By Jagath Liyanarachchi
The “Anti-Terrorism Bill” has been gazetted on 22 March 2023 to repeal the Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979 and to replace it with a new legal framework to prevent terrorism. Given below is a brief description of the Bill:
History of anti-terrorism laws
In Sri Lanka, the initial legal provisions regarding terrorism were extracted from Public Security Ordinance No. 25 of 1947 which is not an anti-terrorist law but a legal framework that provides temporary additional powers to the executive to deal with situations like a national disaster or calamity. Although it is not an anti-terrorist law, the state of emergency has been instrumental to prevent the activities identified by the government as acts of terrorism and also to arrest the persons related to those acts. Emergency regulations were used to ban those organizations. In 1971, police and security forces were offered additional powers to suppress the insurgency by declaring an emergency under the Public Security Ordinance.
In 1978, when the rebel activities in the Northern Province escalated, the Parliament passed the Prohibition Act No. 16 of 1978 to ban Tamil Lanka Liberation Tigers and other similar organizations. It can be termed the first anti-terrorism law passed in the history of Sri Lanka.
Later in July 1979, Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979 was passed, repealing the previously mentioned Act. This Temporary Provisions Act remains in force to date although it was enacted for a period of three years. An amendment was brought to the Act in 1982 and made it permanent.
Criticism against the Prevention of Terrorism (Temporary Provisions) Act
The main objections to this bill are:
- Since the offences under the act can be interpreted very broadly, the security forces may use this act to oppress the citizens even in situations that can be controlled under the general law.
- The existing provisions on the control of the press severely restrict the freedom of speech.
- A confession made to an Assistant Superintendent of Police or a superior police officer can be used as evidence against an accused.
- The Minister in charge of Defense has the authority to issue orders to detain the arrested person for up to 18 months and it cannot be questioned in a court of law.
- Absence of power to grant bail until completion of cases. Because of this, many people who have not been prosecuted are still in remand custody.
- Later, through an amendment enacted in the year 2022, the legal provisions were relaxed to grant bail after one year.
Discussion about a new anti-terror law
Later, on September 14, 2018, the government published a draft in the gazette titled “Anti-Terrorism Bill” to replace the Prevention of Terrorism Act with a new law. It was tabled in the Parliament and the first reading was scheduled on October 9, 2018. Seven parties referred the bill to the Supreme Court to examine the constitutionality of the draft bill. The Supreme Court examined the petitions numbered from 41/2018 to 47/2018 and informed the parliament that four sections of the bill were against the constitution. They needed a two-thirds majority vote in the parliament and approval in a referendum to pass it. Also, the Supreme Court recommended alternative provisions related to those clauses in the judgment. Accordingly, the bill was held by the then government.
Key Features of the New Bill
Attention should be paid to the main elements of the draft when analyzing the new draft legally. Accordingly, the objectives of the draft, the relevance of the Act, the offence related to terrorism, the investigation process, arrest and detention, prosecution, powers and functions of officers under the Act, the special anti-terrorist office of the police, special investigative powers, the Attorney General’s power to postpone criminal cases, the issuance of prohibitory orders by the President, and the appointment of a review board are the elements that must be considered.
Purpose of the Act
Protecting the Sri Lankan people from terrorist acts carried out inside and outside Sri Lanka, preventing the use of Sri Lankan territory and people for terrorist activities, investigating terrorist activities, arresting and prosecuting terrorists, as well as the repeal of the No. 48 of 1979 Prevention of Terrorism Act is mentioned as the objectives of the new Act, as stated at the very beginning of the Bill.
Also, as stated in the preamble of the bill, terrorism is a threat to the sovereignty of Sri Lanka. Therefore, it is the government’s responsibility to prevent terrorism for the benefit of the Sri Lankan and international community. Since the government is bound by international agreements for preventing terrorism, the Government of Sri Lanka is concerned about a fair and just criminal justice system against terrorism.
The crime of terrorism
The most crucial point in this bill is the way the crime of terrorism is defined inclusive of the following:
- Murder
- Causing serious injury
- Hostage-taking
- Kidnapping or abduction
- Causing serious damage to public/ private transport systems and the environment
- Interruption of essential services
- Looting of government or private property
- Causing serious damage to an electronic system, computer system or network or website vested in Sri Lanka
- Destruction of religious or cultural property
- Damage to a telecommunications system
- Being a participant in an event in which the above-mentioned tasks performed
- Collection of firearms, and explosives without permission
If any of these actions are performed with the following purposes, according to section 3 of the bill, it is a terrorist act. The Act has provisions for punishment up to the death penalty for these offences.
(a) Intention to intimidate the public or any section of the public
(b) Falsely or unlawfully coercing the Government of Sri Lanka or any other government or international organization to do or refrain from doing any act;
(c) Unlawfully preventing the performance of any such government;
(d) Violating the territorial integrity or sovereignty of Sri Lanka or any other sovereign country, or
(e) Promote war or discrimination, enmity or violence with the aim of inciting national, ethnic or religious hatred
Thus, it is clear that the crime of terrorism is defined very broadly. Especially, obstructing the provision of essential services or being a member of such a process is considered committing the crime of terrorism, according to the Act. Therefore, there is a high probability that trade union actions related to a service designated as an essential service will also be alleged as committing the crime of terrorism.
Also, the act provides police with the discretion to define ordinary crimes in the Penal Code as terrorist offences.
