By Kalyananda Tiranagama.
Under the ATB, committing a terrorist act resulting in murder is punishable with death penalty; under the CTB it was punishable with life imprisonment; Under both Bills in the case of any other offence of terrorism, with imprisonment for a term not exceeding 20 years and fine not exceeding Rs. one million. In addition, the Court may order forfeiture of all movable and immovable property of the offender – S.4
Penalty for attempt, abetment or conspiracy to commit any such offence is imprisonment tor a term not exceeding 15 years and fine not exceeding Rs. one million.
Once this Bill becomes law:
Government Medical Officers Association (GMOA) will not be able to resort to strike action to compel the government not go ahead with signing ETCA with India or Free Trade Agreement with Singapore or, as it is an act of wrongfully or illegally compelling the govt. of Sri Lanka to do or to abstain from doing any act and as such action results in causing serious risk to the health and safety of the public or section thereof
Trade unions in the Petroleum Corporation, Ceylon Electricity Board, Water Resources Board, Railways or any other sector directly affecting the life of the people will not be able to carry on a mass protest campaign combined with strike action against the moves of the government to privatize state institutions, as their action may result in causing serious obstruction or damage to essential services or supplies.
People’s organizations or opposition political parties will not be able to carry on any mass agitation campaign demanding the government to take steps to conduct provincial council or general elections as it is an act of wrongfully or illegally compelling the govt. of Sri Lanka to do any act and as such action may result in causing serious damage to property, including public or private property, any place of public use, a state or govt. facility, any public or private transportation system, or any infrastructure facility or environment.
Any People’s or professional organization or political party will not be able to carry on a protest campaign at the Indian High Commission against the signing of ETCA or granting of Mattala or Palaly Airports to India or at the British High Commission against sponsoring a Resolution against Sri Lanka at the Geneva UNHRC or at the US Embassy against setting up a naval facility at Trincomalee as it is an act of wrongfully or illegally compelling any other government to abstain from doing any act and as such action may result in causing serious damage to property, including public or private property, any place of public use, facility, any public or private transportation system, or any infrastructure facility or environment.
No People’s organization or political party will be able to carry on a protest campaign at the UNDP Office in Colombo protesting against the UNHRC Resolution against Sri Lanka or demanding the withdrawal of baseless allegations of war crimes against armed forces of Sri Lanka as it is an act of wrongfully or illegally compelling an international organization to abstain from doing any act and as such action may result in causing serious damage to property, including public or private property, any place of public use, facility, any public or private transportation system, or any infrastructure facility or environment.
Police Directives curtailing Freedom of Movement
S; 62 of the CTB and S. 61 of the ATB enables the Police to take pre-emptive action preventing any public protest being conducted. Under S.61 of the Bill, on receipt of information that an offence under this Act is likely to be committed, a police officer not below the rank of a SSP may issue any one or more of the following directives to the public:
not to enter any specified area or premises;
to leave a specified area or premises;
not to leave a specified area or premises and to remain within such area or premises;
not to travel on any road;
not to transport anything or not to provide transport to anybody;
to suspend the operation of a specified public transport system;
k. not to congregate at any particular location;
l. not to hold a particular meeting, rally or procession;
m. not to engage in any specified activity.
Directives to be issued with prior approval of a Magistrate.
Directives to be published in the gazette and given wide publicity through other means.
Period of operation of a directive not to exceed 24 hours continuously at a time, and for a total period of 72 hours.
Military assistance may be obtained to give effect to any such directive.
Police may cordon off such area to give effect to such directive.
During the period of operation of such directive and the following 24 hours, the police may,
stop, question and search any person found within the effective area of such directive; b. enter and search any premises; c. stop any person who may attempt to enter or remain in the effective area of such directive.
Police may arrest any person who may act contrary to the directive.
Acting contrary to any such directive is an offence punishable by a Magistrate with imprisonment for a term not exceeding one year or a fine not exceeding Rs. 5000/- or both.
