{"id":52706,"date":"2017-04-29T18:47:09","date_gmt":"2017-04-29T22:47:09","guid":{"rendered":"http:\/\/dbsjeyaraj.com\/dbsj\/?p=52706"},"modified":"2017-04-29T18:47:09","modified_gmt":"2017-04-29T22:47:09","slug":"secrecy-and-skulduggery-by-devious-drafters-to-confound-scrutiny-of-proposed-counter-terror-act","status":"publish","type":"post","link":"https:\/\/dbsjeyaraj.com\/dbsj\/?p=52706","title":{"rendered":"Secrecy and Skulduggery By Devious Drafters to Confound Scrutiny of Proposed Counter Terror Act"},"content":{"rendered":"

By<\/p>\n

Kishali Pinto Jayawardene<\/strong><\/p>\n

In the chaotic merry-go-round characterizing the drafting of Sri Lanka\u2019s proposed Counter-Terror Act (CTA), the periodic surfacing of one version followed by another has given rise to unexpected horrors. Each time that a new draft emerges or should I rather say, is \u2018extracted\u2019 with great pain out of a process gripped by skullduggery and secrecy, its devious drafters conceive new and ingenious ways to confound scrutiny.<\/p>\n

Legal clauses to mask and deceive<\/strong><\/p>\n

Even as one objection is taken to categorically dangerous definitions of proposed offences, these are whipped away, soothing the unwary. Yet later, they emerge, clothed in chameleon colours to mask and deceive. Nothing proves this point better than the CTA draft that went before the Cabinet of Ministers this week. This contains hasty revisions made on the cusp of a suddenly suspenseful vote in the European Parliament seeking a rejection of the EU GSP Plus facility which was defeated.<\/p>\n

Ostensibly, its contents were supposed to have been improved. Yet what we see is not reassuring. The draft reeks of bad faith and is extraordinarily contradictory. Indeed and outrageously so, it contradicts explanations for drafting positions taken by the drafters themselves. Two glaring examples will suffice for the moment. The initial CTA version leaked to this newspaper last year had included the offence of espionage. Following public concern, this was removed in a later version. As formally recorded, the reason given for this removal was because this offence would more properly belong in a separate National Intelligence Act.<\/p>\n

<\/p>\n

But now, in the face of that very explanation, various offences under espionage have been sneakily restored to the latest draft while omitting the sub-heading \u2018espionage.\u2019 Thus, the offence of \u2018abetment\u2019 is defined to include \u2018gathering confidential information\u2019 if linked to \u2018terrorist\u2019 or terrorist related offences. Treacherous consequences which may ensue are tied into the very broad definitions of terrorism related offences. In addition, confidential information has been vaguely defined inter alia as information that may adversely affect public security.<\/p>\n

Scant protections in a dysfunctional system<\/strong><\/p>\n

Risks inherent therein are not mitigated by protections offered for anything published in \u2018good faith\u2019 with \u2018due diligence\u2019 and \u2018for the benefit of the public in the national interest in registered print and electronic media or in any academic publication.\u2019 It is interesting that this protection is afforded only for \u2018registered\u2019 media. Meanwhile a notable omission in those given protection is online media which should sound warning signals for cyber advocates.<\/p>\n

In any event, terms such as \u2018good faith\u2019 and \u2018due diligence\u2019 provide scant protection in a dysfunctional judicial and prosecutorial process. Provisions that are perfectly reasonable in functional Rule of Law systems assume sinister meaning connotations here because of that reality. This is not an abstract point as seen in the manner that the far less hazardous Prevention of Terrorism Act (PTA) was wielded against journalists and critics for decades.<\/p>\n

Bitter animosity against the Rajapaksa regime was manifest in that regard. Why are we beckoning to laws that may provide greater opportunities for political repression? This is a baffling question.<\/p>\n

