SRI LANKA : More (Legal) Horrors of Sri Lanka's Counter-Terror Draft
IMMEDIATE RELEASE
AHRC-FAT-037-2016
14 November, 2016
The weekly Times column, Focus on Rights, titled ‘More (Legal)
Horrors of Sri Lanka's Counter-Terror Draft’ by Kishali Pinto
Jayawardena, in the Sunday Times, Sri Lanka, on 06 November 2016,
forwarded by the Asian Human Rights Commission
SRI LANKA : More (Legal) Horrors of Sri Lanka's Counter-Terror Draft
Kishali Pinto Jayawardena
The Government’s proposed draft on a new counter-terror law for Sri
Lanka is rather like a thoroughly unpleasant case discovery. Each time
that one revisits afresh, new horrors are unearthed.
Several other fiendish offences
Drawn reluctantly back to this document following representations from
several quarters, it may be said that absorbing its contents could
well qualify as being subjected to cruel, inhumane and degrading
treatment within the meaning of Article 11 of the Constitution.
Possibly, this exercise may not warrant that necessary degree of
severity amounting to an infliction of torture. But even that is
debatable, given that psychological torture is encompassed within the
modern definition of the term.
This accusation is warranted by the draft’s atrociously wide reach
of acts classified as offences which, in whole, would prohibit the
entire range of democratic activity. A few such offences were
commented upon in these column spaces following extracts of the draft
being exclusively published in this newspaper, (see ‘Is this
counter-terrorism in a far deadlier garb?’ the Sunday Times, October
16, 2016). Apart from these, several other fiendishly contrived
offences are also included as ‘terrorism related offences’ and
‘associated offences’ which carry stiff penalties. I will return
to this later.
But first, some general observations are pertinent. On sober
consideration, it is the very height of unfounded optimism as
expressed by some politicians, to claim that this document can somehow
be ‘cleaned up’ during the parliamentary committee process. In
fact, there is a distinctly mischievous danger therein, given the
eager propensity of even the political representatives of the
minorities to conform to unhealthy compromises of the Unity
Government. Leaving this draft to their slender mercies carries a high
degree of risk.
Government must formally admit ownership
Accordingly the only viable safeguard lies through robust public calls
demanding that the Government formally admit to the ownership of this
counter-terror draft. Thereafter public discussion must follow on its
contents. Timorous complaints that the Government has failed to
present the document for public scrutiny really will not do.
And lest the misguided think that this is a concern limited only to
the North and East, the contrary is the case. The Prevention of
Terrorism Act (PTA, 1979), which this new counter-terror law is meant
to replace even though it is far worse, was first used against leftist
activists of the majority community under the Jayawardene
dispensation.
Since then, the PTA has been employed with scant regard to ethnicity,
though the decades long Wanni war meant that its victims were
predominantly of Tamil ethnicity. In the eighties, ordinary Sinhalese
citizens were targeted by the PTA during the so-called ‘period of
terror’ in the South. The media was the first victim of the combined
ill effects of the PTA and emergency regulations imposed under the
Public Security Ordinance (PSO, 1947). Journalists were threatened,
assaulted, imprisoned and killed under these laws.
Cardinal fault is ours
Those pontificating on media standards while living in the comfort of
their secluded corners amidst retreating in dismayed disorder at the
disarray of their much hyped rainbow alliance need to be forcibly
reminded that journalists lived (and sometimes died) under the shadow
of these laws. From that perspective, it is somewhat miraculous that
notwithstanding its considerable racist, communalistic and
chauvinistic warts, the mainstream media continues to function at all
in this country.
Returning to that era of terror is still very much within the bounds
of possibility. The cardinal fault is ours in allowing such a
horrendous draft to emerge in the first instance. Secretive
legislative drafting in exclusive conclaves, whether in relation to
transitional justice, counter-terror or constitutional reform, should
have not been tolerated from the inception. This is an exercise which
runs directly counter to good governance precepts.
Pulling out ad hoc parts of the transitional justice package rather
like a seedy magician with his rabbit’s hat has already led to
incendiary resentment on the part of people directly affected by the
conflict feeling excluded and marginalized. This miserable experience
suffices to illustrate the dangers of complacency, even with the best
of intentions. That process must not be repeated where the
counter-terror draft is concerned. The repercussions would be
exceedingly unfortunate.
Offending the principle of legality
As a matter of law, there is a clear argument why this draft is
incapable of being revised to be acceptable. Each and every paragraph
offends the first principle of legality which stipulates that a
contemplated offence should be clearly defined, described in precise
and unambiguous language. This was why in the past, terms such as
“threatening or endangering the sovereignty or territorial
integrity” of Sri Lanka or effecting “any other political or
governmental change” in national security laws were completely
contrary to the Rule of Law. The public uproar to revise these
arbitrary laws arose from that exact objection.
Quite apart from the draft’s vague definition of terrorist acts,
there are terrifyingly familiar echoes in its classification of
‘terrorism related offences.’ This prohibits ‘words either
spoken or intended to be read or by signs’ etc which ‘causes or
intends to cause the commission of acts of violence between different
communities or racial or religious groups. The prohibition is coupled
with intent to cause harm to the ‘unity, territorial integrity or
sovereignty of Sri Lanka or the peaceful coexistence of the people.’
These were the same clauses used to imprison journalists and
dissenters in the past with the importation of additional references
to ‘unity’ and ‘peaceful coexistence.’ These prohibitions are
contrary to the Johannesburg Principles on National Security, Freedom
of Expression and Access to Information which permits expression to be
punished only if it incites imminent violence and there is a direct
and immediate link thereto.
Disposing of the draft without further ado
Ludicrously the proposed offences also encompass theft of property by
the State, including data, intellectual property or ‘other
information.’ What exactly is meant by ‘other information’ is a
matter for wild surmise.
In sum, this is the worst national security draft ever to be proposed
in the history of this country, including under the Executive
Presidencies of Jayawardene, Premadasa, Kumaratunga and Rajapaksa. It
remains to be seen if President Maithripala Sirisena is desirous of
having this dubious honour associated with his celebrated
‘yahapalanaya’ Presidency.
The public demand must be to dispose of it unceremoniously and without
further ado.
# # #
The Asian Human Rights Commission (AHRC) works towards the radical
rethinking and fundamental redesigning of justice institutions in
order to protect and promote human rights in Asia. Established in
1984, the Hong Kong based organisation is a Laureate of the Right
Livelihood Award, 2014.
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