Terrorism is a global issue which has spread its claws in various forms. However, the absence of a definition for ‘terrorism’ has facilitated the States to interpret the acts of terrorism in their own terms, which is often antithetical for the protection of human rights.
Thus, according to United Nations Special Rapporteur on Counter Terrorism, this has paved the way for the misuse of counter-terrorism measures against civil society.
Hence, it is imperative to elucidate the ways in which several counter-terrorism measures have forcibly entered the civil space. Therefore, in this article, the crackdown of protests during “Aragalaya” (Struggle) by using Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979 of Sri Lanka (PTA) will be discussed and an overview will be given on how it has impacted on several human rights under domestic law and international human rights law.
Background to the use of PTA
PTA was enacted in 1979 as a ‘temporary’ measure and was mainly used during the Sri Lankan civil war against those alleged of involvement with the LTTE. During the war from 1983-2009, PTA was weaponized against the minority Tamil community with torture in custody and extraction of forcible confessions. In 2019, aftermath of Easter attacks, changed the course of PTA to target Muslims. Therefore, it is evident, historically, PTA has been used to deny the human rights of minorities, mainly the due process right and right to a fair trial. This legitimacy and the permanence of PTA embedded in Sri Lankan society, though it has proven to be draconian legislation, has driven the government to use the PTA to stifle dissent which is reflected in the arrests and detentions that ensued during the Sri Lankan protests.
Legal guarantees to protesters
The Sri Lankan protesters exercising their right to freedom of speech and expression, and freedom of peaceful assembly under Articles 14 (1) (a) and (b) of the Sri Lankan Constitution respectively, commenced island-wide protests against the corrupt government in March 2022 which continue even to-date. These rights are enshrined under Articles 19 and 20 of Universal Declaration of Human Rights (UDHR) and Articles 19 and 21 of International Covenant on Civil and Political Rights (ICCPR). Additionally, to fortify the domestic validity of these rights, the ICCPR Act was introduced; this is further reinforced in a Supreme Court decision where it stated that the rights included in ICCPR are justiciable through the existing Sri Lankan legal and constitutional process. The aforementioned legal guarantees demonstrate the certainty in law with regard to the human rights guarantees of the protesters in contrast to the uncertainty in anti-terrorism laws. Consequently, when human rights clash with deleterious counter-terrorism measures, civil society is under attack.
PTA vs Human Rights of the Protesters
On 18th August 2022, during an anti-government protest, three student leaders of Inter University Student Federation (IUSF) were arbitrary arrested and detained by the police under PTA on suspicion of “anti-State conspiracies.” On 7th October 2022 after 50 days of arbitrary detention, one of the detainees was released without any charge, and two others were granted bail on 6th December 2022 after more than three months of being detained. Similar incidents have happened in India, Hong Kong and Uganda, where civil society actors were arrested and detained under anti-terrorism laws depicting that there is a global trend to curtail human rights under the guise of national security, in order to suppress criticisms levelled against the respective governments. It is to be noted that freedom of expression and assembly are not absolute rights, but they have to be limited by taking into consideration the human rights of the involved parties.
According to Article 15(7) of the Constitution of Sri Lanka, restrictions may be imposed on fundamental rights “prescribed by law” which is on par with Article 21 of ICCPR. Nevertheless, issues are raised as to whether these measures comply with the law and are proportionate to the objective sought to be achieved.
In the case of Sri Lanka, during the aforementioned incident, the authorities interpreted Section 2 of the PTA in a broad manner so as to include the act of expressing one’s dissent towards the government as an act of terrorism. This situation can be identified as a danger of creating a ‘slippery slope’ with regard to the power given to the States to define their own anti-terrorism laws. As correctly pointed out by the Bar Association of Sri Lanka:
“although, detention orders under PTA are amenable to the Fundamental Rights and Writ Jurisdictions of the apex courts, they are not subject to regular judicial supervision unlike instances of arrests and detention under the general law.”
