{"id":81698,"date":"2023-04-09T00:45:03","date_gmt":"2023-04-09T04:45:03","guid":{"rendered":"https:\/\/dbsjeyaraj.com\/dbsj\/?p=81698"},"modified":"2023-04-09T21:18:06","modified_gmt":"2023-04-10T01:18:06","slug":"clauses-10-and-11-of-the-2023-anti-terrorism-bill-are-clearly-aimed-at-all-media-including-print-electronic-and-web-based","status":"publish","type":"post","link":"https:\/\/dbsjeyaraj.com\/dbsj\/?p=81698","title":{"rendered":"Clauses 10 and 11 of the 2023 Anti-Terrorism Bill are Clearly aimed at all media Including print, electronic and web-based."},"content":{"rendered":"


\nBy<\/p>\n

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

If the Executive Presidency was foisted on Sri Lanka by her \u2018Old Fox\u2019 President, JR Jayawardene in 1978 tying the country\u2019s 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.<\/p>\n

A Bill that promises unholy chaos<\/strong><\/p>\n

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 \u2018ordinary\u2019 penal offences and \u2018terrorist offences.\u2019 In large part, the same was true of its predecessor, the Wickremesinghe-Sirisena led \u2018yahapalanaya\u2019 Government\u2019s Counter-Terror Act (CTA, 2018) in 2018, later withdrawn by that regime.<\/p>\n

Ironically, \u2018yahapalanaya\u2019 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 \u2018offence of terrorism.<\/p>\n

\u2019
\nThis results in a provision hitherto used to arbitrarily lock up dissenters being elevated to the level of a \u2018terrorist act,\u2019 as observed in last week\u2019s column spaces. In effect, the Bill precipitates the Department of the Police into a legal \u2018no-man\u2019s land.\u2019 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 \u2018terrorism law.\u2019<\/p>\n

<\/p>\n


\nUnhappy consequences for the police and the public<\/strong><\/p>\n

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.<\/p>\n

It points towards an even more concentration of power in the Office of the Presidency. The President is empowered to issue \u2018proscription orders\u2019 when he has \u2018reasonable grounds\u2019 to believe that, inter alia, an organisation is engaged in an act amounting to an \u2018offence.\u2019 This will effectively \u2018freeze\u2019 the functioning of such an organisation. <\/p>\n

A similar Presidential power is conferred in respect of issuing \u2018Restriction Orders\u2019 on individuals and the declaration of \u2018prohibited places.\u2019<\/p>\n

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.<\/p>\n

The Bill\u2019s impact on media<\/strong><\/p>\n

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\u2019 of \u2018terrorism associated acts\u2019 as being committed by \u2018any person\u2019 who gathers \u2018confidential information.\u2019<\/p>\n

This is with the intent to supply such information to\/or supplies such information to \u2018a person\u2019 knowing or having reasonable grounds to believe that the information will be used by that person to conspire, attempt or abet \u2018an offence\u2019 under the Act. \u2018Confidential information\u2019 is defined very broadly.<\/p>\n

Clause 105 (interpretation section) defines this as any information having an \u2018adverse impact\u2019 on national security\u2019\/\u2019defence\u2019 which includes \u2018any information not in the public domain\u2019 on persons of the police, armed forces\u2019 etc, functions, movements or whereabouts of a \u2018specified person,\u2019 a \u2018prohibited place\u2019 or an \u2018approved place of detention.\u2019 Highly problematically, this also includes \u2018confidential information\u2019 on \u2018any secret code, word, password or encryption detail relating to national security and defence\u2019<\/p>\n


\n\u2018Prohibited action\u2019 that is too broad<\/strong><\/p>\n

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 \u2018terrorist offence\u2019 (Clause 3 (1) and (2)) becomes an offence of and by itself. This causes serious problems given the imprecise nature of that \u2018offence.\u2019 A \u2018terrorist offence\u2019 is premised on an illegal act or omission which includes a host of conduct which may be perfectly legitimate in a given circumstance.<\/p>\n

Thus, this catches up not only to murder, hurt, hostage taking or abduction (entirely justifiable) but also \u2018serious damage to any place of public use\u2019 or \u2018serious obstruction or damage or interference to essential services or supply of same or with any critical infrastructure\/logistical facility. It also includes \u2018causing serious risk to public health and safety\u2019 etc.<\/p>\n

All this comes within prohibited action when there is intent to inter alia, \u2018intimidate the public or a section of the public\u2019 or to \u2018unlawfully or wrongly compel the Gvt to do or to abstain from doing any act.\u2019 But what is \u2018intimidating\u2019 to one segment of the public may not be so to another, surely?<\/p>\n

And what is \u2018wrong\u2019 compulsion, pray? Then there is Clause 10 which pertains to the \u2018encouragement of terrorism.\u2019<\/p>\n


\nEveryone poised to become a \u2018terrorist\u2019?<\/strong><\/p>\n

This catches up \u2018any person\u2019 who \u2018publishes\u2019 or \u2018causes to be published\u2019 a statement\/words\/words which may be \u2018understood\u2019 by some or all members of the public as \u2018encouraging\u2019\/\u2019instigating\u2019 etc the offence of terrorism.<\/p>\n

What is the meaning of \u2018understood\u2019 in this context? Clearly aimed at all media (print, electronic, web-based etc), either \u2018intention\u2019 or \u2018recklessness\u2019 will suffice to establish the offence.<\/p>\n

Clause 11 relates to \u2018disseminating terrorist publications,\u2019 ie; circulating, distributing etc. A \u2018terrorist publication\u2019 is defined as a document which directly or indirectly encourages\/induces persons to commit \u2018 the offence of terrorism.\u2019 <\/p>\n

This clause also applies if the publication contains material that may be \u2018useful\u2019 for the commission of the offence of terrorism. Coupled with vague definitions of the primary offence, these pose obvious risks.<\/p>\n

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.<\/p>\n


\nThis is not a New Year priority<\/strong><\/p>\n

Clause 15 stipulates \u2018failure to provide information\u2019 to be an offence, carrying a seven year jail term. Under this clause, the long established rule regarding protection of a journalist\u2019s 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 \u2018disobeying lawful orders\u2019 is an offence.<\/p>\n

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.<\/p>\n

A carefully timed press release on \u2018delaying\u2019 this by the Minister of Justice due to \u2018protests\u2019 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.<\/p>\n

Why this indecent hurry, one may ask?<\/p>\n

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

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By Kishali Pinto- Jayawardene If the Executive Presidency was foisted on Sri Lanka by her \u2018Old Fox\u2019 President, JR Jayawardene in 1978 tying the country\u2019s 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 …<\/p>\n

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