Article 6 of the bill states that being a member of a banned terrorist organization and engaging in such an organization is also an offence. The President has the power to name an organization as a prohibited organization (Section 82).
Also, according to Article 10 of the draft, encouraging terrorism is an offence. Also, publishing a statement in the media that encourages committing an offence related to terrorism is an offence. As described in that section, and section 10(5), if a person proves in a high court that he has not consented to the act, these charges cannot be raised against him. This shifts the burden of proof in the case. It is a provision against the presumption of innocence.
According to section 11 of the draft, publishing terrorist statements is also an offence. If a person proves in a high court that he has not given permission to publish those statements or that his views on terrorism are not included, he will not be found guilty under this offence. This provision is also against the presumption of innocence. Also, section 15 of the draft indicates that hiding information from the police is a terrorist act.
A police officer, armed forces officer or coast guard officer has the power to arrest without a warrant for offences under the Act (Section 19). According to the provisions of the current Prevention of Terrorism (Temporary Provisions) Act, the arrest in connection with a terrorist act must be made by a Sub-Inspector or a higher officer on a written order of a Senior Superintendent of Police.
Special features of the proposed Act regarding investigative procedures
The proposed law also establishes a special unit in the Sri Lanka Police called the “Specialized Anti-Terrorism Agency” for the investigation of terrorism. In addition to officers who have received traditional police training, the unit will consist of experts in various disciplines such as legal affairs, information technology, and forensic medicine. Also, provisions have been made to get direct support from various government agencies for investigative work. A provision has been included to limit the magistrate’s discretion to issue the necessary orders for investigational purposes and such orders should be issued upon the request of a Superintendent of Police.
Provisions for the security of the arrested persons
Provisions have been made to produce the persons arrested concerning an act of terrorism before a magistrate within 48 hours. The need to undergo a medical examination, the need to notify the relatives about the arrest, as well as the need to notify the Sri Lanka Human Rights Commission within 72 hours are provided. These provisions create a potential to mitigate misuse of the Act.
It also emphasizes the rights of suspects as well as the responsibilities of investigators by limiting the period of detention without prosecution to a maximum of one year. Accordingly, accountability of the government regarding the arrested persons has been enhanced compared to the existing law.
Detaining on detention orders
A Deputy Inspector General has the power to issue detention orders for up to three months at the request of a police station and a magistrate has the power to extend detention orders after three months. A person can be detained on detention orders for a maximum of 12 months. According to the existing law, the President has the power to issue detention orders for a maximum period of 18 months. Accordingly, this draft proposes to transfer the power of issuing detention orders from the Minister of Defense to a Deputy Inspector General of Police.
Suspension or postponement of prosecution
Section 71 of the Act confers special powers on the Attorney General to suspend or postpone the prosecution of persons involved in any terrorist act.
Powers to ban public places
According to section 62 of the bill, an officer not less than a Superintendent of Police can issue orders such as preventing people from entering a certain area, evacuating people from that area, preventing movement on a road, preventing transportation, etc. to avoid danger or damage. This provision is equivalent to the imposition of a police curfew.
Powers of the President to Prohibit Organizations
Article 82 of the bill provides the President the power to ban certain organizations and their activities. Article 84 provides the power to the President to impose a curfew for a part of Sri Lanka or the whole country. Article 85 provides that the President has the power to designate certain restricted areas.
Powers of the President to issue orders and directives
The powers to issue orders to implement the provisions of the Act are stated in Section 98 of the draft and these orders must be published in the Gazette and must be approved by the Parliament within a period of one month.
Also, Section 99 of the bill states that the officers have the power to issue directives regarding the way to act.
Act supersedes other laws
Section 101 states that if there is a conflict between the provisions of this Act and the provisions of another law, the provisions of this Act shall prevail over the other acts.
Provisions regarding the prevention of terrorist acts
Responsibilities have been assigned to the police officers and the armed forces as well as the Coast Guard to prevent acts of terrorism. The Minister has been given powers to impose prohibitions such as banning organizations and their bank accounts and banning fund-raising, etc., against the organizations which act in a manner that threatens the security of Sri Lanka or any other country. Also, the minister has been given the power to impose certain restrictions on tasks related to the above motives. The President has been given the power to impose a curfew, prohibit places, confiscate property, and take other preventive measures.
The conclusion
The main problem with this draft is the too-broad definition of a terrorist offense. According to the provisions of this draft, there is a high risk of taking action against the trade union activists, journalists, as well as social activists who act against the existing government considering them terrorists. Also, the powers to arrest in connection with terrorist activities have been assigned to the police, the armed forces and the coast guard department. A Superintendent of Police has been assigned the power to issue detention orders. Police officers have been given more discretion and powers concerning investigations, exceeding the discretion of the magistrate in terms of issuing orders related to investigations. The President has the power to enact laws and ban places and also to ban organizations.
It should be acknowledged that this draft has made certain provisions to safeguard the rights of the arrested persons and those provisions are more constructive than the existing law. Particularly, the draft has proposed progressive amendments regarding the provisions to use confessions as evidence against the accused under the existing law.
But as a whole, provisions more dangerous than the provisions in the existing law have been included in this bill.
Jagath Liyanarachchi is an Attorney-at-Law who can be reached at jagathliyanarachchi@gmail.com.
Factum is an Asia Pacific-focused think tank on International Relations, Tech Cooperation and Strategic Communications accessible via www.factum.lk.
The views expressed here are the author’s own and do not necessarily reflect the organization’s.