Reinventing previous \u2018vague\u2019 terms<\/strong><\/p>\n

In another equally furtive move, the term \u2018unity\u2019 in relation to the definition of \u2018terrorist\u2019 and terrorism related offence\u2019 has also been brought back. Earlier, this was removed after persistent criticism. As the drafters themselves admitted, the term was vague. Classifying a terrorist related offence if one writes or talks in a manner that may offend \u2018unity\u2019 (subjective in its very essence) is perilous to say the least.<\/p>\n

But wondrously, this week\u2019s CTA restores \u2018unity\u2019 as a component of \u2018Offences of Terrorism\u2019 and other related offences. Culpability arises when acts are known or reasonably believed to adversely affect the \u2018unity, territorial integrity, sovereignty, national security or defence of Sri Lanka.\u2019 The related offences are repetitive and vaguely defined. They include \u2018specified terrorist offences\u2019, \u2018aggravated criminal offences associated with terrorism\u2019, \u2018offences associated with terrorism\u2019 as well as \u2018terrorism related offences\u2019 and \u2018abetting terrorism and terrorist organizations.\u2019<\/p>\n

Thus, talking or writing that \u2018causes harm to the \u2018unity, territorial integrity or sovereignty of Sri Lanka,\u2019 amounts to abetting terrorism and terrorists. That this proposed offence is deemed not to affect the exercise of a \u2018fundamental right\u2019 in \u2018good faith\u2019 is a sop thrown to the needy. Its efficacy depends on a vigorous Supreme Court conscious of its constitutional role and a vigilant civil society. With some exceptions, one cannot profess a great deal of confidence in either.<\/p>\n

Where is this famed \u2018accountability\u2019?<\/strong><\/p>\n

Meanwhile police powers in compelling bank statements, calling for information from service providers and senior public officials etc without applying for a magisterial warrant can now be met with refusal to comply. Further action is only through activation of the legal process which is some relief at least. However, a suspect\u2019s right of immediate access to legal counsel upon arrest continues to be hedged around by qualifications rendering it meaningless. Here too, the revised amendment to the Code of Criminal Procedure Act appears to afford the right but then craftily denies it later.<\/p>\n

In sum, the contents of that amendment and the revised CTA draft appear to be an uncomfortable exercise in \u2018lies and deception.\u2019 Indeed, it is an insult to assume that masking language and offences in this way will not result in the pretence being exposed. As repeated ad nauseam in these column spaces, both these amendments should have been publicized by the Government of Sri Lanka and extensively subjected to detailed independent scrutiny. But the converse takes place.<\/p>\n

In the minimum, the CTA draft has not even yet been sent to the Human Rights Commission of Sri Lanka (HRCSL). This is despite the fact that the specific mandate of the HRCSL (Section 10 (c) and (d) of Act, No 21 of 1996), is to advise and assist the government in \u2018formulating legislation\u2026in furtherance of the promotion and protection of fundamental rights\u2019 and to recommend on compliance with international human rights norms and standards. The contempt thus shown for a prescribed statutory process is nothing short of scandalous.<\/p>\n

Menacing eventualities before us <\/strong><\/p>\n

Once the document is in Bill form on the Order Paper of Parliament, there is only limited time for challenge if needs be in Court. This absurd and counterproductive scramble in forcing through laws is deplorable. Whatever revisions that may take place at committee stage to this Bill is also out of our hands.<\/p>\n

Certainly these are menacing and high risk eventualities for a law that can be used to crucify Sri Lankan citizens by any Government, present or potential as the case may be.<\/p>\n

Courtesy:Sunday Times<\/em><\/p>\n

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By Kishali Pinto Jayawardene In the chaotic merry-go-round characterizing the drafting of Sri Lanka\u2019s proposed Counter-Terror Act (CTA), the periodic surfacing of one version followed by another has given rise to unexpected horrors. Each time that a new draft emerges or should I rather say, is \u2018extracted\u2019 with great pain out of a process gripped …<\/p>\n

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