Ermiza Tegal.
Introduction
On 17 March 2023, the Government published its proposed 97-page Anti-Terrorism Act (ATA). The ATA is the latest attempt by Sri Lankan governments to respond to domestic and international criticism over the last 40 years that the Prevention of Terrorism Act of 1979 (PTA) has wreaked havoc in the lives of Sri Lankans. As a result of the overbroad provisions of the PTA, countless human rights violations were perpetrated. The most horrific and routine torture and the decades of detention without concluding trials was experienced by Tamil citizens during the decades of war.
Most recently, the use of PTA against human rights lawyer Hejaaz Hizbullah and student union activist Wasantha Mudalige has drawn public attention to how it is frequently misused by government to target political opponents and citizen protestors. Decades of research reports, campaigns against the PTA and these recent high-profile cases have given us a glimpse of the countless victims and extreme unfairness, hardship and loss that has been caused by the PTA.
It is in this context of increased public awareness and calls for repeal of the PTA that the Government has proposed the ATA as an alternative that the preamble states will, “ensure just and fair application of the system for the administration of criminal justice against terrorism.” Despite these claims, an analysis of the ATA reveals that the proposed law is simply a more sophisticated version of the PTA, offering a few token reforms but in fact introducing new and even greater threats to the rights of citizens and the democratic life of the nation.
An affront to democracy
If the provisions of the proposed law are read carefully and collectively, it is clear that they constitute a formidable tool with which a sitting government may crush dissent, citizen protests, political opposition, and unleash disproportionate state responses to acts of civil disobedience. The ATA presents a scheme by which both lawful acts and those proscribed by Sri Lanka’s existing criminal justice system may be designated as terrorist actions, empowering the executive branch of government to act outside of the normal legal system to harass, detain and punish citizens who agitate against government action and policies.
Countering threats of terrorism in Sri Lanka does not need extraordinary executive powers like those adopted during our past war. Any anti-terror legislation that is required must be specific in its definition and should adopt the ordinary criminal procedure, as has been done in the Convention on The Suppression of Terrorist Financing Act No. 25 of 2005. The ATA fails to meet two key demands from the domestic and international communities: (1) to stop resorting to extraordinary executive powers which are highly susceptible to abuse, and (2) to refrain from casting ordinary criminal offences as acts of terrorism.
The ATA has made some concessions to the critics of the PTA. It moves away from its predecessor’s egregious provision of permitting confessions to the police to be admissible as evidence. It also introduces limited judicial review of arrests, and several procedural safeguards such as reporting of detentions to the National Human Rights Commission, Magistrates to visit places of detention and ensuring access to attorneys. These procedural safeguards offer little protection, given that Magistrate workloads often prevent prison visits, access to attorneys is rarely confidential and the hollowness of these few concessions is underlined by the fact that the proposed law prevents the judiciary from reviewing detention orders or overseeing the many new unchecked Presidential powers to be introduced under the ATA.
Dangerously broad definition of “terrorism”
The key enabler of potential abuse under the proposed ATA is its overly broad definition of acts of terrorism (clause 3). This broad definition grants the executive wide leeway in who can be accused of terrorism and therefore subjected to arrest, detention and other restrictions. International standards recommend that the definition of terrorism in anti-terror legislation meets a threshold of three separate conditions: 1) involving an identified ‘trigger offence’ found in 10 of the international anti-terrorism conventions in force AND 2) be perpetrated with the intention to cause death, serious bodily injury, or taking hostages AND 3) be for the purpose of invoking a state of terror, intimidating a population, or compelling a government or international organisation.
The ATA’s expansive definition of terrorism seriously fails to meet these international standards and dramatically lowers the threshold for what acts can be classified as terrorism, by including many which are already covered under normal criminal law (i.e. property damage, unlawful assembly, robbery, theft, damage to religious or cultural property) and some which are even protected by rights under the Sri Lankan Constitution (i.e. freedom of assembly, freedom of expression and freedom of movement).
The definition of acts of terrorism is further expanded by creating new offences. Within a scheme where terrorism is both vaguely and broadly defined, publications that ‘directly or indirectly’ encourage members of the public to acts of terrorism (clause 11) and giving or receiving instruction or training in terrorism (clause 12) are made offences. By clause 16, wilfully failing or neglecting to comply with a direction issued under the Act is defined is a (terrorism-related) offence.