This renders such detention orders outside the scope of law, which is in extension contrary to the principle of rule of law too. Therefore, though it seemed that the authorities were acting according to law, which is in this instance the PTA, the provisions in the law itself raise questions as to the unfair and discriminatory manner in law which is criticized nationally and internationally. Hence, this blurs the principle of acting “according to the law” as it clashes with freedom of expression and assembly under human rights law.
Moreover, for over three days, the place of detention of the detainees was unknown to their families up until the President signed their detention orders on 22nd August 2022. However, Section 10A (1) and (2), which was introduced after the amendment to the PTA in March 2022, it is stipulated that detainees should have access to communicate with their legal representatives and relatives, upholding the rights in Article 13(3) of the Constitution and Articles 9(3) and 9(4) of ICCPR. Therefore, this is an instance where the provisions in the law (PTA) itself have not been adhered to by the authorities which can be contrasted with the previous argument.
During the IUSF protest, the President acting as the Minister of defence signed detention orders for 90 days without trial under Section 9. With regard to international human rights law, law enforcement authorities are bound to protect the rights of the people who are arrested and detained and under customary international law and arbitrary deprivation of liberty is deemed to be a jus cogens norm. Hence, Article 9 of the International Covenant on Civil and Political Rights (ICCPR) and Articles 9,10,11(1) of the Universal Declaration of Human Rights (UDHR) establish the due process and the right to a fair trial. This is further cemented by Article 13 of the Sri Lankan Constitution (Constitution) which reiterates the same principles. However, detention orders issued under PTA violate the aforementioned principles, which has paved the way for the government to repress civil society protest and associate it with terrorist activities. If the government’s objective was to maintain public order and protect national security, such an act should create a proximate or rational nexus between the restrictions imposed and the object sought to be achieved. However, using PTA to obstruct protesters is beyond the scope of this principle thus it is deemed as a violation.
Furthermore, according to a prison study by the Human Rights Commission of Sri Lanka (HRCSL), detainees under PTA are often subject to custodial torture. In a way, the PTA facilitates torture, as the detainees are presumed to be guilty when they are alleged to have been engaged in terrorist activities,the which was often the plight of the detainees during the war and after Easter attacks. This is facilitated by Section 7(3) of the PTA which endows a police officer with unwarranted powers to access a suspect in remand custody and Sections 16-18 of PTA excludes the inadmissibility of confessions obtained while in custody which encourages to extract confessions under duress. Although there is no evidence to prove physical custodial torture in this incident, there is an inclination to make arrests under PTA in future to the detriment of human rights. However, Asian Human Rights Commission states that the unfavourable conditions of the detention centre where the students were held amount to psychological torture, which is contrary to the Convention Against Torture and Article 11 of the Constitution and international human rights obligations of Sri Lanka. Even though the detainees were proven to be “terrorists” at a later stage of a trial, they ought not be subject to torture, because freedom from torture is an absolute right. As the right to life is not constitutionally guaranteed, the Supreme Court interpreted the right to life in light of freedom from torture, inhumane and degrading treatment or punishment demonstrating its importance as a right.
Therefore, it is evident, that the detention pursuant to PTA does not uphold human rights, thus making such actions disproportionate and unlawful. The aforementioned analysis shows that the restrictions on protesters were not narrowly construed and State has made an unwarranted interference with the human rights of the protesters.
Recommendations and Conclusion
The actions of the authorities to the extent of using PTA to crackdown protests, signify the lack of the State’s commitment to listen to the demands of the people which will become a catastrophic explosion of violence in future. Therefore, the following recommendations are suggested to the government.
Amending the PTA to strike a balance between human rights and specifying in detail which acts do not fall under the definition of “terrorism.”
Encouraging participation of civil society actors and human rights defenders to have discussions on counter-terrorism laws.
Educating law enforcement authorities and citizens on human rights and counter-terrorism measures.
Preparing a mechanism to provide reparations to victims of PTA by commencing it with taking steps to punish the perpetrators.
The perception of the protesters being deemed as terrorists should not be encouraged further, since that would tarnish the democratic fabric of the State. Therefore, it is the duty of the State to uphold human rights such as freedom of expression and assembly which would in turn create an environment where the authorities will no longer have to resort to the draconian PTA.