Kishali Pinto- Jayawardene
If the Executive Presidency was foisted on Sri Lanka by her ‘Old Fox’ President, JR Jayawardene in 1978 tying the country’s constitutional systems up in knots that could not be entangled decades later by far lesser minds, the 2023 Anti-Terrorism Bill under the (parliamentary endorsed) Presidency of Ranil Wickremesinghe promises far greater evils.
A Bill that promises unholy chaos
To be clear, it does so because of its acutely confused contents rather than exceptionally clever clauses. Quite unlike the consummate skill with which the 1978 Constitution was devised, this Bill is replete with internal contradictions. Vague offences overlap into each other, blurring the lines between ‘ordinary’ penal offences and ‘terrorist offences.’ In large part, the same was true of its predecessor, the Wickremesinghe-Sirisena led ‘yahapalanaya’ Government’s Counter-Terror Act (CTA, 2018) in 2018, later withdrawn by that regime.
Ironically, ‘yahapalanaya’ proponents who stayed mum in the face of the CTA (then), have come out fighting against the Bill (now). Hypocrisy, it seems, is not limited to Sri Lankan politicians alone. Regardless, the 2023 adaptation has new features that worsen its impact.This includes bringing in Section 3(1) of the International Covenant on Civil and Political Rights (ICCPR) Act as a component of the ‘offence of terrorism.
This results in a provision hitherto used to arbitrarily lock up dissenters being elevated to the level of a ‘terrorist act,’ as observed in last week’s column spaces. In effect, the Bill precipitates the Department of the Police into a legal ‘no-man’s land.’ It will be difficult if not impossible to distinguish what action, in given circumstances, falls within the definition of conduct prohibited by the normal law and by this new ‘terrorism law.’
Unhappy consequences for the police and the public
At first, law enforcement autocrats may rub their hands in glee in being afforded unprecedentedly unfettered powers in operating this law. That includes Officers-in-Charge of police stations being conferred the power to issue Detention Orders. But in fact, the Bill heightens a dangerous imbalance in the constitutional separation of powers, a problem with which constitutional reformers have been struggling with for the past forty years.
It points towards an even more concentration of power in the Office of the Presidency. The President is empowered to issue ‘proscription orders’ when he has ‘reasonable grounds’ to believe that, inter alia, an organisation is engaged in an act amounting to an ‘offence.’ This will effectively ‘freeze’ the functioning of such an organisation.
A similar Presidential power is conferred in respect of issuing ‘Restriction Orders’ on individuals and the declaration of ‘prohibited places.’
In the 2018 CTA, these powers were given to the Minister. These distinctions are important, (even though in most cases, the portfolio of Defence is held by the President). In addition, the 2023 Bill authorises the President to appoint a Review Panel, to make regulations under the Act and to issue directions to the police and the armed forces.
The Bill’s impact on media
These amount to an extraordinary conferral of increased Presidential powers, read with the still un-rectified tilt of the 1978 Constitution towards the Executive Presidency. Several clauses of the Bill profoundly affect the media meanwhile. Clause 9 (read with Clause 3) defines the offence’ of ‘terrorism associated acts’ as being committed by ‘any person’ who gathers ‘confidential information.’
This is with the intent to supply such information to/or supplies such information to ‘a person’ knowing or having reasonable grounds to believe that the information will be used by that person to conspire, attempt or abet ‘an offence’ under the Act. ‘Confidential information’ is defined very broadly.
Clause 105 (interpretation section) defines this as any information having an ‘adverse impact’ on national security’/’defence’ which includes ‘any information not in the public domain’ on persons of the police, armed forces’ etc, functions, movements or whereabouts of a ‘specified person,’ a ‘prohibited place’ or an ‘approved place of detention.’ Highly problematically, this also includes ‘confidential information’ on ‘any secret code, word, password or encryption detail relating to national security and defence’
‘Prohibited action’ that is too broad
That reflects wording in the Official Secrets Act which has been an obsolete law in Sri Lanka for decades. Further, the gathering of confidential information in regard to a ‘terrorist offence’ (Clause 3 (1) and (2)) becomes an offence of and by itself. This causes serious problems given the imprecise nature of that ‘offence.’ A ‘terrorist offence’ is premised on an illegal act or omission which includes a host of conduct which may be perfectly legitimate in a given circumstance.
Thus, this catches up not only to murder, hurt, hostage taking or abduction (entirely justifiable) but also ‘serious damage to any place of public use’ or ‘serious obstruction or damage or interference to essential services or supply of same or with any critical infrastructure/logistical facility. It also includes ‘causing serious risk to public health and safety’ etc.
All this comes within prohibited action when there is intent to inter alia, ‘intimidate the public or a section of the public’ or to ‘unlawfully or wrongly compel the Gvt to do or to abstain from doing any act.’ But what is ‘intimidating’ to one segment of the public may not be so to another, surely?
And what is ‘wrong’ compulsion, pray? Then there is Clause 10 which pertains to the ‘encouragement of terrorism.’
Everyone poised to become a ‘terrorist’?
This catches up ‘any person’ who ‘publishes’ or ‘causes to be published’ a statement/words/words which may be ‘understood’ by some or all members of the public as ‘encouraging’/’instigating’ etc the offence of terrorism.
What is the meaning of ‘understood’ in this context? Clearly aimed at all media (print, electronic, web-based etc), either ‘intention’ or ‘recklessness’ will suffice to establish the offence.
Clause 11 relates to ‘disseminating terrorist publications,’ ie; circulating, distributing etc. A ‘terrorist publication’ is defined as a document which directly or indirectly encourages/induces persons to commit ‘ the offence of terrorism.’
This clause also applies if the publication contains material that may be ‘useful’ for the commission of the offence of terrorism. Coupled with vague definitions of the primary offence, these pose obvious risks.
Meanwhile, the punishments for offences under the Bill are breathtaking. Per se, if Clause 3 (2) (a) is violated, the penalty is death. If other sub sections of Clause 3 are violated, 20 years RI and fine up to 1 million upon conviction by High Court (Clause 4) with forfeiture of property in certain instances may follow. If Clauses 9, 10, 11 are violated, the penalty is RI 15 years and fine up to 1 million upon conviction by High Court (Clause 13) with forfeiture of property.
This is not a New Year priority
Clause 15 stipulates ‘failure to provide information’ to be an offence, carrying a seven year jail term. Under this clause, the long established rule regarding protection of a journalist’s sources dwindles to nothing as disclosure may be called for, not by a court, but by a trigger-happy cop. The same applies to Clause 16 mandating that ‘disobeying lawful orders’ is an offence.
Prime Minister Dinesh Gunewardene who was in the forefront of campaigning vigorously against the 2018 Counter-Terrorism Bill when in the Opposition, appears to have meekly capitulated in regard to the 2023 Bill. The Government has announced that the Bill will be brought before Parliament in late April or May.
A carefully timed press release on ‘delaying’ this by the Minister of Justice due to ‘protests’ indicates inexpert shadow-boxing, nothing more. Evidently, it is believed that the Bill can be quickly passed in the House in the somnolent quietude that follows the Sinhala and Tamil New Year as the country switches itself off from everyday chaos.
Why this indecent hurry, one may ask?