The International Commission of Jurists is concerned that the newly proposed anti-terrorism legislation, if adopted as currently formulated, will give rise to a panoply of human rights violations and, much as the existing “Prevention of Terrorism Act”, is open to misuse.
On 22 March 2023, the government of Sri Lanka published the proposed 97-page (Anti- Terrorism Bill” (Gazette notification dated 17 March 2023), which, if adopted, would replace the Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979 (PTA). The Bill purports to do away with the provisions of the PTA that were considered in violation of international human rights law.
However, the International Commission of Jurists (ICJ) is extremely concerned, in particular, by clause 4(1)(a) of the Bill, which, if adopted in its current formulation, would introduce the death penalty for “the terrorism offence of murder”. Sri Lanka has been a de facto abolitionist country for decades, given that a moratorium on executions has been in place in Sri Lanka since 1976. The ICJ is opposed to the death penalty in all circumstances, as a violation of the right to life, and as the ultimate cruel, inhuman and degrading punishment. “Purported threats to national security, whether or not arising in connection with acts of ‘terrorism’, should not be used as a justification for the death penalty”, said Livio Zilli, ICJ’s Senior Legal Adviser.
The Bill does feature certain improvements on the PTA, such as:
* the removal of a provision pursuant to which a detainee’s confession to a police officer without the presence of the detained person’s lawyer is admissible;
* the requirement for the arresting officer to issue a document notifying the arrest to the next of kin of the accused immediately or at least within 24 hours;
* employing women police officers to arrest/question and search women;
* guaranteed access to translation in a language of the accused’s choice of information relating to the arrest; and
* an obligation to bring the detainee before a magistrate every 14 days when the person is detained without a Detention Order (DO).
However, the ICJ considers that the Bill’s other problematic aspects clearly outweigh the positives. In addition to the above-mentioned concern about the introduction of the death penalty, 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,” said Livio Zilli.
A key precondition to a fair trial under international law is that criminal offences must be prescribed by law and conform to the principle of legality. The principle of legality requires that crimes be classified and described in precise and unambiguous language that narrowly defines the punishable offence with a clear definition of the criminalized conduct, establishing its elements and the factors that distinguish it from conduct that is not criminally proscribed. 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.
Moreover, if enacted in its current form, the bill would provide limited judicial oversight while granting law enforcement officials additional powers than those they currently enjoy under the PTA. For example, under clause 28 (2)(a) the Magistrate may not review a detention order made by any Deputy inspector general of police (DIG) in the country. Pursuant to clause 28 (b) (iii) as currently formulated, when a detention order has not been issued or placed before the Magistrate, a Magistrate could discharge an accused only if the Officer-in-Charge of the police station requested it and the Magistrate agreed to it. Such provision infringes the separation of powers by arrogating to the police a power that is properly that of the judiciary — in this instance by making the decision of the Magistrate to discharge the accused dependent upon the Officer-in-Charge requesting the accused’s discharge in the first place.
The maximum period of detention under a detention order is 12 months (clause 37) with the police having to file a confidential report that includes the allegation against the accused, the investigation’s findings and the reasons for further detention, with a Magistrate after the first three months (clause 36). The Magistrates cannot review a detention order ordered by a DIG. In the absence of a detention order, the accused is to be brought before a Magistrate every 14 days (clause 38).
While the Bill allows for Magistrates to visit places of detention and for the accused to have access to lawyers, Sri Lanka’s experience under the PTA in the last 44 years has shown that such safeguards do not offer much protection since Magistrates often do not have the time to visit places of detention, such as prisons, due to their workload. Similarly, even if detainees are granted access to lawyers, it has rarely ever been in private.
If adopted as currently formulated, the Bill would establish two bodies, namely the Board of Review chaired by the Secretary of the Ministry of Defence, and an Independent Review Panel to be appointed by the President, purportedly to ensure oversight. However, such bodies would lack the required independence necessary to carry out any effective oversight of the enforcement of the law. Rather, it would seem that, instead of acting as necessary checks on police abuses, both bodies would likely be helpful in concealing any irregularities that may characterize the legislation’s enforcement.
