At the General Election held in 1977, the UNP led by J R Jayawardene won a landslide victory, winning 140 seats and reducing the SLFP to a rump of 8. But Jayawardene knew that the results were a distortion of the mood of the electorate. The UNP had obtained just over 50% of the popular vote but took 83% of the seats whereas the SLFP winning nearly 30% of the popular vote had only 5% of the parliamentary seats. Such a distorted result was unlikely to be repeated at the next election. Jayawardene however needed to maintain that kind of majority in Parliament to implement the policies which he thought was in the interests of his party and the country.

This is where his authoritarian streak came into play. The undated letters of resignation from his parliamentarians and the infamous referendum was to take care of his continuing majority in Parliament. But that alone was not going to ensure his own re-election as President. He introduced retroactive legislation and hand picked three judges (a three-member Supreme Court bench had held, in another case, that one of the judges was ‘guilty of conduct unbecoming of a judicial officer’; Jayawardene appointed him to the Court of Appeal bypassing eighteen others senior to him; similarly the other two judges had leap-frogged over others in the table of seniority in the Supreme Court; one of them ended up being appointed by Jayawardene as Chief Justice) to see that his principal political opponent was deprived of her civic rights. But he also brought special legislation to ensure that she would not be able to campaign for any other opponent of his at a future Presidential Election. That done, he set about neutralizing other opposition to his hold on power. He turned on the Trade Unions next. State violence was brazenly unleashed on trade unionists and hundreds of state employees sacked for participation in a strike. The next target was the Tamil minority. There had already been evidence of a latent insurgency among the Tamil youth. The LTTE was not yet born but there were sporadic groups of militant youth who engaged in armed robbery and killing of policemen and politicians whose conduct they did not approve. In July, 1979, the Jayawardene Government introduced the Prevention of Terrorism Act, under which Jayawardene gave his nephew Brigadier (later Major General) Tissa Weeratunge carte blanche powers to wipe out terrorism in the North within six months. The nephew duly reported after six months, amidst allegations of torture and extra-judicial killing of youth, that his ‘mission had been accomplished’. The reality was that the extraordinary powers that the PTA gave him enabled him to use heavy-handed methods in dealing with the youth resulting in the growth of an underground militancy, the birth of the LTTE and several other militant groups and spreading fear and hostility among the civilian population.

The PTA has remained in the statute book over the last thirty years. Even though there may have been a case for retaining it while the LTTE remained active, with the elimination of the LTTE, there is now no real terrorist threat that requires special legislation. The normal laws of the land are quite adequate to deal with the threat, real or perceived, from any remnant. The dangers of retaining legislation that allows the law enforcement authorities to bypass the normal legal safeguards for the ordinary citizens are only too obvious. The extra-ordinary becomes the norm and normal activities, whether legal or extra-legal, are suppressed taking cover under the extra-ordinary legislation.

A clear case in point was the recent arrest of three journalists in Deniyaya who were investigating alleged misuse of state funds for construction of roads and buildings on private land. The journalists have now been released on bail by the local Magistrate but the initial reports were of an alleged conspiracy to assassinate the President. Even in the case of the SLIIT student in Malabe who was the victim of illegal abduction and assault allegedly by the Police, the initial reports suggested the involvement of the victim with the underworld. Another less well-known case is that of a Secretary in a Christian organization. Santha Fernando was invited to make a presentation at a church consultation in New Delhi in March 2009 on the situation in Sri Lanka. To make a balanced presentation, he had apparently downloaded from the internet on to a CD a number of web pages giving a variety of news and views on the Sri Lankan situation. Naturally, some of these pages would have been from sources like the Tamilnet which had a definite pro-LTTE slant. A less transparent person or one who had sinister motives would have gone to New Delhi and downloaded all the information from the internet. But obviously Fernando was not one such. Presumably, acting on prior information, Fernando’s bags were searched and the "offending" CD found and he was taken into custody. Six months have passed and, apart from producing Fernando in courts and claiming investigations were still proceeding, no charges have been framed against him. The recent protests in the Welikada Remand Prison referred to several others who are being similarly held under the PTA without any charges being framed against them.

