By Swasthika Arulingam –
On Tuesday 11 September 2018, Cabinet approved a Bill for the Counter Terrorism Act (CTA) which is to replace the draconian Prevention of Terrorism Act (PTA) – a piece of legislation which has been used arrest and detain suspects with little due process. Though enacted to combat the JVP and LTTE movements, in practice the legislation has been a tool for state terror against labour activists and racially profiled Tamil citizens.
The new CTA Bill was touted as part of the regime’s ‘good governance’ programme. However, the Bill itself has not been drafted in consultation with ordinary citizens and independent civil society. Instead, foreign bureaucrats have intensely been involved to ensure adherence to international standards – some of which are far worse than what is in the current PTA. The ‘international community’ and Colombo-based civil society has at best been silent, or at worst touted this legislation as a ‘significant improvement’. In the absence of non-state armed militancy, the CTA is a clear attempt to foreclose on future democratic activity such as labour activism which has been on the rise under this regime.
The following is a compilation of a public Facebook exchange between activist and attorney-at-law Swasthika Arulingam, and opposition MP M. A. Sumanthiran with regards to the new Counter Terrorism Act and the TNA’s position on this new Act.
Swasthika Arulingam: Dear Mr. Mathiaparanan Abraham Sumanthiran, I was confused when I read this news article which has quoted you. You have said, Tamil National Alliance (TNA) position is that it does not think that a separate act to deal with terrorism is needed in our country. There seems to have been some discussion on the drafts of the Counter Terrorism Act (CTA), because you say the original CTA was much worse than the current one which has been presented. And we (the TNA) took opposition to four issues. And in the current draft all four issues have been omitted.
Why did the TNA only oppose four issues when it should have opposed the entire move by this government to bring a new law like the CTA? Wasn’t that one of the demands of the majority of the Tamil people, and particularly that of the families of disappeared? Didn’t they say we want the PTA repealed? I don’t recall them saying we want the PTA repealed and a new CTA in its place? I don’t recall them saying that at all. So why would the TNA only raise concern on four issues and not oppose the entire bill? What do you mean when you say, we have to think about how we are going to vote for the bill? We do not want blame on us in case this bill doesn’t get passed and is rejected in parliament because we do not vote for it? Are you saying you want this bill to not be defeated and be passed into law?
Are you saying that the bill in its current form, where any police officer at any police station and any military person can make an arrest on mere suspicion of a person, where the government can now tap into our private information, where the president can issue directives without being checked by the parliament, where the police can make directives to curtail civilian activity and the minister can declare places as prohibited at his fancy, can become law and the TNA would allow it? If your position – which I assume is also the position of the TNA – is that you don’t want the Government defeated on a draconian bill like this which threatens the very existence of any form of democratic space in this country, then what is your role as the main opposition party? Aren’t you supposed to be acting as a check and preventing parliament from legislating bills like this?
Mr. Sumanthiran, as a person who has read this bill from cover to cover, I am baffled as to why you think it should be passed in to law, and the government should not be defeated on this bill. I would think the TNA’s position should be to defeat this bill at all cost. In fact, I would think the TNA would be lobbying the Government to remove this bill off the order paper plus repeal the PTA. If you do this, the entire Tamil population, the Muslims of this country and the working-class Sinhalese (yes, this bill above all is anti- poor. How many people do you think will have the money to run to the Superior Courts to challenge every detention order which is going to come under this Act?) would have been with you. But it seems you don’t want this bill defeated in Parliament.
Please tell me what the TNA’s position is on this? Do you want the PTA repealed? If yes, then lobby the government to repeal it. Do you want a new CTA? If the answer is no, vote no in parliament to whatever form this CTA is going to be placed for a vote in parliament.
As a Tamil and a lawyer who has seen enough people detained, tortured, incarcerated for years and then released after being proven innocent, I want to know from you what you think because if the TNA decides to vote for this bill, then you will not only betray the Tamil people of this country but you will also betray the citizens of this country as a whole.
