Dr Jayampathy Wickramaratne, President’s Counsel.
Despite terrorism being a worldwide phenomenon, the international community is yet to agree on a definition of terrorism. Ben Saul, Professor of International Law at the University of Sydney, who has written extensively on the subject, says: ‘The ordinary meaning of terrorism is simple: extreme fear.’ While Sir Jeremy Greenstock, British Ambassador to the United Nations, said in a post-9/11 speech that ‘what looks, smells and kills like terrorism is terrorism’, Boaz Ganor, Director of the International Policy Institute for Counterterrorism emphasised: ‘An objective definition of terrorism is not only possible; it is also indispensable to any serious attempt to combat terrorism.’
Need for a precise and clear definition
The UN Secretary-General, reporting to the General Assembly on the implementation of the UN Global Counterterrorism Strategy on 02 February 2023, warned against using vague and overly broad definitions of terrorism and related offences in domestic legislation as they would often result in heavy-handed implementation, leading to ineffective and counterproductive counterterrorism responses. He continued: ‘In some contexts, counterterrorism laws and measures continue to be routinely misused to label civil society actors, including human rights defenders, as terrorists and to prosecute them for terrorism-related offences with a view to obstructing their work. In other instances, counterterrorism measures are introduced to restrict civil society access to funding and increase reporting requirements beyond what may be reasonable. Reprisals against human rights defenders and the stigmatisation of civil society actors for their engagement with the United Nations are of particular concern, as they are frequently applied through the misuse of counterterrorism legislation. Women’s rights organisations and women human rights defenders are particularly affected by such practices.’
Necessary precautions
The United Nations Office on Drugs and Crime (UNODC) emphasises in its Handbook on Criminal Justice Responses to Terrorism that while terrorism needs to be countered with all the means at the disposal of the State, counterterrorism measures that ignore or damage human rights are self-defeating and unacceptable in a society guided by the rule of law and democratic values (page 17). The handbook was finalised after extensive consultations with criminal justice and human rights experts from across the globe, including the writer.
According to the UNODC, in defining terrorist acts or terrorist-related crimes, States must observe the basic human rights principle of legality, which requires precision and clarity when drafting laws. This principle of general international law requires that the criminalised conduct be described in precise and unambiguous language that narrowly defines the punishable offence and distinguishes it from conduct that is either not punishable or is punishable by other penalties. Accordingly, the principle of legality also entails the principle of certainty, which means that the law must be reasonably predictable in its application and consequences (page 37).
UN definitions
Although the international community is yet to agree on a definition of terrorism, treaty-based terrorist crimes are found in universal counterterrorism instruments numbering nearly twenty. They cover specific areas such as aircraft hijacking, aviation sabotage, violence at airports, the safety of maritime navigation, the safety of fixed platforms located on the continental shelf, crimes against internationally protected persons, the unlawful taking and possession of nuclear material, hostage-taking, terrorist bombings, funding of terrorism and use of an aircraft as a weapon. A comprehensive general treaty on terrorism has eluded the international community, mainly due to the absence of a universally agreed definition.
PTA, CTA and ATA
The Prevention of Terrorism (Temporary Provisions) Act of 1979 was originally enacted to be in force for one year only. But in time, it became a permanent feature of our body of law. Today, there is wide agreement that the PTA should be repealed, although there is no agreement on what should replace it, some suggesting that a new law compatible with our international obligations be enacted, and others suggesting that a narrowly-worded offence should be included in the Penal Code.
The Yahapalanaya government introduced a Counter Terrorism Bill (CTA), which was not even taken up for debate as there was opposition to it from both sides. The present government has published a Bill for an Anti-Terrorism Act (ATA), which, too, has run into opposition from political parties, trade unions, media persons and civil society organisations regarding the definition of offences and the procedures involved, including investigation, arrest and detention. The focus of this two-part article is the definition of offences.
