Human Rights Watch, in its latest report (February 7, 2022) argues that the proposed amendments to the PTA are inadequate and the only way to address its problems is to repeal it and replace it with one more in line with “international human rights standards.”
These sentiments are echoed by numerous critics of the Government both locally as well as internationally and must be addressed because they appear to underpin an attempt to make repealing the PTA a sort of litmus test for the Government’s willingness to comply with its international human rights obligations. The question is whether this is fair. In my view, it is not.
To the best of my knowledge, the PTA which was adopted in 1979 has been amended twice previously and that also only to increase its powers.
The present Government’s proposed amendments though limited to introduce certain crucial reforms to the Act. Therefore, the Government’s efforts should be commended rather than condemned because of the following reasons.
Key concerns
Firstly, as mentioned above the proposed changes do introduce crucial reforms. For instance, for many years one of the key concerns of critics of the PTA was the lack of an appeals process for persons detained under the Act.
The proposed amendments expressly address this lacuna by introducing a clause that permits detainees access to regular courts. Does this go far enough? Certainly, more could be done to address the concerns of the critics, but any reasonable person would agree that having access to the regular courts to challenge their detention is now a powerful tool for detainees to safeguard their rights.
Secondly, one must consider the intention behind the PTA including the unique nature of the threat it is designed to counter as well as the “victims” that it is designed to protect. Terrorism is generally defined as the resort to violence by a group in order to further their political goals. The ultimate target of an attack is not necessarily the particular man or woman killed in the attack but a larger harm such as the destruction of the economy, or some other such harm. As the late British PM Margaret Thatcher once said,
“The terrorist uses force because he knows he will never get his way by democratic means. Through calculated savagery, his aim is to induce fear in the hearts of people. And weariness towards resistance.” (Speech to the American Bar Association, July 15, 1985) .
The point is that, in any country where terrorism remains an active threat, every member of the public is a potential victim. To turn to the PTA, one must appreciate that there is a crucial difference between preventing an attack before it happens and dealing with one after it is committed.
Most laws are designed to address the latter, the PTA the former. Prevention necessarily involves casting a wider net. Given the organisational capabilities, financial resources, and the operational sophistication of modern terrorists, preventing an attack before it happens necessarily entails giving the State extraordinary powers to hold and question suspects.
Terrorist attacks
The fact that, preventing terrorist attacks might arguably involve a tension between the rights of the detainees and the needs of the State does not mean that a law with sufficient ‘teeth’ to get the job done is unnecessary.
A reasonable way to resolve the tension would be to consider the points where the law is most susceptible of abuse and reform those elements rather than replace the law entirely because any new law if it is for the same purpose would run into the same challenges.
Thirdly, one must consider the nature and urgency of the threat. For 30-years ending in May 2009 Sri Lankans suffered under LTTE terrorism. The LTTE as a military force is now no more, but there is an ever-present danger of its revival as evidenced by the arms caches, various plots by LTTE-associated operatives and others that the authorities both in Sri Lanka as well as in other countries such as Malaysia and India continue to uncover.
Today, the greater threat that Sri Lankans face is from extremists inspired by or led by the Islamic State or its affiliates as proved by the Easter Sunday attacks of April 2019. Many commentators have pointed out the sophistication and capability of this new breed of terrorist. Daniel L. Byman of the Brookings Institute points out the implications of the attack to Western countries, from which one can surmise the danger to Sri Lanka itself. He says,
“If Sri Lankan foreign fighters played a significant role in the terrorist attack, this would be the largest foreign-fighter linked attack since 9/11. The attack suggests both the danger posed by foreign fighters and the importance of Government efforts at stopping them.
When individuals leave their homes and travel to a foreign war zone they often change profoundly. The travellers usually train and fight and often emerge more skilled as a result. Such experience may explain the jump in lethality for Sri Lankan jihadists who before the Easter attacks had not carried out mass casualty terrorism” (Daniel L. Byman, www.brookings.edu, 23rd April 2019)
In sum, the danger is real and the Sri Lankan people should have the necessary tools including the relevant laws with which to combat it. It is not in dispute that, the rights of detainees must be safeguarded and the Government should under no circumstances be permitted to exploit the PTA in order to intimidate or harass its critics if such things happen as alleged by some. However, concern for the rights of the detainees must be balanced by concern for the right of the all members of the public to protect their lives.
Horrendous consequences
Fourthly and finally, one must consider the horrendous consequences to the country if (heaven forbid) the terrorists win. In this regard, it is useful to study what has happened in the regions where ISIS managed to gain a foothold even temporarily because it helps one imagine what could happen to innocent Sri Lankans also if ISIS-inspired extremists take over here.
Valeria Cetorelli and Sarita Ashraph, two scholars with the London School of Economics, in a report filed with the UN discuss what happened when ISIS took over Kocho a small village in Northern Iraq in August 2014. They say,
“Within hours, Yazidis who fled too late or who had remained on their villages found themselves encircled by armed, black-clad ISIS fighters. In the early morning hours of August 16, 2014, the fighters ordered the terrified, exhausted women and girls into the yard of the school. There they separated the women who were deemed to be past childbearing age from the others. Survivors of the group left in the yard said they heard a volley of gunfire before collapsing into panic and screaming. When the area was retaken from ISIS in 2017, a mass grave containing remains of women was uncovered in the yard of the school.” (Cetorelli and Ashraph, LSE Middle East Centre Report, June 2019, www.un.org.)
It is possible to imagine that, scenes such as the above or things very similar would play out in this country also if the ISIS-inspired extremists take over especially since most Sri Lankans would be considered “’infidels’ or ‘pagans’ by the extremists.
In these circumstances, no reasonable person could expect members of the Sri Lankan Parliament to approve any drastic changes to the country’s anti-terror laws, and even if they were to approve changes to do so in anything by the most incremental fashion.
If they were to do anything else, they would have to face the full wrath of the Sri Lankan people. Therefore, the efforts by the Government to introduce incremental changes to the PTA and what appears to be a willingness by Parliament to approve such changes should be commended and encouraged rather than ridiculed or condemned.
Conclusion
If the opponents of the PTA can wave a magic wand and make the threat of terrorism go away in Sri Lanka, then the PTA can be done away with. Since they cannot do this, the responsible alternative is to reform incrementally on a case by case basis as abuse is detected. No one—and this includes so-called ‘human rights activists,’ international organisations or NGO’s and the Governments of foreign countries—has a right to force Sri Lankans to replace the PTA unless they can indemnify us for the possible harm to the entire country if the terrorists win.
The writer is an Attorney-at-Law and also consultant to the Strategic Communications Unit (Lakshman Kadirgamar Institute)