We as Tamils know what an act like the CTA can do to people. We know this too well because government after government has terrorised the Tamil people till today by imposing the PTA on us. The Sinhalese and the Muslims do not know what it is to be under a terror law like we do. You and the TNA have a duty not only as representatives of the Tamil people but also as members of the opposition to protect this country from legislation like this. I hope you remember this when the Bill comes for a second reading next week.
M A Sumanthiran: Thank you Swasthika Arulingam for raising the issue publicly and in such a comprehensive manner. The repeal of the PTA has been our demand for a long time. Personally too, in my entire professional life as a lawyer, I have agitated for its removal from the statute books. In Parliament whenever an opportunity presented itself I have spoken quoting my several experiences as a lawyer. Although the whole of the PTA is objectionable, one obnoxious provision that stands out is the admissibility of confessions made to a police officer. I need not elaborate on this.
When the new government came in, we got them to give a commitment to the United Nations Human Rights Council that PTA would be repealed. However, that commitment was associated with a phrase that said, “and enact another anti-terror legislation that conforms to international standards,” or something to that effect. This is because all the countries that pressured SL on this issue have their own legislation on countering terrorism.
When the first draft of CTA came to the Parliamentary oversight committee (of which I am a member) we objected to four provisions in it (that is when I made a public statement that CTA was worse than the PTA). That forced the government to negotiate this with us along with United Nations experts and representatives from the European Union. Confessions are admissible in the European countries, being civil law based and inquisitorial criminal procedures being applicable. It was a mountainous task to convince them that making confessions inadmissible was more important than having the right to an attorney from and all the time of the arrest. Eventually we managed to convince them. I even met with UN Directorate on Counter Terrorism in NY and held discussions on this draft. With sufficient pressure from UN and EU, SL finally relented and removed all those four objectionable clauses including confessions.
Our position is that no new counter terror legislation is necessary when PTA is repealed. But the reality is that almost all the countries in the world have anti-terror legislation and we cannot win that battle. The most important achievement would be to repeal the PTA and also ensure that the new legislation does not have provision for confessions etc. Although the Bill doesn’t have that provision now, the discussion in the Cabinet seems to suggest that it can still be brought in through committee stage amendment.
If we do not remain engaged and keep the confessions etc out, there is every chance that those will come back into the new law. If the Bill as it is put to vote and we vote against it and it fails to pass (which is a reality given the voting pattern at the Reparations Bill) PTA will remain and we cannot thereafter appeal to the international community to exert pressure to repeal it.
This is where, “politics is the art of the possible” and, “lesser of the evils” come into play! We cannot allow a situation of the PTA not being repealed and we being blamed for it!
That is why the issue is not black and white and we will have to wait and engage in many behind the scenes negotiations with many actors and finally decide what is best in the circumstances.
Swasthika Arulingam: Mathiaparanan Abraham Sumanthiran, I have to ask this question in public because everything else with regards to the CTA seems to have happened behind closed doors. Unfortunately, your answers raise more questions, rather than provide me with the confidence that our elected representatives will do right by us. Sadly, I know I may already be too late in raising these questions. The bill is already on its way to becoming law and from what you are saying you don’t want it to be defeated. So, the TNA will vote for it as it stands now.
This government is anti-people. The election rhetoric of ‘good governance’ has long gone silent and the spirit of democracy which shone in the 2015 election has been broken. The fault solely rests on this government. Therefore, I don’t expect this government to do anything less than repeal the old draconian law and bring in its place a new draconian law.
My question is about the role of the TNA in this whole process. You say you were part of the parliamentary oversight committee. I ask you again: why did you not object to the whole act? You say you forced the government to negotiate with UN experts and the EU, and high-level meetings were held to pressure the government. But why did you pressure the government through UN meetings in New York? The UN and the EU have never been against the idea of counter terror legislation. A cursory glance at any one of their reports will tell you this fact.