Any person who – a. violates or acts in contravention of an order made in terms of this Act; or b. wilfully fails or neglects to comply with a direction issued in terms of this Act; c. fails to provide information or provide false or misleading information in response to a question put to him by a police officer conducting an investigation under this Act, or; d. wilfully prevents or hinders the implementation of a lawful order or directive issued under this Act is guilty of an offence punishable with imprisonment for a term not exceeding two years and a fine not exceeding Rs, 500,000. – S. 14
Police Power to intercept letters and other private Communications
Police given power to intercept letters and other private communications and listen to telephone conversations for investigation purposes under these Bills. To determine whether one or more persons are conspiring, planning, preparing or attempting to commit an offence under this Act, a Police Officer not below the rank of a SP may obtain a Court order to intercept, read, listen or record any postal message, electronic mail, or any telephone, voice, internet or video conversation or conference or any communication through any other means. – S. 67 CTB; S. 66 ATB
All Responsible Officers Liable to be Punished
When a people’s organization or a professional association is charged with an offence under this Bill, the entire leadership of the association will become liable to be punished. According to S. 97 of the Bill, where an offence is committed by a body of persons, every director, principal executive officer, every officer of that body responsible for its management and control, shall be deemed to be guilty of such offence.
Creeping Emergency Regulations into the Bill arming the President with Extraordinary Dictatorial Powers to Curb Democratic Rights
Review and Repeal of the Public Security Ordinance is one of the Recommendations made by the UN HRC in its Periodic Reports on Sri Lanka. The Yahapalana government gave an undertaking to do that. As Public Security Ordinance is part of the Constitution, the government cannot repeal or amend it without amending the Constitution.
When there is a serious threat to the law and order or national security or maintenance of essential services, the government declares a state of emergency in the country and make emergency regulations to deal with the situation. State of Emergency has to be approved by Parliament once a month. Otherwise it will lapse. What the government has done is to creep some of the provisions generally brought into force under the Emergency Regulations into the Bill so that it will become part of the normal law of the country.
None of the following provisions are found in the PTA. They are generally found only in the Emergency Regulations made under the Public Security Ordinance. Under Ss. 81 – 82, 83, 84 and 85 of the CTB, the Minister has been entrusted with Emergency Powers to issue Proscription Orders – S. 81; Restriction Orders – S. 82; and Curfew Orders – S. 83; to declare prohibited places – S. 84; and call out Armed Forces – S. 85. Now by the ATB, the President will be vested with these powers.
Threat of Proscription of Organizations
Notwithstanding anything in any other written law, on a recommendation made by the IGP or at the request of a foreign government, the President may proscribe any organization, initially for a period of one year, where he has reasonable grounds to believe that such organization is engaged in any act amounting to an offence under this Act, or acting in an unlawful manner prejudicial to the national security of Sri Lanka or any other country.
To proscribe an organisation under the Bill it need not engage in any terrorist activity prejudicial to the national security of the country. Under S. 82 (1) of the Bill, notwithstanding anything in any other written law, the President can proscribe any organization where he has reasonable grounds to believe that such organization is engaged in any act amounting to an offence under the Act, or is acting in an unlawful manner prejudicial to the national security of Sri Lanka or any other country.
(2) A Proscription Order may be made by the President for giving effect to – (a) a recommendation made by the IGP; or (b) a request made by any foreign government.
A Proscription Order may include one or more of the following prohibitions : Prohibiting (a) any person being a member; (b) recruiting members; (c) any person acting in furtherance of its objectives; (d) meetings, activities and programs being conducted; ( e) use of bank accounts; (f) entering into contracts; (g) raising funds or receiving grants; (h) transferring funds and assets; (i) lobbying and canvassing; (j) any publication of any material in furtherance of its objectives. A Proscription Order remains valid for a period of one year. It can be extended for one year at a time.
The organisations like the GMOA, Inter University Students Federation, Trade Unions in all public institutions and services and Farmers’ organizations that frequently carry on strikes crippling health services or agitational campaigns obstructing highways to compel the government to do or to refrain from doing certain acts will not be able to carry on their campaigns without facing the danger of being proscribed.
