Photo courtesy of Freedom From Torture
A much discussed and debated topic is the Anti-Terrorism Bill (ATA) of 2023, which was introduced as a mending patch for the Prevention of Terrorism Act (PTA) (Temporary Provisions) Act, No. 48 of 1979. While the ATA repeals the PTA, it is plainly clear that the ATA is largely similar to the previously proposed Counter-Terrorism Bill (CTA), which was never actualised facing severe criticism and backlash. The tabling of the ATA in the Parliament was postponed until early May as noted by the Minister of Justice, Prison Affairs and Constitutional Reforms Mr. Wijayadasa Rajapakshe, allowing opposing parties to challenge the Bill. When it was taken for discussion in the relevant Sectoral Oversight Committee on April 25, the minister stated in the parliament that tabling will be further postponed for few more weeks. Meanwhile civil society, international organisations, and activists have sustained the uproar on the Bill, doing an excellent job through regular discussion on the topic.
The Human Rights Commission of Sri Lanka urged the government not to present the Bill in its current format until a national dialogue is conducted and recommendations are published by the Commission. The Bar Association of Sri Lanka appointed a special committee consisting of senior legal experts to review the Bill, claiming certain provisions violated fundamental rights of the people. The North and East being areas with perennial victims of arbitrary counterterrorism laws, conducted a hartal against the Bill. The good, the bad, the horror and concerns over definitions of the ATA are well known and I am attempting to hand pick a few egregious provisions of it and to recommend what the government can and must do better. It indeed is possible to produce counterterrorism legislations that are not farcical violations of human rights and international standards. The standards and guidelines are developed by experts considering multifaceted nature of terrorism and its varied impact on peace, justice, rights and security. Thus, following guidelines only benefits the state and if communicated otherwise, it may involve different desires than tackling terrorism.
Firstly, the ATA has conferred an irrationally large amount of powers to the executive president. A simple word search in the ATA, PTA and CTA reveals that the ATA, claiming to be the healthier replacement for the PTA, has taken the powers granted to the minister in the PTA and even as intended by the CTA, and has plainly conferred the entire chunk of powers to the president. When there is a minister for defense it is highly problematic why the executive of the country would be predominantly in charge of the counterterrorism. It can be argued that given the current president has assumed duties as the Minister of Defense, any change will not really have an impact. However, laws are not made for few years, they have lasting impacts. And when laws are passed all possible ramifications should be deliberated by the lawmakers. This sort of vesting of power undermines the ministerial position and other governmental institutions under the ministry. The minister being part of the cabinet of ministers and being a member of parliament can be held more accountable for the actions executively and legislatively. This further shows the larger issue of excessively powerful executive presidency, which requires to be continuously addressed by the masses.
Section 40 of the ATA states that a Board of Review will be established to grant administrative relief for appeals against detention orders. However the chairperson of it is the secretary of Defense Ministry who is appointed by the president by the constitution and the other two members are also appointed by the president under the ATA provisions. The president is not bound for any consultation or recommendation when appointing the other two members. The only stipulation provided is that the two other persons be ones who have gained professional eminence and experience in the fields of criminal investigation and criminal justice and human rights. The ideal situation would be to appoint the members through an independent committee/constitutional council/parliamentary committee or to allow recommendations by these bodies to the president. The so called Independent Review Panel established under Section 89 to entertain appeals after the Board of Review, too, is solely appointed by the president and members can be removed by the president inter alia if “in the opinion of the President, is found to have a conflict of interest with his duties as a member of the Review Panel.” Further, the president is granted power under Section 31 (6) to specify a number of places as “approved places of detention” on the recommendation of the Inspector General of Police. The frightening prospect is not merely giving sole power to the president to approve places of detention but also that under Section 104 approved places of detention are specified under “confidential information”. Under Section 94 where the president is required to present reports of the review panel and annual report to the parliament, the proviso states that the president is not required to provide confidential information that is reasonably believed to be prejudicial to investigations.
Power granted to the president to issue proscription orders is another alarming provision that is highly antithetical to rights, freedoms and the functioning of the civil society. The Basic Human Rights Reference Guide: Proscription of Organizations in the Context of Countering Terrorism published by the United Nations Global Counter-Terrorism Coordination Compact Working Group on Protecting and Promoting Human Rights, the Rule of Law and Supporting Victims of Terrorism under OHCHR indicates the importance of having an independent process to proscribe organisations as authoritarian involvement in the process as “several human rights are at risk of being violated when proscribing organizations, most notably the rights to privacy and property, the right to social security, and the freedoms of association, expression and movement. The absence of clear, established delisting mechanisms may also negatively affect the right to an effective remedy” (p. 8). In the ATA Section 82, the president is able to proscribe organisations if there are “reasonable grounds”. The provision endows sole power of proscription to the president and this paves the way to serious violations of human rights particularly freedom of expression. The required approach is to follow the same procedure of a separate independent committee, which is not appointed by the president, that proscribes upon investigation and publication of a report. This provides accountability to the authorities and this provision does not become a magical wand to suppress anti-governmental sentiments.
I would like to draw attention to remand and detention under the ATA, areas which have been continuously discussed for being primary grounds for torture and other rights violations in counterterrorism. One regressive provision under this is the length of remand and detention. Under the CTA the maximum period of remand without instituting criminal proceedings was proposed to be six months, albeit still excessive, is a progressive calibration from the PTA where it was 18 months prior to the PTA amendment by Act No. 12 of 2022 and now is 12 months. The Technical Assistance Handbook on Appropriate Use of Non-Custodial Measures for Terrorism Related Offences by UN recommends to be consistent with the principle of liberty and presumption of innocence and mandatorily employ pre-trial detention (remand without institution of actions) as early a stage as possible and to only be used when demonstrably necessary and proportionate. It is further recommended to use alternatives to pre-trial detention after carefully considering whether the risk of flight is inexistent (or low) and the risk of criminal conduct inexistent (or low) so that pre-trial detention remains a last resort (p. 94). The ATA covering a spectrum of distinct offences under terrorism, no regard has been given to the principles of proportionality and necessity in determining the duration of remand/detention. In terms of detention, which is under executive/police custody (remand being under judicial custody) the ATA under Section 31 has granted powers to the OIC to seek approval of DIG for a detention order that initially extends to three months. In UK the maximum period of detention for terrorism related offences is 14 days. Remand or detention without instituting criminal proceedings, which extends to a prolonged period in counterterrorism (several months as opposed to a distinct period of days/weeks) is continuously criticised and challenged by organisations and activists around the world to be an appalling violation of personal liberty and human rights. In such a context, the ATA introduced as the reformist replacement for the decades old PTA, is in fact a tremendous backslide.
Despite the personal belief of the minister that “If a certain person does not have a hope to become a terrorist, there is no need to oppose this Bill”, ones who do have heard, seen and firsthand experienced the horrors of draconian terrorism laws which have often targeted the innocent to fulfill personal and political agendas. For decades the stories surrounding these laws have depicted how they have wasted lives behind bars for ten to twenty years, collapsed families and futures and given degrading treatments often for a thing never done.