Photo courtesy of The Toronto Star
For forty years, human rights activists have demanded repeal of the Prevention of Terrorism Act (PTA) of 1979, which the state has used to terrorize minorities with impunity. Ultimately the threat of losing preferential trade status with the EU (GSP+) forced Sri Lanka’s hand. Money, not human rights, prompted the proposed Anti-Terrorism Act (ATA) and a close read reveals it for what it is. The ATA tinkers at the margins but does not change what is rotten at its core. Through its overbroad definition of terrorism and backdooring of mass rehabilitation, it will vastly expand state power at the expense of citizens’ fundamental rights.
The ATA defines terrorism too broadly
A major problem with the PTA was its failure to define terrorism. Among the five necessary prerequisites to PTA reform according to U.N. experts is the need to narrowly define what constitutes terrorism. The ATA makes matters worse by defining terrorism expansively. Any crime consists of two components – a prohibited act and a criminal intent. Both have serious problems.
Starting with the act element, the ATA prohibits “causing serious obstruction . . .with essential services or supplies” (§ 3(2)(f)). That could encompass last summer’s protests or an ordinary labor strike. The ATA also prohibits being “a member of an unlawful assembly” for committing a prohibited act (§ 3(2)(l)). Defining a crime as serious as terrorism on group membership alone is deeply problematic given Sri Lanka’s history.
After the Easter Sunday attacks, police arrested R. Mazahima for wearing a dress printed with a ship’s wheel (misconstrued as Dharmachakra) and Ashnaf Jazeem for writing a “jihad” poem that actually spoke against extremism and violence. The ATA would not prevent these arrests; it defines terrorism to include incitement through words, signs or visible representations that are “likely to be understood by some or all of the members of the public” as encouraging terrorism (§ 10(1)(a)). While statements must be taken in context (§ 10(4)), how confident are we that these same arresting officers would make a different decision tomorrow? The only defense detainees have is to say that the writing did not express their views or was published without consent (§ 10(5)). It is apparently no defense to say it was grossly misconstrued.
Gathering or sharing “any confidential information” can amount to an independent offense (§ 9), raising threats to media freedom despite the carveout for information “published in good faith with due diligence for the benefit of the public or in the national interest.” The ATA bans sending a “terrorism publication,” which includes anything that could be viewed as useful for a terrorist offense (§ 11(1)(e), (3)(b)). It imposes liability on third party platforms that provide “a service to others that enables them to obtain, read, listen to or look at a terrorism publication” (§ 11(1)(d)).
Turning from the act to the mental state, things get worse. Under the ATA, criminal intent includes an act committed with the intent of compelling the Sri Lankan government, any other government, or an international organization to do or abstain from doing an act (§ 3(1)(b)). It also includes spreading hate to incite discrimination, hostility, or violence (§ 3(1)(e)). Given the state’s subversion of the ICCPR Act of 2007, it is clear how this provision will be abused. Racist monks who terrorize minorities will incite violence with impunity, while the state will arrest minorities on invented accusations that their conduct threatens majority sentiments.
The ATA punishes not only direct perpetrators but also those who abet “any act preparatory to the commission of an offence” (§ 5(1)). There is liability for failure to report or provide information to police (§ 15). In the United States, where I practice, there is generally no duty to report a crime, except for mandatory reporting by teachers, doctors and social workers of child abuse or neglect. Singapore imposes such a duty under section 424 of its Penal Code but violators face only six months imprisonment whereas the ATA imposes seven years and up to a Rs. 500,000 fine (§ 15(b)).
Let’s put these pieces together with a hypothetical. Imagine Tamil and Muslim mothers stage a protest on public roadways against the years-long detention of their loved ones under the PTA. Their goal is to press the state to release or charge those detained. Human rights activists join in, seeking to press for legal reform and urge the international community to take note. After the first day of protests, protesters gather to share ideas. They post information about this strategy meeting on social media and in local newspapers. Lawyers for PTA detainees attend and provide updates about their clients’ cases. Locals are curious about the meeting; some attend while others stay home. Media outlets cover the meeting and the protests, amplifying the protesters’ demands. How many potential crimes may have been committed under the ATA and by whom?
