A Proposed Amendment To The PTA
By Rajan Hoole –February 11, 2017
Dr. Rajan Hoole
While the AG’s department and the Judiciary were going along with prolonging the detention of persons whose opposition to the Government was broadly within a democratic framework, and charges against whom could not be made to stick, the following report by Peter Balasuriya appeared prominently in the Island of 12th June 1983 under the heading “Army Empowered to Kill Fleeing Terrorists”:
“The Prevention of Terrorism Act and the Criminal Procedure Code are to be amended with immediate effect to give wider powers to the Army to curb terrorism in the North and other pockets of terrorist activities.
“According to the proposed amendments in respect of terrorist suspects attempting to break jail or making a bid for freedom, army personnel will be empowered to use force in the course of apprehending them, even if it leads to their death. In the event of death, the need for inquest proceedings are also[sic] to be done away with. A report to the Attorney General’s Department on the circumstances leading to the suspect’s death would suffice for further action. These powers are to be made operative only in the case of [terrorist suspects]. This proposal is now before the Government for approval…”
This proposal may seem superfluous in the context as Emergency Regulation 15A came into force on 3rd June when the PSO was brought into effect. This regulation enabled the disposal of dead bodies without inquest with the perpetrators maintaining anonymity – i.e. ‘the freedom of battle field’. The new proposal is interesting because it was largely superfluous. It addressed itself particularly to ‘terrorist suspects’ supposedly ‘breaking jail’. Also envisaged was an army presence near the suspects.
The relevant context in which this proposal was made was the transfer of Tamil detainees from army custody at Panagoda camp to fiscal custody at Welikade jail. This was after the Judicial Medical Officer, Dr. Salgado, examined Dr. Rajasundaram who was held at Panagoda camp and confirmed that he had sustained injuries from torture. The Court was petitioned and the other detainees too expressed a wish to be transferred to fiscal custody. But the Ministry of De- fence took it in bad spirit as evident from the testimony of Don Kulasekera Perera Balasuriya (58) who testified at the inquest after the second prison massacre in July. Mr Balasuriya who was administrative officer MoD/dossiers and detainees, said that charges of mistreatment made by the detainees were baseless, but the Government had acceded to the transfer from military to fiscal custody. The transfers as testified by him took place as follows: the first batch of 25 transferred from Panagoda to Welikade on 3rd June 1983 and fresh detention orders issued. Six detainees transferred on 6th June. The final batch of 27 was transferred on 14th June.
The proposal which surfaced on 12th June appears to be a response to these transfers. Although strictly speaking they were at Welikade under fiscal custody, a platoon of troops was placed outside the gates ostensibly to prevent their escape. A similar arrangement had been made earlier when suspects in the 1962 coup attempt were detained.
A notable feature of the proposal was its suddenness as though the Government suddenly realised that there was an endemic problem of dangerous Tamil prisoners escaping. There was no such problem. The prisoners were brought to the South into alien surroundings. Escape was exceptional. Thambapillai Maheswaran had earlier escaped from Panagoda and was caught. Most had no desire to escape. They were political prisoners and were reasonably confident of being released through the courts.
This sudden concern with dangerous prisoners escaping was therefore totally unwarranted and the measures of indemnity were extraordinary – extraordinary because if it were a question of armed jail busting no one would question the use of arms to prevent it. Thus the situation envisaged in the proposal dealt with hypothetical unarmed escapees. Where the effect of this proposal differed from ER 15A is that “some of these powers are to remain in force even after the Emergency is lifted.” This is to say the key provisions would remain part of the law of the land under the Prevention of Terrorism Act.
Under the PTA arrests could be made without warrant and the detainees could be kept in undisclosed locations indefinitely with no rules governing conditions of detention and interrogation. Combined with the proposed amendment, it would have amounted to a licence to murder. Perhaps the Government moved slowly because its human rights record was coming under criticism worldwide after reports by AI and the ICJ. The Sun reported on 6th July, 19 days before the violence, that the Government is likely to make a series of far-reaching amendments to the PTA. One might conclude that these intentions were overtaken by events.
From the pointed reference to ‘terrorist suspects’ and the essential superfluousness of the move, we may infer that it reflected a state of mind within the ruling class rather than a need – the same could have been done under a State of Emergency, that is, nearly always. The rulers had decided that the most expedient way to deal with ‘terrorist suspects’ is to kill them, and the proposed amendments to the PTA were a message to this effect. It is hard to resist the inference that this state of mind is inseparable from the massacres at Welikade jail and the broader violence in general. After all, the Tamils as a whole had been repeatedly portrayed as being agents of terrorism while at the same time having it good under the open economy.
