Ambika Satkunanathan.
The good
The Anti-Terrorism Bill gazetted on 22 March reproduces large parts of the draft counter-terrorism law formulated by the Yahapalana Government.
The seeming protections include the affirmation of basic due process rights, i.e. being issued a document notifying arrest, women being searched by women Police officers, access to translations, and being produced before a magistrate every 14 days when detained under a Detention Order (DO).
But are these safeguards adequate to protect constitutionally guaranteed fundamental rights? Are they enough to prevent the continuation of decades-long abuse by successive governments under the guise of countering terrorism?
Due to the limitation of space, this article contains only a summary of concerns regarding the proposed law. A detailed analysis will be posted online.
The bad
In the absence of an internationally-agreed-upon UN convention-based definition of terrorism, there are three elements which are internationally accepted as required to be cumulatively present for an act to be considered a terrorist offence. The definition in the bill does not adhere to this standard. The three elements are:
• Acts committed with the intention of causing death or serious bodily injury, or the taking of hostages, and involving serious or lethal physical violence against one or more members of the public
• Acts that are committed with the intention of ‘provoking a state of terror, intimidating a population, or compelling a government or international organisation to do or abstain from doing any act’
• Acts that constitute offences within the scope of and as defined in international and protocols relating to terrorism
An act would therefore have to contain all three elements to fall within the scope of the definition of terrorism. This means that not all acts that are crimes under national law or even international law would constitute terrorist offences.
Moreover, not only does the definition of terrorism have to be precise, but it must also adhere to the principles of necessity, proportionality, and legality. To the contrary, the definition in the Anti-Terrorism Bill is broad and contains undefined elements, such as acts ‘violating territorial integrity or infringement of sovereignty of Sri Lanka or any other sovereign country’.
This is concerning given that in the Sri Lankan context, historically, even advocating for certain constitutional arrangements, such as federalism, has been construed and labelled as causing harm to the territorial integrity and sovereignty of Sri Lanka.
The bill reproduces the section in the International Covenant on Civil and Political Rights (ICCPR) that criminalises hate speech and incitement of violence against certain groups, and thereby elevates these acts from a normal criminal offence to an offence of terrorism.
This section in the ICCPR, which was intended to protect civic rights, has repeatedly been weaponised by successive governments to violate civic rights and imprison dissenters and writers, such as Shakthika Sathkumara and Ahnaf Jazeem, while no action has been taken against those inciting violence against specific communities, such as Gnanasara Thera of the Bodu Bala Sena.
In line with the 2018 Supreme Court determination on the Counter Terrorism Bill, the Anti-Terrorism Bill has included the death sentence as the penalty for murder. Furthermore, the bill states that when a person is sentenced to death and appeals the sentence, the sentence of death shall not be executed until the appeal is concluded.
The drafters appear to be unaware that a moratorium on the implementation of the death penalty has existed in Sri Lanka since 1976. Furthermore, last month the Attorney General provided an undertaking in the Supreme Court that the President would not implement the death penalty.
The ugly
The Anti-Terrorism Bill, like the previous Counter Terrorism Bill, gives wide law enforcement powers to members of the armed forces, including to prevent offences from being committed. For instance, a military officer has the power to arrest a person if he has “reasonable grounds to believe (a person) has committed an offence”.
Considering the violations that have been committed under the Prevention of Terrorism Act (PTA) for decades, this can be interpreted broadly and used to arrest people with no evidence and without following due process.
This is of particular concern given the pattern of arrests where persons are arrested prior to investigations being conducted or evidence gathered to ascertain whether there are reasonable and adequate grounds to arrest.
The involvement of the military contravenes best principles on policing, further militarises law enforcement, and creates a de facto state of emergency. The armed forces do not have to hand over the arrested person to the Police immediately or even as soon as possible after arrest but are given 24 hours to do so.
This creates room for abuses since the military is not trained in law enforcement, uses violence as a first response rather than last resort, and historically has been documented to have committed grave human rights violations.
The bill grants the power to any member of the armed forces or coast guard to search any person, vehicle, vessel, or train, or any premises or land without any prior authorisation, warrant, or oversight, which can lead to the abuse of power.
Similarly, it allows members of the armed forces to take any document or article into custody.
A Detention Order can be issued by a Deputy Inspector General (DIG) of Police for a maximum period of one year. When the detention period is concluded, the person can be sent to remand custody for possibly a period of one year. The DO therefore acts as a trigger for a continued period of detention.
Hence, it is deeply concerning that an officer at the level of DIG is bestowed the power to issue a DO, which could possibly result in a person’s detention for an extended period.
When a DO is placed before a magistrate, the magistrate is only required to ‘make an order to give effect to such Detention Order’.
The magistrate’s oversight function to examine the need for and lawfulness of the order is removed, and the magistrate becomes a rubber-stamping mechanism instead of functioning as an oversight mechanism.