This clause read together with clause 61 effectively creates a host of new offences by persons not complying with any of the following directions of a Senior Superintendent of Police: 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 to provide transport to anybody; to suspend the operation of a specified public transport system; to remove a particular object, vehicle, vessel or aircraft from any location; to require that a vehicle, vessel, ship or aircraft to remain in its present position; not to sail a vessel or ship into a specified area until further notice is issued; not to fly an aircraft out of, or into a specified air space; not to congregate at any particular location; not to hold a particular meeting, rally or procession; and not to engage in any specified activity.
Failure to follow any such directive would constitute an offence under the ATA, even though these acts are themselves not offences nor need necessarily be related to terrorism. Under the ATA, mere suspicion of the broad range of acts that falls within its remit permits the police to investigate, arrest and detain persons as terrorists, to subject persons to restriction orders, to declare organisations as proscribed, to declare prohibited places and to impose curfew.
An extraordinary executive power far greater than that of the PTA
Arrests and detentions under the PTA have been severely criticised for frequently being arbitrary and with limited scope for legal challenge, and the ATA does provide for judicial review over the arrest of a suspect, albeit in a limited form (clause 28). However, the ATA also simultaneously expands the power to make detention orders (administrative detention) from the Minister of Defence (under the PTA) to the numerous Deputy Inspector Generals (DIGs) of Police in Sri Lanka, and such detention orders are immune from review by the judiciary.
There is no justification whatsoever to provide for detention orders, let alone to expand this practice outside of judicial oversight. Sri Lanka should move away from all extraordinary arrest and detention powers – and instead rely on the entirely sufficient provisions in Sri Lanka’s Criminal Procedure Code.
The ATA also empowers the President to declare organisations as ‘proscribed organisations’ (clause 82), to secure ‘restriction orders’ (clause 83) and declare places as ‘prohibited places’ (clause 85). A declaration proscribing an organisation can inter alia prohibit any person being a member of such organisation; prohibit the organisation recruiting members; prohibit any person acting in furtherance of the objectives of the organisation; prohibit conducting meetings, activities and programmes; prohibit the use of bank accounts; prohibit the organisation entering into contracts; prohibit raising of funds and receiving grants and bequests; prohibit transferring funds and assets of the organisation; prohibit lobbying on behalf of such organisation and prohibit any person publishing of any material in furtherance of the objects of such organisation.
The proscription order is valid for one year and can be extended. Restriction orders have to be secured with the approval of the High Court, and include restrictions movement outside the place of residence; travelling overseas; travelling within Sri Lanka; travelling outside the normal route between the place of residence and place of employment; the communication or association with particular persons; or engaging in certain specified activities that may facilitate the commission of an offence.
The prohibited places orders appear to have no time limits and so potentially a place can be indefinitely declared a prohibited place. This clause appears to be an attempt to circumvent the current requirement of the police having to go before the courts to obtain time-limited orders restraining persons from particular places by demonstrating to the judiciary that such orders are necessary to prevent a breach of peace.
These provisions in the ATA all bestow extraordinary powers that allow the executive to function outside of the normal law and judicial system of the nation. It is hard to understand how Sri Lanka can justify granting such wide powers that curtail civil liberties, especially outside the context of a specific emergency situation.
Failure to provide for compensation for abuse
Despite the record of profound loss and harm caused by abuse of the PTA as a consequence of its poor definition of terrorism and other egregious provisions, its proposed successor has woefully failed to recognise or provide for compensation in the event of its unjust application. Whilst international human rights standards require that even extraordinary laws recognise when loss and harm is caused, the ATA has no provision to compensate persons who may be arbitrarily affected by the law, let alone to punish those who abuse it. The ATA is a law that not only fails to protect citizens, but also promotes impunity for those who misuse it.
Conclusion
This brief article does not deal exhaustively with the many problems and perils inherent in the proposed Anti-Terrorism Act. However, it seeks to demonstrate that far from representing reform and remedy for the notorious PTA as the Government claims, the ATA is an updated, more powerful version of the same. With its purposeful scheme for an overly broad definition of acts of terrorism and its further expansion of executive powers beyond judicial oversight, the proposed ATA is a law that threatens not only the human rights and justice of citizens but the functioning of democracy itself.
It should be noted that the ATA is being introduced at a time when Sri Lanka’s current government is responding to political opposition with physical force and the coercive power of the law – demonstrably misusing existing anti-terrorism legislation to curb citizens’ rights to protest and assemble. The new powers of ATA make it capable of even more harm than the PTA in the current political moment, and it is vital that we consider the profound and irreparable damage that the likely abuse of this law could cause to the citizens and nation of Sri Lanka if it is enacted. If the repeal of the PTA is to represent reform, it must not be replaced by the proposed Anti-Terrorism Act.
(The writer is an Attorney-at-Law, LLB, LLM.)
First published in Daily FT.