Kishali Pinto Jayawardena
In contrast to Colombo’s largely polarized sound and fury on the Counter-Terror Bill, it is refreshing to look at the manner in which South Africa has dealt with uncannily similar dilemmas of balancing national security imperatives and constitutional rights in bringing its counter-terror law into effect more than a decade ago.
Shared legacies of horrific state violence
There are indeed, much in common between South Africa and Sri Lanka in shared histories of horrific state violence. We have similar legacies of over-broad national security/emergency regimes that replaced the criminal procedure law and gave state agents the literal power of life and death over citizens across racial and ethnic lines. In more recent times, there are great similarities in dysfunctional state processes of both countries when the law is translated from theory to practice. This is important to recognise as this is why good legal provisions falter in the practically subversive context of state impunity unchecked by the Constitution. Indeed, this is the signal difference in contrast to functional Rule of Law countries, even if we are to recognise the retreat of the liberal rights culture in those countries as they face the brutality of global terrorism.
That said, there are notable differences between the two nations. As a senior legal practitioner and a celebrated South African rights advocate elaborated for my benefit in a measured discussion in Johannesburg a few days ago, South Africa’s Constitutional Court has proved itself to be a formidable bulwark against state repression. Even in tense economic times and uncertain political turbulence similar to what Sri Lankans face, it is a matter for pride that the South African Court has stood firm above the frantic winds of popular and political pressure.
Most importantly, it has unflinchingly refused to accept the dictate of the State in pleading national security to shield state action contrary to the Rule of Law. That is not something that we see frequently here. Our Supreme Court, even in the best of times and with the best of judges a decade or two ago, was not quite able to emulate that judicial fortitude. Now, that has got significantly worse.
A crisper and more conceptually sound law
Nonetheless and despite this one singular difference regarding the tried and tested strength of the Court, Sri Lanka may benefit from looking to South Africa to understand its counter-terror law as well as the process by which it came into being. We may learn from these experiences even as we labour over the difficult balance to be struck between the protection of national security and safeguarding constitutional freedoms, rather than ‘copy cat’ Western legal models, which too many ‘analysts’ are carelessly fond of doing in this country.
In substance, South Africa’s Act is far crisper and far more conceptually sound than Sri Lanka’s bulky and unfortunately repetitive Counter Terror Bill now before Parliament. The South African version does not provide for administrative detention at the whim and fancy of the state authority. This resistance to arbitrary detention without proper charges being framed comes from bitter experiences of political and police brutality under the apartheid regime. Its definition of what constitutes a terrorist act is far narrower than the meandering definitions in Sri Lanka’s Bill which includes not only the primary offence but a bewildering range of associated offences that gives too much leeway to law enforcement and prosecutorial agencies.
Interestingly, the South African law brings in the idea of ‘threatening the unity and territorial integrity of the Republic.’ As must be recalled, this reference to ‘unity’ was taken out in its Sri Lankan counter part following public protests. In a mission to South Africa soon after this Act was operationalised, Martin Scheinin then Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, praised the South African Government for the consultative process that it followed when enacting the law. However, he recommended that the Government closely monitor the implementation of the new law and amend it, if needed, given problems in some definitions.
Need for legal definitions to be clear
His anxiety was in relation to the fact that even though the definition of terrorist acts in South Africa’s law, ‘when read cumulatively, sets up several thresholds of severity in order for an act to constitute terrorism…there are, however, elements of the definition which may convey the idea that even less severe acts may amount to terrorism’ (see A/HRC/6/17/Add.2 5 November 2007). The definition of ‘terrorist activity’ was assessed to be concerning as it covered ‘several offences that do not necessarily include deadly or otherwise serious violence against members of the general population or segments of it.’
Moreover Article 12 of the law enforced a duty on members of the public to report ‘crimes under the Act’ which directly infringed freedom of expression rights and in particular, the ability of journalists’ to protect their sources. These are discussions that are useful for us here given the Counter-Terror Bill’s impact on the media. Clause 10 (g) problematically defines aiding terrorism as ‘intentionally and unlawfully distributing or otherwise making available any information to the public having intent to incite the commission of the offence of terrorism or other offence under this Act.
This is coupled with ‘the fear of such offence being committed’ despite such conduct not expressly advocating such an offence.’ In addition there is an entire range of suggested offences in sub-clauses (i) to (L) linked to ‘illegal’ or ‘unauthorised’ acts in relation to ‘confidential information’ despite all these terms being legally ambiguous. These are intensely worrying gaps in the Bill.
Taking public concerns into account
Above all, it is illustrative for Sri Lanka that the enactment of South Africa’s Protection of Constitutional Democracy against Terrorism and Related Activities Act (Act 33 of 2004) was preceded by broad public consultations. Critiques raised by rights advocates, analytical papers by the Law Reform Commission of South Africa were examined in a long and deliberative process prior to its adoption and later operationalising on 20 May 2005. A series of discussions with trade unions, student movements, legal and professional bodies was held. The contrast between this and the stealthy manner in which various versions of Sri Lanka’s Counter-Terror Bill floated around in political back corridors during the past three years cannot be more stark. As I returned to Sri Lanka this week, it was to learn that trade unionists protesting against the Bill had been repelled by water cannons by the police. Is this really the way that the Government wishes to put forward this law, given the ugliness of our history?
The claims of the protesters may be a trifle over-exaggerated and in some respects, rather rib-ticklingly funny as in accusing Prime Minister Ranil Wickremesinghe of trying to create a Hitleresque regime for example. But the disquiet of both trade unions and the media over the Bill is very real, as emphasized earlier in these column spaces.
These concerns must be taken into account if more (legitimate) public discontent with this ‘yahapalanaya’ (good governance) administration is not to be evidenced.