Kishali Pinto -Jayawardene
If the Bard once said in a somewhat excessively sentimental aside that a rose by any other name would smell as sweet, we can only remark that Sri Lanka’s counter terrorism or anti-terrorism bills emanate a distinctly unpleasant odour, irrespective of whatever ‘name’ it possesses.
Risk of imperilling national security
To be clear, this is not to join the chorus of optimistic spirits who believe that terrorist offences can be dealt with under the ordinary penal law. On the contrary, a specifically focused anti-terror law is needed but with a narrowly drawn scope, outlining precise offences that do not overlap into the realm of the (mundane) criminal law.
Ignoring that fundamental distinction raises the risk of confusing the public and law enforcement officers alike.
The end result is that national security is more likely to be imperilled than not. It is not simply a matter of parroting, as the Minister of Justice did some time ago, that if any person has a problem with Sri Lanka’s Anti-Terrorism Bill, the Supreme Court can be appealed to. The Minister must remind himself that judicial review takes place within a circumscribed intent to check if the restriction of liberties is constitutional.
The result thereto also depends on the vagaries of a particular Bench, the liberal or conservative leanings of the Justices who constitute the same as jurisprudential realists would warn for good measure.
Quite apart from anything else, this also depends on the competencies of those arguing the matter as well those hearing the same. In short, the responsibility of the Government in making sure that a good law is drafted goes beyond deflecting the responsibility to the Court.
2018 CTA is a bad exampl to rely on
Policy-wise, it is dangerously imprudent to tinker with anti-terrorism laws. Supporters of President Ranil Wickremesinghe have been heard to complain that, if what seemed to be the President’s pet law, the 2018 draft Counter Terrorism Act (CTA) had been enacted at the time, 2019 Easter Sunday attacks by homegrown jihadists might not have happened. This is, of course, to spectacularly miss the point.
The 2019 atrocities occurred not because of the absence of law or good intelligence. The Catholic Church has alleged that, at some levels, state agents were complicit directly or indirectly on the basis that the attackers could not have operated on their own without support from covert intelligence networks.
Taken at its most benign, various arms of the executive and law enforcement/security apparatus preferred to, (like the proverbial three monkeys), see no evil, hear no evil and speak no evil.
Allegations of a ‘grand conspiracy’ have been repeated by the Church and by a former head of the state law office. Engaging in an undignified sparring match recently with a badly prepared journalist of the German Deutsche Welle network, President Wickremesinghe himself was quick to point to the fact that such allegations were made long before a sensationalist mish-mash was aired by the British based network, Channel Four.
Any anti-terror law that crucified citizens
As jaded cynics muttered, that Deutsche Welle interview was not a spur of the moment spat as it were. Rather, it showcased the carefully choreographed start of the President’s election campaign for Sri Lanka’s presidential polls slated for next year, commencing with a bang as it were from European newsrooms.
Probably this outburst did have the intended effect, judging from the ecstatic praise coming from the lunatic fringe in the country.
Regardless, this is to digress from the point. The 2018 CTA Bill would not have made one jot of a difference to the 2019 attacks if it had been enacted. To argue otherwise is to engage in sophistry, no more and no less. Indeed, if enacted in that form, the CTA would have had a menacing impact far worse than the Prevention of Terrorism Act (PTA) that it sought to replace. Proposed at the height of the ‘yahapalanaya’ (good governance) era, this was an exercise in ‘lies and deception.’
Under the Gotabaya Rajapaksa Presidency that succeeded the ill-fated Sirisena-Wickremesinghe coalition unraveling in a morass of corruption, inefficiency and bitter personal animosities, the CTA would have been manna from heaven to a ruthlessly militarized administration.
In its very formulation, the CTA had the potential to ‘crucify Sri Lankan citizens by any Government, present or potential…’ as I wrote (See ‘Skullduggery, secrecy and the counter-terror draft act’, Focus on Rights, the Sunday Times, 30th April 2017).
The ATA remains as menacing as the CTA
So let us fast forward to the March/September 2023 versions of the CTA now known by a new title, the draft Anti-Terrorism Act (ATA). Changes introduced through a ‘consultation process’ to the March version of the ATA resulting in a revised Bill gazetted on September 15th 2023 do not address previously evidenced serious and significant risks in the Bill’s thrust.
The September draft still remains menacing albeit with pruning of obvious legislative overreach. The offence of terrorism is confined by Clause 3 (1) to three limbs of ‘intimidating the public or a section of the public,’ wrongfully compelling the Government, any other Government or an international organisation to do or abstain from doing any act’ and ‘propagating war or violating territorial integrity, infringement of sovereignty…’
This is read with an ‘act or illegal omission’ which Clause 3 (2) defines to encompass not only murder, hurt, hostage taking but also other more worrying acts. These include causing ‘serious damage’ to any place of public use, a State or Governmental facility, any public or private transportation system or any infrastructure facility or environment. It does not take much imagination to envisage legitimate action by ‘aragalaya’ protestors last year to come within its ambit.
Risks to constitutional protests
‘Serious damage’ is liable to be interpreted in which way that the State pleases. For instance, toppling a police barricade or causing damage to a state or private bus during protests aimed at changing Government policies in regard to proposed debt restructuring measures can also be seen as prohibited action within this clause.
In addition, the CTA’s definition of ‘terrorism related offences’ are superimposed verbatim on the ATA under the definition of ‘terrorism associated offences.’
This catches up any person gathering ‘confidential information’ knowing or having reasonable grounds to believe that this will be used to commit, conspire to commit etc, an offence under the Act. As critically observed in 2017, risks inherent in overbroad definitions of offences are not mitigated by protections offered for anything published in good faith with ‘due diligence’ and ‘for the benefit of the public in the national interest in print and electronic media or in any academic publication.’
Similar risks follow in another set of offences vaguely defined as ‘encouraging terrorism.’ These prohibitions apply to all forms of media, print, electronic and online.
In sum, the Government’s deliberately poised pincer moves with the Online Safety Bill and the Anti-Terrorism law poses the greatest threat to Sri Lanka’s national security, quite apart from internal or external threats as the case may be.
Creating a fog of extraordinary confusion
These Bills obfuscate and mix up ordinary law enforcement processes with terrorism prevention measures and/or criminalise legitimate acts of freedom of speech and expression. Certainly, in the fog of extraordinary confusion that this creates, potential terrorists will find it easier to escape unscathed, whether in planning acts of terrorism through conventional means or using the digital space to do so.
Is this the Government’s intention, pray?