Photo courtesy of The Diplomat
On September 15, the government published an Anti-Terrorism Bill, referred to as the ATA. The Bill is presented as a revision of an earlier version that was gazetted in March 2023, when it received widespread public criticism, including from local and international human rights groups. An analysis of the revised Bill reveals that although minor changes have been made, the ATA continues to be an unprecedented expansion of executive power, both in form and in its potential for the repression of citizens. It also constitutes a usurping of the judiciary’s authority to safeguard citizens’ fundamental rights. A law of this nature, if passed, will significantly alter the balance of power within the social contract that Sri Lankan citizens have with those who govern. Passage of this law will give those in power the means to rule by fear, crush dissent and suppress political opposition. This is especially dangerous at time in Sri Lanka’s history when cumulative crises have led to deep mistrust between citizens and the state. Enactment of the ATA will take this country down a path towards further conflict between its people and those who govern.
Undemocratic law making process
The government responded to the criticism of its March 2023 Bill with assurances that the proposed legislation would be reviewed, and invited stakeholders to share their concerns. Regrettably, the September 2023 Bill was published by gazette with the same lack of transparency, accountability or democratic ethos that was seen in the production of its predecessor. There was no white paper issued on the context and justification for the law nor was there any process by which a draft Bill was publicized for meaningful feedback before being gazetted. The government provided no information relating to the gaps in the current Prevention of Terrorism Act (PTA) or the gaps, if any, in the overall legal framework in Sri Lanka on terrorism; lessons learnt on what worked and what did not under the PTA, nor was there any information about the nature of the threats Sri Lanka faces and/or is anticipating. Instead, the government simply gazetted the Bill, which is the preliminary step taken before it is presented in parliament to be enacted.
Abuse and harm under the PTA
There is ample evidence of routine horrific torture and prolonged detention experienced by Tamil citizens under the PTA during the decades of war. The law also enabled the victimization of Sinhala citizens during the period of terror in the late 1980s. After the 2019 Easter Sunday bombings, the PTA was also used to arbitrarily arrest and detain hundreds of Muslims. The state has neither acknowledged nor compensated the citizens affected by misuse of the PTA for either the torture perpetrated or the profound impacts on their lives caused by years or decades of arbitrary detention, even when they are eventually discharged or exonerated. Of the thousands directly affected, only a very few detainees have had access to the Supreme Court to challenge their arbitrary arrests and detentions by way of fundamental rights applications. In recent years, the high profile PTA cases of lawyer Hejaaz Hizbullah and student union activist Wasantha Mudalige have alerted the public to how easily the PTA can be misused by government to target political opponents and citizen protestors. Just over a week ago, the Sri Lanka police used the PTA to detain and question alleged “underworld figure” Sanjeewa Kumara, demonstrating how easily ordinary criminal law is bypassed by the police when broad anti-terror powers are available for misuse. The evidence offered in decades of research reports, repeated campaigns against the PTA a represents only the tip of an iceberg of extreme injustice and harm that has been caused to countless victims by the PTA.
No improvement on the PTA
The new proposed ATA still presents a significantly greater threat to citizens and governance than the PTA it seeks to replace. When compared with the PTA, both the March and September 2023 versions of the ATA are demonstrably much worse laws. Amongst the many egregious problems with the PTA, the only issues that have been addressed in the Anti-Terrorism Bills are the removal of the admissibility of confessions to the police and fixing of shorter periods of detention (although still without meaningful judicial oversight). These few positive reforms are long overdue. However, the more authoritarian scheme and new repressive provisions introduced in the 2023 Anti-Terrorism Bills offset these improvements.
The 2003 Bills also allow for some ordinary procedural safeguards that ought to be afforded to all criminal suspects and not exclusively to terror suspects. These procedural safeguards are the right to an attorney, female persons to be search by female officers, oversight of conditions in detention by a magistrate and informing the Human Rights Commission of a person’s detention. However, the same critique made of the March 2023 Bill continues to be true for the September 2023 version – that these “concessions” ring hollow in light of the fact the judiciary is prevented from reviewing detention orders and overseeing the many new broad executive powers vested with the president introduced under the ATA and the police is enabled to remove persons from fiscal custody into police custody. Even the concession on a right to an attorney is abridged in the September 2023 Bill by qualification that access to an attorney will be “subject to such conditions as may be prescribed by regulations made under this Act or as provided for in other written law.”
Definition of terrorism still fails to meet recommended international standards
The definition of terrorism and the related offences continues to be overly broad and vague in the September 2023 Bill. 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 organization.
