By Mohamed Harees –

Lukman Harees

‘When there is oppression and dictatorship, by not speaking out, we lose our dignity’  ~ Asma Jahangir, Pakistani human rights lawyer and social activist

It seems a temporary victory for public activism backed by international pressure, when Sri Lanka’s Justice Minister Wijeyadasa Rajapakshe announced that the presentation of the new anti-terrorism Bill would be delayed further, a day after BASL said it would not hesitate to challenge any legislation that would undermine the rule of law and the liberty of the citizens, claiming there had been no consultation of stake holders in preparing the draft bill. But the danger of this obnoxious piece of legislation still hangs above the nation’s head like the Sword of Damocles! 

The Government of Sri Lanka published an ‘Anti-Terrorism Bill’ in the Gazette, on the 22nd of March 2023, which seeks to abolish the Prevention of Terrorism Act (PTA) which led to widespread torture and arbitrary detentions since its introduction in 1979, and introduce an Anti-Terrorism Act. However, disappointedly, this new bill includes provisions that will facilitate widespread abuse, although containing some improvements. It is therefore falling from the frying pan to the fire with the new bill using national security concerns as ruse and a Trojan horse to erode well established human rights? Replacing PTA with an even worse piece of legislation is thus anti-progressive indeed and should be challenged every step of the way.

Well! this proposed Act would empower the authorities to systematically violate fundamental human rights, by expanding the definition of terrorism to include crimes such as property damage, theft, or robbery, and restrict the rights to freedom of assembly and speech. Human Rights watchdogs insist that it would permit the Sri Lankan government to continue to use draconian measures to silence peaceful critics and target minorities, and facilitate its crackdown on dissent and also lead to misuse of existing counterterrorism laws to arbitrarily detain protesters.

The bill seeks designed to give the president, police, and military broad powers to detain people without evidence, to make vaguely defined forms of speech a criminal offence, and to arbitrarily ban gatherings and organizations without meaningful judicial oversight. As part of its undertakings for security sector reform at the Human Rights Council in October 2015, the then Sri Lankan government pledged to repeal and replace the PTA. President Ranil Wickremesinghe appears to be bringing back the Bill largely based on proposals presented in 2018, when he was the PM- which were criticized over human rights concerns and was thus then not enacted.

Sri Lanka’s counterterrorism bill buries its abusive intent under detailed procedures, but it still won’t protect people from wrongful detention. The International Commission of Jurists (ICJ) says, it considers that the Bill’s problematic aspects clearly outweighing the positives. In addition to the concern about the introduction of the death penalty, it also underlines ‘of particular concern is the overbroad and vague definition in clause 3 of “acts of terrorism” that can be interpreted in a manner that stifles dissent and to crush peaceful protests. Clause 16 further identifies disobeying any direction issued under the Act as a “terrorist offence”. This creates a fresh category of offences likely to be misused by the present government and future administrations against any kind of opposition. If enacted as currently formulated, these vague and overbroad offences, similar to and building up on those contained in the PTA, are open to abuse and, as such, they violate Sri Lanka’s international legal obligations and the country’s own constitutional guarantees under Article 13. 

It further added, ‘Criminal law must not proscribe any act or omission in terms that are vague, imprecise, arbitrary or overly broad. Vague laws undermine the rule of law because they leave the door open to selective and arbitrary interpretation, law enforcement and prosecution. If enacted in its current form, the bill would also provide limited judicial oversight while granting law enforcement officials additional powers than those they currently enjoy under the Prevention of Terrorism Act. PTA was  used to arbitrarily detain suspects for months and often years without charge or trial, facilitating torture and other abuse. 

United Nations human rights bodies, including most recently the Human Rights Committee, have consistently called on Sri Lanka to enforce a moratorium on the use of the Prevention of Terrorism Act pending repeal and to repeal the Act. This proposed bill isn’t what UN member countries sought when they agreed that Sri Lanka would reform its security laws. Rights activists say the bill could be used against minority groups, activists and protesters. President Wickremesinghe has already named those protesting against his austerity measures as “fascists” and “terrorists.” Cardinal also has spoken strongly against this draconian piece of legislation. He says ‘the government proposes the bill when “there is no terrorist atmosphere” in the country. But there are “protests across the country” against the government policies that are inadequate to help face the severe economic crisis in the country.

Meanwhile, the Human Rights Commission of Sri Lanka (HRCSL) has also urged the government to reconsider the definition of terrorism mentioned in the Anti-Terrorism Bill and recommend specific amendments to clarify and narrow the acts falling within the definition. It said that the definition contemplated in the Bill shall make it difficult to distinguish between legitimate acts of dissent and actual acts of terrorism. Many people will be afraid to speak out or express their opinion on matters of public interest, for fear of being called a terrorist. This shall result in a climate of fear, which is not conducive to a healthy democracy.

