Editorial

THE LESSON OF THE TISSAINAYAGAM CASE: WHY THE PTA MUST BE REPEALED

The journalist, J.S. Tissainayagam, who has been in detention since March 7, 2008, was convicted last Monday, August 31, 2009, on all three charges under the Prevention of Terrorism Act (PTA) on which he was tried by the High Court of Colombo. Given the framework of the PTA as well as the politically charged circumstances of his case, there was no realistic expectation that he would be acquitted, but the severity of the maximum punishment of 20 years rigorous imprisonment has met with shock and disbelief in Sri Lanka and abroad. 

Mr. Tissainayagam plans to appeal, and until such time as all judicial proceedings are over, it is best to avoid over-zealous condemnation of the process. No such reticence, however, needs to be entertained about the abominable statute under which he was charged and convicted. As critics have pointed out since its enactment in 1979 by the notoriously authoritarian Jayewardene administration, the PTA is an open invitation to abuse of all kinds including torture, arbitrary deprivation of liberty, institutionalised racism and discrimination, and the suppression of civil and political rights. But Tissainayagam’s situation is distinctive for the fact that he has become the first journalist to have attracted its draconian penalties for acts arising out of the practice of his profession. Politically, this is a terrible reflection of the state of democracy in Sri Lanka today.

This newspaper, which has ample experience of the use of legal and extra-legal methods of repression against it, hopes therefore that Tissainayagam’s fate serves to rouse our society’s sleeping conscience against the continuation in force of illiberal anti-terrorism legislation, and the despotic official practices that have grown around such laws. The PTA was meant to be used against terrorists, not the freedom of the press, and now that the terrorists have been defeated, it is best that it too is consigned to history. There are cogent reasons for this editorial viewpoint of this newspaper. 

In addition to the emergency powers available to the State under the Constitution, special anti-terrorism powers are provided in the Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979, as amended. The sweeping powers given to the executive by the PTA are in the nature of emergency powers, but the exercise of those powers are independent of and not subject to even the limited oversight framework of conventional emergency powers, such as the requirements of public proclamation of an emergency and periodic parliamentary approval, under Chapter XVIII of the Constitution and the Public Security Ordinance (PSO).

By being part of the ordinary law rather than emergency law, the PTA’s first point of departure from the liberal conception of the Rule of Law is that it reverses the assumption that only exceptional circumstances warrant, if at all, the kind of incursions into procedural protections and fundamental freedoms that it permits. That emergencies are the ‘exceptions’ rather than the ‘norm’ of constitutional government is at the root of the conceptual justification for granting extraordinary powers to the executive during times of grave national emergency threatening the life of the community.

From the perspective of international standards reflected in human rights treaties and other restatements such as the Siracusa Principles and the Paris Minimum Standards, this means that the regime envisaged by the PTA falls foul of the important procedural safeguards of declaration, notification, and periodic parliamentary approval and judicial oversight.

The PTA was enacted in 1979 as a temporary measure (Section 29 of the original enactment expressly provided that it would be in force only for a period of three years, but this was repealed by the Prevention of Terrorism (Temporary Provisions) Amendment Act No. 10 of 1982), as an element of the then government’s political and military strategy in dealing with the early stages of the low intensity insurgency in the north. The reference it its title to ‘temporary provisions’ is therefore a horrible nomenclatural misnomer.

The process of its enactment through the procedure under Article 84 of the Constitution is also noteworthy. Article 84 is a bizarre provision which permits Bills that are inconsistent with the Constitution to be passed by a two-thirds majority in Parliament. Article 120 (c) precludes the pre-enactment constitutional review jurisdiction of the Supreme Court in respect of the substance of such Bills falling within the scope of Article 84. Thus under these provisions of the Constitution, provided the requirement of a two-thirds majority is met, it is possible to enact laws that are inconsistent with any provision of the Constitution, including fundamental rights.

As Justice Mark Fernando observed in Weerawansa v. Attorney General (2000): “When the PTA Bill was referred to this court, the court did not have to decide whether or not any of those provisions constituted reasonable restrictions on Articles 12 (1), 13 (1) and 13 (2) (which enshrine fundamental rights to equality and the liberty of the person) permitted by Article 15 (7) (in the interests of national security etc.), because the court was informed that it had been decided to pass the Bill with two-thirds majority…The PTA was enacted with two-thirds majority, and accordingly, in terms of Article 84, PTA became law despite many inconsistencies with the constitutional provisions.” (Emphasis added).

The PTA contains a three-paragraph preamble that outlines the underlying government policy: that public order has become endangered by elements that advocate the use of force or the commission of crime as a means of accomplishing governmental change and which have resorted to acts of terrorism including murder, armed robbery, coercion, intimidation and violence; that free institutions can only remain so when freedom is founded on the Rule of Law; that grievances should be redressed by constitutional methods; and (perhaps by way of legitimisation) that other democratic countries have enacted special legislation to deal with acts of terrorism.

Notwithstanding these seemingly lofty ideals, the PTA’s less than admirable inspiration were Apartheid South Africa and Britain’s counter-terrorism legislation of the same name during that time. It flies in the face of almost every human rights norm pertaining to the liberty of the person, including most prominently, widely worded and ill-defined offences; detention without charge for extended periods of time at irregular places of detention; the broad denial of detainees’ rights; the admissibility of confessions in judicial proceedings subject only to the most tenuous of safeguards; the shifting of the evidential burden of proof to the defendant; and disproportionate penalties. Many of these abhorrent features of the PTA figured prominently in the Tissainayagam trial.

The unchecked detention powers, special trial procedures and absence of meaningful review in the PTA facilitate arbitrary and capricious official conduct, including torture. The PTA also makes serious incursions into the freedom of expression and the media by requiring in certain circumstances governmental approval for printing, publishing and distributing publications and newspapers.

For these reasons, the PTA represents an aberration of the Rule of Law upon which the constitutional order of Sri Lanka is ostensibly based, and has been the gateway to systematic abuse of human rights, giving rise especially to gross ethnic discrimination in its implementation. The case for the repeal of the PTA therefore should be self-evident in a society that values liberty.

The recent instances of official lawlessness have raised disquieting prospects for the Rule of Law and human rights in Sri Lanka, aggravated by an ominous public acquiescence in the entrenchment of a dominant political discourse in which there can be no dissent and freedom of thought and speech, but only traitors and patriots: in the President’s words, ‘those who love the country and those who do not.’

Patriots, it seems, are those who uncritically support the regime. In conflating love of country with sycophancy, this is a debilitating conception of patriotism in which freedom, democracy and pluralism have no place. It is a notion of patriotism that is a grotesque distortion of and a grave disservice to the unbroken democratic legacy since 1931 to which our country is accustomed.

Delivering the eulogy at Senator Edward Kennedy’s funeral last week, President Barack Obama said, “He was a product of an age when the joy and nobility of politics prevented differences of party and platform and philosophy from becoming barriers to cooperation and mutual respect – a time when adversaries still saw each other as patriots.” By these inspirational touchstones, Sri Lankan politics is nowadays neither joyous nor noble, as Jeyaprakash Tissainayagam found out desolately last week.