The Bill also empowers the President to proscribe organizations on the recommendation of the Inspector General of Police (IGP) or of the government if there are ”reasonable grounds to believe” that the concerned organization has engaged in an act amounting to an offence under the proposed law or in “an unlawful manner prejudicial to the national security of Sri Lanka” (clause 82).
The President may also declare any place: a ”prohibited place”, if so requested by the IGP or the commanders of the armed forces or the Director General of the Coast Guard (clause 85). There is no time limit set for the period of prohibition and any place can potentially be declared a “prohibited place”. This easily allows for repression of any dissent since the police need not have to go before the Magistrate to obtain time limited restraining orders against protests as is the current practice, but instead, immediately get the site of protest declared a prohibited place. Such acts violate the right to be free from arbitrary arrest as per Article 13 of the Constitution, as well as the freedoms of speech and expression, of peaceful assembly and of association all protected under Article 14 of the Sri Lankan Constitution.
Further, the President may also issue regulations to implement “rehabilitation programmes” for persons for whom the Attorney-General has recommended a deferment or suspension of criminal action (clause 100). This is especially concerning since, in the past, accused persons have been coerced into accepting “rehabilitation”, particularly in cases where the State has had little or no evidence to put them on trial.
The ICJ has consistently called for the repeal of the Prevention of Terrorism Act, which has been 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. In this connection, the ICJ renews its call on Sri Lanka to repeal the PTA and immediately halt attempts to replace it with an even worse piece of legislation, as it is the case with respect to the current draft of “the Anti-Terrorism Bill”.
old codger / March 31, 2023
The ICJ, in my opinion, should be more concerned about the unofficial death penalties being imposed by the Police on those they suspect of serious crime. Isn’t it better to execute people AFTER trial instead of before?
Mahila / April 2, 2023
The ICJ, in my opinion, should be MORE CONCERNED ABOUT THE UNOFFICIAL DEATH PENALTIES BEING IMPOSED BY THE POLICE on those they, SUSPECT OF SERIOUS CRIME. Isn’t it better to execute people AFTER trial instead of before?
Well, it is a valid point that you make out to be!! Fully agree!!!
Difference and conundrum to achieve that ultimate aim is tumultuous or unrestrained!!!?
Case of Judicial Life, Death sentence scenario, occurrence is controlled, known when and where, is in public domain!!! The execution, itself is comprehensively documented to VENUE, HOW – PROCESS, DATE AND TIME determined sentence!!!?? Therefore controlled conditions exists unlike the former!!??
We are a nation reputed for COMPASSION, MERCY, DHARMA THE RULERS would then proceed to pardon the convicted to be released without fulfilling even simple captive sentence!!
PRESUMABLY, THAT IS THE ONLY WAY THE RULERS OF THIS RESPLENDANT, PEARL OF THE INDIAN OCEAN, REGAIN THEIR PENANCE AND REDEMPTION POSTHUMOUSLY!!?? ALL THE EVILS COMMITTED IN THEIR LIFETIME!!!
So, the outcome is negative and PROSECUTORS, ENFORCERS, POLICE OFFICERS AND SECURITY FORCES IN RESPECT OF TERRORIST ACTS ARE FRUSTRATED, THEIR MAMMOTH EFFORTS BEING UNDERMINED by the ELITE ruling class!!!??
This needs attention and change immediately and meaningfully!!!?
Mahila / April 2, 2023
IN ORDER TO THWART THAT PRACTICE OF THE “RULING ELITE” RELEASING THOSE SUSPECTED AND COMMITTED TO GAOL/LIFE, THOSE IN CHARGE OF ENFORCEMENT, (POLICE, SECURITY FORCES, AND PROSECUTORS) NOW PLACE EMPHASIS ON EXECUTIONS WELL BEFORE ADJUDICATION IN COURT, THROUGH OTHER DEVIOUS MEANS – WHICH IS ALSO NOT ACCEPTABLE AND NOT TO BE CONDONED BY CIVILISED SOCIETY!11???
