By Shiran Illanperuma –
The Counter Terrorism Bill presented to parliament by Minister of Foreign Affairs Tilak Marapana on 9 October 2018 is being sold to the public as a lesser evil, but the Bill’s implications for workers and trade unions is a severely under-discussed concern.
The Counter Terrorism Act (CTA) is meant to be a replacement of, and improvement on, the draconian Prevention of Terrorism Act (PTA) which was enacted in 1978. The PTA has a gruesome history and has been widely criticised by the labour movement and the Tamil community for the way in which it has facilitated abductions, detention without charge, torture, and racial profiling.
As a standalone piece of legislation, aspects of CTA are indeed better than its predecessor the PTA – especially the fact that confessions made to police under custody are no longer admissible in court. However, the tyranny of the CTA is best explained when examined not as a break from the PTA, but as a sequel to another piece of repressive legislation from the same era – the Essential Public Services Act of 1979.
Essential Public Services Act
The Essential Public Services Act (EPS) gives the President the power to publish a gazette declaring virtually any service provided by public sector workers as “essential to the life of the community”.
Under the Act, workers associated with a declared ‘essential service’ who refuse to show up to work, refuse to perform at work, or refuse to perform their work within a ‘reasonable time’ can be imprisoned between 2-5 years, be stripped of their property, and have their names removed from any official registry applicable to their profession.
Formulated at a time of high inflation, rising prices of essential commodities, and a government policy of privatising state-owned assets, this Act was clearly intended to be used as a weapon to discipline organised workers. It was first and most famously deployed during the general strike of July 1980, after which over 40,000 workers lost their jobs.
More recently, the Act was deployed in July 2017 when fuel supply was declared an essential service, and the army was sent in to undermine a strike by Ceylon Petroleum Corporation workers. Later, in December 2017, railways were declared an essential service in response to a strike by Railway Department workers.
Essential Services in the CTA
Some experts have already pointed out that the ‘acts’ and ‘intentions’ used to define the offense of terrorism in the CTA Bill are overly broad and therefore liable to be abused by governments.
The clauses most noteworthy for workers and trade unions are the ‘intentions’ listed in sections 3(1)(b) and (c):
3(1)(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;
3(1)(c) preventing any such government from functioning;
These are especially alarming when combined with the the ‘acts’ listed in sections 3(2)(d) and (h):
3(2)(d) causing serious obstruction or damage to essential services or supplies;
3(2)(h) causing obstruction or damage to, or interference with any critical infrastructure or logistic facility associated with any essential service or supply;
An act which ‘obstructs’ essential services and their related ‘critical infrastructure’, carried out with the intention to ‘compel’ the government ‘to do or abstain from doing any act’, can very easily be interpreted to include a range of popular democratic activity ranging from workers’ strikes to peaceful protests.
For the first time in Sri Lanka, the above clauses also bring the language of ‘essential services’ into the legal scheme and discourse on terrorism. Such a move could categorise organised workers as ‘terrorists’.
Proscription Orders in the CTA
The final nail in the coffin for organised workers is section 81(1) of the Bill, which is buried under the section titled Miscellaneous Orders:
81(1) Notwithstanding anything in any other written law where the Minister has reasonable grounds to believe that any organization 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 organization in terms of the provisions of this Act.
These ‘proscription orders’, when viewed in the context of the ambiguity of the definition of the offence of ‘terrorism’, could be used to proscribe and cripple the activity of trade unions and other workers’ organisations.
More worrying are latter clauses which specify that the Minister in charge can make proscription orders based on the recommendation of the Inspector General of Police or “a request made by the Government of any foreign country to the Government of Sri Lanka”, effectively undermining national sovereignty.
Repeal PTA! Withdraw CTA!
It is easy to see how the CTA and EPS could be used in tandem to crush dissent. The state needs only to first use the EPS to declare an ‘essential service’, and second use the CTA to proscribe workers and unions for obstructing such services. The CTA is therefore ‘EPS plus’ from the point of view of workers and trade unions.
If the CTA is allowed to pass, public sector workers – who remain organised in key sectors of the economy such as railways, ports, healthcare and education – could be liable not just to the penalties outlined in the EPS but also those in the CTA. These penalties include fines of up to one million rupees and prison sentences ranging from 15-20 years to life depending on the severity of the offence.
From roughly 1971 to 2009, the Sri Lankan state was faced with existential threats in the forms of armed militants in both the north and south. While this does not justify the crimes committed in the name of national security, militant attacks on civilians provided the state with enough reasoning to pass and maintain anti-terror legislation.
In the post-war era, the state faces no such existential threat. Organised crime may exist but this can be adequately dealt with under the existing legal regime. In a context of increasing cost of living and attempts at privatising or restructuring state-owned assets, it is reasonable to assume that the most likely source of instability anticipated by the state is from organised workers.
Sri Lankans should not be fooled by the stamp of approval given to the CTA by certain political parties, NGOs, and international actors who have colluded in its drafting. The CTA is not the closing of a chapter of state violence, but the opening of a new one.