court. Since the Sri Lankan authorities have so far been unable to show any evidence of wrongdoing, it appears he is being targeted solely for exercising his right to freedom of expression.
Since the time of his arrest Hejaaz Hizbullah has been repeatedly denied the right to due process safeguards recognized by international law. He was not informed of the reason for his arrest and has been held in prolonged administrative detention without judicial oversight to monitor his wellbeing, and without access to bail. While in police custody he was prevented from accessing his legal counsel in private until an order was issued by the Court of Appeal. In February, he was charged and moved to judicial remand custody, where he was able to speak with his family for the first time in 10 months. Thereafter visitation rights were restricted, and he has not been allowed any access to his family or counsel since April 2021. Under international human rights law, particularly under article 9 of the International Covenant on Civil and Political Rights (ICCPR) to which Sri Lanka is a state party, all detainees have a right of reasonable access to their family and lawyers.
Hejaaz Hizbullah is one of many people detained for undecided lengths of time without due process under Sri Lanka’s draconian counterterrorism laws. In a study published in December 2020, the Human Rights Commission of Sri Lanka found that many PTA prisoners were in remand for up to 15 to 20 years. This is an abuse of detainees held under the PTA and is a flagrant violation of the right to liberty and the right to a fair trial, as protected under articles 9 and 14 of the ICCPR. It is also reported that many PTA detainees have also been allegedly tortured or ill-treated in custody.
Thus, it is fair to say that the PTA has now become a tool of oppression in a violent and rights violating national security regime that discriminates and perpetrates violence against the poor and ethno-religious minorities. That national security is the catch-all net used to justify repressive state action in the dual wars.
The International Movement against all forms of discrimination and racism has proposed a number of recommendations to ensure that the rights of journalists, civil rights activists, human rights defenders, minority communities and citizens are secured and sustained against the arbitrary use of the PTA. These recommendations include:
- Guarantee the protection of the human rights of all PTA detainees including guarantees of due process and a fair trial, and protection from arbitrary arrest, detention, torture or other ill-treatment, including;
- Immediately review the detention of those held under the PTA, ensuring adequate access to fair bail hearings, and immediate release for all those not facing internationally recognisable charges;
- Ensure that all PTA detainees have regular access to legal counsel on a confidential basis and to family members and friends at regular intervals;
- Ensure the right to a fair trial, including pre-trial rights, of those accused under the PTA;
- Repeal the PTA and issue an immediate moratorium on its use; and
- Facilitate access to effective remedies and reparations to those whose human rights have been violated due to the use of the PTA.
Ultimately, the right to freedom of expression, free from torture, arbitrary arrest, detention and punishment, and the right to a fair trial, rights of journalists and minorities are fundamental human rights and the present government is using the PTA to silence calls for justice and is continuously weaponizing the act to arbitrarily detain its own citizens despite the lack of substantial evidence. Given that the PTA is a human rights deficient law that does
not adhere to basic human rights standards enshrined in international conventions, such
as the International Covenant on Civil and Political Rights (ICCPR), which the government
of Sri Lanka has ratified and hence has an obligation to respect and protect, there is a need for reformation of the PTA so as to bring it in line with our own Constitution and the rights bestowed upon the Sri Lankan citizens.