Bill requires 2/3 majority and referendum

Proposed Anti-Terrorism Act – Part II

By Dr Jayampathy Wickramaratne,
President’s Counsel

A significant feature of the proposed Anti-Terrorism Act (ATA) is that offences are very broadly defined and thus bring within it conduct without a reasonable nexus to terrorism that could be dealt with under ordinary laws. This is precisely what criminal justice and human rights experts warn against.

Strikes and protests as terrorism

A few examples would be helpful. The object of a strike is to prevent the provision of a service or the conduct of an activity—in short, to paralyse the institution concerned. Promoting strikes is one of the legitimate objects of a trade union recognised by the Trade Unions Ordinance. However, our courts have held that the right to strike can lawfully be curtailed. Let us take the case of a strike in the health sector that has been declared an essential service under the Public Security Ordinance and is thus illegal. Under section 3(i)(b) of the AAT, engaging in the strike would amount to ‘wrongfully or unlawfully’ compelling the government to provide health services to the public. It would be an act prohibited by section 3(2)(h) for ‘causing serious risk to the health and safety of the public or a section thereof’ and amounting to the offence of terrorism punishable under section 4(b) with rigorous imprisonment for a term that can extend to twenty years and a fine extending to one million Rupees and the possible addition of forfeiture of all movable and immovable property. Virtually any strike could be brought under the ATA due to the very broad definition of terrorism.

The same would apply to a protest that is not violent but results in the government being unable to provide a particular service. Let us take the example of processions taken out by lawyers throughout the country protesting the possible summoning of some judges of the superior courts for allegedly violating the privileges of Parliament by making a judicial order. The processions are massive, and the lawyers purposely block the roads to prevent buses from operating to make the public aware of the reason for their protest. Blocking roads is illegal under ordinary law. Under section 3(i)(b) of the AAT, it would amount to ‘wrongfully or unlawfully’ compelling the government to provide transport services to the public. It is an act prohibited by section 3(2)(f) being an ‘interference’ with an essential service, which is not defined by the AAT and is thus capable of broad interpretation. Lawyers participating in the protests would commit the offence of terrorism and be liable to be punished, as in the case of a strike.

One could give many examples of such actions which transgress ordinary law but are not, by any stretch of the imagination, terrorist acts. Such actions must either be dealt with under ordinary law or ignored in the broader interest of democracy.

Terrorism without terror

The writer submits that, in general, only acts that aim at creating ‘terror’ or a ‘state of intense or overwhelming fear’ should come under the definition of terrorism. There can be exceptions. It is not impossible that a person committed to the use of terror would commit a particular act in pursuance of such a goal without necessarily resorting to violence. For example, when a member of an extremist organisation sabotages an electronic or automated or computerised system, s/he commits an act of terrorism, although there is no violence. But the same act could be done by, say, a whiz kid without a similar intention, in which case s/he could be dealt with under normal law but not as an act of terrorism that entails a long period of pre-trial detention and severe punishment. Exceptional cases where no there is no terror but committed to further the objectives of a terrorist organisation need to be criminalised as distinct offences.

It is submitted that the general offence of terrorism should have, as an essential element, the creation of ‘terror’ or a ‘state of intense or overwhelming fear’. Specific cases where terror is not used but committed in pursuance of the object of an extremist organisation that uses terror should be dealt with separately. The definition of terrorism in Article 421 of the French Penal Code Acts is instructive in this regard. For acts to come under that Article, they must be ‘intentional, connected to either an individual or a collective enterprise, and intended to gravely disturb the public order by way of intimidation or terror’.

The European Union adopted a ‘Framework Decision on Terrorism’ in 2002, in which a terrorist act is defined narrowly as one which ‘may seriously damage a country or an international organisation where committed with the aim of seriously intimidating a population, or unduly compelling a Government or international organisation to perform or abstain from performing any act or seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation’.

The EU definition enumerates nine types of specific terrorist acts: (a) attacks upon a person’s life which may cause death; (b) attacks upon the physical integrity of a person; (c) kidnapping or hostage-taking; (d) causing extensive destruction to a Government or public facility, a transport system, an infrastructure facility, including an information system, a fixed platform located on the continental shelf, a public place or private property likely to endanger human life or result in major economic loss; (e) seizure of aircraft, ships or other means of public or goods transport; (f) manufacture, possession, acquisition, transport, supply or use of weapons, explosives or of nuclear, biological or chemical weapons, as well as research into, and development of biological and chemical weapons; (g) release of dangerous substances, or causing fires, floods or explosions the effect of which is to endanger human life; (h) interfering with or disrupting the supply of water, power or any other fundamental natural resource the effect of which is to endanger human life; and (i) threatening to commit any of the acts listed in (a) to (h).’

The broad definition of terrorism in section 3 of the ATA has many other serious consequences. Under section 82, where the President has reasonable grounds to believe that any organisation is engaged in any act amounting to an offence under the ATA, he may proscribe such organisation. Being a member of a proscribed organisation is an offence that could be punished with imprisonment of up to ten years and a fine of up to one million rupees (sections 6 and 14).

Under section 10, any person who encourages the public to commit the offence of terrorism would be punished similarly. Taking the example of the 1953 Hartal referred to in Part I of this article, the objective of the Hartal was to paralyse the government, which would have amounted to terrorism if the ATA had been in force. Opposition leaders who encouraged people to join the Hartal would then be ‘terrorists’. Any person who publishes a statement of such encouragement would also be punished. This includes a publication in the print media, internet and electronic media. Similarly, trade union leaders who call a general strike, which would obviously paralyse essential services, would be punished.

Although the focus of this article is the definition of offences under the ATA, the writer wishes to refer to another provision that could be used to stifle protests. Under section 85, the President may, on the recommendation of the IGP, the Commander of the Army, Navy or Air Force or the Director-General of the Coast Guard, stipulate any public place or other location to be a prohibited place. No guidelines whatsoever are laid down. Any person entering a prohibited place is liable to imprisonment not exceeding three years and a fine not exceeding three hundred thousand Rupees or both.

In conclusion, the ATA is replete with provisions that violate the fundamental rights of the People. As fundamental rights are one manner of exercising sovereignty, the Bill as a whole violates the sovereignty of the People. It, therefore, requires a two-thirds majority in Parliament and the approval of the People at a referendum.

(Concluded)