- Torture and inhuman treatment a risk under the PTA
The arrest last week of Wasantha Mudalige, Convenor of the Inter University Students Federation, set off an avalanche of condemnation and protests demanding his release. A larger than life figure Mudalige, who has been in the frontlines of the struggle for change in the country’s governance, was leading his flock in a protest when the arrest took place. Although a warrant for Mudalige’s arrest had been issued by the Courts, he was effectively thumbing his nose at the police by taking part in the protest. Mudalige’s lawyer justified his appearance in public despite the warrant. He said that Mudalige had not committed any crime for a warrant to be issued.
Before the arrest, swathes of police officers backed by water cannons broke up the protest march in a stand- off with the protesters and a disproportionate use of force with a deluge of water, tear gas and a baton charge. After the protesters had dispersed and were on their way home, visuals showed the police chasing behind them and trying to beat them up far away from the original protest route.
Including Mudalige, a total of 19 protesters were arrested during the protest. The Colombo Additional Magistrate charged 16 of them with unlawful assembly and obstructing the duties of police officers by blocking the road and released them on personal bail of 500, 000 rupees each the following day. However, Mudalige, Hashan Jeevantha and Galwewa Siridamma Thero were not allowed bail and continued to be held under the emergency regulations and subsequently the Prevention of Terrorism Act. Appearing on behalf of the protesters, BASL President Saliya Peiris showed up the police by informing court that the submissions made by the police were fabricated and false. The police told court that the protesters, instead of protesting at Liptons Circus had attempted to proceed to Fort via Union Place and had blocked the road. They also told court that the protesters had assaulted police officers and obstructed their duties.
The UN Special Rapporteur on Human Rights Mary Lawlor tweeted her concern about the continuing arrest of Mudalige and the two others and urged President Ranil Wickremesinghe not to sign the detention order. She ended her tweet by saying that signing the detention order will be a ‘dark day for Sri Lanka’. One day later after Lawlor’s appeal, Wickremesinghe signed the detention order which will allow the continued detention of Mudalige and others for a period of 90 days under section 9 of the Act.
The Bar Association of Sri Lanka is the latest to add its voice to the chorus of denunciation of the government’s crackdown on protesters, in which there has been a discernible trend after Ranil Wickremesinghe became Prime Minister and President. Critics of the government and protesters who engaged in trivia like sleeping on the former president’s standard and soaped themselves and swam in the pool in the President’s House after it was stormed on 9th July, have been hunted down viciously and taken into police custody. Last week, police arrested former MP Mervyn Silva who has been oozing vitriol at the Rajapaksa family, for forcibly entering the Rupavahini Corporation in 2007. In parliament last week, the leader of the National People Power Anura Kumara Dissanayake explained that the arrests, senseless and inexplicable, are in retaliation for the ignominy the Rajapaksa brothers had to suffer at the hands of the people.
The BASL’s statement meanwhile called on Wickremesinghe and the law enforcement authorities to refrain from using the PTA and to immediately rescind the detention orders which were issued.
The PTA has for long been known to be a draconian piece of legislation which gives wide powers to the executive to arrest and detain persons for a lengthy period of time and there have been many attempts by the international community and rights activists to get it abolished. It has been a matter of concern for the European Union to grant an extension of the GSP+ because of the continued use of the PTA.
Although detention orders are amenable to the fundamental rights and writ jurisdictions of the apex courts, they are not subject to regular judicial supervision unlike instances of arrest and detention under the general law. Administrative detention confers the executive with wide powers over the freedom of physical liberty of a person and lengthy detention periods without judicial supervision go against internationally accepted standards of protection of human rights. There is also the danger that such detention may result in the detainee being subject to torture and inhuman treatment.
The BASL pointed out how the provisions of the PTA have time and again been abused as evidenced by many judgments of the apex courts in fundamental rights and writ applications and as observed by several members of parliament on the 22nd March 2022 during the second reading debate on the Bill seeking to amend the PTA, as reflected in the Hansard of that date. During the said debate the present President Hon. Ranil Wickremesinghe who was a member of parliament has inter alia stated referring to the PTA that “in time to come, it was abused.”
It went on to warn that the provisions of the PTA must be resorted to only in very exceptional circumstances where there is manifest evidence indicative of a terrorist dimension that would make resort to its use justifiable. The PTA was intended to address situations of terrorism and never to address offences which may have occurred during the expression of dissent against the government such as protests for which there exists the ordinary law of the land including the Penal Code.
‘In fact, in its response dated 15th December 2021 to the then Foreign Minister, Prof. G. L. Pieris MP, on a document prepared by the Foreign Ministry ‘setting out the main changes proposed in the provisions of the PTA, the BASL advocated amending section 2(1) to prevent the misuse of the Act to arrest and detain persons who are not connected to terrorist acts’, it said.
The BASL notes that the PTA is now being used despite assurances by the Government of Sri Lanka (GOSL) that it was implementing a moratorium on the use of the PTA. During the aforesaid debate in parliament as reflected in the Hansard on the 22nd March 2022, the then Minister of Justice Hon. M.U.M. Ali Sabry MP, presently the Minister of Foreign Affairs stated in Parliament as follows:
“As a result, since September 2021, there has been a de facto moratorium on the use of the PTA on offences other than those which have a direct involvement with terrorism. Therefore, these are progressive steps made in that regard.”
In these circumstances and in the absence of a clear definition of terrorism in the PTA, there is a grave danger of it being abused to stifle legitimate expressions of dissent and to target persons who exercise their democratic rights including the freedoms of speech and expression, peaceful assembly, and association, it said.