The vast majority of Tamil people in this country, after being racially profiled and brutalized by an anti-terror law for more than thirty years, have called for the absolute repeal of the PTA. You cannot say the Tamil people wanted a new law in the place of the PTA. If you thought the government was bringing in a horrendous law, then why did you not talk to the Tamil people and raise the alarm bells? Why did you think that you can work with this government which does not even protect the interest of working-class Sinhalese? Do you have so little faith in the power of the people who voted you to power? And if the Tamil people don’t want it, then why are you even voting for this? Where do your loyalties lie Mr. Sumanthiran? To the people who voted for you? To the government? To some white men representing the interest of the EU and the UN? Who are you accountable to?
Why do you keep saying the CTA is better than the PTA? Is it because we don’t have confessions? Is it because now we can appeal on administrative orders? If that is all, then why not just amend the PTA? Why bring in a new law? I was listening to the state counsel presenting the ‘scope’ of this new act in court. In his own words the PTA is not capable of dealing with new challenges in the contemporary world. In other words, the PTA is a redundant act. Therefore, the government, being the government, jumps at this chance and brings in a new law which equates democratic dissent and ordinary civilian activity with terrorism.
If the PTA allowed the minister to arrest people on suspicion, the CTA enables police and military officers of the lowest to arrest, search and detain on mere suspicion. I don’t have to tell you what this means in practice. The government has managed to arm law enforcement with the power to police people into obedience, which even the PTA could not do. And what about the military under the CTA? The military is cut loose. Now they can search, detain and interrogate without orders from the president. Any military officer can make an arrest under this act as they wish. In short, creates a militarised state. Even Mahinda Rajapakse could not do this!
The thought of this reality terrorizes me Mr. Sumanthiran. Why doesn’t this terrorise you? And why doesn’t this terrorise the human rights champions sitting in Colombo like the Centre for Policy Alternatives who call this act a ‘significant improvement’ from the PTA?
I don’t know what negotiations you have had with the government behind closed doors. But whatever promises you have made to this government are secondary to the promises you made to us. Vote against this bill and speak to the people of this country. Appeal to the people Mr. Sumanthiran. Appeal to the people in the North and the South. Yes, you might fail, and this act may still pass into law, but through this process we will know who are allies in the South are, and who we can rely on when this Act becomes law. Now we have no one because you have consulted no one.
This law is not there to protect people and you know it. ‘Politics is the art of the possible’ you say. Therefore, we have to settled for ‘the lesser of the two evils’ you say. Both are evils, Mr. Sumanthiran. There is no lesser evil here. The political possibility here was for the TNA to take a historical shift and talk to the people in the South as leaders of the opposition. Don’t let this opportunity go. It is not too late.
M A Sumanthiran: You have made two wrong assumptions:
1. That TNA will vote in favour of the CTA. In my first reply and even in the news item that you originally cited I have clearly stated that we are yet to make a decision! In fact, I have said that our position is that no new anti-terror legislation is necessary.
2. That all negotiations were held behind closed doors, implying that the very idea of another law to replace PTA was kept secret. Sri Lankan Foreign Minister, in his address at the high-level segment of the UNHRC on 14 September 2015, publicly announced that when PTA is repealed another counter terror law will replace it. I don’t recall anyone protesting about this position for the last 3 long years. The fact that a law was being prepared to replace PTA was very much in the news. Initially the Law Commission prepared a draft after wide consultation including the Bar Association of which you are a member. Later I have made public statements asking why that draft was abandoned. No one asked what the necessity was for a new law, even at that stage. Representations could have been made to the Parliamentary Sectoral Oversight Committee when news about the draft CTA came out in public. In fact, the Bar Association made representations and was accorded hearings on more than one occasion. Several international agencies were consulted and the SOC rejected the first draft. All this information received wide publicity.
*Swasthika Arulingam is a lawyer and a member of the Liberation Movement. Liberation Movement is a collective of women fighting against all forms of oppression, emphasising the centrality of women’s liberation for any movement for democracy, freedom and liberation from oppressive structures.