Whilst not in the mood or the process to defend, extra judicial killing, my take is that we need to have a SERIOUS LOOK AT AND REVERSE THE EXECUTIVE PARDONING SYSTEM OF BOTH LIFE AND DEATH SENTENCES, to make a valid case to drive sense into people resorting to such illegal RUSE or METHODOLOGY, to ensure WE ERADICATE THIS DAMNABLE PRACTICE FOREVER!!!??
Legal enactments would be only of little use, as now they (Culprits of extermination) are getting away from the dastardly act – evidence gathering and suspect attacked excuses!! – Hence, it would be better process to do it with MOTIVATION as explained above, aided by legal means!!??
Captain Morgan / March 31, 2023
What this country truly needs today is not another draconian Anti-Terrorism Law but a draconian Anti-Corruption Law. More economic damage has been caused to poor Sri Lanka by the corruption of politicians, bureaucrats and other government officials than by the activities of terrorists.
So much of effort has been expended on drafting and enforcing anti-terrorism laws but there is not even a token attempt at drafting an anti-corruption law to deal with the endemic corruption. Moreover, hardly any action has been taken against corrupt public officials even under the existing weak anti-graft laws.
One is led to suspect that racism is behind all this because most of the terrorists are from the minority ethnic groups whereas most of the corrupt persons belong to the majority community. Racism pervades everything and is at the bottom of the misplaced legal priorities. Hang the corrupt persons first!
Raj-UK / March 31, 2023
It has been stated in public that MR paid off the LTTE to assist him in winning the Presidential election from RW but neither the allegation investigated, nor, denied. This is a serious allegation as it amounts to treason, punishable by death in times of war, even without this proposed draconian legislation. Would this law be applicable to MR as well, if the legislation is passed?
Terrorism is no longer an issue, it is the terrorist ‘bogey man’ that we are consistently reminded of, which, apparently, only the Rajapakses are capable of controlling. The current issue is corruption & incompetence but allegations are not investigated, therefore, the perpetrators remain innocent until proven, & such a day will never come. We are aware only of a few injustice cases, such as, that of lawyer Hijas Hezbollah, Dr Safi, Shani Abeysekara but there are so many low profile cases that go unnoticed, like the poor Tamil mechanic who died from ‘natural causes’ while in custody for the murder of Lasantha or numerous others languishing in prison without charges, only suspects in act of terrorism. In this context, can we rely on our legal system to act impartially?
nimal fernando / April 1, 2023
What is the use of all these crap laws ……. when the government and it’s goons are the biggest terrorists.
Will Mahinda go to the gallows? Will Gota ….. for Lasantha and many others? Ranil for perversion of justice …….. for protecting murderers?
It’s a good day ……. ol’ Donald at least got indicted. …… If even an attempt is not made to hold Trump accountable for his crimes …… it’s the end of America as we know it: whatever that is.
The day Lanka will turn the corner ……. is the day Mahinda, Gota, Ranil, Sirisena, Sinhala_Man, …….. are all manacled together and marched off to gaol. ……… Native Vedda called as the first witness to testify against his idol Ranil.
Oh Happy Day!
Sinhala_Man / April 2, 2023
What the devil am I being charged with, nimal?
old codger / April 3, 2023
“What the devil am I being charged with, nimal?”
Conspiracy to murder by boredom induced through YouTube videos about one AKD (reputedly a religious figure of some sort) sent from Bandarawela at 2 a.m.
Svenson / April 4, 2023
Manic defamation as well as adoration of Leelagemalli, playing the martyr, deification of AKD, fancying RTF etc
Paul / April 4, 2023
Exposing yourself in a public forum!
leelagemalli / April 4, 2023
as well as adoration of Leelagemalli?