Imposition of Restriction Orders
On a recommendation of the IGP, the President may, with sanction of the High Court, issue a Restriction Order on any person, where he has reasonable grounds to believe that such person is making preparations to commit an offence under the Act and the conduct of such person can be investigated without arresting him, restricting (a) his movement outside the place of his residence; (b) travelling overseas; (c) travelling within Sri Lanka; (d) travelling outside the normal route between his place of residence and place of employment; (e) communication or association or both with particular persons specified in the order; (f) engaging in certain specified activities facilitating the commission of an offence under the act; (g) requiring such person to report to any police station on a specified day. – S. 83
Though there was a somewhat similar provision in S. 11 of the PTA in relation to a person concerned in any terrorist activity as defined in the PTA, this is much wider.
Police Directives issued in the guise for the protection of the public under S. 62 of the Bill can also be issued only under the Emergency Regulations. There is no similar provision in the PTA.
Such restrictions may be imposed remaining valid for a period, not exceeding one month at a time, up to 6 months.
The Court shall cause the Order served on the person and require the IGP to take all necessary steps to enforce it.
This talk of obtaining High Court sanction and serving and enforcing the Order through the involvement of Court is a façade adopted to cover up the arbitrary and undemocratic nature of the executive acts with judicial authority.
In the Counter Terrorism Bill, it is not the Court, but the Minister who shall cause the Order served on the person and require the IGP to take all necessary steps to enforce it.
Acting in contravention of a Restriction Order is an offence punishable by High Court with imprisonment up to 3 years and a fine not exceeding Rs. 300,000. – S. 83 (7)
Issuing Curfew Orders
Under S. 84 of the Bill, notwithstanding the provisions in the Public Security Ordinance, the President, may by Order published in the Gazette, declare a Curfew Order covering the entire country or part of the country, for the purposes of (a) controlling, detecting or investigating the occurrence of systematic and widespread acts of terrorism and other offences under the Act; (b) for the protection of national and public security from such acts; or (c) to prevent the systematic and widespread committing of acts of terrorism and other offences under the Act.
It is lawful for a Police officer to use reasonable force as may be necessary to ensure compliance with a Curfew Order. Violation of a curfew order is an offence punishable by a Magistrate with a fine not exceeding Rs. 300,000.
Declaration of Prohibited Places
On a recommendation made by the IGP, the President may publish a Gazette notification declaring any public place or any other location as a Prohibited Place, for the purposes of this Act. Prohibitions imposed may include entry without permission, taking photographs, video recording and making sketches of the place. – S. 85,
Wilful contravention of a Prohibition Order by entering or remaining in a prohibited place is an offence punishable with imprisonment for a period not exceeding 3 years and fine not exceeding Rs. 300,000.Any police officer may seize any movable property used for or concerned in committing any offence under this section. On conviction of the offender the Magistrate may confiscate such property. – S. 86
Defence Secretary armed with arbitrary power overriding the Judiciary to detain suspects till the conclusion of the trial
A new provision which was not in the PTA or in the CTB, has been added to the ATB giving arbitrary powers to the Secretary of the Ministry of Defence enabling him to order detention of terrorist suspects belonging certain selected categories facing High Court trials till the conclusion of the trial. It appears to be a provision added with a view to achieve a political objective rather than a legal requirements.It is not the Law, AG or the Judiciary that decides whether a suspect is to be kept in detention till the conclusion of the Trial, but the Defence Secretary.
Notwithstanding any other provision of this Act or any other law, the Secretary of the Ministry of Defence may, if he is of opinion that it is necessary or expedient to do so in the interest of national security and public order, make Order that an accused remanded by the High Court, be kept in the custody of any authority in such place and subject to such conditions as may be determined by him; his Order is only subjected to directions given by the High Court to ensure a fair trial; On the communication of his Order to the High Court and the Commissioner General of Prisons, it is the duty of the Commissioner General to deliver the custody of such person to the authority specified in such Order and the provisions in the Prisons Ordinance shall not apply to such person in custody. – S. 73
PTA did not contain this type of arbitrary, draconian provisions overriding the law, powers of the Court and the AG in respect of suspects indicted before the High Court.
