The Sunday Leader

Alarm Bells Ring Over Proposed Counter Terrorism Act

by Easwaran Rutnam

The proposed Counter Terrorism Act has sent alarm bells with many fearing it may be worse than the Prevention of Terrorism Act (PTA) which it seeks to replace.

Human rights groups noted that the new piece of law, if adopted, could give the government an opportunity to crush any dissent and any opposition by labelling it as ‘terrorism’.

A copy of a draft of Counter Terrorism Act, which was leaked to the media, gives a broad list of offences which fall under the ‘terrorism’ category.

Under the proposed law, a terrorism related offence includes threatening, attacking, changing or adversely affecting the unity, territorial integrity, security or sovereignty of Sri Lanka, or that of any other sovereign nation, or illegally or unlawfully compelling the government of Sri Lanka or the government of any other sovereign nation, to reverse, vary or change a policy decision or to do or abstain from doing any act relating to the defence, national security, territorial integrity, sovereignty of Sri Lanka or any other sovereign nation.

Terrorism is also defined as illegally causing a change of the government of Sri Lanka or of any other sovereign nation (as the case may be) and committing any act of violent extremism towards achieving ideological domination.

Acts falling within the ambit of the offence of terrorism includes committing or threatening to commit or instigate acts of violence of any manner, attempted murder, grievous hurt, wrongful confinement, extortion and causing obstruction, damage to or interference with any electronic or automated systems or any critical infrastructure or logistical facility associated with any essential service.

Any person guilty of the offence of ‘terrorism’ shall upon conviction by the High Court, be liable to a term of imprisonment which may extend to imprisonment not exceeding 20 years, and to a fine, and may be subjected to the confiscation of his property.

If however, as a result of the offence having been committed, any other person shall come by his death as a foreseeable consequence of his conduct, the person convicted of having committed the offence of ‘terrorism’ shall be punished with death.

The proposed Act also notes that upon a police officer questioning a person regarding the whereabouts of a person who has committed the offence of ‘terrorism’ or a ‘terrorism related offence’ or any other offence contained in this Act, or has conspired, abetted, prepared or attempted to commit such offence contained in this Act, and knowing of the whereabouts of such offender, fails to provide such information or provides false or misleading information, shall be an offence, and shall be liable to a term of imprisonment not exceeding 3 years and to a fine.

In a letter to President Maithripala Sirisena, civil society groups and individuals raised opposition to the proposed counter-terrorism law.

In the letter, the civil society groups expressed their strong opposition at the document in the public domain titled ‘Policy and legal framework of the proposed Counter Terrorism Act of Sri Lanka’, and categorically reject it as a viable alternative to replace the current Prevention of Terrorism Act (PTA).

The letter notes that in September 2015, the government committed to review and repeal the PTA and replace it with anti-terrorism legislation in accordance with contemporary international best practices. Since then, there has been a complete absence of information from the government about the intended review of the PTA, and no consultation with the Sri Lankan public about proposed new legislation to the best of our knowledge.

“We note the government’s consultations with United Nations (UN) bodies and hope this also includes the Office of the High Commissioner for Human Rights and the UN Special Rapporteur on Counter-Terrorism and Human Rights. We also hope the numerous observations and recommendations by treaty bodies in relation to the PTA will be taken into account. However, we are concerned that consultations with the UN have been shrouded in secrecy and appear to have been prioritised over consultations with the Sri Lankan public, and that information and documents have been shared with the UN that to date, have not been shared with the general public,” the letter states.

The letter further states that the status of the document that is now in the public domain, titled ‘Policy and legal framework of the proposed Counter Terrorism Act of Sri Lanka’, is unclear. The government has made no official statement whether this document is a draft legislation intended to replace the PTA. However, we understand that this document is being discussed in international meetings, including in relation to Sri Lanka obtaining GSP+ status.

Shortly after a ‘leaked’ version of the purported draft framework was available in the public domain, it was reported that the Cabinet of Ministers had decided ‘to forward the policy and legal framework drafted by the said committee and presented by Prime Minister Ranil Wickremesinghe, to the Sectoral Oversight Committee on National Security’.

