Kishali Pinto Jayawardene
Verbal gymnastics indulged in by Sri Lankan politicians in respect of the draft Counter Terrorism Act (CTA), now before Parliament awaiting amendments from the sectoral oversight committee, are vastly entertaining in truth.
The ‘political hot potato’
Unlikely champions of constitutional rights are emerging from the Rajapaksa-led opposition. This week, the de jure head of the ‘Pohottuwa’ party GL Peiris held forth in full flood on the danger that the Bill poses to the rights of students, trade unionists and journalists (‘SLPP tears into Government over new Counter Terrorism Bill’, The Island, 26.02.2019). He was holding a difficult brief in terms of simultaneously arguing two distinctly paradoxical positions; both that the Bill would ‘facilitate’ terrorists and that it would hurt the rights regime.
From the Government side, head of the sectoral oversight committee, Mayantha Dissanayake, son of assassinated United National Party (UNP) heavyweight Gamini Dissanayake presented an equally difficult though more consistent defence of the Bill (‘The case for the Counter Terrorism Bill’, Sunday Observer, 24.02.2019). Peppered with references to what his family had undergone as a result of terrorism, this ‘political hot potato’ under his watch will be amended, he declared, ‘to ensure that we get it right.’
Both these views are not greatly reassuring.
Battered by damage done to the nation as a result of quarrelling politicians, beaten by the virtually impossible business of economic survival while political fat cats feed off the public purse regardless of whatever party they belong to, is the CTA to make lives of ordinary citizens even more horrible? What will be its impact on a corrupt and politicised police force in the context of enhanced powers? What about the greater discretion afforded to the office of the Attorney General, again no less susceptible to political pressure apart from a few exceptions?
‘Getting it just right’
The Government’s commitment on getting the CTA ‘just right’ would have been attended with far better credibility if the entire process of getting this legislation off the ground had not been so secretive and clearly mala fide in the first instance. It is not possible for the Government (by this, I mean the UNP), to shelter behind the argument that this draft had been amended due to a desire to ‘get it right.’ Far from it.
The amendments took place because the earlier drafts inconveniently leaked to the media were so bad that public agitation led to their withdrawal. Newer drafts attempted to smuggle the same archaic offences such as espionage back in different language. So to impute naive innocence to this constant dance to lead the nation astray is idiotic at best and subversive at worst.
And for those who would argue from the safe corners of overseas academia with virtually little practical knowledge of how the criminal law operates in this country, that the CTA should be welcomed by Sri Lanka’s citizens with open arms, given that it replaces the highly problematic Prevention of Terrorism Act (PTA, 1979), a tad more caution is well advised. The amendments proposed to the Bill are still to be put into the public domain and remain to be analysed at that time. But the Bill as gazetted remains obnoxious in various respects that were not canvassed before the Supreme Court when it was challenged or were pointed to but were ignored by the judges in the Determination handed down as pointed to, previously in these column spaces.
Diverting attention from the task at hand
Indeed, this is not to lend credence to the well meaning but thoroughly impractical contention that Sri Lanka should not have anti-terrorism legislation at all. This may well form a good basis for conference discussions. But in the current political reality, it is a counter-productive position to take. It diverts attention from the task in hand; namely the crafting of a narrowly tailored anti-terror law with tightly drafted clauses limiting themselves to few acts that are not captured by the ordinary law enforcement regime and subject to constant civil and judicial safeguards.
And again, this point must be reiterated. The Chair of the Parliamentary Sectoral Oversight Committee shepherding the Bill must realise that it is not possible to equate the implementation of such legislation with jurisdictions such as the United Kingdom or even the United States of the Donald Trump era which have strong in-built Rule of Law safeguards. Therefore to argue that this Bill has ‘fewer offences’ as compared to those jurisdictions (see ‘Counter Terrorism Bill nears finishing line’, 24. 02. 2019) is nonsensical in the extreme and ignores the reality right in front of our noses as it were.
The gazetted Bill is deficient in that respect, most certainly in terms of the excessive powers that it affords to the Minister to issue proscription orders against any organisation where (Clause 81(1)) the Minister has ‘reasonable grounds’ to believe that any organization is ‘engaged in any act amounting to an offence under this Act, or is acting in a manner prejudicial to the national security of Sri Lanka or any other country.’ The problems in this over-broad definition are evident, quite apart from the fact that the ‘reason’ of the Minister may be in question given that Ministers very frequently lack ‘reason’ altogether.
Timelines in Geneva should not dictate the process
But hilarity apart, this power to issue proscription orders is linked to this still over-broad definition of the offence of terrorism. This includes the following as set out in Clause 3 (1); ‘(a) intimidating a population; (b) wrongfully or unlawfully compelling the government of Sri Lanka, or any other government, or an international organization, to do or to abstain from doing any act; (c) preventing any such government from functioning;’
The fourth limb of this definition may conceivably be tolerated since it directly relates to causing harm to the territorial integrity or sovereignty of Sri Lanka or any other sovereign country.’ But the same cannot be said in respect of the preceding parts of this definition. Read together with Clause 3(2), causing serious damage to property for example (sub-clause c) immediately catches up a range of actions that are perfectly legitimate in form and indeed, permitted and protected by the Constitution as it now stands.
Consequently, the fears of trade unions, (apart from the ‘Pohottuwa’ posturing), that this Bill may rebound negatively on them is grounded in fact.
The same objection applies to other clauses in this section which categorises robbery, extortionor theft, in respect of State or private property and causing serious risk to the health and safety of the public or a section of the public as terrorist acts when read in the context of the preceding clauses. These are all highly problematic.
This Bill needs to be comprehensively overhauled, not just tugged a little here or pushed a little there as suggested by some who know very little about the way that even the current criminal process operates. Timelines set in Geneva should not dictate the process. That much is clear.