From PTA to NSA: Securing the State, Protecting Citizen’s Rights

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The Government’s decision to replace the much-censured Prevention of Terrorism Act (PTA) with a brand-new National Security Act (NSA) can be expected to trigger greater criticism. The ‘victimised’ Tamil community and polity were alone in opposing the PTA. Now, after the detention of three ‘Aragalaya protesters’, all of them, university students and one of them,a Buddhist Monk, will find new critics from the majority Sinhala community, too.

The Defence Ministry, under President Ranil Wickremesinghe, has ordered the 90-day PTA detention of Wasantha Mudalige, convenor of the Inter-University Students Federation (IUSF), Ven. Galwewa Siridhamma Thera, and Hashan Jeevantha, all pursuing their university education. Before it happened, the Tamils used to say that unlike their southern Sinhala brethren, they had lived with hunger and disaster day in and day out for decades of ethnic war – apart from the dreaded PTA, too.

As they used to point out at the peak of economic crisis – which could still return – they could live with hunger and lack of fuel and medicines for a while, even though it is after a decade-long break. The Sinhala majority got taste of it all, only with the economic crisis earlier this year. They had a point that still the latter’s plight was much better, as neither their lives and limbs were threatened from the skies and from the bushes, nor were their houses, hospitals and schools destroyed, as was the case during the period of war.

Misuse and abuse

It is nobody’s case that Wasantha Mudalige and his co-detenus were/are ‘terrorists’. But, the authorities have a suspicion and they need to prove their fears ‘beyond all reasonable doubts’ if and when brought before a Court of Law. Anyway, unless in the case of the hapless Tamils – though not all of them – the political Opposition and a hostile media could be expected to come down heavily on the government, if no progress in the investigation gets reported, on an hourly, daily and weekly basis.

This by itself, should be a sure-fire check against misuse and abuse of the law, but that is not enough. The promised NSA should thus have provisions for automatic review and special forums for fast-tracking the same. Say, there should be an advisory committee of retired Judges of the Court of Appeal, Police Officers and veteran human right activists, all of them sworn to secrecy under the law and know to keep their mouths shut, at least until the final appellate authority had disposed of the case.

Because the government claims it had material to detain someone under the anti-terror law, the authorities should automatically forward the same to the panel, say within 24-72 hours after the detention had been recorded. The authorities should, of course, have the freedom to adduce further evidence, as the panel proceeded with hearing on a time-bound manner, but there should be enough provisions to check against ‘fishing expeditions’.

The detenu should have the freedom to engage a lawyer of his choice or the State should provide on ‘pro bono’ – again, someone sworn to secrecy, after such provisions under the law are cleared by the Supreme Court for their constitutionality. Neither side can cause delays in the proceedings of the panel, and the panel should constantly advise the government prosecutors that the detenu could be freed in the face of inexplicable and/or unjustifiable delays.

And one last step could be a provision for a direct appeal to the Supreme Court, where a human rights bench could be constituted, formally or otherwise, to fast-track appeals (from either side), flowing from the decision of the review panel. Needless to say, all proceedings before the panel and also the Supreme Court should be held in-camera, assuming that grave ‘national security issues’ are at stake.

There should be an end to the Case to put an end to this phase of detention. But then, what if the authorities are not able to make out a substantive penal law case against the detenu afterwards? Or should under the law, the authorities be compelled to proceed with the detenus’ case under ordinary penal laws with protection only under the criminal procedure code, of course with provisions for ‘in camera’ hearings before a ‘special court’ constituted for the purpose?

Defining ‘terrorism’

Of course, the new law should take care also to protect the concerns of the State, which has the responsibility to defend and secure the nation, its sovereignty and territorial integrity, both from within and without. That is because, though not from outside, the nation already has at least three massive instances of ‘security threat’ from inside.

The two JVP insurgencies of 1971 and 1987, and the LTTE terrorism that went on for nearly three decades, qualified to be described as acts of terror. Because in the early seventies, the term ‘terrorism’ had limited employment, only in relation to Palestine attacks on Israeli and western installations and airplanes, the JVP of the time got away with the nomenclature ‘insurgency’, and not ‘terrorism’, quite in contrast to their acts.

The problem still is that there is no universal definition for the term ‘terror’ anywhere in the world. The UN found it out to its great dismay, after an ‘expert group constituted’ post-9/11, got stuck in the definition part. It suited the US-led West, as they could continue with their old ways of ‘our terrorists and ‘your terrorists’. A nation facing armed uprising against the State cannot draw out such dividing lines, as has already happened. The new effort should be to erase those differences, at least on this score.

Specious plea…

Having said that, it should not escape anybody’s responsibility, that those who sought to overwhelm the Sri Lankan State by taking over the President’s Secretariat, President’s residence and also the Prime Minister’s office, apart from setting ablaze the latter’s private residence, in the name of ‘peaceful protests’, should be allowed to go scot-free on that very specious plea. What if using other people’s peaceful protests as a cover, was a part of a larger strategy to take over at least the symbols of the State without bloodletting?

So, was the 9 May episode, in which a parliamentarian was killed along with his police guard – and both were sought to be passed off for suicide. Later that day the homes of 70 other MPs were burnt down, and so were 500 more properties across the South and West of the nation, no holds barred. The government should bring out a White Paper on security lapses in all these matters and those who failed the nation.

At the same time, the authorities too should have the right – and responsibility – to fix accountability, for all these acts and actions aimed at subduing the State, or seemingly so. But then, at the end of the day, they should also prove that the PTA detenus had a role to play in any or all those ‘acts of terror’!

(The writer is a policy analyst & commentator, based in Chennai, India. Email: [email protected])

By N. Sathiya Moorthy