ATA definition of terrorism
Proposed section 3 of the ATA provides the crucial definition of terrorism. A person who commits an act or illegal omission set out in subsection (2) with the intention of (a) intimidating the public or section of the public; (b) wrongfully or unlawfully compelling the Government of Sri Lanka or any other Government, or an international organisation, to do or to abstain from doing any act; (c) unlawfully preventing any such government from functioning; (d) violating territorial integrity or infringement of the sovereignty of Sri Lanka or any other sovereign country; or (e) propagating war or advocate national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence commits the offence of terrorism.
The acts set out in subsection (2) are (a) murder; (b) grievous hurt; (c) hostage taking; (d) abduction or kidnapping; (e) causing serious damage to any place of public use, a State or governmental facility, any public or private transportation system or any infrastructure facility or environment; (f) causing serious obstruction or damage to or interference with essential services or supplies or with any critical infrastructure or logistic facility associated with any essential service or supply; (g) committing the offence of robbery, extortion or theft,
in respect of State or private property; (h) causing serious risk to the health and safety of the public or a section thereof; (i) causing serious obstruction or damage to, or interference with, any electronic or automated or computerised system or network or cyber environment of domains assigned to, or websites registered with such domains assigned to Sri Lanka; (j) causing the destruction of, or serious damage to, religious or cultural property; (k) causing serious obstruction or damage to, or interference with any electronic analog, digital or other wire-linked or wireless transmission system including signal transmission and any other frequency-based transmission system; (l) being a member of an unlawful assembly for the commission of any act or illegal omission set out in paragraphs (a) to (k); or (m) without lawful authority, importing, exporting, manufacturing, collecting, obtaining, supplying, trafficking, possessing or using firearms, offensive weapons, ammunition, explosives, or any article or thing used or intended to be used in the manufacture of explosives, or combustible or corrosive substances or any biological, chemical, electric, electronic or nuclear weapon, other nuclear explosive device, nuclear material or radioactive substance or radiation emitting device. Significantly, an ‘essential service’ is not defined.
53 Hartal – Terrorism under ATA
The offence of terrorism, as defined in the CTA, was not much different. Participating in a discussion on the CTA in the Parliamentary Oversight Committee on National Security, the writer pointed out that if the CTA had been law during the Hartal of 1953, the then Leader of the Opposition, S.W.R.D. Bandaranaike and opposition leaders Dr N.M. Perera, Dr Colvin R. De Silva, and Philip Gunawardena would have all been convicted of terrorism for instigating the Hartal. Riots were widespread in certain parts of the country. Roads and rail tracks were blocked. In Randombe, Balapitiya, the Colombo-Galle road and the rail track were blocked by the protestors, with women baking hoppers on the road and the track! Communications were disrupted. The Hartal brought the government to a standstill, and the Cabinet of Ministers had to meet on board the British ship HMS Newfoundland berthed in the Colombo harbour. There were some acts of sabotage and violence, and illegal acts were committed. Yet, they were not terrorist acts by any standard and were mostly ignored. The SLPP, TNA, JVP, and some members of the Yahapalanaya government opposed the CTA, and the Bill was not proceeded with.
Aragalaya is Terrorism under ATA
Many acts committed during the Hartal would come under the ATA definition of terrorism. So would many acts committed at Galle Face, in the Presidential Secretariat and in the President’s House during the Aragalaya last year. Many such actions would amount to transgressions of existing laws but were not ‘terrorist’ acts. Perpetrators could be dealt with under such ordinary laws.
‘Bandhs’ and ‘Gheraos’ are common occurrences in India. A bandh, a form of civil disobedience, results in a shutdown, with shops closed and transport paralysed. While a Bharat bandh happens across the entire country, others would be limited to a city or a state. A gherao, meaning ‘encirclement’, is a protest where workers prevent managers and fellow workers from leaving a place of work or encircle and paralyse an institution until their demands are met. In 2018, the Bar Council of India threatened to gherao the Parliament to protest against the Higher Education Bill. Gheraos of State Assemblies are not uncommon. During the farmers’ protests of 2020-21, several government offices in New Delhi were gheraoed. Many laws are broken during bandhs and gheraos, but these actions are mostly tolerated in the greater interest of democracy. But never have we heard of people participating in bandhs and gheraos being dealt with under anti-terror laws.
(To be concluded)
First published in The Island