There are several other provisions that similarly give the appearance of oversight by the magistrate, whereas the power lies with the Police. For example, the magistrate can discharge a person only if the Officer-in-Charge of the Police station requests it on any ground that the magistrate is satisfied.
The proposed law therefore requires the magistrate to decide only whether the person can be discharged on the grounds put forward by the Police.
The bill thus requires the magistrate to act as a check on the Police to determine whether the Police is requesting the release of a person who should be detained. The magistrate therefore does not act as a check on whether the Police is detaining a person who should not be detained.
In instances the Police requests the continued detention of a person, even where ‘there are no reasons to believe’ the person ‘committed an offence under this act,’ the magistrate is not empowered to discharge the person, but can only release the person on bail.
This illustrates that in the proposed law, the opinion of the Police overrides the opinion of the magistrate, which is an usurpation of the power of the magistrate.
And it gets worse…
The bill contains sections which enable the Police to take the person from remand custody in prison back into Police custody via a Detention Order if they ‘receive information’ which they ‘believe to be true’ that the person is committing or planning to commit an offence or escape.
Since most violations under the PTA, such as torture, have been recorded in Police custody and not in prison, the transfer of a person back to Police custody can make the person vulnerable to abuse.
Similarly, the section in the PTA that allows the secretary of Defence to decide on the place of detention even after a person has been remanded has been retained in the proposed law. It should be noted that in the past gross violations have been recorded when persons have been detained in this manner.
Attempts to undermine oversight
There seems to be an insidious attempt to undermine the powers of the Human Rights Commission of Sri Lanka (HRCSL) by establishing a parallel institution (Independent Review Panel – IRP) to receive and inquire into complaints of alleged violations of fundamental rights that take place during the implementation of the proposed law.
Receiving and inquiring into alleged violations of fundamental rights is a core function of HRCSL and hence raises questions how the IRP will function vis-à-vis the HRCSL. For instance, what happens if both institutions receive the same complaint?
Moreover, the bill does not state what action the IRP is empowered to take after receiving the complaint, or the remedies it can provide. The clause that requires the IRP to maintain strict confidentiality about the complaints it receives appears more of a gag order to prevent information about the alleged violations being made public, and thereby protect perpetrators rather than concern for the privacy or safety of the complainants.
The bill requires the notification of arrest to the HRCSL within 72 hours from ‘the commencement of detention’. Whereas, the Human Rights Commission Act requires notification to be done within 48 hours ‘from the time of arrest or detention’.
The oversight bodies established by the proposed law, i.e. the Board of Review, which is chaired by the secretary to the Ministry of Defence and the Independent Review Panel, which is appointed by the President, are not independent, and hence not fit for the purpose, as they cannot function as a check on the abuse of power by the police.
Business as usual: An unchecked Executive
The bill empowers the President to proscribe organisations on the recommendation of the IGP or the Government if the President ‘has reasonable grounds to believe’ the organisation is engaged in an act amounting to an offence under the proposed law or in ‘an unlawful manner prejudicial to the national security of Sri Lanka’.
The proscription imposes prohibitions on recruiting members to conduct meetings and programmes. It is issued for one year and can be extended by a year, ad infinitum. There is no transparent process or objective criteria stipulated for such proscription, nor for evidence to be presented, at least for the renewal of proscription. The appeal against the decision is to be made to the very person who made the order and there are no mechanisms to enable transparency of the appeal process. The only remedy is to appeal to the Court of Appeal.
Additionally, the President is granted the power to declare any place a ‘prohibited place’ on recommendation of the IGP or any of the tri forces commanders. There are no checks on this power and no time limit on the period for which a place can continue to be declared a prohibited place.
Extremely problematic is that after the order is made, the officer in charge or ‘any other person having lawful authority and control over the prohibited place’ has the power to specify the categories of persons who are authorised to enter and remain in the place, as well as impose conditions on entry.
It is hence possible that a public space used for protest, such as Galle Face, can be declared a prohibited place and the officer in charge can make on the spot, spur of the moment, arbitrary decisions that are not subject to any oversight on who is able to enter the space.
There are provisions that grant the President the power to issue regulations to implement rehabilitation programmes for persons regarding whom the Attorney General has recommended a deferment or suspension of criminal action. This is concerning given the history of abuses committed during such rehabilitation processes and the pattern of coercing people to ‘agree’ to rehabilitation when the State does not have enough evidence to initiate criminal proceedings against them.
In Sri Lanka, for decades, the State has been abusing power and violating the rights of its citizens with impunity, often in the guise of protecting the country and citizens from terrorism. In practice, such State action has created deep insecurity for the population and only strengthened the power of the State to protect itself from being held accountable. Hence, whenever a law is drafted, the first question every citizen should ask is, how can this law be abused and how can we ensure strong human rights protections to prevent violations?
Original caption: Anti-Terrorism Bill: The good, bad and the ugly.
(The writer is a human rights advocate and the former Commissioner of the Human Rights Commission of Sri Lanka)