Anti-Terrorism Bill aims at creating fascist dictatorship

By Kalyananda Tiranagama

The Ranil-MaithriYahapalana government, which came to power in 2015 presented its ‘Counter Terrorism Bill’ in Parliament on October 9, 2018 in compliance with its commitments to the Geneva UN Human Rights Council under the Resolution on Sri Lanka co-sponsored by Sri Lanka together with 10 other countries headed by the United States of America in September 2015.

The Yahapalana government had given an undertaking to the UNHRC ‘‘to review the Public Security Ordinance and to review and repeal the Prevention of Terrorism Act and to replace it with anti-terrorism legislation in accordance with contemporary international best practices.’’

Sri Lanka dealt with insurgent activities/terrorist crimes under the Emergency Regulations proclaimed under the Public Security Ordinance and /or the provisions of the Prevention of Terrorism Act (PTA) No. 48 of 1979. PTA was enacted to deal with groups of persons or associations advocating the use of force or commission of crime for seeking change of government and resorting to acts of murder and threats of murder of Members of Parliament and of local authorities, police officers, and witnesses to such acts and other law-abiding citizens and other acts of terrorism such as armed robbery, damage to state property and other acts involving actual or threatened coercion, intimidation and violence. Political activities and public agitations against the government were not dealt with under the PTA.

Offences under the PTA

Only the following acts were offences under the PTA: (a) Causing the death, grievous hurt, kidnaping or abduction of any specified person; (Specified persons are Judges, foreign diplomats, Members of Parliament and of local authorities, Court officers, police and army officers); (b) Causing the death, grievous hurt, kidnaping or abduction of witnesses to such acts and other law-abiding citizens; (c) Criminal intimidation of any such person; (d) robbery of government or public property; (e) causing mischief to government or public property; (f) importing, manufacturing or collecting firearms, offensive weapons or explosives without lawful authority; (g) having such material in possession in a security area; (h) causing commission of acts of violence or religious, racial or communal disharmony or feelings of ill-will or hostility between different communities or racial or religious groups ; (i) mutilating or defacing name boards or inscriptions on roads and other public places; (j) harbouring, concealing or hindering in manner apprehension of persons involved in terrorist acts.

No offence under the PTA is punishable with death. The maximum penalty even for murder (paragraph (a) & (b) above) under PTA is life imprisonment. A person convicted of any other offence is liable to be punished with imprisonment for a period not less than 5 years and not exceeding 20 years.

Though there is so much demand for its repeal, PTA did not pose any threat to democratic political activities, public protests or other organised political campaigns against the policies and activities of the government in power harmful to the people or the country.

The Counter Terrorism Bill was brought by the Yahapalana Government aiming at achieving 3 objectives:

a. To suppress all democratic dissent, public agitations and mass protests against its anti-national, anti-popular policies by declaring them as terrorist acts;

b. to surreptitiously creep into the Bill some of the Emergency Regulations brought into force when a State of Emergency is declared under the Public Security Ordinance as part of the normal law of the country;

c. To appease TNA, Tamil Diaspora and NGO Human Rights lobby by liberalising the provisions in the PTA required to deal with real terrorist threats posed against national security and territorial integrity of the country.

Suppressing Democratic Dissent

Replacing the Counter Terrorism Bill, now Ranil Wickremesinghe government has brought the Anti-Terrorism Bill, further strengthened with newly added provisions to more effectively curb democratic and fundamental rights of wider strata of people. Anti-Terrorism Bill has been published in the Govt Gazette of March 17, 2023. Before analysing and discussing the provisions in the Anti-Terrorism Bill, let us examine the provisions in the Counter Terrorism Bill, which had come before the Supreme Court, for a better understanding of the sinister motives of the movers of this Bill.