Another issue is the admissibility under the PTA of "confessions" made to Police Officers as evidence before courts. The normal law of the land provides that confessions are valid only if made before a Magistrate. This provision is for good reason. The Magistrate records the confession without the presence of the Police and has to make sure that there has been no threats, inducements or intimidation of the accused and that the confession is made of his own free will. Indeed, the Magistrate tells the accused that there is no compulsion for him to make a confession and is given time to consider before making the confession. All these safeguards are conspicuously absent in the PTA and a Police Officer of the rank of ASP or higher can record a "confession" within the confines of a Police Station or the TID/CID office. That is why in the current case before the Courts in respect of Jasiharan, the publisher of Tissainayagam’s North Eastern Herald, he has complained of assault and threats by the Police before he was intimidated into signing a "confession" written in Sinhala which he did not understand. Besides, he has stated that he has never met the ASP who allegedly recorded the confession. In the earlier Tissainayagam case, the learned Judge refused to accept Tissainayagam’s retraction of his "confession" for similar reasons. In fact, under the PTA and emergency regulations, the onus is on the accused to prove that the alleged confession was not made of his own free will.

These complaints are not uncommon. Allegations are often made of inducements (‘You sign this and you will be released soon’) and threats (physical violence and intimidation) for refusal either to make a confession or to sign a prepared "confession". That is why the safeguards provided in the ordinary law of the land are so important and need to be restored and preserved. This is also why the Asian Human Rights Commission, which has over the years, like the Civil Rights Movement in an earlier era, been campaigning for adherence to the rule of law and for protection of the rights of the ordinary citizen, has mounted a campaign for the repeal of the PTA. Their on-line petition which all concerned citizens are invited to sign states:

"There is no longer any reason for the Prevention of Terrorism Act in Sri Lanka; on the contrary, there are many compelling reasons as to why it should immediately be repealed. It was the existence of the LTTE and its ruthless violence that the government used to justify the promulgation and maintenance of the PTA. Now, by the very admission of the government this threat has ceased to exist.

Even at a time of grave danger the PTA was too draconian and many of the provisions in the act could not have been justified. This has been pointed out by local legal opinion, local human rights groups and governments around the world, as well as international human rights agencies and several United Nations agencies and experts.

After the defeat of the LTTE the government said that elements associated with it could remain, and that some new elements may emerge; yet every country faces this possibility all the time. If this reasoning is used to suspend the operation of a normal legal system then this would need to apply everywhere, forever. Terrorism – even war – is always possible, but if people are willing to abandon their freedoms and their normal legal rights to preempt these possibilities, draconian law will reign indefinitely.

As long as the PTA remains in operation there is reason to suspect that it is being used by the government for political advantage, as an instrument to perpetuate its own power. Complaints of oppression by the opposition and other dissenting voices will have legitimate weight.

The Act has effectively aided the destruction of the normal rule of law within Sri Lanka and undermined the independence of its judiciary; indeed litigants, lawyers and even the judges may have started to forget what a strong, functioning legal system is like. To maintain the PTA is to continue destroying what is left. The disadvantages far outweigh the advantage that the the government spokesperson may claim that it has.

An enduring PTA will continue to place the Criminal Investigation Division and the Terrorism Investigation Division beyond the control of the law, with no checks or balances against its abuse of power. Tales of torture being used, charges being fabricated and deaths occurring in places of detention are heard constantly, yet while the PTA exists there is no way to even investigate such allegations, let alone avoid them.

Sri Lanka’s policing system has collapsed; this is now a fact acknowledged by all. Yet no reform process can be set in motion, and under the protection of the PTA Sri Lanka’s police force will continue to degenerate, its people given no option but to live under its oppression, corruption and arbitrary violence.

What this means is that literally hundreds of thousands of people will suffer without any legal recourse, and large numbers will continue to live outside the protection of the law. The entire population will be affected.

It is time for everyone in Sri Lanka and beyond to earnestly request the immediate repeal of the Prevention of Terrorism Act by the Sri Lankan government. The judiciary must no longer be undermined by those with extraordinary power, the rule of law must be revived and all people must be given its protection."