SRI LANKAN CITIZENS PROTESTS AND SUPPRESSION OF DEMOCRACY

SRI LANKAN CITIZENS PROTESTS AND SUPPRESSION OF DEMOCRACY

di Ravi Tissera Warnakulasooriya

INTERNATIONAL PRESIDENT OF INTERNATIONAL MOVEMENT OF CATHOLIC STUDENTS (IMCS) PAX 
ROMANA AND GRADUATED AT THE FACULTY OF LAW IN THE UNIVERSITY OF COLOMBO, SRI LANKA

Sri Lanka, a small Island nation in South Asia region has been making global news due to the ongoing mass protests which began in March 2022 against the government of Sri Lanka. The government which was led by the ruling Rajapaksa family was criticized for nepotism and mismanaging the Sri Lankan economy which led to a subsequent economic crisis involving severe inflation, daily blackouts, and a shortage of fuel and other essential goods. Island wide protests which were commonly called as “Aragalaya”¹, mainly demanded the resignation of President Gotabaya Rajapaksa and key officials from the Rajapaksa family. After Months long occupy movement subsequently led the citizens storming the Presidential palace, presidential secretariat and prime minister’s official resident, Gotabaya Rajapaksa fled to Singapore and handed over his resignation. Upon the resignation, the acting president Ranil Wickremasinghe (former prime minister) was elected as the president by a secret vote in the parliament amid the protestors continue demands for his resignation as well.

Sri Lanka defaulted on its foreign debt of more than 50 billion U.S. Dollars in May 2022, the first Asia Pacific country to do so in more than two decades, after effectively running out of foreign reserves. The country is in negotiations with lenders such as Asian Development Bank (ADB), International Monetary Fund (IMF) and countries such as India and China. After long held negotiations, IMF has preliminarily agreed to extend a 48 month 2.9 billion dollars loan to Sri Lanka to help restore economic stability. One of the main conditions of IMF for the agreed upon bailing out is «reducing corruption vulnerabilities through improving fiscal transparency and public financial management, introducing a stronger anti-corruption legal framework, and conducting an in-depth governance diagnostic»²which has been a demand of the citizens protests as well. Ironically, the politicians who were accused of corruption under the previous regime bear ministerial positions under the new regime as well and new president Ranil Wickremasinghe is among the accused. Instead of the highly demanded anti-corruption measures, government have increased the number of suppressive measures against the citizens who are practicing their democratic right to dissent. For that, they have expanded the use of a defamed legal tool in the government tool box.

Prevention of Terrorism (Temporary Provisions) Act (No. 48 of 1979)

Following the election of the new president, government has started arresting number of protestors, mainly students who has been involved in the Aragalaya
protests, under the Prevention of Terrorism Act (PTA), despite the Government’s announcement in June 2022 that it has been applying a de facto moratorium on the use of this Act since March of this year. On 22nd August 2022, the Defense Ministry approved a 90-day detention order under PTA3 for the Inter-University Students’ Federation (IUSF) Convenor Wasantha Mudalige, Kelaniya University student activist Hashan Jeewantha, and Inter-University Bhikkhu Federation (IUBF) Convenor Galwewa Siridhamma Thera amidst the grave concerns expressed by both local and international Human Rights bodies⁴.

Prevention of Terrorism Act or widely known as PTA is a temporary act which was introduced in 1979 as a temporary measure to address the war or the insurrection situation during the period which aroused among the minority Tamil communities in the north and the east parts of the country. The reasons were
given by the government led by president J.R. Jayawardena (who was also the responsible of opening the economy and introducing neoliberal policies to Sri Lanka) as the remaining criminal laws were insufficient to handle the special “terrorist activities” in the said period.The provisions of the PTA have been designed following the detention laws of the Apartheid South Africa which were used at that time for inhumane treatments against the black community in a colour segregated society. PTA was then made a permanent law in 1982⁵ and this temporary measure has been in use continuously as a tool of suppression of minorities, activists, journalists and critical voices of dissent for the past 43 years.