Further, in email correspondence with one of the signatories to the letter, the UN Security Council’s Counter-Terrorism Committee also stated the draft framework was before the Parliamentary Oversight Committee.

“We urgently request that you officially put the document that is now before the Parliamentary Oversight Committee in to the public domain, and also to officially make public the previous secret draft that we understand was developed by the Law Commission, which also has been leaked and is now online. This will help to ensure the public does not need to be concerned or mislead by ‘leaked’ versions which are not official versions,” the letter added.

Local civil society noted that the repeal of the PTA has been vehemently sought to remove egregious provisions, such as confessions to police officers and long periods of administrative detention without judicial supervision.

The proposed framework does not appear to address these fundamental concerns attached to the PTA. Alarmingly it appears to amplify the existing grave concerns, such as by a range of offences spanning eight pages that lack the specificity required in penal provisions, expansion of law enforcement powers to the armed forces and coastguard, enable return of suspects in remand custody to police custody and provide for deferment of indictments up to 10 years if some broad and discretionary conditions are not fully complied by suspects.

The application of the PTA has negatively affected the application of ordinary law, including the reticence of the judiciary towards protecting civil liberties, permitting abuse and impunity of the police, military powers interfering with individual rights, and eroded public transparency and good governance.

“The PTA has also been used to stifle dissent and free speech, and has created a permissible environment for enforced disappearance and systematic torture. Any new framework or formulation of counter-terror legislation must explicitly ensure that there is no further assault on civil liberties. It must also appreciate the fact that there is a constitutional and legal regime pertaining to declarations of emergency, and a clear demarcation between the purpose of counter-terror laws and emergency laws,” local civil society groups said.

In the way it is written, the proposed law will have a chilling effect on all forms of dissent, including legitimate democratic political activity.

“We have long seen how the PTA and Emergency Regulations have disproportionately targeted the Tamil ethnic community. The administrative and executive culture, particularly the police and security forces, continues to be pre-disposed to such disproportionate treatment. Therefore we fear that without explicit safeguards any proposed counter terror legislation too would lend itself to violence and discrimination targeting numerically disadvantaged social groups, including ethnic, religious and ideological minorities. Further, it completely lacks proportionality and is not linked to any threat perception that is overseen by the legislature,” the letter went on to say.

Civil society is concerned the ideology emanating from the document is one of embedding exceptional circumstance laws into the ordinary legal system. The spirit and purpose of both the PTA and the proposed law are similar: Extreme powers are granted to the executive, military, and police in the name of preventing and countering terrorism, without independent checks and balances, and at the expense of rights and protections constitutionally guaranteed to citizens.

Further, the expansive nature of the proposed law is not commensurate to the post-war environment that Sri Lanka is in, nor with a reasonable assessment of proposed terror threats.

The defects of the proposed law are not a matter of mere amendments to particular clauses. The proposed law, taken holistically, falls significantly short of what is acceptable and permissible as a counter-terror law for Sri Lanka, and therefore reiterate our stance that this draft is beyond reform and must be withdrawn in its entirety.

4 Comments for “Alarm Bells Ring Over Proposed Counter Terrorism Act”

  1. Navadutugemunu

    Ccomplaining about this legislation is laughable as Similar Legislation in Countries such as Singapore/Malaysia/Thailand/ Indonesia are unbearably tough
    and draconian in nature.

  2. Carlion

    So called Human Rights groups have always sided with and supported Terrorist
    Groups all over the world. As a result terrorist groups are growing like mushrooms creating havoc. Some of them are even funded by such terrorists to keep them flourishing. THIS MUST END before the order in the world is turned upside down.

  3. gamarala

    Justice Minister is against an attorney being present during the interrogation of any citizen arrested by police.
    This will encourage ‘state terrorism’ against citizens by threats, torture and even murder, labelled ‘suicide’, happening even now.

  4. Sangaralingham

    Matter for all citizens of the country to act.not justified legal documents under any name interfering with free expression against all irresponsible legal moral issues must be a right for every citizens must follow to prevent dictatorial legal procedure contradictory to citizens rights

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