Protecting human rights while preventing terrorism -A sequel to Arrest of lawyer reopens debate on PTA
Posted on April 29th, 2020

Palitha Senanayake

This is a sequel to your above captioned article by Gehan De Checkera published in the online edition of the 25th April issue, quoting lawyers and HR activist critical of the Prevention of Terrorism Act., under which Lawyer Heejaz  Hizbulla has been arrested  in connection with the Eater Sunday terrorist attack. Although the caption also includes ‘prevention of terrorism’, there no mention on the prevention of terrorism and instead the article throughout its text criticizes the PTA in the context of upholding human rights.

At the very outset it should be mentioned that the writer’s ( Mr Checkera’s) choice of the topic, PTA, to have this debate, is an aberration. This is because the PTA is not the real issue at hand as PTA has been introduced to our law books in an attempt to prevent terrorism that has haunted Sri Lankan society from time to time. The correct topic for the debate should have been terrorism and its prevention, but the writer, for reasons best known to him, chooses to criticize the PTA and Law enforcement completely disregarding the effect of terrorism on our society. Yes, we do not need the PTA that bestows extraordinary discretionary powers in the hands of the law enforcement officials, but then how do we contain terrorism that has stalked this society, the recent instance of which has been the brutal massacre of 262 and wounding of about 500 devotees at their prayer?  

The writer maintains that, ‘As long as we are prepared to accept the existence of terror laws in Sri Lanka, arbitrary actions void of accountability by the executive such as the arrest of Mr Hizbullah will continue’. This statement is completely out of context with a tinge of malice because,                                                   this subject law is not a terror law but a law to Prevent Terrorism,                                                            the arrest is not an arbitrary action because it is as per the PTA sanctioned by the Parliament and part of the Sri Lankan law,                                                                                                        accountability is only to the extent warranted under the PTA, and                                                                               the arrest is not by an executive order but by the law enforcement office in the course of duty

Therefore, Mr Chickera should understand that as long as there is terrorism among us, the SL society cannot rid itself of Terrorism preventing laws and that prevention of terrorism is precisely what the law enforcement officers are trying to accomplish by arresting Mr Hizbulla. Thus, by criticizing the Prevention of terrorism act and its enforcers, without qualification, in favor of the person who is arrested as a suspect, Mr Chickera places himself in position where he is a purveyor of terrorism. Whether this position is intentional or not is another matter, but the net effect of his advocacy is to denigrate the PTA and its enforcers and to uphold the ‘human rights’ of the suspect who has been arrested. Is Mr. Chickera and his courtier of professionals trying to suggest that we should put the Easter Sunday attack behind and carry on as if nothing has happened? The big question then is, Can we rid ourselves of terrorism if we do that ?

The society judges a person’s limits and ethics by what he tolerates!

The Criminal Investigation Department may not have ‘just arrested’ this person unless there is sufficient evidence to prosecute him. We are aware that there is an ongoing battle between the police and the lawyers to determine whose duty it is to punish a criminal. The Courts have the power to punish a criminal when proved but that power emanates from the power of the police to prosecute by bringing that suspect before the law. However, this arrested person does not become a convict until and unless he is proven guilty by the Courts.

Accordingly, this arrest, is the first step in bringing justice to those innocent who died and were injured during the bomb explosion; an act perpetrated with the sole intention of bringing death and destruction to a set of persons for the fault of being pious about their religion. Why should so many ‘reputed’ persons protest in chorus when a person is arrested in this connection, claiming that arrest to be arbitrary and unlawful when it is NOT. The laws of a country are enacted in the Parliament whether the lawyers of the country like them or not.

 Is it all because, the person arrested is a lawyer? Do lawyers have better human rights that prevent them from being arrested, impinging on the right to life of ordinary folks?  

Now let me take these professionals one by one for their statements.

PTA is an aberration of the Rule of Law- Dr Asanga Welikala                                                   May be under normal circumstances, but the PTA was enacted in Parliament when the country was battling the most ruthless and organized terrorist organization in the world, the LTTE. The  situation at the time was a social aberration with many innocent lives being lost and even the very act of terrorism is an aberration of human civilization and modern human rights.

Many countries have anti- terrorism laws that respect human rights- Dr Radhika Coomaraswamy                                                                                                                             Yes madam, may be you could cite a few instances with your international experience and thereby educate the SL law makers. That would be more productive than joining the chorus in condemning the lawful arrest to prevent terrorism.

Media quick to slap terrorist label- Ramindu Perera.                                                            This particular person has been arrested under the Prevention of Terrorism Act and that fact has to be stated in the media.

PTA reverses the principle of innocent before proven guilty- Swasthika Arulingam                 Well, the PTA does not make anybody guilty at the time of arrest. It is only after a trial that a suspect is made a convict. However in view of the wanton and cataclysmic nature of the crime of terrorism the arrest laws are stringent.

Attempt to whip up anti-Muslim communalism before polls- Sanjay Wilson Jayasekera   We deplore the attempt by this person to politicize and communalize this issue that we think should be dealt with under terrorism in the best interest of Tamils, Christians and Muslims.

Arrests should not be shrouded in mystery- Ermiza Tegal                                                     Yes, it should not be and you should be told that you are arrested under the PTA. However, when you are arrested under the PTA the police are not obliged to disclose all the details

Attorney –Client confidentiality is fundamental to criminal justice- Dinesha Samararatne  That is a professional ethic but however prevention of crime is a national issue therefore individual rights have to be compromised when it comes to national issues

Citizens should not be misguided by public theoretical display- Vidura Samaranayake.    We are not aware of an attempt to make it in to public theoretical display. Surely these things have to be broadcast over news. It is the lawyers by protesting against, that have given undue publicity to this issue.

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