Kishali Pinto Jayawardene
Assessed even with the kindest eye, the potential of the proposed (and revised) new Counter-Terror Act (CTA) to legally validate intrusive acts of state officers is most worrying.If this version has been sent to the Legal Draftsman’s Department for conversion into the form of a Bill as we are informed, one can only hope for intervention of a peculiarly divine kind to prevent this draft being passed into law.
Old and worrying language continues
As analysed last week in these column spaces,terrifyingly familiar language echoes in the CTA’s classification of ‘terrorism related offences.’ This prohibits ‘words either spoken or intended to be read or by signs’ etc which ‘causes or intends to cause the commission of acts of violence between different communities or racial or religious groups. The prohibition is coupled with intent to cause harm to the ‘unity, territorial integrity or sovereignty of Sri Lanka or the peaceful coexistence of the people.’
Journalists and dissenters were imprisoned in the past precisely under these very same provisions in the Prevention of Terrorism Act (PTA). Its proposed replacement CTA continues this trend with the importation of additional references to ‘unity’ and ‘peaceful coexistence.’ These prohibitions are contrary to the Johannesburg Principles on National Security, Freedom of Expression and Access to Information.
And it is not only the extraordinarily vague definitions of what constitutes terrorism as well as associated and related offences that are problematic. The original draft leaked to the public last year as well as this revised version confers extremely wide powers on police officers during their investigations to ‘prevent and counter ‘terrorism.’ These not only include powers in existing laws such as the Police Ordinance, the Criminal Procedure Code and other such statutes.
Wide powers given to police officers
For example, the revised draft continues to permit police officers to obtain information from banks and other financial institutions without adequate safeguards in place and sans judicial oversight. Information that must be given includes any financial service provided to any person, any financial transaction carried out by such person, details of bank accounts, fixed deposits, remittances, withdrawals and certified statements thereto.
Equally repulsive are the provisions permitting the obtaining of information from service providers which a police officer not below the rank of Superintendant of Police can call for from any telecommunications, digital or satellite providers again without adequate judicial oversight.
The information that may be called for includes any information pertaining to services that may be provided or used to/by any person, information or data, documents or records that may be stored, archived or otherwise kept by such provider. Notably, it also includes uploading or downloading of data by such service provider.It is indeed wondrous that vociferous online activists and social media pundits who hold forth on freedom of expression have not yet seen this provision in the draft CTA.
Potentially high risk dangers
Then again, the draft CTA allows for the police to obtain information from Government departments and statutory institutions in a manner that sets alarm bells ringing loudly. A police officer not below the rank of a Deputy Inspector General of Police (IGO) is empowered to call for and receive information from senior public officials including Secretaries to Ministries, the Secretary General of Parliament (where is the interaction of parliamentary privilege with this, pray?), the Commissioner General, Department of Inland Revenue, the Governor, Central Bank of Sri Lanka, Controller of Exchange, the Controller General, Department of Immigration and Emigration and so on.
Sri Lanka’s draft CTA confers these powers on police officers of varying seniority without adequate judicial oversight. These conjure up nightmare visions. In this country, police officers have converted even the simple task of imposing minor fines in regard to mundane traffic violations into a fine art of extracting money illegally from unfortunate citizens.
The very high incidence of corruption within the police force is well documented.In this scenario, conferring such appallingly extensive magnitude of powers on law enforcement officers without sufficient safeguards to prevent abuse is a potentially high risk danger that we would not wish upon our worst enemies.
‘Cutting and pasting’ provisions from elsewhere
The CTA has been revised to take out the previous provision that confessions made to police officers are admissible. But ambiguity remains in relation to the provision of immediate legal counsel to suspects. It is now stipulated that the National Human Rights Commission (NHRC) shall be notified when there is temporary impeding of the movement or the stopping, searching and questioning any person. Duties in regard to the notification of arrests to the NHRC have also been sharpened.
But if our history teaches us one thing, it is that the State is remarkably skilful in subverting these obligations. In any event, these sops cannot cure other fundamentally vexed aspects of the revised CTA. These pose a potentially ferocious danger to freedoms of life and liberty. And the revised CTA still retains an offence of ‘espionage’ in regard to ‘confidential information’ relating to vaguely defined offences of ‘terrorism’ and what constitutes ‘confidential information.’
The problem with ‘cutting and pasting’ provisions from international models of anti-terrorism laws is that the environments are vastly different. The very concept of professional policing has been severely undermined for many decades in Sri Lanka not only as a result of failures by the police themselves but also through the pressures brought to bear by politicians. This is why the command structure of the police has collapsed and the Inspector General of Police (IGP) is reduced to crying in public and asking his officers to meditate.
Recognising a ghastly paradox
Purported international ‘experts’ on counter terrorism and policing of the United Nations or otherwise who the Government insists was consulted initially and during the revisions but who fail to recognize Sri Lanka’s manifestly harsh realities in this respect are not worth the salt of their labels.
It is profoundly disturbing that the secretive process by which this draft came about was condoned by all and sundry.
It is also even more disturbing that the horrendous over-breadth of the offences apparently escaped scrutiny. And it is an unpalatable truth that while ‘experts’ will consult and leave the shores of this country, Sri Lankans will be left to cope with the ravages brought about by experimentation of this kind.
This is a ghastly paradox that should arouse concern in no small measure.