Most of the Provisions in the Counter Terrorism Bill and the Anti-Terrorism Bill have the effect of outlawing all legitimate political campaigns and public protests, branding them as terrorist acts punishable with long term jail sentences. This was the most dangerous, anti-democratic Bill ever presented to our Parliament in its history. It is inevitable that Sri Lanka will become a Fascist dictatorial state without any room for the people to conduct public protests against the government policies and activities however harmful they may be to the people and the country. No trade union, professional association, people’s organisation or an opposition political party will be able to carry on mass protest campaigns to compel the government to desist from acts harmful to the country and the people or to take necessary steps for the welfare of the people.

Horrendous Provisions in the Anti-Terrorism Bill

In the Counter Terrorism Bill (CTB) and the Anti-Terrorism Bill (ATB) the term ‘terrorist act’ has been described in such wide terms so as to bring in all legitimate, democratic, mass political and protest campaigns against government policies within the definition of terrorist act. Let us examine the relevant provisions of these Bills.

CTB – S. 3 (1) Any person, who commits any act referred to in subsection (2), with the

intention of: (a) intimidating a population; (b) wrongfully or illegally compelling the govt. of Sri Lanka or any other government, or an international organization to do or to abstain from doing any act; © preventing any such govt. from functioning; or (d) causing harm to the territorial integrity or sovereignty of Sri Lanka or any other sovereign country, – shall be guilty of the offence of terrorism.

(2) An act referred to in subsection (1) shall be – (a) murder, attempted murder, grievous hurt, hostage taking or abduction of any person;

(b) endangering the life of any person; Causing serious damage to property, including public or private property, any place of public use, a state or govt. facility, any public or private transportation system, or any infrastructure facility or environment;

(d) Causing serious obstruction or damage to essential services or supplies;

(e) Committing the offence of robbery, extortion or theft in respect of the state or private property;

(f) Causing serious risk to the health and safety of the public or section thereof;

(g) Causing obstruction or damage to, or interference with any electronic or automated or computerised system or network or cyber environment of domains – assigned to Sri Lanka;

(h) Causing obstruction or damage to, or interference with any critical

infrastructure or logistic facility associated with any essential service or supply;

(g) Causing destruction or damage to religious, cultural property or heritage.

The above provision in S. 3 of the CTB has been included in the ATB, further strengthening it with several changes so as to encircle a wider group of people within the net. The changes made are shown underlined in italics.

ATB – S. 3 (1) Any person, who commits any act or illegal omission referred to in subsection (2), with the intention of:

Now not only doing an act, but refraining from doing or failure to do an act also becomes a terrorist act.

(a) intimidating public or section thereof ;

In the CTB, it is intimidating a population – an act affecting a large group of people. Now it can cover any act affecting even a very small group of people.

(b) wrongfully or illegally compelling the govt. of Sri Lanka or any other government, or an international organization to do or to abstain from doing any act; © unlawfully preventing any such govt. from functioning; or (d) violating the territorial integrity or sovereignty of Sri Lanka or any other sovereign country,

(e) propagating war or advocating national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence – shall be guilty of the offence of terrorism.

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This item (e) which was not in the CTB, may have been added with a view to silencing the patriotic groups clamouring against the granting of 13+ and other unreasonable demands of extremists and separatists.

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Another item which was not in the CTB, has been added to the list of terrorist offences in S. 3 (2) of the ATB, rendering every participant in a public protest, or agitational campaign liable to be indicted for committing terrorism.

(l) Being a member of an unlawful assembly for the commission of any act or illegal omission set out in the above paragraphs.

If the Galle Face struggle for the ouster of the President or Govt. conducted at a time after this Bill has become law, all those lawyers and other public figures who visited Gotago Gama in support of the struggle would have, not only lost their jobs, but ended up as terrorists serving long term jail sentences.

