By Sisira Gamanayake –

The Counter Terrorism bill presented to the Sri Lankan parliament by the Justice minister poses critical questions in terms of the well-being, freedoms and rights of Sri Lankans as well as democratic values cherished by most in normal times because it casts the net wide to include activities, individuals and organisations that are not normally considered terrorist.

At a time when majority of Lankans are facing economic difficulties due to rising inflation, cost of living (food, medical, transport and education of children), utility bills, taxes etc and reductions in take home salaries, this bill in its current form is an unnecessary imposition on the whole fabric of society. If implemented, it will pave the way for many more Lankans to migrate to other countries with life dissatisfaction in a heavily controlled and surveilled society.  Many more will be behind bars for months and years unnecessarily.

Social regulation is a key function of a society in a measured way especially one that has been used to democratic traditions. This needs to be done in order to strengthen the social contract between the electors and elected and the facilitation of human well-being. However, the intended and unintended consequence of the proposed bill would be to curtail many freedoms citizens should enjoy and erect legislative constrains limiting the civilian activities in the normal sense. The bill has the potential to turn non-terrorists to terrorists by the security machine of the state in particular the police and leave not much room for the courts to arrive at fair decisions because the judges will have to interpret individual cases according to the laws set in place by the act. 

After reading both the PTA and proposed Anti-Terrorism Bill (ATA), I can understand why many individuals and organisations as well as religious leaders have expressed concerns about the proposed bill. Following are several observations about the bill and its various parts:

Definition of Terrorism – section 15.3

(1) In the act, the offence of terrorism is defined as 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 organization, 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.

Acts defined as terrorism in sub section 2 are (a) murder, attempted murder, grievous hurt, hostage taking or abduction of any person; (b) endangering the life of any person other than the person committing the act; (c) causing serious damage to property, including public or private property, any place of public use, a State or Governmental facility, any public or private transportation system or any infrastructure facility or environment; (d) causing serious obstruction or damage to essential services or supplies; (e) committing the offence of robbery, extortion or theft, in respect of State or private property; (f) causing serious risk to the health and safety of the public or a section thereof; (g) causing obstruction or damage to, or interference with, any electronic or automated or computerized system or network or cyber environment of domains assigned to, or websites registered with such domains assigned to Sri Lanka; (h) causing obstruction or damage to, or interference with any critical infrastructure or logistic facility associated with any essential service or supply; (i) causing destruction or damage to religious or cultural property or heritage; and (j) causing obstruction or damage to, or interference with any electronic, analog, digital or other wire-linked or wireless transmission system including signal transmission and any other frequency based transmission system.

Comments

This shows that the intent of the act is to protect the government while defining those who compel it to behave in a certain way are characterised as terrorists and preserve territorial integrity. With terrorism acts, it is not only the government that is subject to harm, damage and dysfunctionality. The population at large or sections also can be harmed as we have seen during the LTTE war and the Easter attacks. Yet the only reference to the population here is stated as intimidation – nothing more? Terrorists not only intimidate their target individuals, groups and population they also do harm in other ways.

(b) 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. This is another comical inclusion among the terrorist acts.  Compelling the government to do certain things is a democratic right of citizens. For example, if/when the government is supporting environmentally destructive activities, citizens have a right to express dissent and compel the government to change course. Likewise, when a government engages in oppressive measures, people have a right to come out and express their dissatisfaction. They can’t wait until the next election. If some unions like nurses or workers in a government owned corporation feel their working conditions including wages are so low, they have a right to express dissent. Under this clause, such right is declared as a terrorist act? 

Under the given definition of terrorism, it appears that the aragalaya and student protests that took place last year can also be considered as terrorist acts as the participants were compelling the government to do or abstain from doing an act. If a trade union or even the opposition parties are agitating the government to do or abstain from doing something, it can be considered as a terrorist act. If a religious organisation like the Catholic church is agitating the government to conduct an impartial investigation about the Easter Sunday attacks and punish those responsible, it can be considered as a terrorist act. Environmental activists who are concerned about the destruction of environment and those who are concerned about the alienation of national assets to foreign entities. May not be able to compel the government to do something or not to do certain things because such acts can fall under terrorism. Teachers, University teachers or doctors and nurses may not be able to agitate for certain measures because such acts can be considered as terrorism. These are only some example situations that are usually taken for granted today by the existing laws yet may fall into terrorism trap set up by the government.   

