Monday, 06 May 2019 13:15

Counter-Terrorism bill, the need of the hour

The Easter Sunday attacks two weeks ago were a reminder of how important it is for a nation, union or an establishment to be prepared to combat and prevent terrorism, that a state cannot completely divorce itself from terrorism and that no nation can be safe from global terrorism in this day and age.

Around 40 years ago in 1979, President J. R. Jayewardene summoned his Generals and legal counsel during a weekend to discuss and enforce a law to combat and address potential terrorist activities in the country. What resulted from that meeting was the Prevention of Terrorism Act (PTA) (Temporary Provisions) of 1979.

The Act, though a temporary provision, remained for the next 40 years, even to date.

The Prevention of Terrorism Act was borrowed from the UK as many of our laws were. This piece of legislation that is considered to be a draconian law is insufficient to combat or prevent terrorism, either local or global.

“The PTA was brought in about 40 years ago. That was brought in as a temporary provision. Technology at the time was very limited. The households had only a radio. The Act only had four provisions not provided for in the Penal code. They were Sections 16 where a suspect could be held in detention for 72 hours. There is also provision for the Defence Secretary to give further orders to extend the duration a suspect could be held, and that confession before an ASP or above will be valid before a court of law,” Presidents Council Nissanka Nanayakkara said.

Emergency regulations were in existence almost for 40 years and then in 2009 after the end of the war, 9,152 Emergency Regulations were taken off under a Gazette notification. Then 2018 after the Digana incident, Emergency Regulations were promulgated. Again, this was re-enforced under the 2120 Gazette notification on April 22.

PTA

“The PTA was first brought in for three years. But in 1982, there was an amendment through which they took off section 29 which said that the Act was valid for a temporary period of three years. Later, it was repealed. Accordingly, this legislation has now become permanent in every sense of the word,” Senior Counsel Chrishmal Warnasuriya said.

But these laws are not sufficient. The attacks were not indigenous and have an international involvement.

Towards the end of last year when the Counter-Terrorism bill (CTB) Special Determination was taken up before the Supreme Court, in an opening remark on behalf of the Attorney General, it was said, “One cannot be assured that the ugly face of separatism or terrorism will not arise again in this country. It is, therefore, imperative to take note of what terrorism can entail.”

It was only prudent that the country was ready with the necessary legislation to face terrorism rather than hurryingly implementing laws to cater to such incidents after blasts, attacks or other terrorist activities. Even after the lapse of three years of deliberations, the legislature failed to pass a coherent piece of legislation that could have addressed what happened in the country on Easter Sunday 2019.

A country should be equipped with the laws to face any terrorist act. The CTB is the Criminal Justice response to terrorism.

One of the main criticisms that has been levelled against the bill is that the definition given to the word ‘terrorism’ is too wide that it can even interpret a trade union action as an act of terrorism.

“The definition given to ‘terrorism’ is very vague. This can include any trade union action or even any other action that is against the government,” Presidents Counsel Ali Sabry said.

The JVP, as stated on numerous occasions, is of the view that instead of preventing terrorism or religious extremism, the CTA is mainly equipped to curb trade union activities. Since its introduction, the Prevention of Terrorism Act does not give a specific definition of terrorism but only outlines offences that amount to an act of terrorism.

“The law does not contain a definition on terrorism but serialises acts of terrorism taking into cognizance the terrorist acts in the country in the seventies. One weakness is that it doesn’t reflect on the contemporary manifestation of terrorism. The PTA has features that seem to have contributed to a violation of Human Rights on Extra-Judicial activities,” a legal expert told the Sunday Observer.

At the Sectoral Oversight Committee on International Relations, it was stated that there is no world standard for definition of terrorism and also there are several mechanisms to protect individual privacy, fundamental freedoms and fundamental rights.

Social justice

Rights Activist Ruki Fernando told the Sunday Observer that to get rid of one draconian law, a similar one should not be accepted.

“Countries should ensure the prevention of terrorism through equality and a social justice system,” he said. According to him, the responsibility of the government is to ensure that there is no room left for terrorism.

He said terrorism cannot be prevented by introducing draconian laws. But it has to be ensured that social suppression and other means by which terrorism can be nurtured, could be nipped in the bud.

According to him, the proposed CTB is not different from its predecessor, the PTA. “Both are equally bad, draconian laws. We should not even think of comparing the two laws as they are different from each other and equally bad. If someone says the proposed law is slightly better than the existing law that is not a good reason,” he said.

Fernando said both the High Commissioner on Human Rights and the Special Rapporteur on Human Rights and Counter-Terrorism has claimed that the bill is not on par with international human rights norms.

“This doesn’t mean that we don’t need a legal framework. We definitely must have laws to curtail terrorism, but that has to be watertight legislation where rights of individuals are not compromised at any point,” he said.

Legal experts who expressed similar concerns at the Sectoral Oversight Committee on International Affairs where the bill has been deliberated over the past four months, said Sri Lanka is a party to numerous international conventions and several institutions relating to countering terrorism – UNHRC and EU- and raised their concern on problematic areas of the PTA.

During deliberations at the oversight committee, concerns were raised that “a particular organisation could be proscribed even if an organisation was not acting in a manner prejudicial to national security, if the minister feels that such an organisation was committing a crime.

It was suggested that to prevent any confusion, that wording should include “clear and present danger to the national security should be present.” However, in response, it was stated that,”there should be a way to proscribe an organisation if that organisation is raising funds in Sri Lanka for terrorist activity.

The hasty manner in which the PTA was implemented is a good example if we are to learn from our past mistakes. The Counter-Terrorism Bill despite being deliberated for the past three years has failed to make headway.

(Sunday Observer)

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