One of the main principles Sri Lankan constitution is built upon is division of powers. Through the principles of Checks and Balances installed in the Executive, Legislature and Judiciary, the balance of powers between the branches of the government is ensured. This can be clearly observed under the regular criminal law of Sri Lanka. Under the Sri Lankan Criminal Procedure Code, Penal code and other Acts, there are number of rights ensured for a person who has been arrested in suspicion of a criminal act. One of the most important ways of assuring these rights in a legal detention is that the arresting done by the police, which is a part of the executive should be subjected to the supervision of judiciary. Any person who has been arrested under the suspicion of a criminal act need to be produced before a magistrate within 24 hours by the police. If a person believes the said act of arrest is illegal, they should have the right to challenge it before the court. If the police officers are unable to provide sufficient reasons to remand the suspect, magistrate has the power to release the person. According to the Sri Lankan Evidence Ordinance, a statement/confession made to a police officer is inadmissible in front of a court. These are rights recognized by Sri Lankan constitution as well international covenants such as International Covenant for Civil and Political Rights (ICCPR) which Sri Lanka is also a signatory of⁶. Under the provisions of PTA, role of Judiciary in the detention procedure has been removed for the most part creating a legal blackhole.

Through the Prevention of Terrorism Act of 1979, all of these rights assured for the protection of the people who are arrested in suspicion of terrorism have been removed, violating the Fundamental Rights standards set by the Sri Lankan constitution as well as the standards set by the International Human Rights
mechanisms. Amongst other deeply flawed provisions of the PTA, the following are notable for contributing to the violation of the human rights of people detained under the law:

• Detainees can be held for up to 18 months without charge.
• Arbitrary orders can be made by the Minister of Defence, restricting freedom of expression and association, with no right of appeal in courts.
• Contains special rules of evidence, allowing for confessions to be admissible in court.
• Places the burden on a suspect to prove to a court that a statement was made under duress.
• Unclear provisions on procedure of granting bail and therefore some detainees are not granted bail due to this lack of clarity
• a confession made to a police officer not below the rank of ASP is admissible against the suspect in the court of law.

Under article 31 in the 9th section, interpretations are provided for the Prevention of Terrorism Act. Even though Act is presented as a law preventing Terrorism, it does not provide any interpretation regarding the terms, “Terrorism” or “Terrorist”, which leaves it to the interpretation of the police and the defense minister. Under article 2, 3 and 5 unlawful acts or offences covered under the act are explained. Wide range of mentions of displays of support towards to acts of terrorism have again allowed the vague interpretations which can and has allowed numerous arbitrary arrests and detentions.

A 2020 report⁷by the constitutionally mandated Human Rights Commission of Sri Lanka (HRCSL) found that, as of September 2018, at least 29 PTA prisoners had spent 5 to 10 years on remand (pretrial detention), and 11 had spent 10 to 15 years on remand. The commission said the longest period a person had been in remand before trial was then 15 years. The longest period a trial had been ongoing was 16 years. The study also found that about 84 percent of PTA prisoners are
tortured after their arrest, and over 90 percent of those were forced to sign a document in a language, Sinhala, they could not understand. Very often, PTA prisoners are denied proper access to legal representation.

The draconian nature of the PTA and its use as a government tool of suppression of minorities and dissenting voices have been a major concern in the international institutions such as European Union (EU). European Union has been urging Sri Lanka since 2017 to amend the PTA to make it fall in line with international standards. The European Parliament in June last year passed a motion for a resolution demanding that the PTA be scrapped as it “breaches human
rights, democracy and the rule of law.” The European Parliament had called for the repeal of the PTA and invited the European Union (EU) Commission to consider temporarily withdrawing Sri Lanka’s access to its Generalised System of Preferences (GSP+), a favoured trade concession for the island nation’s exports. The resolution noted that Sri Lanka had benefited from GSP+ and recalled that “one of the key commitments of Sri Lanka was to fully align its counter-terrorism legislation with international human rights conventions”. It called upon the European Commission to “use the GSP+ as a leverage to push for advancement on Sri
Lanka’s human rights obligations”.

The Sri Lankan Government has committed to reforming the PTA as part of its negotiation for trade-related assistance from the European Union. On 10 February 2022, a bill⁸to amend the PTA was presented to the Sri Lankan Parliament. They include steps such as the reduction of the period of detention, magistrates visiting the places of detention to eliminate torture, allowing legal access to the person in custody and also permitting relatives to communicate with the detainee. It also proposes to expedite the hearing of cases and the introduction of a new section to allow bail for PTA detainees.

The proposed amendment still leaves much that has been criticized as dangerous in the Prevention of Terrorism Act (PTA), which is a threat to the security of people in Sri Lanka and leaves the door open for severe abuses of power by the executive. The Amendment Bill does not change the admissibility of confessions given to the police as evidence in PTA cases which has led the police to routinely use torture and other ill-treatment to extract confessions from PTA prisoners.
And the bill does not remove the authority from officials to move and keep a suspect in “any place for the purpose of interrogation,” which has repeatedly been used to facilitate torture and increases the risk of enforced disappearance. Further the proposed amendments continue to undermine the role of the judiciary for the protection of the people.