The March 2023 Bill failed to adopt the cumulative intention requirement (2) and (3) above. This failure remains in the September 2023 Bill, in which the intention component in the definition of terrorism only deviates from the March 2023 version in the removal of the following: (a) “unlawfully preventing any such government from functioning;” (Cl. 3(2)(c)) and (b) “advocate national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence,” (at Cl. 3(2)(e)).
The March 2023 Bill failed to identify terrorism-specific trigger offences. Similarly, the September 2023 Bill continues to define ordinary criminal offences of murder, grievous hurt, causing damage and interference as trigger offences, which fails the internationally recommended guidelines for ensuring a high threshold for what is recognized as terrorism. Additionally, the spate of poorly defined related offences such as “encouragement of terrorism”, “dissemination of terrorist publications”, “training for terrorism” and failing to obey lawful orders (the Bill provides for a wide range of lawful orders) creates an unwieldy and opaque law that is highly susceptible to abuse and criminalization of legitimate civic activities such as dissent or protest. In contrast with the earlier version of the Bill, the September 2023 Bill does include offences under the Suppression of Terrorism Financing Act as a terrorism-specific trigger offence, while it removes obstruction of essential services and being a member of an unlawful assembly for the commission of terrorism as offences.
Given the track record of Sri Lankan governments misusing broad anti-terrorism powers to arrest, detain and prosecute political opponents, journalists, citizens from minority communities and citizen protestors to suppress dissent and democratic rights, there is nothing in the new iteration of the proposed ATA that addresses or mitigates its potential for abuse.
Broad executive powers target democratic rights of citizens
The assignment of broad powers to Senior Superintendents of Police’s (SSP) (Clause 60) and the continued powers of administrative (non-judicial) detention orders (Clause 31) remain in the September version. The same is true for the broad, vague and judicially unsupervised powers assigned to the office of the President allowing for the proscription of organizations and movements, designation of prohibited places, declaration of curfews and securing of restriction orders. Such powers are not found in the PTA. They are an unprecedented expansion and normalization of extraordinary executive power. It is important to note that the expansion of executive powers ex facie targets rights of expression, assembly and association, such as were exercised during the overwhelmingly non-violent mass citizen protests of last year. As such, an SSP is empowered to seek orders for preventing public from entering an area, leaving an area, travelling on a road, transporting anything or person, and orders to suspend public transport, remove a vehicle or object, prevent congregations, prevent meetings, rallies and processions and prevent any specified activity. Under both the March and September 2023 Anti-Terrorism Bills, the failure to comply with such an order issued by an SSP’s would constitute a terrorist offence, even if an activity would itself otherwise be lawful.
The fiction of meaningful legal redress
The administrative body to appeal against detention orders which is present in the PTA and March 2023 Bill has been removed in the September 2023 version. The Bill gives the express impression that persons aggrieved may challenge any violation of their rights before the Supreme Court. It is important to note that the fundamental rights jurisdiction of the Supreme Court is not an easily accessible remedy for most ordinary citizens. Applicants need to abide by a very restrictive time bar to petition the court (ordinarily just 30 days from the date of the violation), qualify in terms of standing (only the victim or her attorney can invoke the jurisdiction), afford the often prohibitive costs involved, and access the Supreme Court which is only located in Colombo. These conditions are a significant barrier to accessing legal redress for many citizens, especially those who are poor, marginalized, in detention or subject to threats of violence or reprisals. The experience with challenges to detention under PTA has shown that the legal process may take many years to secure the release of persons wrongly detained, with no compensation or restitution when they are finally discharged.
There is limited judicial review afforded in the September 2023 Bill to magistrates over whether a suspect may be discharged, and this does not apply to persons held under a detention order. Even this concession to judicial oversight must be understood in the context of lessons learnt and historically observed disadvantage that judiciaries are placed in when national security imperatives are invoked. In Sri Lanka, there is demonstrably weak jurisprudence on judges exercising powers of oversight to restrain or overturn executive decisions related to allegations of terrorism.
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. It would also enable gross abuses of human rights, as demonstrated by over four decades of the PTA. The Bill gazetted in September 2023 continues to fail to meet two key demands from the domestic and international critics of Sri Lanka’s anti-terror laws: (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 new version of Anti-Terror Bill represents a direct threat to the civil and human rights of Sri Lankan citizens and to democratic governance in this country. In very many ways, the proposed ATA is an even more dangerous and flawed law than the draconian PTA that it seeks to replace. While the repeal of the PTA cannot be delayed, replacing it with the ATA cannot be the solution.