For almost half a century, the Prevention of Terrorism Act has hung over this country like a monsoon cloud. Successive Governments promised to repeal it, yet none ever found the courage to do so. It is therefore no small matter that the present administration, which campaigned on a pledge to abolish oppressive laws including the PTA, has finally placed a replacement before Parliament. However, the Protection of the State from Terrorism Bill, gazetted on 22 September, now stands before the Supreme Court, and the questions being asked there go to the heart of what kind of democracy we intend to be.
A three-judge bench comprising Chief Justice Preethi Padman Surasena and Justices Achala Wengappuli and Sampath Abeykoon on Tuesday (20) began hearing some 25 petitions against the Bill. Among them is one filed by Udaya Kalupathirana and Hana Ibrahim of the Free Media Movement. Their objection is, in our view, well founded. Clauses 3(1), 3(2) and 9, they argue, define terrorism and terrorist publications in terms so loose that a journalist doing ordinary public interest work could find himself or herself on the wrong side of the law.
Let us be clear at the outset. No responsible newspaper disputes that the State has a duty to protect its citizens from terrorism. Furthermore, it would be unfair to pretend that the Bill merely recycles the old statute. Suspects must be produced before a magistrate within 48 hours, and detention beyond two months requires High Court approval. Protest, advocacy and dissent are not by themselves to be treated as proof of terrorist intent. These are genuine improvements.
Nevertheless, a law is judged not by its preamble but by its definitions, and it is precisely there that the difficulty lies. The Bill criminalises distributing or circulating material that encourages terrorism, and thereby hands enormous discretion to whoever decides what encouragement means. According to the petitioners, the penalties could extend to life imprisonment and fines of up to Rs. 20 million.
Defenders of the Bill will point to its exemption for material handled in good faith for lawful purposes, journalism included. Yet a defence that must be argued in court, after arrest, is cold comfort. Few editors will run a difficult story under that shadow; most will simply conclude that silence is safer. That is how press freedom usually dies, not with an outright ban.
Equally troubling is the question of sources. The Bill makes it an offence to withhold information about terrorism offences. At the same time, as the Free Media Movement points out, it offers no protection for the confidentiality of journalistic sources or whistle-blowers. A journalist who cannot promise anonymity cannot obtain the information that exposes wrongdoing. Moreover, the Bill gives the armed forces powers to search and arrest without a warrant, which should give every newsroom pause, particularly those whose reporters cover public protests.
Our own history offers ample reason for caution. The PTA, too, was introduced as a temporary measure, and it was later turned against activists and journalists alike. In 2009, J S Tissainayagam was sentenced under it to 20 years’ rigorous imprisonment for articles he had written. A law, after all, outlives the Government that drafts it.
The present Government understands this better than most, since many of its leading figures spent years in opposition denouncing the PTA. That is precisely why the burden now rests on them to draft a law they would be content to see in the hands of their fiercest opponents.
The remedy is not complicated. The definition of terrorism should be narrowed to genuine acts of violence, the journalistic defence should be made explicit, and confidential sources should be expressly protected. In addition, detention and proscription should rest firmly under the control of the courts rather than the executive.
The Supreme Court will now determine whether the disputed clauses are consistent with the Constitution. Even so, the Government need not wait for a judicial verdict to do what is right. It has an opportunity to give this country a counter-terrorism law that protects the State without strangling the press, and it should seize that opportunity before the Bill returns to the House. A nation that cannot report freely on violence cannot hope to understand it, let alone overcome it.