Human Rights Commission of Sri Lanka (HRCSL) on February 16 called for the complete abolition of a controversial anti-terror law that gives police sweeping powers to arrest suspects without trial, amid mounting pressure from the Tamil and Muslim political parties over concerns it violates human rights. The HRC statement assumes significance as the government issued a gazette notification last month saying the PTA will be amended, amid growing pressure from the EU and the UN Human Rights Council.

Several international bodies⁹ have expressed their dismay regarding the inadequacy of the proposed amendments. Special Procedures of the United Nations Human Rights Council (UNHRC), the largest body of independent experts in the UN human rights system, have called for an immediate moratorium on the use of Sri Lanka’s Prevention of Terrorism Act (PTA). The Special Rapporteurs, independent experts and working groups that comprise the UNHRC Special Procedures have urged the government of Sri Lanka to substantively review and revise the legislation to comply with international human rights law, a statement from the Office of the High Commissioner on Human Rights (OHCHR) said on 02nd March. “There is a grave risk to the rights and liberties of people who may be detained arbitrarily, especially religious and ethnic minorities, and the use of the law may curtail political dissent with no effective due process guarantees,” the experts said. “An immediate moratorium on the use of the PTA is required until the necessary amendments can be made.

Sri Lanka on 23rd August announced that it will soon replace the controversial Prevention of Terrorism Act (PTA) with a new security law, amid international condemnation over Sri Lankan government’s use of the draconian counter-terrorism law to detain student activists. Content of the proposed “National Security Act” is still unknown. While government has announced the plan for the abolition of PTA, still it is very much actively in use.

In 193 countries around the world there are similar anti-terror laws under different names. In the face of increasing global terrorism and new trends of it such as cyber terrorism, the need of laws and mechanisms tackling terrorism can be understood. But that need does not hinder the protections set upon for the security of the citizens and those laws should follow international standards¹⁰ set upon for them. Specially those laws cannot be used as tools for silencing the dissent
of citizens. Fear mongering tactics are widely and notoriously used around the world for imposing new laws which are taking away the human liberties. Democracy, Human Rights and Justice should be respected as much as possible in the creation of any law. So far, the use of PTA has only shown the government’s desire to turn citizens to rightless persons. And the proposed amendments do not display an honest commitment to change the laws with the purpose of making lives better. In an unfortunate way, Sri Lankan government only has shown an interest to change the laws with the hope of getting GSP+ benefits from European union. 

The Aragalaya citizens protests are still continuing in Sri Lanka amidst the gross Human Rights violations committed by Sri Lankan government to silence the democratic dissent of the people. Suppression of the people’s democratic rights anywhere, is a threat to global democracy everywhere.

1. Aragalaya in Sinhalese means “Struggle”, which is synonymously used for the protest movement of 2022.
2. bit.ly/3g81wAV
3. bit.ly/3VAO34I – In a letter to IGP Wickramaratne on 22nd August, the Human Rights Commission of Sri Lanka (HRCSL) said: «The recent iteration of the PTA has been grossly manipulated to exert tyranny through undemocratic methods and to justify the wrongful arrest of protestors».
4. bit.ly/3MzS0CS – United Nations Special Rapporteur on Human Rights Defenders Mary Lawler has stated that it would be a dark day for Sri Lanka, if President Ranil Wickremesinghe signs the detention order to detain Wasantha Mudalige and others arrested under the Prevention of Terrorism Act (PTA).
5. By way of the passing of the Prevention of Terrorism (Temporary Provisions) Amendment Act No. 10 of 1982.
6. Sri Lanka acceded to the ICCPR on 11th June 1980.
7. bit.ly/3TbBED0
8. Gazette of the Democratic Socialist Republic of Sri Lanka, A Bill to amend the Prevention of Torrorism (Temporary Provisions) Act, No. 48 of 1979, 27 January 2022 (bit.ly/3yKygqi).
9. bit.ly/3yNnD62 – The Sri Lankan Government must repeal the draconian Prevention of Terrorism Act, as a new set of proposed reforms are woefully inadequate and overlook the most egregious provisions of the legislation, the International Commission of Jurists (ICJ) said.
10. United Nations Counter Terrorism strategy 2005.