By any account, this is a bill that one would expect in a country with tin pot dictator in Africa or some other undeveloped part of the world, not Sri Lanka in the 21st century where the population is more alert, educated, and has more international exposure. Yet the mere presentation of such an act to the parliament shows that the rulers are currently living in a completely different planet. This is the consequence of executive Presidency that we have created   in the late 1970s and continued thereafter. Rulers do not have to be close to the people yet they can make rules for the ruled.

What is more comical is to note that acts such as robbery, damage to property, extortion or theft, damage or obstruction to essential services, obstruction or damage to critical infrastructure are also included as terrorist acts.  These are matters that could be dealt with under the existing laws – other than a terrorism act. When we look at the inclusion of such matters under terrorism, I wonder if such draconian law existed even during the British colonial period in Ceylon?

In interpreting other unlawful acts, usually a judge has to find out if the person or group involved had an intention to do harm in the given circumstance? Nothing like this is mentioned in this bill? Instead, broad categories of acts are included under terrorism label. This is a highly irresponsible path to take by a responsible government. No doubt that this will be condemned by many international and national organisations. Curtailment of civilian liberties and rights in this manner can only happen in a military dictatorship – not in a country like Sri Lanka. I hope the senior officers in the police and security forces will understand the real danger here because they also may have brothers and sisters plus other family members who are involved in various professions that may one day fall into this terrorism trap wittingly or unwittingly. Even agitating the government to conduct elections can be taken as an act of terrorism under this bill.

Excluded?

Whether ideologically driven terrorism acts can be included under this definition of terrorism is also in doubt. For example, LTTE terrorism was driven by ethnic ideology of oppression. Other circumstances are religious or political ideologies. 

Context

It appears that the present act tries to define terrorism without giving a context. At least in the case of PTA, it provided the context.

“WHEREAS public order in Sri Lanka continues to be endangered by elements or groups of persons or associations that advocate the use of force or the commission of crime as a means of, or as an aid in, accomplishing governmental change within Sri Lanka, and who have resorted to acts of murder and threats of murder of members of Parliament and of local authorities, police officers, and witnesses to such acts and other law abiding and innocent citizens, as well as the commission of other acts of terrorism such as armed robbery, damage to State property and other acts involving actual or threatened coercion, intimidation and violence”(PTA)

Rights of the Accused

Once someone is taken into custody by the police suspected or interpreted as engaging in terrorism, people who are arrested will have little chance to prove their innocence as they will have to go through a strict procedure to prove innocence laid out in the act as terrorism suspects. Normal laws do not apply. This is an aspect that lawyers with experience and practice in the criminal legal system of Sri Lanka can comment better.

Penalties

Penalties can include death, life imprisonment, imprisonment up to 20 years (depending on the crime), and confiscation of property. These are harsh penalties which may be justified under circumstances where a population or segment are harmed by indiscriminate acts of violence. However, how can you justify the following as a terrorism act?

“committing robbery, extortion, theft or mischief or other damage to property of the State including intellectual property and State owned, controlled, or regulated critical infrastructure, automated system, digital data-base and logistical networks associated with any essential service”

Conclusion

Counter terrorism Act is important for a country but the proposed Act goes far beyond what is required. Underlying aim seems to be to regulate civilian activities that normally fall under the civic, human and political rights of citizens in modern societies. Bringing such an act at a time where there are no signs of any emerging terrorism is highly questionable. The act and its various clauses need better scrutiny by the alert sections of population and by national and international agencies operating to safeguard such rights. IMF itself needs to examine the intent and consequences of this act before it approves additional funds for the government.