By Laksiri Fernando –

Dr. Laksiri Fernando

There are apparent improvements in the draft Counter Terrorism Act (CTA) in comparison to the exiting Prevention of Terrorism Act (PTA). However they are far short of preventing possible abuse of power on the part of the police, or the security forces, and safeguarding the necessary rights of the suspects until proven guilty or even thereafter. 

The prevention of possible abuse of power on the part of the police or the security forces would not depend merely on the niceties of a legislation, particularly in a country like Sri Lanka. Police reforms, more stringent recruitment procedures, human rights education, strict supervision (judicial and other) and counter balancing institutions are necessary to make a police service more humane and accountable. 

If such conditions were in place prior to the eruption of insurgencies or terrorism in 1971, again in the period of 1987-89 in the South, or the emergence of particularly the LTTE terrorism in the North between 1981 and 1983 period, major catastrophes in the form of civil wars could have been curtailed, if not avoided. 

Police Action Can Exacerbate Terrorism 

There are ideological, organizational and subjective factors behind insurgency, organized political violence and terrorist movements. However, these factors can be exacerbated or even given political legitimacy, if the police and the security forces act arbitrarily, excessively, inhumanely when the suspects are apprehended and detained. This is not merely a theory, but a common observation before 1971, and again and again thereafter. 

Vidyodaya University was a major centre of JVP activities in late 1960s and early 1970s before the insurrection broke out, where I was first teaching. There was a new police post in front of the main entrance, and many occasions the JVP students and others were apprehended and treated very badly, to say the least. Those students also indulged in violence against the rival student groups. Nevertheless, the police repression throughout the country could be considered a major reason for the JVP to target around 100 police stations in the hurriedly organized insurrection in April. This is confirmed by research. 

There was a similar situation in late 1970s and early 1980s in Jaffna and in the North. In March 1981, I was part of a MIRJE mission (Movement for Inter-Racial Justice and Equality) to investigate the situation. There were credible evidence of brutal police atrocities against youth, who were suspected of involvement in militant movements at that time. The movements soon turned into terrorism, perhaps confirming their ideology. 

Although there was no apparent ethnic angle to the police repression initially, soon it changed. A police officer whose name came prominent during our survey, later joined an extreme Sinhala nationalist political party after retirement.   

No one can exclude the possibility of resurrection of terrorism again in the North or the South. In the South it did emerge twice. Therefore, the need for some special legislation or provisions cannot be denied. Terrorism is also an international phenomenon. However, counter terrorist legislation should not allow room for atrocities by the police or the security forces that could exacerbate terrorism. Even otherwise, there should be protection of life, dignity and rights of the suspects, other than punishing them for the crimes if proved guilty. 

Justification for Special Legislation? 

There can be a justification for special legislation or provisions on terrorism offenses because of Sri Lanka’s past, and the international situation, however that should  be clear in the legislation as to what it includes and also what it excludes. This does not appear very clear in the proposed draft in Part 1.  

Particularly when it says, ‘acts compelling wrongfully and unlawfully the Government of Sri Lanka to do or abstain from doing any act…by way of causing serious obstruction or damage to essential services or supplies…or causing obstruction or damage to or interference with any critical infrastructure or logistic facility associated with any essential service or supply’ it is not an acceptable definition. 

Under such a definition, trade union or student protests and action could be defined as ‘terrorism,’ in addition to political protests and action. It is argued that even the existing PTA does not have such a broad definition (Nirmala Chandrahasan, The Island, 22 October). 

Although the draft subsequently says the ‘acts conducted by any person in good faith and in the lawful exercise of a fundamental right shall not amount to an offense’ under terrorism, that cannot be considered as a proper exclusion. The reference to ‘fundamental rights’ gives very little protection as to who could be arrested and detained on the pretext or reason of terrorism. 

Australia is a country that has (fairly) clearly defined terrorist acts in the Criminal Code Act (1995) as follows. 

‘A terrorist act is an act, or a threat to commit an act, that is done with the intention to coerce or influence the public or any government by intimidation to advance a political, religious or ideological cause, and the act causes: (1) death, serious harm or endangers a person (2) serious damage to property (3) a serious risk to the health or safety of the public, or (4) seriously interferes with, disrupts or destroys critical infrastructure such as a telecommunications or electricity network.’ (Australia’s Terrorism Laws, Attorney General’s Department). 