Silencing Critics of Govt by Penalising them through Administrative Process without being charged in or convicted by a Court of LawUnder the PTA, the Attorney General has no option but to indict a person who has committed an offence under the PTA if evidence is available showing the commission of the offence.
Under ATB, the Attorney General can suspend or differ the institution of proceedings against a person alleged to have committed an offence under the Act for a period not exceeding 20 years if the suspect is agreeable to fulfil conditions laid down by the AG. – S. 71
It appears that this a ruse to be adopted to silence the persons engaging in struggles, agitations and campaigns against the Govt by compelling them to admit in public that they have done something that should not have been done and subjecting them to public humiliation and preventing them from participation in any future anti-govt political activities under the threat of being prosecuted years later with offences punishable with long term jail sentences running into 10 – 15 years if they fail to comply with the conditions imposed by the AG.
On application of the AG, High Court shall order the person alleged to have committed the offence to appear before Court, notify such person of the conditions imposed and provide him an opportunity to be heard and consent to the conditions imposed;
If such person fulfils the conditions imposed during the period given for fulfilling such conditions, the AG shall not institute criminal proceedings against the person alleged to have committed the offence. If the person fails to comply with the conditions without a valid excuse, AG may institute criminal proceedings against such person after the lapse of the period given to fulfil the conditions.
Conditions for suspension or deferment of institution of criminal proceedings
The following are the Conditions for consideration of suspension or deferment of institution of criminal proceedings against a suspect:
a. to publicly express remorse or apology before the High Court, using a text issued by the AG:
* In effect this will amount to pleading guilty, though the suspect is not yet charged;
b. paying reparation to the victims of the offence, as specified by the AG;
* This may not be applicable as in most of the cases, there will be no victims:
c. to participate in a specified program of rehabilitation;
d. to engage in specified community or social service;
* This will have a demoralising or humiliating effect on the suspects as most of them will be leading personal in trade unions, professional associations or social organizations when they are sent to a rehabilitation facility with other undesirable elements like drug offenders, or beggars; or required to engage in community or social service work like sweeping roads or cleaning public parks or other public places for 3 – 6 weeks;
e. to publicly undertake to refrain from committing an offence under the Act;
f. to refrain from committing any indictable offence, or act of breach of peace.
* Though breach of peace is not an indictable offence, every public protest, demonstration, agitational campaign with the participation of large group of people may result in acts of breach of peace.
* AG may impose a condition requiring the suspect to give an undertaking to refrain from committing an offence under the Act or any act involving breach of peace for 20 years, He may remain a virtual prisoner for life being unable to participate in any public protest campaign. This will operate like a binding order imposed by a Court of law on a criminal convicted of and sentenced for a criminal offence.
* This may result in subjecting the suspect to long time mental torture as he has to live in constant fear that he may be indicted under this Act any within that period of 20 years for the offence he is alleged to have committed punishable with long term jail sentence of 15 – 20 years.
* This Provision will have a deterrent effect on all social activists concerned with the welfare of the country and the people preventing them from participation in social struggles.
Violation of Fundamental Rights
Other than a few additions made further strengthening the existing provisions, the Anti-Terrorism Bill has reintroduced almost all the provisions in the Counter Terrorism Bill which appear to have the effect of curtailing fundamental rights of the people guaranteed by the Constitution.
Freedom of speech and expression, freedom of peaceful assembly, freedom of association, freedom of engaging in trade union activities, freedom of movement within the country – are fundamental rights of the people guaranteed by Article 14 of the Constitution. In several fundamental rights cases our Supreme Court has held that people exercise their fundamental right of freedom of expression when they exercise their franchise at elections. At a time when elections are continuously being postponed, public protest against the harmful policies of the government is the only alternative avenue left to the people to express their disapproval in an effective manner.
