Better than PTA or not?

By Skandha Gunasekara

The proposed Counter Terrorism Bill (CTB), which has been drafted to replace the Prevention of Terrorism Act (PTA), while being considerably less draconian than its predecessor, has still come under heavy criticism by civil society groups as well as lawmakers, with some charging that the piece of legislation is intended to suppress trade union action and curtail the economic rights of citizens.

Executive Director of the National Peace Council (NPC) Dr. Jehan Perera, speaking to The Sunday Morning, said that while the PTA was brought in at a time when terrorism was a constant threat to national security, the context of war had now changed.

“We are now in a situation in which the war is over, and in which there is a reform process intended to prevent such a situation from recurring. I believe that the Counter Terrorism Act (CTA) that will replace it is less harmful to human rights while upholding national security concerns,” he said, adding that it had more protections in it for human rights, such as the need for the Human Rights Commission of Sri Lanka and the IGP to be informed with regard to arrests made.

Acknowledging that there was dissent towards the CTB, Dr. Perera noted that while those opposed to it were of the view that it could be used to target trade union action, the same could be done via the PTA.

“It is interesting that the draft CTA is being opposed by the Opposition.

“They had criticised the need for the Human Rights Commission of Sri Lanka and the IGP to be informed with regard to arrests made in terms of the new law. And at the same time, they said that the proposed law could be applied selectively to target trade unions, the student community, and even the media. Even some human rights activists have taken this position. However, the same targeting can take place under the PTA without the protections afforded by the Human Rights Commission and IGP.

“This was how journalist Tissanayagam was jailed for 20 years under the PTA,” Dr. Perera said.

Comparison with the Constitution

Centre for Policy Alternatives (CPA) Executive Director Dr. Paikiasothy Saravanamuttu told The Sunday Morning that the CTB was a far better piece of legislation than the PTA, but close attention must be paid to safeguards and oversights.

He said that definitions such as Article 3 of the Bill – which defines acts of terrorism – were questionable.

“Definitions, rank of officers, and delegations must be looked at closely.”

With regard to oversights, Dr. Saravanamuttu said that the CPA had proposed that the piece of legislation, if enacted, be reviewed every three to five years.

In November last year, the Supreme Court (SC) determined that the CTB was not consistent with the Constitution.

The Supreme Court had determined that in terms of Article 123 (1) of the Constitution, Clauses 4(a), 4(b), and 68(5) of the Counter Terrorism Bill (CTB) Bill violate Article 3 of the Constitution and Clause 93(3) of the Bill violates Articles 3 and 4 of the Constitution and could only become law if the number of votes cast in favour thereof amount to not less than two-thirds of the whole number of members (including those not present) and is approved by the people at a referendum. Article 4 of the Bill deals with the “Penalty for the offence of Terrorism” and 4(a) and (b) state: “Any person who – (a) commits an offence under Section 3 with the intention to cause death, and causes the death of any other person in the course of committing such offence, shall, upon conviction by the High Court, be punished with life imprisonment; (b) commits an offence under Section 3 and causes the death of any other person in the course of committing such offence, of which the reasonable foreseeable consequence is the death of any other person, shall, upon conviction by the High Court, be punished with imprisonment for a period which may extend to life imprisonment.”

Article 68 of the Bill is on the recording of a statement by a Magistrate and 68(5) states: “When the suspect declines to make a statement to the Magistrate, such fact shall be communicated by the Magistrate to the relevant police officer and the suspect shall be kept in remand custody.”

Article 93 of the CTB relates to “direction” such as directions issued by the President of Sri Lanka. 93(3) states: “For the purposes of this section, the expression ‘law’ includes international instruments which recognise human rights and to which Sri Lanka is a signatory.”
Article 3 of the Constitution states: “Sovereignty of the People: In the Republic of Sri Lanka, sovereignty is in the people and is inalienable. Sovereignty includes the powers of government, fundamental rights, and the franchise.”

Speaker of Parliament Karu Jayasuriya, informing the House of the SC’s determination, said: “However, the Supreme Court has stated that the above inconsistencies would cease if the Clauses are amended as per the determination of the Court. The Supreme Court has further determined that other Clauses of the Bill can be passed by a simple majority in Parliament.”

More criticism

The CTB is currently being reviewed by the Sectoral Oversight Committee on International Relations.

However, Joint Opposition Parliamentarian and Leader of the Democratic Left Front Vasudeva Nanayakkara was far more critical of the CTB, slamming the legislation as a “noose around the neck of democracy in Sri Lanka”.