The definition or interpretation is clear emphasising actual or intended harmful terrorist acts as death, damage to property, risk to public health and safety, and disruption/damage to infrastructure. 

The definition also excludes the following very clearly: ‘a terrorist act does not cover engaging in advocacy, protest, dissent or industrial action where a person does not have the intention to urge force or violence or cause harm to others.’ 

Therefore, if there is no intention to use force, violence or cause harm to others or the democratic processes in the country, it is not a terrorist act. This clarity apparently is not there in the proposed Counter Terrorism Act, at least at this stage. 

Rights of Accused 

Under democratic rule of law, an accused or a suspect should have certain rights to protect his life, dignity and integrity. This should also be the case in respect of terrorist suspects, until proven guilty or even thereafter. To my experience, terrorists are also normal human beings except for their ‘ideology and actions.’ There can be a strong prejudice or stigma attached to when a person is accused or suspected as a terrorist. 

Given Sri Lanka’s past, the current international circumstances and prevailing tense political conditions inside the country, radical youth and members of minority ethnic or religious communities are particularly vulnerable to mistaken or false accusations. On the other hand, violent political tendencies are endemic in our society emanating in various quarters.  

Under the proposed act, any police officer, member of the armed forces or a coast guard can arrest a person suspected of terrorism without a warrant. It is highly questionable whether members of armed forces or coast guards would have necessary law enforcement skills in arresting terrorist suspects. 

It is also not clear whether the suspect could be kept under his/her custody or handover to the area OIC. There are apparent contradictory provisions. This has to be clarified with a time limit. Under prevailing provisions, such a suspect has to be produced before a Magistrate within 48 hours, but unfortunately it is not the Magistrate who issues the detention order, but a DIG. While the initial detention order is for two weeks this could be extended up to eight weeks after reporting to the Magistrate and with his/her not so clear consent. 

Critics have argued that during the investigation period, although the suspect is produced before a Magistrate, that judicial officer has only nominal supervision and the total care is under the DIG concerned, probably the DIG in charge of the Terrorism Investigation Division. In recent days, we have seen what kind of people who would be in charge of such positions. 

What is most lacking in the present process of inaugurating a new CTA, in place of the much criticised present PTA, is a proper public discussion. Earlier the proposed CTA was available here. But now it is not available even hampering the present discussion that I have started.   

A Balance Sheet? 

Human Right Watch (HRW) has given a qualified signal for the new draft legislation saying “The draft Counter Terrorism Act of 2018 (CTA) represents a significant improvement over the previous proposals to replace the Prevention of Terrorism Act (PTA), although several  problematic provisions remain.” 

There are ten areas where improvements have been suggested. However, the question remains whether the parliamentarians would improve the human rights protection or worsen the situation, when it comes to the debate and the committee stage. The best option for the government is to propose a more improved version quickly taking into account the suggestions and improvements proposed by the critics, including the HRW. 

There are clear concerns expressed by intellectuals from the Tamil community (Nirmala Chandrahasan, Rajan Hoole etc.) and others (Ruki Fernando etc.). While it is understandable that the minority communities (both ethnic and religious) still have greater stakes or risks even in a new or improved legislation, the suggestions however should not be too idealistic or impractical. 

Rajan Hoole has validly asked, after tracing Sri Lanka’s notorious record of ‘detention without trial’ and other conceptual matters, “Should this not give us pause to think whether we really need anything more than the Penal Code on our statute book?” One middle way, or a way out, could be to make the counter terrorism legislation a part of the normal Criminal/Penal Code of the country, like in Australia, with much more precise definition of terrorism, specifying what it includes and what it excludes.  

Then the law enforcement procedures, including arrest, detention, questioning, defense, legal assistance and trial, could confirm or closer to what is available in the Penal Code of the country without giving arbitrary or excessive powers to the police officers, armed force personnel or coast guards. Of course this is on the premise that our present Penal Code is decent, democratic and civilized!   

While my present submissions are sketchy and preliminary, two other proposals can be (1) strengthening of the Magisterial supervision of the arrested suspects for terrorism from day one (meaning within 24 hours) and (2) strengthening of the role of the National Human Rights Commission in overall supervision and intervention including going before the higher courts, if the fundamental rights of the suspects and detainees are apparently violated.