- Mothers and human rights activists could be liable for taking part in the protests. These protests on public roads obstructed essential services and they were undertaken with the intent to influence government action and rally the international community.
- By attending the strategy meeting, protesters could also be liable for engaging in an act preparatory to the commission of a terrorist offense, as well as for being a member of an unlawful assembly for the purpose of committing that offense.
- Lawyers who attend the strategy meeting could be liable for sharing confidential information at the strategy meeting. By offering potentially helpful information, they might be liable for abetting a preparatory act to terrorism or being a member of an unlawful assembly.
- Social media companies and data or internet service providers could be liable for transmitting information about the strategy session or protests, which could be understood by some as useful for preparation.
- Media outlets are at the whim of a DIG, who must assess if their coverage was published in good faith and with due diligence for the public interest.
- Locals who attend the strategy meeting or protests out of sheer curiosity could be liable for being a member of an unlawful assembly.
- Those who do not attend but were reasonably aware of one or both could be liable for failing to report information to police.
The ATA is so comically broad that any communal gathering faces the prospect of being deemed a terrorism offense, justifying abandonment of due process safeguards. In a country where existing counterterrorism laws have been abused to trample fundamental rights, the ATA’s definitional overbreadth makes things worse, not better. Much has been written about various procedural changes promised by the ATA. But those changes are small comfort when the definition of terrorism is grossly overbroad. Everything flows from this definitional problem. With more people facing arbitrary detention under the proposed ATA, it is small comfort to say that at the margins, additional procedural safeguards may exist.
The ATA facilitates mass arbitrary detention through “rehabilitation”
Less publicized is how the ATA backdoors deradicalization regulations to the PTA that were gazetted in 2021. Seeing alarming parallels to China’s Uyghur reeducation camps, the EU Parliament recommended suspending GSP+ again (for the first time since the war) based in part on these regulations. Sri Lankan activists took the matter to court, and the Supreme Court stayed their implementation. The ATA revives these draconian regulations by giving the Attorney General authority to defer criminal proceedings and recommend rehabilitation of the accused (§ 71, 77). Rehabilitation in turn would be administered by the new Bureau of Rehabilitation, created by the Bureau of Rehabilitation Act of 2023. Through these twin bills, the government is attempting an end run around the Supreme Court by incorporating a deradicalization bill into the ATA’s framework.
This could have drastic real world consequences. Masses of Muslims were detained after the Easter Sunday attacks and masses of Tamils were detained after the civil war. The ATA gives the Attorney General power to defer an indictment and recommend rehabilitation, reparations, apology and community service in less serious cases (§ 71(1)-(3)). As to persons who have yet to be charged with a crime, on what legal basis may the state order rehabilitation, payment of compensation or other penalties? Similar powers are bestowed to the Attorney General after charges are filed. The ATA permits the chief prosecutor “at any time before the judgment is given by the High Court” to withdraw the indictment and impose rehabilitation, payment of reparations, and community service in lieu of trial (§ 77(1)-(3)). Once the indictment is withdrawn, on what legal basis may the state order an uncharged suspect to forego liberty and pay reparations?
A poor family cannot withstand loss of their sole breadwinner for three months of detention or 12 months of remand custody, much less years waiting for a case to reach trial. Even if innocent of any crime, the prospect of freedom is too great to forego. Detainees will opt for rehabilitation whether or not they have a strong defense. Viewed in conjunction with its definitional problem, the ATA’s rehabilitation scheme is abusive and coercive.
There are many ways the ATA fails to deliver. I’ve highlighted just two. Definitional problems and mass rehabilitation schemes broaden already unchecked state power at the expense of fundamental rights. Sri Lanka can and must do better.