By Dr. Nirmala Chandrahasan
The Act as in the expression ‘a Curates’ Egg’ is good in parts and bad in parts. While the proposed new Counter Terrorism Act repeals the earlier Prevention of Terrorism Act and does away with some of its bad features, it introduces some new features which are not desirable and which in fact may lead to equally draconian enforcement.
Before we examine the Act it is necessary to ask the question whether a counter terrorism act is required at all, in the context that the country is free from terrorism and the normal laws of the land if applied judiciously could cover any incipient attempt at terrorism. There is also the ICCPR Act which has been used in respect of suspected terrorist activity from foreign sources.
In a period when reconciliation efforts are underway is it necessary to muddy the waters with another draconian counter terrorist law which will breed suspicion and fear among the citizenry and give the Police and armed forces personnel powers which are inconsistent with constitutional provisions and are not necessary in today’s context.
It will also give Governments / incumbent regimes power to stifle dissent even trade union or student agitation and label them as terrorist activity under the very wide and vague definition of terrorism set out in the proposed Act.
It may be argued that we have a liberal government and these powers will not be used to turn Sri Lanka into a police state. But is it wise to leave such an instrument to those who might hereafter make use of it to take away the liberties of ordinary citizens and turn the country into a Police state. This Act requires to be debated in public forums and be subject to a referendum, before the people of Lanka can accept it.
Countering terrorism
The Preamble to the Counter terrorism Bill refers to Sri Lanka’s obligation to enact laws to give domestic legal effect to international instruments relating to countering terrorism and speaks of eradicating domestic and international terrorism through enforcing a criminal justice system against terrorism based on international norms and standards and domestic needs, so we must see what are the international norms and standards. There is still no comprehensive international Convention on Terrorism or a definition of Terrorism. There are however Conventions which are sectoral in nature and address particular subjects such as Air or maritime safety, funding of terrorism etc. However the international community has adopted a ‘UN Global strategy against Terrorism’ by General Assembly resolution 60/288. Under this the CTITF Counter Terrorism Task Force has been constituted. The international community has in UN General assembly and Security Council Resolutions committed to adopting measures that ensure respect for human Rights for all and the Rule of law as the fundamental basis for the fight against Terrorism. The CTITF has set out guidelines for states legislation on counter terrorism. To begin with the measures taken must comply with all their obligations under International law and international human Rights law. Another requirement is that the Definition of “terrorist offence” must be precise and not overly broad.
When we look at the definition of “terrorist offence” in the proposed Act it is indeed very vague and over broad. Under this definition interalia ‘wrongfully and unlawfully compelling the Government of Sri Lanka to do or abstain from doing any Act…by way of causing serious obstruction or damage to essential services or supplies…or causing obstruction or damage to or interference with any critical infrastructure or logistic facility associated with any essential service or supply’ …is an offence. The President has absolute discretion to define any public service as an essential service. Hence if he were to decide that public transport in any form is an essential service, then in effect citizens who take to the streets to protest this directive, or in pursuance of trade union or student protests would be deemed as obstructing an essential service or interfering with critical infra structure and thereby guilty of committing a terror offence under the Act. ‘Offence’. Even the earlier PTA did not have such a wide scope.
The CTA subsequently says any action by any person in good faith in the lawful exercise of a fundamental right…shall not amount to an offence under this Act. However under the Constitution the State can curtail fundamental rights for various purposes including National Security, national economy, Protection of Public Health or Morality. Hence in practice the reference to fundamental rights gives very little protection to persons identified as terror suspects under the Act.
The other important feature which we must examine are the powers of investigation arrest and detention under the Act. Under section 17, Any Police Officer member of the Armed Forces or Coast guard Officer can if he/she has reasonable suspicion arrest without warrant a person whom he suspects to be committing or is conspiring to commit a terrorist offence or where he receives information or a complaint which he believes to be reliable. In the course of investigation and arrest he can stop and search vehicles, question persons and search premises. Thereafter this arrest is reported to the OIC of the Police station and the police officer obtains a detention order from a DIG. The suspect is produced before a Magistrate within 48 hours but under section 27 the magistrate has no powers of scrutiny or any decision making authority. Even if in his opinion the charges are not sustainable he cannot question the detention order and has merely to give effect to it. The detention order is initially for two weeks and can be extended up to eight weeks on the DIG presenting a confidential report to the magistrate who has to keep it confidential and make and grant the required extension. After this period the suspect will be held in remand.