“Terrorism has been described as anything that obstructs the business of the Government or governance,” Nananyakkara said, referring to Article 3(1) of the Constitution, adding that as a result of this definition, it would mean that trade union action or any other form of democratic dissent against the Government could be considered an act of terrorism.

Article 3(1) states: “Any person, who commits any act referred to in subsection (2), with the intention of – (a) intimidating a population; (b) wrongfully or unlawfully compelling the Government of Sri Lanka, or any other government, or an international organisation, to do or to abstain from doing any act; (c) preventing any such government from functioning; or (d) causing harm to the territorial integrity or sovereignty of Sri Lanka or any other sovereign country, shall be guilty of the offence of terrorism.”

He said that there was a lot of opposition to the Bill at the discussions with the Sectoral Oversight Committee.
“Several MPs told me that they oppose the Bill and that it needs to be amended heavily if it is to be made law. The Bill looks as if it was prepared by persons outside of Cabinet and knowledge of the measurers of the Government.”

The senior parliamentarian opined that the Bill was not fit to be enacted and that it would be better to repeal the Prevention of Terrorism Act (PTA) sans the enactment of the CTB.

“Repealing the PTA can be done independently. The Counter Terrorism Bill is worse in some ways as through it, emergency laws have been made regular laws,” Nanayakkara said, while going on to state that repealing the PTA could be done without the enactment of another anti-terror law as emergency laws could be used instead as there was no threat of war in present-day Sri Lanka.

The CTB also came under heavy flak from the Law and Society Trust (LST).

LST Senior Researcher Vidura Munasinghe said that the CTB was largely targeted towards the repression of trade unions.

“Through this Bill you can frame and protest picketing, demonstration, or agitation as a threat to national security,” he said.

He said that current Government neo-liberal policies required a form of authoritarianism – a trend being utilised in other countries, particularly in the West.

“Neo-liberal policies promote democracy but not within the economy. Future human rights violations will be mainly economic, social, and cultural and this bill targets that. It is a new kind of authoritarianism,” Munasinghe said, adding that the CTB paves way for this.
Munasinghe went on to say that the LST demanded the Bill be scrapped.

“There is no way to rectify the errors through amendments. We demand that this Bill be done away with. The whole point of this Bill is to repress trade union action,” he said.

Meanwhile, United National Front (UNF) Parliamentarian and National Organiser of the United Left Front Dr. Jayampathy Wickremeratne, who has been closely involved and attended meetings of the Sectoral Oversight Committee, said that he too was “a little worried about the definition of terrorism”.

“The main concerns are about the definition of terrorism. What I submitted in the Committee is that according to this Bill, the Hartal of 1953 would come under its definition of terrorism,” Dr. Wickremeratne said.

He too said that when the definition of terrorism was too wide, it could be used to stifle trade union action and demonstration.

Dr. Wickremeratne said that the definition must be changed at the Committee stage following the Second Reading Debate in Parliament.
Furthermore, he said that proscription of organisations under this Bill was an issue as well, referring to Article 81 of the Bill.

Article 81 (1), (2) and (3) state: “(1) Notwithstanding anything in any other written law where the Minister has reasonable grounds to believe that any organisation is engaged in any act amounting to an offence under this Act, or is acting in a manner prejudicial to the national security of Sri Lanka or any other country, he may by order published in the Gazette, (hereinafter referred to as ‘Proscription Order’) proscribe such organisation in terms of the provisions of this Act. (2) A Proscription Order may be made by the Minister, for giving effect to – (a) a recommendation made by the Inspector General of Police; or (b) a request made by the Government of any foreign country to the Government of Sri Lanka. (3) A Proscription Order, may include one or more of the following prohibitions: (a) prohibition on conducting meetings, activities, and programmes by such organisation; (b) prohibition on the use or mobilisation of bank accounts and other financial depositories of such organisation; (c) prohibition to entering into contracts; (d) prohibition on raising of funds and receiving grants and bequests; (e) prohibition to transferring funds and assets of the organisation; or (f) prohibition for lobbying and canvassing on behalf of such organization.”

He said that various stakeholders had already proposed amendments to the Sectoral Oversight Committee and that on the 14th and 17th of this month, discussions with trade unions would be held by the Committee seeking their input.

Meanwhile, Minister and Leader of the House Lakshman Kiriella said that no date had been fixed thus far to debate the CTB in Parliament.