Anti-Terrorism Bill should not normalise what is done in emergencies

If the police have reasons to detain persons, they should not be diffident about giving the magistrate the right to reverse a DO that is inadequately justified 

Some believe that acts of terrorism can be dealt with under normal law. I do not. The fact that the General Assembly of the United Nations has adopted 10 conventions dealing with terrorism since 1973 is evidence that the phenomenon has novel features for which adequate responses are not found in the Penal Code and the codes of procedure.

It is not difficult for Sri Lankans to understand what constitutes terrorism. The complex, coordinated, countrywide bombing attack that was carried out in April 2019 is the most recent example. Did the killers have anything against the people praying in church or having breakfast at a hotel? Their intention was to create terror among the populace.

For most people it is not difficult to understand the need for exceptions from normal procedures to deal with events like the Easter bombing. But it is also not difficult for them to understand that those deviations should not be extended to peaceful protests like those at the Government-designated protest site on Galle Face in April-May 2023.

It is easy to say that we should focus our energies on eliminating the conditions that give rise to terrorism. But the more immediate problem is that of dealing with the terroristic acts, ideally before they occur or even after. Accepting the need for novel solutions means that one has to accept deviations from the normal rules regarding investigation, detention, etc. These exceptions have serious ramifications for those subject to them. Therefore, it is important to demarcate them as clearly and as narrowly as possible.

Definition of the offence

Ideally, this would be done by defining the offence narrowly and precisely so that normal crimes and actions that are not offences under existing law are excluded. 

The offence of terrorism in the revised ATA [Anti Terrorism Act] bill must include the intention to intimidate the public or a section of the public; to wrongfully or unlawfully compel the Government of Sri Lanka, or any other Government, or an international organisation, to do or to abstain from doing any act; or to propagate war or, violate territorial integrity or infringe the sovereignty of Sri Lanka or any other sovereign country.

The previous clause “unlawfully preventing any such government from functioning” which was criticised as having the potential of criminalising constitutionally protected democratic rights has been removed. Two clauses in the bill published in March 2023 have been merged and the component that was already covered by the ICCPR Act, No. 56 of 2007, removed.

In section 3(2), which sets out the actions that constitute the offence of terrorism, the clauses “causing serious obstruction or damage to or interference with essential services or supplies or with any critical infrastructure or logistic facility associated with any essential service or supply” and “being a member of an unlawful assembly for the commission of any act or illegal omission set out in paragraphs (a) to (k)” have been deleted. The clause “committing an act which constitutes an offence within the scope of the Convention on the Suppression of Terrorist Financing Act, No. 25 of 2005” has been added.

The Minister of Justice is to be commended for making changes in response to the criticism generated by the bill that was gazetted in March 2023. But the changes are inadequate. 

Ideally, the drafters would go back to the drawing board and adopt legal provisions consistent with the definition of terrorism that was proposed by former US Senator George Mitchell during his effort to resolve the Israel-Palestine conflict, accepted by the parties to that intractable conflict: “Terrorism involves the deliberate killing of randomly selected non-combatants for political ends. It seeks to promote a political outcome by spreading terror and demoralisation throughout a population.” 

Procedure

Detention orders (DO) are central to legislation dealing with terrorism. They were fearsome under the PTA. Detention orders were issued by the Minister of Defence, a politician. The courts had no role in their issuance or in the supervision of the conditions of detention.

The revised ATA bill addresses the criticism that the issuance of DOs had been made too easy by authorising any DIG to do so. Now, a DO has to be issued by the Secretary of the Ministry of Defence (not a politician, but not always non-political) (s. 31). But the criticism that the courts should be involved either in issuing DOs or in approving them has been disregarded. This should be remedied. If the police have reasons to detain persons, they should not be diffident about giving the magistrate the right to reverse a DO that is inadequately justified.

The limits placed on how long a person can be detained under DOs (s. 30), the authority given to magistrates to visit places of detention without prior notice (s. 32), etc. are significant improvements over the PTA.

It is easy to say that we should focus our energies on eliminating the conditions that give rise to terrorism. But the more immediate problem is that of dealing with the terroristic acts, ideally before they occur or even after. Accepting the need for novel solutions means that one has to accept deviations from the normal rules regarding investigation, detention, etc. These exceptions have serious ramifications for those subject to them. Therefore, it is important to demarcate them as clearly and as narrowly as possible

Excessive powers to the President

The ATA is unambiguously worse than the PTA in one area. 

Part X empowers the President to prohibit organisations by issuing Proscription Orders, restrict the movements of citizens through Restriction Orders, declare curfews, etc. These provisions were in the version gazetted in March and were broadly criticised. No heed has been paid. Part X reappears unchanged.

The Constitution recognises fundamental rights such as the freedom of association (Art. 14(1)(c)) and the freedom of movement (Art 14(1)(h)). Article 15 specifically defines the limitations that may be placed on these fundamental rights. It is one thing to accept infringement of these freedoms in exceptional circumstances under the Public Security Ordinance (Chapter 140) but quite another to allow the President to violate them at his sole discretion under a law that will be operational at all times, normal as well as exceptional. 

This has the effect of subverting the Constitutional safeguards against abuse of the power to declare emergencies by the President. The seriousness of allowing for exceptional actions under the Public Security Ordinance is acknowledged by the provision in the Constitution that requires Parliament to approve such a declaration within a month and only for a month.

These provisions make the Constitutional safeguards applicable to a state of emergency meaningless. Before the Supreme Court orders their removal, the Government should voluntarily delete Part X. In the name of replacing the PTA, the Government should not subvert the Constitution and allow the President to infringe fundamental rights with no legislative or judicial oversight.