Svenson / April 5, 2023
He started off as your best friend but was seduced by AKD. He is old enough to have lived through the JVP era. Their policies have not changed as their website confirms.
Buddhist1 / April 1, 2023
I am not surprised at all. Wijedasa Rajapaksa spoke of laws that were not draconian only until he became a minister. The minute he became a minister, there was no doubt in my mind that he would insert various clauses with loopholes to the laws that he will bring forward to the Parliament so that he can protect the crooks. Where did his strong conviction on human rights go? One a DEAL DASA is always a DEAL DASA.
Lasantha Pethiyagoda / April 1, 2023
There are already many laws in Sri Lanka that the powerful do not care about as they act with complete impunity. Criminals like Premalal Jayasekera and Diana Gamage can even “represent” the people in parliament, which itself is a travesty of justice. All super criminals like heroin importing ministers are “Nidos kota Nidahas” courtesy of the attorney general himself, who enables criminals favourable to the rulers to roam free while an innocent mother who steals a few coconuts to feed her starving children is remanded. What is needed is for the people to rise up in their millions and force out the gang of opportunistic and parasitic vermin from office and claim back their country. They should not be fooled by little price drops or personal favours from the criminals.
Fakeculturebug / April 1, 2023
Whoever said that law and sausages are made in such a way, that its better not see them being made,must have had a great imagination
We don’t know where Bismarck grew up, but if he said it, he must have seen pigs in stys and of course politicians in parliment at work.
Simon / April 1, 2023
Today, the Minister of Justice, Wijedasa Rajapakse said: “NOTHING” will change in this Legislation.
This Minister is another one “OVERWHELMED” with his “PRIDE” and “ARROGANCE” who thinks NO ONE ELSE other than “HIM” could be the Minister of Justice in this country. Remember, how he rejected a different Ministerial post under Gota’s administration saying: ” I will not accept any Ministerial post”. That is because Gota didn’t give him what he wanted.
So NOTHING will change,(that 134 will vote for) unless the SC makes any changes.
Buddhist1 / April 2, 2023
Who is the Deal Dasa? When he was not a minister he was defending the Courts saying that no one has the right to talk about the cases that are ongoing, or about any decisions made by the courts or about the Judges. However, since becoming the Minister of Justice, there have been more attacks by his own party members against the Judges. In fact, they want to bring the Judges to the Parliament to question them. As the Minister of Justice, what has this Deal Dasa done to protect the Judges from his own cabinet members and his party members such as “Dodawana Dolawatte”, absolutely nothing? Is he fit to be the Minister of Justice – definitely no. Further, since he became the Minister of Justice, State Terrorism has increased, what has he done about this Human Rights Violation? Kick this guy out at the next election. Let him go back to work for Avant Guarde for his plate of rice. Once a Deal Dasa always a Deal Dasa.
Harishchandra / April 1, 2023
Oh. when are we going to realize that the traitors in power are laying the groundwork to make the most hated nation on earth to make a safe landing on their intended freehold base in the Indian Ocean? The initial stages were implemented through Yankee Dickie’s hastily enacted constitution for which there was no mandate.
Buddhist1 / April 3, 2023
If the Anti-Terrorism bill is brought at the request of the IMF then why not ask the opinion of the IMF on this draft bill? If IMF can impose a condition on SL, it also should have the simple courtesy to give an opinion when the citizens of the country request its opinion on the draft bill. IMF can still say that it will not give an opinion, then Sri Lankans can also ask the UN Human Rights Council to give an opinion as HR Council also requested SL to remove the PTA Act from the law books.
Over to you Mr. Sumanthiran.
Ajay Sundara Devan / April 4, 2023
Ranil is going crazy like a little boy who has got a toy gun for the first time. It’s only a matter of time before the people pull him by the ear and send him reeling to his room to get back to his reading.