Sri Lanka’s Prevention of Terrorism Act 1979, enacted as a temporary measure, has led to human rights violations due to vague definitions and unchecked state power. Despite international pressure, it remains a tool for suppressing dissent, undermining democracy and rule of law.
Introduction
The Prevention of Terrorism Act, often referred to as PTA 1979[1], has been in effect for over 40 years. This draconian legislation has been under severe scrutiny since its implementation. The Sri Lankan government created this act before the civil war broke out in 1979, which lasted for twenty-six years. PTA was enacted as a temporary legal legislation[2] to combat terrorism and since has been criticised by the international community for its vague language and misuse which led to human rights violations. Despite the Sri Lankan government’s promises to repeal this act after 2009, there has been no change as the promises never materialised. This tyrannical act contradicts the very essence of democracy and rule of law while systematically violating fundamental rights.
The oppressive nature of the act has led to several instances of communal disharmony. An act that was originally implemented as a temporary measure is now being morphed into the permanent legal structure of the country.
Background of PTA 1979
After the making of Sri Lanka’s Republican Constitution, a majority of the power was concentrated in the Sinhalese Community, making the Tamil population a minority. 1979 was the start of the first wave of misuse of power. The conflict between Tamils and the government escalated, which resulted in a civil war by LTTE (Liberation Tigers of Tamil Eelam) insurgents. This was a separatist militant faction that threatened the internal peace of the country. The parliament passed the PTA as a temporary legislation by a two-thirds majority in support of the act despite its abusive nature. Tamil people were arrested and detained[3] on mere suspicions of being a national security threat or part of the LTTE. The second wave started after the Easter Bombing attacks, which were carried out by IS (Islamic State)[4]. A series of blasts occurred on Easter Sunday, over 300 people were killed and churches were targeted. After the attack, the Muslim community faced backlash and anyone who promoted “communal disharmony” could be arrested and detained.
Since the act has been operative, it has targeted minority communities of the country, first the Tamilian people, then the Muslim population, and in the recent years, it has been reduced to an instrument used by the government to suppress the voices of the people who criticized the actions of the government and stand up for their fundamental rights. While Sri Lanka was on a mission to protect the country, it compromised on the rights of different religious and ethnic groups.
Critical Analysis of the PTA 1979 Provisions
The definition of ‘Terrorist Acts’ in PTA 1979 (Section 2)[5] is extremely vague and broad, leaving it open to interpretation. The elements which constitute terrorist acts, for example, are “acts of communal disharmony”, “mischief to government property” and “ill will or hostility between communal, racial or religious groups”[6]. This loose definition varies and has raised concerns since its implementation. These acts can be characterised as criminal offences but due to the discretionary power given to the police, without due process of law, anyone suspected of ‘terrorist acts’ can be arrested and detained.
The definition of “Proclaimed Person” (sec 3) undermines the statement “innocent until proven guilty”, which is one of the elements of democracy. It gives significant authority to the police (inspector general) to ‘proclaim’ any individual they suspect to be a terrorist without any judicial oversight[7]. The lack of judicial review closes the gap between the political, legal and administrative structure as separation of power is concentrated in one hand. Allowing an individual to carry out arrests without scrutiny dissolves the objective of checks and balances. Therefore, potentially there can be no accountability. There is no specific criteria as to who can be a “Proclaimed Person”, which can cause the authority to abuse the power for political and personal reasons.
The vagueness of the terminologies has been extended to “Security Area” (sec 3) defined in the PTA 1979. It allows a minister to declare any area as a security area based on their subjective views of what “Reasonable Apprehension of Organised Violence”[8] is. The absence of specificity in the act fails to meet international standards. Not only can a minister, i.e., politician, carry out the declaration of a security area, they also do not have to provide any evidence or justification for such a decision[9]. These discretionary powers go against the rule of law as oversight is bound to happen. Even peaceful protests and gatherings can be viewed as unlawful or organised violence, which contradicts freedom of speech and right to personal liberty.