New Offences introduced by ATB targeting at all Media – Encouragement of Terrorism

Two new offences, having the effect of controlling all media, which were not in the CTB, have been introduced by ATB – Encouragement of Terrorism – S. 10 and – Disseminating Terrorist Publications – S.11’

S, 10 –(1) Any person (a) who publishes or causes to be published a statement, or speaks any word or words or makes signs or visible representations likely to be understood by some or all members of the public as a direct or indirect encouragement or inducement for them to commit, prepare or instigate the offence of terrorism; and

(b) Such person – (i) intends directly or indirectly to encourage or induce the public to commit, prepare or instigate the offence of terrorism; (ii) is reckless as to whether the public is directly or indirectly encouraged or induced by the statement to commit, prepare or instigate the offence of terrorism

(2) The above provision shall apply to any person (a) who publishes or causes to be published a statement referred to above using (i) print media; (ii) internet; (iii) electronic media; or (iv) other form of public notice.

(3) For the purpose of this section, (i) a ‘’statement’’ includes every statement (a) which glorifies the commission of the offence of terrorism or preparation for the offence of terrorism.

(4) For the purpose of this section, the question as to how a statement is likely to be understood and what the members of the public could reasonably be expected to infer from it shall be determined, having regard both to – (a) the contents of the statement as a whole; and (b) as to the circumstances and manner of its publication.

(5) if any person proves to the satisfaction of the High Court that a statement referred to above neither expressed his views nor had his consent or approval for publication in all the circumstances of its publication, the Court may order that he is not guilty of an offence under this section.

* Burden of proof of innocence is shifted to the accused.

Disseminating Terrorist Publications

S, 11 – A person commits an offence under this Section, if he (a) distributes or circulates; (b) gives, sells or lends; (c) offers for sale a terrorist publication; (d) provides a service enabling others to obtain, read, listen to or look at a terrorist publication; (e) transmits contents of it electronically (f) keeps a terrorist publication in his possession , (i) intending directly or indirectly to encourage or induce the public to commit, prepare or instigate the offence of terrorism; or (ii) being reckless as to whether the public is directly or indirectly encouraged or induced by the publication to commit, prepare or instigate the offence of terrorism; using (i) print media; (ii) internet; (iii) electronic media; or (iv) other form of public notice.

(3) For the purpose of this section, (i) a publication includes every publication (a) which glorifies the commission of the offence of terrorism or preparation for the offence of terrorism and (b) from which public may infer that what is glorified is the conduct that should be emulated by them in existing circumstances.

If this law remained in force at the time of the Galle Face struggle, there is no doubt that most of the print, electronic and social media personnel who gave publicity through their media to men and women playing a leading role in the struggle would have ended up in jail by now.

Penalties for offences under S. 6, 7, 8, 9, 10 & 11

S.13 (1) – Any person convicted by High Court of any offence under Ss. 6,7, 8, 9, 10 or 11 – Rigorous imprisonment for a term not exceeding 15 years and fine not exceeding one million rupees.

– (2) on conviction for any of these offences High Court may order forfeiture of all movable and immovable property in the possession of that person which the Court considers to be connected with the commission of the offence.

S. 14 (1) – Penalty for attempt, abetment, conspiracy or doing any preparatory act for the commission of the above offences – Rigorous imprisonment for a term not exceeding 10 years and fine not exceeding one million rupees.

Failure to provide information an Offence

S. 15 – Any person (a) knowing or having reason to believe that (i) another person has committed an offence under the Act, or (ii) is making preparation, attempting, abetting or conspiring to commit an offence, fails to report to the OIC of the nearest PS; (b) having information about a person who has committed an offence under the Act fails to provide such information, or gives false or misleading information to a Police officer – guilty of an offence and liable to be punished with imprisonment for a term not exceeding seven years and fine not exceeding Rs. 500,000.

Disobeying Lawful Orders – an Offence

S. 16 – Any person who (a) violates or acts in contravention of any lawful directive or order made in terms of the Act; (b) willfully fails or neglects to comply with a direction made in terms of the Act; (c) fails to provide information or provides false or misleading information in response to a question put to him by a Police Officer conducting an investigation under the Act – commits an offence liable to be punished with imprisonment for a term not exceeding 2 years and fine not exceeding Rs. 500,000.

(To be continued)