Sri Lanka Brief Update: Anti-Terrorism Act Version 2

1. The Sri Lanka government gazetted a Bill named Anti-Terrorism (ATA) on 22 March 2023 by order of the Ordered to be published by the Minister of Justice, Prison Affairs and Constitutional Reforms. The bill was introduced to make provision for the protection of the National Security of Sri Lanka and the people of Sri Lanka from acts of Terrorism; other offences associated with Terrorism and certain specified Acts constituting the offence of Terrorism committed within or outside Sri Lanka etc for the repeal of the Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979.
2.  The bill faced strong criticism from opposition political parties and local and international civil society including the United Nations Special Rapporteurs. Although  Justice Minister Wijedasa Rajapakshe said the government would not bring about any fundamental changes to the bill, the government had to reverse the decision.
3. On 15 September 2023 a new version of the bill was gazetted under the same name. The Minister of Foreign Affairs, Ali Sabri, has officially announced that this significant legislative development has been amended in alignment with established international standards to ensure that it does not compromise the national security of the nation.
4. The new version of the ATA is also in substance fairly similar to a Bill published during the Yahapalana regime in 2018, the Counter-Terrorism Bill (CTA) which also sought to replace the PTA. CTA too came under strong criticism from civil and political society.
5. This second version of the Anti-Terrorism Bill also has come under intense criticism from political and civil society including the UN Special Rapporteurs.
6. The main points raised by the UN Special Rapporteurs are:
7. Only limited changes have been made to the expansive definition of terrorism contained in the legislation. It is worrying to observe new categories of terrorism including acts related to a “place of public use” rather than the much-needed pruning of counter-terrorism powers.
8. “The considerable expansion of police powers in the new legislation, with less judicial oversight of intercepting telecommunications. Provisions that weaken the legal basis to arrest individuals suspected of or “possibly” engaged in, any offence under the legislation.
9. The failure of the legislation to provide sufficient powers to magistrates to prevent torture by ensuring all detainees are moved from places of detention as soon as allegations of torture, inhuman or degrading treatment emerge. Limiting the right of access to lawyers for persons charged under the law.
10. Root and branch reform of Sri Lanka’s counter-terrorism legislation is long overdue. Urged the Government to meet the minimum requirements of due process and human rights-compliant counter-terrorism legislation they previously identified.
11. Among the vague and overbroad provisions of the draft bill are the “encouragement of terrorism” (clause 10) and “dissemination of terrorist publications” (clause 11), under which persons can be detained for sharing or causing to be published statements which are interpreted by the authorities to be in support of terrorism or terrorism activities. The burden of proof for such offences would be unacceptably reversed under the bill, as the accused would be required to prove before the high court that they had not consented to or approved the utterance or publication of such statements. (- ICJ)
12. The prescribed punishment for these offences is imprisonment up to 15 years and/or a fine up to one million rupees. Property owned by the accused may also be forfeited to the State. (- ICJ)
13. The bill would provide the President with excessive powers to restrict the exercise of human rights, including to impose restriction orders on individual persons, proclaim curfews, designate prohibited places, and make regulations to implement “rehabilitation programmes” for persons regarding whom the Attorney-General has recommended a deferment or suspension of criminal action. Rehabilitation programmes in the pasthave served a punitive function, as accused persons have often been effectively coerced into accepting rehabilitation particularly in cases where the prosecutor has lacked evidence of criminal conduct. (- ICJ)
14. The proposed ATA lacks sufficient checks, and if operational, would provide ample space for abuse. Further, over-broad definitions of offences leave room for these laws to be used for means beyond the purported purposes of the Act, targeting minorities, civil society, the media and any dissenters in general. Further, this law has also taken away some of the improvements that were sought to be made by way of the CTA in 2018, such as the shortening of the duration of detention orders. (– CPA)
15. The Bill of March 2023 constituted a formidable tool with which a sitting government could crush dissent, citizen protests, political opposition and unleash disproportionate state responses to acts of civil disobedience. This potency remains unchanged in the Bill of September 2023. If enacted, the ATA would be a law that grants unprecedented further powers to 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. ( – Amriza Tegal)
16. On 13^th October 2023 The UN Human Rights Office   issued a statement expressing  serious concerns over two bills under consideration in the Sri Lankan Parliament – the revised Anti-Terrorism Bill and the Online Safety Bill – which give the authorities a range of expansive powers and can impose restrictions on human rights, not in line with international human rights law.
17. On 18^th October Speaker Mahinda Yapa Abeywardena informed the parliament that Anti-Terrorism Bill has been removed from the order paper. It was originally added to the order paper on October 03. As per standing order 50(1), said Abeywardena, the bill was not presented to parliament for first reading that day.
18. On 19^th 2023 Proceedings of the petition challenging the Anti-Terrorism bill by opposition politician Rehan Jayawickreme were concluded after the Supreme Court recorded that the bill had not been placed in the Order paper of Parliament. Until a draft act is placed on the parliament order paper it cannot be challenged at the Supreme Court.

(Compiled by Sunanda Deshapriya for Sri Lanka Brief)