Arbitrary detention is allowed for 18 months without charge (sec 9)[10]. If an individual is suspected of being a terrorist or being associated with a terrorist or any such activity, they can be detained without charge to protect national security. While the intention could have been protection from threats, it is incompatible with international law. The act has not been considered judicial review as any order made under section 9 has to be upheld and “cannot be challenged in any court or tribunal by writ or otherwise” (sec 10)[11]. This closes all doors for an appeal or any opportunity to be presented in front of a judicial authority,
Section 16 of the PTA deals with “Admissibility of Certain Statements.”[12] This section raises concerns regarding the protection of the rights of the accused person. Accused individuals may be subjected to torture, coercion, and intimidation during interrogation, which could lead to coerced confessions or statements. Usually, the admissibility of such statements is void. However, the acts allow the statements made by the defendant to be used in a court of law by reversing the burden of proof onto the accused. The act excludes (sec 17) sec 25, 26, and 30 of the Evidence Ordinance[13], which places additional restrictions on the admissibility of confessions. These sections deprive the defendants of their right to a fair and just trial.
The lack of accountability is explicit as the act grants immunity to law enforcement officials or other authority “for any act or thing in good faith” (sec 26)[14]. This can give officials a license to engage in ill-treatment, arbitrary detention, and other fundamental rights abuses. This shields and protects any violations, which creates a legal loophole that allows exploitation and no transparency. The legal language used in the act can be manipulated due to the ambiguous nature.
The Prevention of Terrorism Act 1979 could have been deemed unlawful but Article 84 of the Sri Lankan constitution[15] allows implementation of any bill that is inconsistent with the constitution if the parliament approves it. This provision provides the parliament with flexibility to pass legislation (with majority votes) that are conflicting with the constitution, making parliament a sovereign entity in a way. In a democracy, the constitution lays down the legal framework, but a loophole in such statutes can cause the democratic structure to fall.
Impact on Human Rights
The international pressure pushed Sri Lanka to reform the PTA 1979 to retain a trade deal with the European Union. The Sri Lankan president made a promise to take immediate steps to reform the act and address the human rights violations.[16] However, despite the claims made by the president, the PTA has been used against poets, journalists, minorities, etc. Simultaneously, the government worked on reinstating the death penalty for terrorist acts even though Sri Lanka has had a de facto moratorium on execution since 1976[17]. This can be seen as a major setback as the death penalty can be used against ‘terrorist acts’ even though they don’t qualify as terrorist acts.
In 2017, a special rapporteur was formulated on Counter Terrorism and Human Rights. The report stated that “80% of the most recent arrests under PTA complained of torture and physical ill-treatment following their arrest”[18] Although the government proposed a new bill “Anti-Terrorism Act” in 2022, that would replace the PTA, the problematic definitions and provisions remain.[19] Even though there are certain improvements, replacement of PTA seems to be a promise that the government does not hold.
Contradictions with International Legal Framework
1. International Humanitarian Law for Non International Armed Conflict
Violation of Common Article 3 of the Geneva Convention[20], to which Sri Lanka is a state party, dictates the states to protect individuals during detention. Violation of Additional Protocol II, which has not been ratified by Sri Lanka, but as customary international law[21], states have to ensure humane treatment of all individuals and protect their right to liberty. PTA violates all these principles to safeguard fundamental rights.
2. Universal Declaration of Human Rights (Ratified by Sri Lanka)
UDHR[22] does not allow torture, cruel or inhumane treatment towards any person (UDHR, Art 5), arbitrary detention or arrest (UDHR, Art 9), fair and just trial (UDHR, Art 10), presumption of innocence until proven guilty (UDHR, Art 11), freedom of speech, expression and opinion (UDHR, Art 19). Keeping the UDHR provisions in consideration, PTA violates several fundamental rights that have to be protected regardless of conflict.
3. Convention Against Torture (Accession done by Sri Lanka)
CAT dictates each state party to take effective measures to prevent acts of torture (CAT, Art 2)[23], while Art 4 of the convention asks the states to ensure that all acts of torture should be constituted as a punishable offence by law. Sri Lanka violates the provision under CAT by allowing forced confessions and ill-humane treatment.
4. International Covenant on Civil and Political Rights (Ratified by Sri Lanka)
ICCPR is an international convention that protects political and civil rights of all individuals. All state members have to ensure that no person is subjected to torture or cruel treatment (Art 7)[24]. No individual should be subjected to “arbitrary arrest or detention” and states should protect the right of personal liberty and security (Art 9). Art 14 of the convention states that all individuals should be given a fair trial and legal representation and should be presumed innocent until proven guilty. The convention even protects the right to freedom of speech and expression in every form. Sri Lanka violates these provisions despite being a state party.
