Proposed Anti-terror law makes dissent an act of terror

By Rathindra Kuruwita

Almost 15 years after the end of the war against the LTTE, Sri Lanka still has not repealed the draconian Prevention of Terrorism Act (PTA). Enacted in 1979 in response to the still nascent Tamil insurgency, the law has been used to ensure prolonged arbitrary detention, facilitate the use of torture to extract false confessions, and target minority communities, civil society groups, and dissidents. It is widely acknowledged that the PTA represents a serious violation of human rights and undermines the principles of justice and fairness.

Given that the civil war has ended and the country has been at peace for over a decade — apart from the 2019 Easter Sunday attacks — there have been demands both locally and internationally to repeal the law. In the context of the ever-present threat of global terrorism and the possibility of Sri Lanka being used by terror organizations as a hub, it is also widely recognized that the country needs anti-terrorism legislation. However, such laws need to be in line with international norms.

Under international pressure, successive Sri Lankan governments have been promising to repeal the PTA. However, the Bills introduced as potential replacements for the PTA seem to be more draconian.

In 2017, the Maithripala Sirisena–Ranil Wickremesinghe government approved a draft Counter Terrorism Act (CTA). While there were some improvements over the PTA, the CTA opened up more vistas for abuse by expanding the categories of actions that would qualify as acts of terrorism.

In 2021, the United Nations came up with five recommendations that it thought were “necessary prerequisites to ensure the PTA is amended to be compliant with international law obligation.” They are:

1. Employ definitions of terrorism that comply with international norms;

2. Ensure precision and legal certainty, especially when this legislation may impact the rights of freedom of expression, opinion, association, and religion or belief;

3. Institute provisions and measures to prevent and halt arbitrary deprivation of liberty;

4. Ensure preventive measures are in place to prevent torture and enforced disappearance and adhere to their absolute prohibition; and

5. Enable overarching due process and fair trial guarantees, including judicial oversight and access to legal counsel.

However, the Anti-Terrorism Bill (ATB), published by the current dispensation under President Ranil Wickremesinghe on March 22, does not seem to take any of the U.N. recommendations seriously.

Critics point out that the ATB, much like the CTA of 2017, has a very broad and vague definition of what constitutes “acts of terrorism” (Clause 3). Clause 16 of the proposed bill states that disobeying any direction issued under the act is a “terrorist offense.”  While the vagueness of the definition in Clause 3 leaves space to interpret any act of dissent as terrorism, Clause 16 allows those in power to create fresh categories of terrorist offenses.

According to accepted norms, a fair trial requires criminal offenses to be clearly defined by law and in accordance with the principle of legality. The principle of legality necessitates those crimes be precisely classified and described in unambiguous language. The use of vague laws undermines the rule of law by enabling selective and arbitrary interpretation, law enforcement, and prosecution, critics said.

The bill also enhances the powers enjoyed by law enforcement officials, beyond those currently granted under the PTA, with limited judicial oversight. Clause 28(2)(a) precludes the magistrate from reviewing a detention order issued by any deputy inspector general of police (DIG). Clause 28(b)(iii) states that a magistrate can only discharge an accused person if requested to do so by the officer-in-charge of the police station, and if the magistrate consents, in cases where a detention order has not been issued or presented to the magistrate.

This provision can be seen as a violation of the principle of separation of powers since it grants the police a power that properly belongs to the judiciary. Specifically, it ties the magistrate’s decision to discharge the accused to the request of the officer-in-charge, thereby giving the police undue influence over the judicial process, critics say.

The proposed bill intends to create two entities — the Board of Review, headed by the Secretary of the Ministry of Defense, and an Independent Review Panel appointed by the president — purportedly to provide oversight. However, the lack of independence of these bodies would hinder their ability to effectively monitor law enforcement. Instead of serving as essential checks against police abuses, these bodies may potentially aid in concealing any irregularities that may arise from the enforcement of the legislation.

Clause 82 of the ATB grants the president the authority to ban organizations based on recommendations made by the inspector general of police (IGP) or the government if there are “reasonable grounds to believe” that an organization has engaged in an act that is an offense under the proposed law or in “an unlawful manner prejudicial to the national security of Sri Lanka.”

Clause 85 of the ATB grants the president the power to declare any place a “prohibited place” based on a request from the IGP, commanders of the armed forces, or the director general of the Coast Guard. This provision does not set a time limit for such a prohibition, unlike the current practice where the police have to seek time-limited restraining orders against protests from the magistrate. This infringes upon the constitutional right to be free from arbitrary arrest as stated in Article 13 of the Constitution, as well as the freedoms of speech and expression, peaceful assembly, and association, all of which are protected under Article 14 of the Sri Lankan Constitution.

Meanwhile, Section 100 of the bill empowers the president to send certain individuals, recommended by the attorney-general, to “rehabilitation programs.” This is a clause echoing a recent bill on rehabilitation that was deemed unconstitutional by the Supreme Court.

The ATB is seen as a response to the anti-government protests in 2022, Professor Jayadeva Uyangoda, a political scientist, said recently speaking to the media in Colombo.

In response to the economic crisis in the country, for the first time in Sri Lankan history, politically conscious citizens took to the streets and forced President Gotabaya Rajapaksa and his brothers to step down. The protests reflected frustration with the political establishment in general.

Recent opinion polls indicate that the left-wing, anti-austerity, and IMF-skeptical National Peoples Power (NPP) is the most popular political force in the country. Meanwhile, the Wickremesinghe government is enforcing IMF austerity measures as a part of the bailout package it received.

Recent research by Boson University researchers has found that “the track record of IMF-mandated austerity has not lived up to its promise” despite the IMF’s claims that vulnerable populations in the recipient countries are sheltered from austerity via “measures to increase spending on, and improve the targeting of, social safety net programs.”

Thomas Stubbs and Alexander Kentikelenis (2018), scholars from the University of Cambridge and the University of Oxford, respectively, found that social spending floors recommended by the IMF have not protected welfare from austerity.

In 2021, Valentin Lang from the University of Mannheim proved causally that IMF programs result in relative and absolute income losses for the poor. Earlier, political scientist Brendan Skip Mark had shown that “IMF compliance leads to increased government violations of collective labor rights, increased violent anti-government protests, and increased repression of physical integrity rights.”

Already Sri Lanka is witnessing strikes and industrial unrest that are crippling daily life. The Wickremesinghe government has been trying to break the unions by using existing draconian laws and by deploying the military to force worker compliance.

Uyangoda told The Island newspaper that the ruling class was aware that their economic policies were likely to spark frequent protests and demonstrations. In response, they were attempting to preempt such events by bolstering their repressive capabilities and enacting oppressive laws. However, he cautioned that such measures would only worsen the social crisis and fuel further unrest.