Sri Lanka: Bowing To Public Pressure Government Postpones Anti-Terror Bill – Analysis
The definition of terrorism is too wide. Too much power has been vested in the police and too little in the judiciary.
Bowing to public pressure, the Sri Lankan government has decided to postpone the presentation of the Anti-Terrorism bill. The Minister of Justice, Wijedasa Rajapakshke, told representatives of the civil society and trade unions here on Thursday, that a revised bill will be presented later this month or May.
Earlier, the Bar Association of Sri Lanka (BASL) had urged the government to defer the bill that had been gazetted on March 22. It wanted the government to first hold consultations with concerned parties, including the BASL. The BASL had appointed a committee of senior lawyers to review the legality and the consequences of the bill for the liberty of citizens.
Due to constant pressure from the UN Human Rights Council (UNHRC) and Western governments, Sri Lanka came up with a new Anti-Terrorism bill in March to replace the draconian Prevention of Terrorism Act of 1979.
But experts pointed out that the definition of a terrorist act in the bill was too wide. The bill was also short on judicial oversight, giving too much power to the Executive and too little to the judiciary, thereby creating room for executive arbitrariness.
Minister Rajapakshe had told civil society and trade union representatives that the bill was meant to take away powers from the President and hand them over to the law enforcement agencies (the police and the armed forces). But the complaint of the public was that the Executive (the police) had too much power and the Judiciary too little. It would make no difference to the citizen if power was taken away from the President and given to the law enforcement agencies as both are part of the Executive.
It is noteworthy that the report of the periodic review of the human rights situation in Sri Lanka at the UN Human Rights Council, had called for the clipping of the wings of the Executive.
Definition of Terrorism
The definition of terrorism in the Anti-Terrorism bill was too broad. A wide assortment of criminal acts was deemed to be “terrorist”, inviting the harshest of investigative procedures and punishments. Many of the acts listed could well be tried under ordinary laws, leading lawyer and Tamil MP, M.A. Sumanthiran said.
He pointed out that the HRCSL had said in a press release in 2022 that the term “terrorist” should be applied only to “those who threaten or use violence unlawfully to target the civilian population by spreading fear thereof to further a political-ideological or religious cause.”
The HRCSL had said that anti-terrorism legislation should not exclude the application of the Evidence Ordinance. It also pointed out that an indefinite period of detention violated the Constitution. The HRCSL saw no need for a specific anti-terrorism law and acts deemed terrorist should be covered by the criminal law suitably amended to counter terroristic offences.
“The Code of Criminal Procedure, the Judicature Act and the Bail Act require modifications for this purpose,” the HRCSL said.
The United Nations Security Council, in its resolution 1566 of October 2004, defined terrorist acts as “criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act.”
A former member of the HRCSL, Ambika Satkunanathan said that for an act to be “terrorist” it has to have the following attributes: (1) committed with the intention of causing death or serious bodily injury, or the taking of hostages, and involving serious or lethal physical violence against one or more members of the public; (2) committed with the intention of ‘provoking a state of terror, intimidating a population, or compelling a government or international organization to do or abstain from doing any act’ (3) coming under the international definition of terrorism.
Elaborating, she said: “This means that not all acts that are crimes under national law or even international law would constitute terrorist offences. Not only does the definition of terrorism have to be precise, it must also adhere to the principles of necessity, proportionality, and legality.”
Looking at it from this angle, the definition of terrorism in the Anti-Terrorism Bill was “broad” Satkunanathan said. Actions that are permissible in democracies could be deemed terroristic under the bill, she pointed out.
The power to arrest given in the bill had room for arrest prior to investigations without adequate evidence and without due process, she said.
When a Detention Order is placed before a Magistrate, the latter was only required to ‘give an order to give effect to such Detention Order’. This meant that a Magistrate’s oversight function had been removed, Satkunanathan pointed out.
The bill contained sections that enabled the police to take a person from remand custody (in prison custody) back into police custody via a Detention Order if they “believed that the person was planning to commit an offence or escape”. Since most violations under the Prevention of Terrorism Act, such as torture, had been recorded in police custody and not in remand (that is in prison), the transfer of a person back to police custody could make the person vulnerable to torture, Satkunanathan argued.
The rights activist and lawyer also charged that the bill contained an insidious attempt to undermine the powers of the Human Rights Commission of Sri Lanka (HRCSL) by establishing a parallel institution (the Independent Review Panel) to receive and inquire into complaints of alleged violations of fundamental rights.
Sri Lanka had already devalued the HRCSL. During the periodic review of Sri Lanka at the UNHRC, it was pointed out that the Global Alliance of National Human Rights Institutions had downgraded the HRCSL to “B” status.
The Board of Review set up under the new Anti-Terrorist bill would be chaired by the Secretary to the Ministry of Defense and an Independent Review Panel which would be appointed by the President. But this could not be deemed to be “independent and fit to check on the abuse of power by the police”, Satkunanathan said.