The Bill, if enacted in the current form might become counterproductive to those who vote for it as well.
The vague definition of a terrorist act is a concern
The Government has decided to postpone the presentation of the Anti-Terrorism Bill that seeks to replace the draconian Prevention of Terrorism (Temporary Provisions) Act of 1979 after wide criticism against it by local and international human rights organizations and civil society organizations.
Justice Minister Wijeyadasa Rajapakshe told the media on Thursday that the Bill would be presented in Parliament in late April or early May after giving opportunity for the lawyers and the Opposition to express their views on the Bill. However, he denied the allegation that the Bill is aimed at suppression of protests and dissents.
Locally, the Human Rights Commission of Sri Lanka (HRCSL), Bar Association of Sri Lanka (BASL), Centre for Policy Alternatives (CPA) and several individuals concerned with human rights have expressed serious concern over the possibility of the bill, if enacted infringing human rights of the people.
Internationally, the European Union, Amnesty International, Human Rights Watch (HRW) and the International Commission of Jurists (ICJ), among others have expressed critical views on the Bill.
Many opine that the new Bill, though expected to replace the PTA and purports to do away with the provisions of the PTA that were considered to violate international human rights law, is worse than the latter.
Almost all agree with the view that the interpretation of the term “Terrorism” in the new Bill is vague and overbroad and paves the way for a crackdown on dissent and infringement of fundamental rights.
The Bill cites certain intentions and acts separately, which in combination, make up the offences of terrorism.
For instance, if a person or a group “causes 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” with the intention of “wrongfully or unlawfully compelling the Government of Sri Lanka, or any other Government, or an international organization, to do or to abstain from doing any act” commits an offence of terrorism.
When simplified, if a Trade Union strikes work or launches a street protest, “causing serious obstruction to essential services or supplies,” “with the intention of compelling the government” to increase the salary of its members, it will amount to an act of terrorism under the Bill.
The HRCSL says “As prescribed in section 3(2) (f) anyone who interferes with essential services or supplies is considered to be an act of terrorism. This would mean that anyone who takes part in a protest or rally, even if it is peaceful, can be deemed to be committing an act of terrorism.”
It further says “The definition of terrorism contemplated in the Bill shall make it difficult to distinguish between legitimate acts of dissent and actual acts of terrorism.”
The term ‘Terrorist Act’ has been described in such wide terms so as to bring in all legitimate, democratic, mass political and protest campaigns against government policies within the definition of a terrorist act, senior Attorney-at-Law KalyanandaTiranagama has stated in a newspaper article.
Subscribing to the view, the CPA also notes that the definition of the ‘offence of terrorism’ in the Bill is overly-broad and some of the offences in it raise serious concerns for the freedom of expression, potentially giving the State an additional tool to crack down on dissent and criticism.
The ICJ also says that the overbroad and vague definition in clause 3 of “acts of terrorism” in the Bill can be interpreted in a manner that stifles dissent and can be used to crush peaceful protests.
Vague laws undermine the rule of law because they leave the door open to selective and arbitrary interpretation, law enforcement and prosecution, it has added. HRW is of the view that the “proposed counterterrorism law would permit the government to continue to use draconian measures to silence peaceful critics and target minorities.
The Sri Lankan Government has been under pressure from international human rights organisations, especially the United Nations Human Rights Council (UNHRC) for about a decade to repeal the PTA or to replace it with a new anti-terrorist law in accordance with the international human rights laws and international standards.
Based on the 2021 UNHRC resolution on Sri Lanka, the European Parliament passed a resolution in June 2021, which called on the European Commission to consider the possibility of annulling the GSP+ facilities awarded to Sri Lanka, if Sri Lanka did not improve its human rights situation including the repealing of the PTA.
The Yahapalana Government which took an approach different from the one taken by the Rajapaksas towards the UNHRC drafted a Counter Terrorism Bill in 2018 and presented it in Parliament.
However, Gotabaya Rajapaksa Government rejected it claiming that it was forced on the country by foreign forces. Now, they are turning a blind eye to the new ATB, which contains almost the same provisions. The irony is that the Government has published a new Bill claiming to meet international standards and to replace the PTA, but the international forces that pressed for it have turned against it claiming that the new Bill is worse than the PTA.
In fact, the new Bill has rectified some of the flaws in the PTA that were pointed out by the international players.
It has removed the provision in the PTA for a detainee’s confession to be admissible as evidence against him. It has also provided for the arresting officer to issue a document notifying the arrest to the next of kin of the accused and the Human Rights Commission, within 24 hours.
The obligation to bring the detainee before a magistrate every 14 days when the person is detained without a Detention Order is also an improvement in the new piece of legislation.
However, despite the new Bill having somewhat improved the situation of the persons who could be arrested under it, it has defined the term terrorism so that anybody who criticizes a Government might be arrested as a terrorist.
Had this Bill been in force last year, even President Ranil Wickremesinghe might have been arrested, as he publicly supported the GotaGoGama!
The Aragalaya and the GotaGoGama had fulfilled the two criteria needed to be a terrorist act under the new Bill – having an intention of compelling the government to do something and obstructing essential services (vehicular transport and the functions of the President’s office).
However, the allegation that the Government has drafted this Bill to implement the IMF conditions is unfounded as the offences of terrorism under the Counter Terrorism Bill of 2018 and those of the new Bill is the same, as Mr Tiranagama points out.
However the timing of its presentation this time is questionable.
The new Bill has some additional offences that affect the media as well. It also empowers the President to proscribe organizations based on its definition of terrorism.
The Bill, if enacted in the current form might become counterproductive to those who vote for it as well. Apart from the danger of losing an annual GSP concession of about US$ 500 and a stronger resolution being adopted at the next UNHRC session, the Bill might turn against them also, in case of a regime change.
Besides, if a member of the current Government is disgruntled over a change of Ministry or not being offered a portfolio, he would not be able to express his views. Yet, all signs are that the Bill is going to be amended before it is enacted.