Several other conventions protect fundamental human rights that legally bind the state parties who ratify the provision. Sri Lanka does not meet the international standard and violates several conventions and treaties. Despite giving official statements to reform PTA 1979, it has failed to protect the ethnic minority communities from discrimination and abuse.
Conclusion
In conclusion, the pillars of democracy are transparency and inclusivity. The Prevention of Terrorism Act has been subjected to criticism for several years. After critically analysing PTA 1979 (temporary provisions), it is evident that this legislation, which was implemented to protect the nation from national threats, has been used for human rights violations. The act goes against the very democratic principles of the rule of law and due process of law.
The judiciary is one of the most respected institutions in any democracy, and not providing judicial oversight takes away the chance for proper justice. An act that has caused fear in marginalized communities should be repealed and replaced with more suitable legislation that is very clear and explicit with its terminology and does not contradict the Constitution and undermine the international legal framework. Therefore, Sri Lanka should lay down a new foundation that is more inclusive and respectful of everyone in the country. While this could seem unachievable, starting from the grassroots level is the first step towards a more peaceful society.
[1] Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979 https://www.icnl.org/wp-content/uploads/Prevention-of-Terrorism-Temporary-Provisions-Act-no-48-of-1979.pdf [accessed: 11 Feb 2025].
[2] Ibid.
[3] Locked Up Without Evidence: Abuses under Sri Lanka’s Prevention of Terrorism Act" (29 January 2018) https://www.hrw.org/report/2018/01/29/locked-without-evidence/abuses-under-sri-lankas-prevention-terrorism-act [accessed: 11 Feb 2025].
[4] Expansion of IS in South Asia" (IAS Parliament, 26 April 2019) https://www.iasparliament.com/current-affairs/easter-attacks-in-sri-lanka-expansion-of-is-in-south-asia [accessed: 11 Feb 2025].
[5] Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979.
[6] Ibid.
[7] Ibid.
[8] Ibid.
[9] Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979, [1979] Ceylon Gvt Gaz (No. 2,217).
[10] Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979.
[11] Ibid.
[12] Ibid.
[13] Evidence Ordinance (Sri Lanka) https://www.lawnet.gov.lk/evidence-ordinance/ [accessed: 11 Feb 2025].
[14] Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979 [1979] Ceylon Gvt Gaz (No. 2,217).
[15] Sri Lankan Constitution, available at: https://www.parliament.lk/files/pdf/constitution.pdf.
[16] "Sri Lanka to reform terror law to keep EU trade deal" [October 05, 2021] available at: https://www.thehindu.com/news/international/sri-lanka-to-reform-terror-law-to-keep-eu-trade-deal/article36847488.ece [accessed: 11 Feb 2025].
[17] "Sri Lanka: Resuming Death Penalty a Major Setback" [June 30, 2019], available at: https://www.hrw.org/news/2019/06/30/sri-lanka-resuming-death-penalty-major-setback [accessed: 12 Feb 2025].
[18] Civil Society Collective in Sri Lanka, "FACTSHEET – UPR 2017 – SRI LANKA" [2017], available at: https://www.upr-info.org/sites/default/files/documents/2017-10/counter_terrorism_factsheet_srilanka_2017.pdf [accessed: 12 Feb 2025].
[19] Naveera Perera, "Understanding Sri Lanka's Controversial Anti-Terrorism Bill 2023: Why Calls to Repeal the PTA Persist" [May 16, 2023], available at: https://www.jurist.org/features/2023/05/16/understanding-sri-lankas-controversial-anti-terrorism-bill-2023-why-calls-to-repeal-the-pta-persist/ [accessed: 12 Feb 2025].
[20] Geneva Convention Relative to the Treatment of Prisoners of War [1949], available at: https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.32_GC-III-EN.pdf [accessed: 12 Feb 2025].
[21] Human Rights Watch, "Repression of Tamil Protesters and Critics in Sri Lanka" [2007], available at: https://www.hrw.org/reports/pdfs/s/srilanka/srilanka924.pdf [accessed: 12 Feb 2025].
[22] Universal Declaration of Human Rights [1948], available at: https://www.un.org/en/about-us/universal-declaration-of-human-rights [accessed: 12 Feb 2025].
[23] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) (Office of the United Nations High Commissioner for Human Rights) https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-against-torture-and-other-cruel-inhuman-or-degrading [accessed: 12 Feb 2025].
[24] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) (Office of the United Nations High Commissioner for Human Rights) https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights [accessed: 12 Feb 2025].
