The prolonged detention of a lawyer, Hejaaz Hizbullah in Sri Lanka has again attracted the world’s focus over the issue of protection of minority rights in Sri Lanka and the draconian act under which he is detained- the Prevention of Terrorism Act which was enacted in 1979. Hizbullah is a prominent human rights lawyer in Sri Lanka and has been detained since April 2020. It has sparked fears in regards to the government’s stance on dissenters and minorities. There have been several instances over the years where the government has used this law as a diktat and to quell voices of a section of society that it wants to ostracize and it mainly includes ethnic and religious minorities. 

The violent and arbitrary prosecutions by a thunderous majority against minuscule people in Sri Lanka is not a very recent phenomenon; rather it goes back to the Civil war fought from 1983 to 2009 between the government and the Liberation Tigers of Tamil Eelam (LTTE). Thousands of people were killed and continue to be prosecuted under PTA, in its aftermath.     

The Prevention of Terrorism Act (PTA) was enacted in 1979 as a temporary law but was made permanent in 1982. PTA gives the authority to detain suspects without charge or having to represent them before a judge. The sole aim behind its introduction was to combat terrorism but according to Amnesty International, PTA counters terrorism at the expense of human rights. According to Human Rights Watch, people detained under the said law, face custodial violence along with several instances of mysterious disappearance. And those released suffer psychologically as well as physically. There have been persisting calls to repeal this law modeled on South Africa’s Apartheid-era legislation. Though it was referred to the Supreme Court, the court lacked jurisdiction as Article 80(3) of the Constitution prevents judicial review of enacted legislation.           

On 12th March 2021, President Gotabaya Rajapaksa passed an ordinance The Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979 by way of gazette notification. According to the Center for Policy Alternative (CPA), these recent regulations “Jeopardise the rights and liberties of persons, especially religious and ethnic minorities, and curtail political dissent with no effective due process guarantees.” The absurdity of these regulations can be ascertained from the fact that several terms such as ‘Rehabilitation’ have not been defined clearly. It paves the way for people with notorious intentions to misuse the law. The International Commission of Jurists (ICJ) condemned these regulations, and said: “The regulations could disproportionately target minority religious and ethnic communities.” 

Section 6-9 of the PTA gives excessive power to police in regards to detention and arrest. Section 9(1) of PTA permits a minister to issue a detention order for up to eighteen months. The Prevention of Terrorism Act (PTA) is a clear violation of Article 13 which is a fundamental right under the Sri Lankan Constitution. It guarantees freedom against arbitrary arrest, detention and punishment, and prohibition of retrospective penal legislation. Also, it states that no person shall be arrested except according to procedure established by law and that any person arrested should be informed of the reason for his arrest. No provision in PTA mandates the authority to inform the person arrested of the reason behind his arrest. Sri Lanka is also a signatory to the International Covenant on Civil and Political Rights (ICCPR). Article 9 of the ICCPR states that a person must not be arbitrarily arrested or detained unless there is a sufficient basis as provided by law. The act as well as the recent regulations go against the provisions of the above-mentioned covenant. Article 9, 10, and 11 of the Universal Declaration of Human Rights deals with freedom from arbitrary arrest and guarantees fair trial by an independent tribunal. On the other hand, according to Section 10 of PTA, detention orders under this act are considered to be final and cannot be called in question in any court or tribunal across the country.    

Thus, the Prevention of Terrorism Act (PTA) is violative of not only the domestic legal provisions of Sri Lanka but also of International Covenants to which Sri Lanka is a party. It infringes upon the freedom and basic liberty enjoyed by people. The way ahead would be to repeal the PTA in light of national and international discontent regarding it. The acknowledgment of human rights and personal liberty and going one step further to protect them is an important factor that distinguishes democracy from other forms of government. Thus human rights should be protected and given adequate importance and people like Hizbullah should receive a fair trial especially when the entire world is going through these tough and uncertain times in the annals of humankind. 

Vallabhi Bissa is a second-year law student at Maharashtra National Law University Nagpur.(The opinions expressed in this publication are those of the author/s. They do not purport to reflect the opinions or views of The Policy Observer or our members.)

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