Every organ of Government including the Judiciary is bound to respect, secure and advance the fundamental rights of the people. Fundamental Rights should not be abridged, restricted or denied except in the manner and to the extent provided in Article 15 of the Constitution. Many of the provisions in these Bills may inevitably result in the restriction, denial and infringement of fundamental rights of the people guaranteed by Articles 11, 12 (1), 13 and 14 (1) (a), (b), (c), (d) and (h) of the Constitution in their enforcement without adequate safeguards.
Most of the objectionable provisions in the Counter Terrorism Bill are found
in Sections 3 (1) (a), (b), (c); 3 (2) (c), (d) (f), (h); 4 (1) (c); 14; 62 and 67 of the Bill. Several of these provisions are liable to be abused without any safeguards to prevent such abuse, resulting in the violation the fundamental right to equality before the law and equal protection of the law, guaranteed by Article 12 (1) of the Constitution.
SC Determination on the Counter Terrorism Bill
Seven Determination Applications have been filed in the Supreme Court in respect of the Counter Terrorism Bill. Six of the Applications appear to have been filed by or on behalf of persons or groups seeking to review the PTA with a view to getting its provisions more relaxed and acceptable to NGO groups sympathetic to religious and racial extremists. Only one application has been filed by an opposition political party concerned with protecting people’s rights. It is sad to note that the Joint Opposition or Sri Lanka Podu Jana Peramuna, BASL or any other professional organizations concerned with erosion of human and democratic rights of the people have failed to come forward to challenge this objectionable Bill.
It appears from the Supreme Court decision on the Bill that the Court has not been invited to examine the objectionable provisions contained in Sections 3 (1) (a), (b), (c); 3 (2) (c), (d) (f), (h); 4 (1) (c); 14; 62 and 67 of the Bill.
In its Judgement running into 12 pages (in the Hansard), in 11 pages the Court has examined various other points raised by Counsels concerned with rights of terrorists arrested such as Sections 2 dealing with jurisdiction under the Act; S. 4 (1) (a), (b) – imposing life imprisonment instead of death penalty for murder; S. 5 – imposing jail sentence of 15 years instead of death penalty for abetment of murder; S. 24 (1), 27 (1) – dealing with period of police custody and medical examination of suspects arrested; S. 36 (6), 39 dealing with Magistrate’s power to remand or release a suspect; S. 68 (5) – dealing with Magistrate’s power to remand a suspect declining to make a statement to the Magistrate, and S. 93 (3) defining the term ‘law’ to include international instruments which recognize human rights and to which Sri Lanka is a signatory.
Without much elaboration, regarding S. 62 (1) and 81 (1) of the Bill the Court has held that under Article 15 (7) of the Constitution the Parliament can enact legislation in the interest of national security, placing restrictions on the exercise of fundamental rights guaranteed by Article 14 of the Constitution and enacting such legislation cannot violate the fundamental rights.
It is sad to note that the Court’s attention has not been adequately drawn to the serious impact of Sections 3 (1) (a), (b), (c); 3 (2) (c), (d) (f), (h); 4 (1) (c); 14; 62 and 67 of the Bill on the fundamental rights of the people on various grounds which have nothing to do with national security or terrorism.
The Court has held that other than S. 4 (a) and (b), 68 (5) and 93 (3), the Bill can be passed with a simple majority.
S, 4 (a) and (b) of the Bill – the penalty for murder and abetment to commit murder is life imprisonment. In the Penal Code, penalty for murder is death penalty. This violates Article 12 (1).
S. 68 (5) – When a suspect declines to make a statement to the Magistrate, such fact shall be communicated by the Magistrate to the relevant Police Officer and the suspect shall be kept in remand custody. This violates Article 12 (1).
S. 99 (3) – For the purpose of this section the expression ‘law’ includes international instruments which recognize human rights and to which Sri Lanka is a signatory. This is inconsistent with Articles 3 and 4 of the Constitution. AG had suggested certain amendments to overcome these inconsistencies.