Sri Lanka's Anti-Terrorism Bill Has Significant Flaws

Due to constant pressure from the UN Human Rights Council (UNHRC) and Western governments, Sri Lanka has now come up with a new anti-terrorism Bill, which was gazetted on March 22.

Experts say that the Bill has significant flaws. First, the definition of a terrorist act is too wide. Second, the Bill is short on judicial oversight, giving too much power to the Executive and thereby creating room for arbitrariness.

Significantly, in the periodic review of the rights situation in Sri Lanka recently, the UN rights committee had called for the clipping of the wings of the Executive.

However, the new Bill shows some advancement. Supreme Court lawyer and Tamil MP, M.A. Sumanthiran, points out that for the first time in the history of Sri Lankan legislation on terrorism, the problem of transnational terrorism has been addressed.

In a recent article in The Morning, a former member of the Human Rights Commission of Sri Lanka (HRCSL) Ambika Satkunanathan, listed the following as advancements: the issuance of a document notifying arrest; employment of women police to search women; grant of access to translations in the tri-lingual country; and production before a magistrate every 14 days when detained under a Detention Order (DO).

But both Sumanthiran and Satkunanathan said that the introduction of the death penalty is a retrograde step, given Sri Lanka’s strong tradition of not carrying out death sentences (since 1976) and pleas by international rights organisations to totally abolish the death penalty.

The other major criticism against the new Bill is its omnibus definition of terrorism. A wide assortment of criminal acts are deemed to be terrorist, inviting the harshest of investigative procedures and punishments. Many of the acts listed could well be tried under ordinary laws, Sumanthiran said, recalling that in 2022, the Human Rights Commission of Sri Lanka (HRCSL) had suggested that the Prevention of Terrorism Act (PTA) be repealed and the existing criminal law be amended to include clauses to counter terrorist offences.

In a press release dated February 15, 2022, the HRCSL had stated: “Notwithstanding the amendments already suggested by the government, the HRCSL advocates the complete abolition of the PTA. The Commission believes that the offence of terrorism should be included in the Penal Code with a new definition for terrorism.”

The anti-terror provisions should be “explicitly for those who threaten or use violence unlawfully to target the civilian population by spreading fear thereof to further a political-ideological or religious cause. The Commission advocates that terrorism should be investigated under the General Law of the country with necessary amendments.

“The Commission also supports that it is not required to exclude the application of the Evidence Ordinance for the offence of terrorism. The indefinite period of detention violates the Constitution. Amendments to the Penal Code, the Code of Criminal Procedure Code. Judicature Act and the Bail Act require modifications for this purpose.”

The United Nations Security Council, it its resolution 1566 of October 2004, defined terrorist acts as “criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organisation to do or to abstain from doing any act.” The UN General Assembly reaffirmed this definition in January 2006 (Resolution 60/43).

The Security Council also made it clear that under no circumstances terrorist acts are justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature. In other words, there are no “good” terrorists and “bad” terrorists – all terrorists are bad.

In her article in The Morning Satkunanathan wrote that for an act to be “terrorist” it has to have the following attributes: (1) committed with the intention of causing death or serious bodily injury, or the taking of hostages, and involving serious or lethal physical violence against one or more members of the public; (2) committed with the intention of ‘provoking a state of terror, intimidating a population, or compelling a government or international organisation to do or abstain from doing any act’ (3) coming under the international definition of terrorism.

Elaborating, she stated: “An act would therefore have to contain all three elements to fall within the scope of the definition of terrorism. This means that not all acts that are crimes under national law or even international law would constitute terrorist offences.

“Not only does the definition of terrorism have to be precise, it must also adhere to the principles of necessity, proportionality, and legality.”

Looked at from this angle, the definition of terrorism in the Anti-Terrorism Bill is “broad” Satkunanathan opined. There is a provision against acts “violating territorial integrity or infringement of sovereignty of Sri Lanka or any other sovereign country. But this could well mean that even advocating for certain constitutional arrangements, such as federalism, could be labelled as causing harm to the territorial integrity and sovereignty of Sri Lanka, the rights advocate pointed out.

The Bill enforces the International Covenant on Civil and Political Rights (ICCPR). But Satkunanathan points out that the ICCPR has been weaponized by governments to imprison dissenters and writers, such as Shakthika Sathkumara and Ahnaf Jazeem, while leaving out pro-government elements.

The power to arrest given in the Bill could be misused, Sathkunananthan says. It gives room for arrest prior to investigations without adequate evidence and without due process. The involvement of the military would further militarise law enforcement.

A Detention Order (DO) can be issued by a Deputy Inspector General (DIG) of Police for a maximum period of one year. But when a DO is placed before a magistrate, the latter is only required to ‘make an order to give effect to such Detention Order’. This means that a magistrate’s oversight function has been removed, Satkunanathan points out.

The Bill contains sections which enable the police to take the person from remand custody in prison back into police custody via a Detention Order if they ‘receive information’ which they ‘believe to be true’ that the person is committing or planning to commit an offence or escape.

Since most violations under the PTA, such as torture, have been recorded in police custody and not in prison, the transfer of a person back to police custody can make the person vulnerable to torture, the rights activist fears.

Satkunanathan charges that there is an insidious attempt in the Bill to undermine the powers of the Human Rights Commission of Sri Lanka (HRCSL) by establishing a parallel institution (the Independent Review Panel or IRP) to receive and inquire into complaints of alleged violations of fundamental rights. But receiving and inquiring into alleged violations of fundamental rights is a core function of HRCSL and hence raises questions as to how the IRP will function vis-à-vis the HRCSL.

As it is, the HRCSL has been downgraded internationally. 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 because of, among others, the lack of transparency in the appointment process and of pluralism in its membership and staff

Satkunanathan points out that the Board of Review set up by the new Bill is chaired by the secretary to the Ministry of Defense and the Independent Review Panel, which is appointed by the President, “are not independent.” Hence, “they cannot function as a check on the abuse of power by the police,” she argues.