Inconsistent
These provisions are clearly inconsistent with Article 4(C) of the Constitution under which the judicial power of the people shall be exercised through ‘Courts and tribunals’ whereas here this power is given to Police Officers, as it is the DIGs who make Detention Orders. Furthermore it is also inconsistent with Article 4(D), which states that the Fundamental Rights shall be secured and respected and not ‘abridged restricted or denied’. Hence under Article 84 of the Constitution the proposed CTA is a Bill which has to be passed by a two third majority. It is evident that the procedure for investigation and arrest is inconsistent with the Fundamental Rights set out in Chapter III of the Constitution. The basic rights of equality and non discrimination are also at risk when a law is not applied with certainty, predictability and objectivity, as in this instance where a police officer rather than a judicial officer is given the power to determine a person’s guilt or innocence at the point of arrest and has the power to issue detention orders over which the judicial officer has no scrutiny.
I would like to refer here to a very instructive piece by Gehan Gunatilleke on twitter where he constructs a story about 2 people suspected of similar crimes but who encounter vastly different experiences under the law. One is named Asanka and the other Arif. They are both arrested for putting up posts on social media inciting violence against the other community. Asanka is arrested under 3(1) of the ICCPR Act of 2007 on suspicion of inciting violence against a religious group. The provisions of the CPC come into operation and he has to be produced before a Magistrate within 24 hours, (extendable under certain circumstances to 48hours). Asanka is produced within 24 hours. The Magistrate refuses Asanka Bail as he forms the impression on examining him that he may continue to incite violence on social media while on bail. He is placed in remand until the next hearing. He has access to his lawyer and to his family members. At the same time Arif is arrested under 10 g of the CTA by a police officer (presuming it is in operation) for distributing information with the intention of inciting the commission of the offence of terrorism. The Police officer obtains a Detention Order from the DIG. Arif is produced before the magistrate within 48 hours but in keeping with section 27 of the CTA the Magistrate has no say in the matter and has to give effect to the order. The Detention Order is initially for 2 weeks but the DIG sends a confidential report to the judge and the Judge has to extend the detention to a period of 8 weeks. After this period Arif is put in remand and can meet members of his family. His case will be taken up after 6 months under the new provisions but the fact remains that Arif has the stigmata of terrorism. As pointed out by Gehan Gunatilleke here we have two people committing the same offence but the out come is very different, and why because a policemen says so. The article is captioned “Your name may make the difference”. So what we see here is racial or religious profiling. Police Officers are no doubt in general reasonable people but they like any of us have their prejudices. Hence in the view of the policemen in the story, Arif a member of one community is more likely to be a terrorist suspect than Asanka a member of another community. As the Author says‘ It places incredible power in the hands of police men to pick and choose what law to apply’. He points out that this story also shows us that the ordinary criminal procedure law is more than adequate to deal with such situations. A Magistrate is fully empowered under our Bail Act to prevent the release of suspects who may create offences while on bail. Such general powers call into question the need for detention orders at the behest of police officers. He poses the question should we not trust our judges?
The procedure proposed under the new Act is a frightening one. Especially with the recent record of extortion and kidnapping cases in which members of the Police and of the armed forces too have been involved the general public would not feel confident placing such powers in the hands of policemen and even armed forces and coast guard personnel. Furthermore it would not be in keeping with the principles of certainty predictability and objectivity which the ordinary citizen expects in a judicial process.
Frightening
It is argued that the CTA is in many ways better than the PTA. Certain features of the PTA such as Confessions being admissible in evidence and the long period of detention which could go up to 18 months have been done away with. Various safeguards such as that the ‘Arresting Officer must give the suspect information as to his identity as well as the crime committed in a language understood by the suspect and that the Arresting officer must give a family member of the suspect an acknowledgement of Arrest, that the HRC should be informed within 72 hours, a board of review etc have been included. However these requirements are not backed by any penalties for non observance and thus may well be observed in the breach. As has been observed the use of human rights language does not hide the more sinister features. In any event the Act is not to be judged vis a vis the Prevention of Terrorism Act but must be judged on its own merits or demerits.
Courtesy:The Island