Photo courtesy of NPR
The proposed Anti-Terrorism Act (ATA), as many legal experts have already argued, can be more dangerous than the draconian Prevention of Terrorism (Temporary Provisions) Act (PTA). The legal reasons are now well known and will not be enumerated here. The Minister of Justice has delayed the presentation of the ATA to parliament. Robust civil society activism against the ATA appears to have worked, at least for now. However, it may be useful to briefly reflect on why the ATA is sought to be introduced and how the government comes to think that the ATA could receive judicial approval and become law.
Firstly, anti-terrorism laws often enable governments to label, delegitimize and ultimately dehumanize those they consider to be their political enemies. The PTA has enabled this for over four decades as the Tamil people, in particular, know all too well. The ATA comes at a time when a new label – fascist – has been popularized, especially by the president; a label directed at protestors in general and especially left leaning political groups and activists. Hence the clauses 3(1)(b) and (c), together with 3(2)(e) and (f), which will ensure that political protests and agitations amount to offences of terrorism.
Secondly, the ATA appears to be the government’s permanent response to the aragalaya, the people’s uprising that took place in mid 2022. In going through the ATA, one sees how haunted the government is by what transpired in 2022 and the possibility of the return of such mass uprisings in the future. In a context of much political and economic uncertainty, something like the ATA is an obvious response of a government that is less concerned about democratic governance. Yet, the greater danger here is that the ATA, like the presidential system (and even the PTA), could get critiqued by those in opposition, soon to be endorsed once they are in power.
Thirdly, the haste with which the government tried to introduce the ATA could suggest that it is desirous of stemming the (perceived) popularity of the JVP/NPP. This may not have been the intention of the drafters or the committee of experts that may have drafted the ATA. But the ATA can be used to serve such a purpose. This would partly explain why the ATA was lined up to be introduced before the proposed laws on anti-corruption and truth and reconciliation.
Fourthly, the ATA emerges due to the understanding (shared by all governments) that terrorism is almost an unpardonable crime. If you consider an individual to be a terrorist and nothing else, you would have very little reason to be concerned about his/her liberties. The PTA has been such a piece of legislation and it is the manner in which law enforcement agencies operate that dehumanizes those arrested under the PTA. There is no reason why in an unchanged socio-political and institutional framework, the ATA’s operation would be any different. No amount of “positive” features or provisions which refer to the involvement of the Human Rights Commission or those which remind interrogating officers about the need to take into account human rights considerations, would be able to humanize the ATA in practice. This also means that, for now, the chances of addressing the issue of “countering terrorism” by amending the criminal law of the country, as once proposed by the Human Rights Commission, are almost non-existent.
What makes the government think that the ATA can be swiftly transformed into law in a context where the constitutionality of the ATA could well be challenged in the Supreme Court? This question ought not to be a new one; it is a question which should have received our attention in relation to numerous laws which were proposed by past governments. Given that governments are not too keen on introducing detailed bills which have no serious chance of success, there ought to be something more to this confidence emanating from governments. How may we understand this?
The answer relates to how a government understands the role and practice of the judiciary. The present government seems to be aware of two broad but inter-related characteristics of the Sri Lankan judiciary. The first is its general conservatism. In very broad terms, the superior court has not been too keen in showing that it is willing to “challenge” the political establishment unless placed under extreme situations. The Supreme Court’s decision regarding the 52-day constitutional coup, in 2018, was one of those rare examples.
Secondly, the government appears to be aware of the jurisprudential weakness that debilitates the judiciary’s ability to pronounce forcefully and critically about matters concerning the state, democratic governance and national security. While there are numerous explanations for this, the court appears to have understood its role to be a limited one, especially when examining the constitutionality of bills. It appears to believe that its task is largely to interpret the law or the bill presented before it, and not to “impose” judges’ views on such an interpretation.
Unfortunately, what this often ends up amounting to is the review of bills which does not give adequate importance to the surrounding socio-political context. It leads, almost naturally, to a situation whereby many bills of varying content, of varying impact on people’s rights, can get approved. This could be why the Supreme Court found it possible to approve constitutional amendments ranging from the 17th to the 21st, however contradictory they were in both content and spirt. This could be why the court was able to argue that the removal of the presidential term limit could enhance the citizen’s right to vote (as the court did when the 18th Amendment bill was challenged in 2010). Kishali Pinto-Jayawardene recently reminded how the court upheld the increased detention period of a suspect in its determination concerning the Counter-Terrorism Act (CTA) proposed in 2018 by referring to the fact that the PTA already contains an extended period (i.e. 78 hours) of detention.
Therefore, it may not be surprising if the government feels that the ATA could receive judicial approval. In presenting the ATA in Parliament one day, the government would attempt to “test” the judiciary again. It would then be the court’s chance to respond. It would be one of those momentous occasions when the court gets to overturn the present government’s understanding of the judiciary, and in doing so, send a strong message to future governments as well.
In a recently televised discussion, Dr. Gehan Gunatilleke correctly noted that the ATA represents a new form of authoritarianism that is sweeping the country. One may add that the mindset governing the ATA is a cruel but logical extension of the mindset that gave birth to the PTA over four decades ago. The PTA was aimed largely at the Tamil and Muslim populations; the ATA will be its more “secular” and sophisticated version. Whether the ATA is going to be Sri Lanka’s new reality is unclear. What is clear, though, is that the post-aragalaya reformation of the state is a gargantuan challenge, which can only be met with new and bold ways of thinking.