Kishali Pinto Jayawrdene
Despite the Government of Sri Lanka’s proud boast to the contrary during requests to renew the EU GSP Plus trade facility and at numerous United Nations briefings, revisions made to the draft Counter-Terror Act (CTA) fail to address major Rule of Law concerns in substance.
Dangerously vague and overbroad definitions of what constitutes terrorism and terrorism-related offences are left intact. Indisputably this remains a law drafted for the protection of a Government in power, not to protect Sri Lanka itself from threats of terrorism. The distinction thereof must be made very clear.
Potential dangers to right of expression
As analysed in these column spaces previously when the original draft CTA was first leaked to the public by this newspaper, that version was riddled with the lack of conceptual clarity in regard to definitions of terrorism and terrorism related offences. One would have thought that this key concern in the draft may have been addressed when the Government furiously back-pedalled in damage control mode. However many of these offences continue to overlap and replicate each other even in the revised document when examined.
To add insult to injury, the revisions also include a new offence numbered as (vi) under ‘terrorist offences’ which punishes ‘any person who intentionally and unlawfully distributes or otherwise makes available a message to the public with the intent to incite the commission of a terrorist offence.’ This is so regardless of whether or not that conduct expressly advocates terrorist offences. It will suffice if it causes danger that one of more of such offences may be committed.
Punishment is imprisonment upon conviction by the High Court for up to fifteen years. This clause and other clauses that were used against journalists and activists for advocating critically under the Prevention of Terrorism Act (PTA) in the revised draft potentially pose the gravest danger to freedom of speech and expression.
Careful advocating for international assistance
One improvement is that the earlier (quite ridiculous) inclusion of advocating a change in policy as amounting to one component of an offence of terrorism has been removed which is occasion for some relief. Regardless, the draft continues to create a raft of new and vague offences that would envelop all Sri Lankans in an iron grip if this is passed into law.
It is now commonly known that the Law Commission’s draft to bring the Prevention of Terrorism Act (PTA) more in line with international standards had been unceremoniously tossed out in favour of this monstrous draft CTA. Despite their aggrieved protestations, UN agencies played a regrettably short sighted and ill-judged role in that process. In Myanmar last week for work connected to that country’s justice systems, I made one point very clear. This was that international assistance must always be strategized in a manner that provides constructive help rather than result in destructive impact with the ‘copying and pasting’ of international models with no idea of local conditions or the ‘lived-in’ state of the law.
Indeed, we saw this in regard to the 2001-2003 ‘peace caravan’ and in respect of the 2015 ‘transitional justice’ carnival. The sudden burgeoning of local ‘research’ outfits, some run by husband and wife combos trotting out piecemeal analysis lavishly supported by the aid industry was part of this ugly phenomenon. In both instances this upsurge was accompanied by a demonizing of competing and far more honest narratives.
Comforting but unbelieving justice rhetoric
In 2015 for example, palpable hysteria on the part of some was evidenced when favourite ‘legislative projects’ such as the Office of Missing Persons (OMP) Bill was subjected to robust local critiques. Regardless to say, cheers which rang so deafeningly at the time seem particularly ludicrous when the activation of the OMP is on hold more than eight months after the Bill was passed into law.
To give the devil its due, the Wickremesinghe Government deserves a wry compliment, as back-handed as it may be. This is for playing the game exceedingly well in the sense of entrancingly entrapping Colombo’s exuberant caravan followers as well as the diplomatic community into such a deceptive sense of collective well being that all other concerns of substantive justice were pushed aside. Now that the play for time that the Government wanted from the United Nations Human Rights Council has been won, we can get used to the comforting but scarcely believable rhetoric of justice a little while longer. Rest assured however that the ultimate pickings will be miserably small.
Alive to the inevitable electoral repercussions that this will attract, this is perhaps why the Tami National Alliance and its mouthpieces have been increasingly getting more strident in their criticisms of the Government. This ‘strutting and fretting’ upon the stage would have been amusing if it was not for the tragic consequences that are visited upon human beings.
Continuing worrying concerns
The emergence of this obnoxious CTA, which we are now saddled with for our manifest sins, was part of that same dysfunctional process. Drafted in secret, its contents invoked considerable and understandable consternation when leaked to the public. Regrettably, the Bar Association and activist groups such as the Lawyers Collective which would have stormed the scene with pontifications of good governance if such a draft had been spearheaded by the Rajapaksa Presidency were notably silent this time around.
The recent revisions made to the draft CTA will be examined more in detail later in these column spaces. Where the suspect’s right of access to an attorney-at-law is concerned, it appears to be limited to the same unsatisfactory extent that the recent Criminal Procedure (Special Provisions) Code draft amendment stipulates. The manner in which this violates the Rule of Law was discussed last week. All these are worrying concerns.
Fundamentally, the very purpose of an anti-terror law is to provide for exceptional and extraordinary situations where the normal law is not adequate. If however, an environment is brought about where recourse would be to an anti-terror law as a matter of course, this obliterates that crucial distinction. This creates a security state. In effect, Sri Lanka had been a de facto security state for the past many decades due to prolonged civil and ethnic conflict. Now the question is whether that de facto state will not be transformed into a de jure security state if the CTA, in its present obnoxious form, is enacted.
Certainly this is a question that concern us all, regardless of majority or minority status.