A former member of the HRCSL, Ambika Satkunanathan also charged that the bill contained an insidious attempt to undermine the powers of the Human Rights Commission of Sri Lanka (HRCSL) by establishing a parallel institution (the Independent Review Panel) to receive and inquire into complaints of alleged violations of fundamental rights. Sri Lanka had already devalued the HRCSL. During the periodic review of Sri Lanka at the UNHRC, it was pointed out that the Global Alliance of National Human Rights Institutions had downgraded the HRCSL to “B” status. The Board of Review set up under the new Anti-Terrorist Bill would be chaired by the Secretary to the Ministry of Defence and an Independent Review Panel which would be appointed by the President. But this could not be deemed to be “independent and fit to check on the abuse of power by the police”

Since 09/11, many countries used national security as ruse or a trojan horse to erode human rights of its citizens. On multiple fronts, the United States government has been violating human rights in the name of national security, often in violation of both U.S. law and international law. People have been held for years at the Guantánamo detention camp in Cuba without even being charged with a crime. Prisoners have been tortured and mistreated, and they are not given fair trials. The U.S. has used lethal force, including through drone strikes, in several countries, leading to civilian deaths. Military operations have exposed civilians and U.S. service members to toxins that have led to devastating medical conditions. Surveillance and targeting of Muslims – based on who they are, not what they’ve done – has fuelled harassment, discrimination, and violence. For years, the U.S. government allowed officials to torture people through horrific techniques that violate U.S. and international law.

Few years ago, Chinese controlled Hong Kong government enacted National Security Law (NSL) and began using its excessively broad definition of ‘endangering national security’ for the blanket restriction of freedoms. It decimated the city’s freedoms and created a landscape increasingly devoid of human rights protections, giving the authorities free rein to illegitimately criminalize dissent while stripping away the rights of those it targets. The law put the country on a rapid path to becoming a police state and fomented a climate of fear that forces residents to think twice about what they say, what they tweet and how they live their lives. There was clear evidence indicating that the so-called human rights safeguards set out in the NSL are effectively useless, while the protections existing in regular Hong Kong law are also trumped by it. In fact, the aggressive implementation of the NSL in HK thus far has made clear that the central government seeks to do more than just warn Hong Kong’s pro-democracy movement against a repeat of the 2019 protest movement. Instead, analysts point out that the aggressive implementation of the law – along with other moves taken by Beijing over the past – constitute nothing less than an effort to reshape Hong Kong’s liberal political order, in ways that suit Beijing’s interests and preferences, with potentially significant consequences for openness and the protection of basic liberties in Hong Kong.

These are just two examples, but list extends beyond them. The weaknesses that would go on to undermine human rights law on the guise of national security were there from the start. The universal declaration was not a treaty in the formal sense: no one at the time believed that it created legally binding obligations. It was not ratified by nations but approved by the general assembly, and the UN charter did not give the general assembly the power to make international law. More than seven decades, human dignity envisaged in the UDHR stills remains a mirage for millions of people worldwide at the grassroot levels. Particularly, the post ‘war-on-terror’ era has witnessed several developments in international law, including the nature and function of national security. Analysts point out; one thing that does seem to have emerged is that international human rights law does not offer protection to domestic situations regarding the violation of human rights. In other words, where national security intersects with human rights violations at the domestic level, international human rights law is weak because there are so many firewalls against what is considered national security at the domestic level, which States can invoke based on their domestic laws.

Perhaps unsurprisingly, the events of the past year in Sri Lanka have been alienating many citizens, further deepening Ranil Wickremesinghe government’s political legitimacy crisis, and also damaging its  political standing. The ruling party may have concluded that it is better to be feared than loved, but it is likely that the growing alienation and mistrust among many in SL will deepen Sri Lanka’s ongoing economic/ social/ political crises, and will make day-to-day governance more difficult, not less. Many in SL are voting with their feet, expressing their discontent with the present repressive atmosphere created by the oppressive governing styles and the likes of these aforesaid laws, as well as the chronic corruption, simply by leaving the country. Already migration consultants and lawyers are seeing a dramatic increase in inquiries from Sri Lankan professionals. Experts believe that scores of more Sri Lankans could emigrate in the coming years; thousands – including both prominent activists and professionals alike – have already done so. The government is likely to pay a high price for its current economic hardline policies and regressive laws, and the benefits – in terms of local stability and control – may well prove more ephemeral than they seem today. 

It is not too late for Ranil Wickremesinghe government to change course, and to decelerate its implementation of the likes of the Anti-terrorism Act and create a country where people will be ‘free’ and socially just. Repression generates resistance. If the Aragalaya of the millions and events of the past year which culminated in the ouster of the most powerful president in Post-Independence Sri Lanka’s history are any guide, this is a fundamental lesson that Ranil W. has yet to learn.