By Veeragathy Thanabalasingham
Colombo, February 29: An important question, inevitably arises as to whether the government is really serious about introducing new law to replace the much criticized Prevention of Terrorism Act (PTA) that has been in place in Sri Lanka for the last 45 years.
So far attempts have been made by two governments to introduce new legislation. The ‘ Yahapalanaya ‘ government led by President Maithripala Sirisena brought the Counter Terrorism Bill (CTB) in 2016. The present government led by President Ranil Wickremesinghe has now brought the Anti-Terrorism Bill (ATB).
The provisions of both these bills are more draconian than the PTA.
Deputy Speaker Ajith Rajapaksa recently read out the Supreme Court’s determination in Parliament. The court’s determination followed the hearing more than thirty petitions challenging the constitutionality of the ATB.
“Eight sections of the Bill are deemed to be inconsistent with the constitution. Therefore, they must be passed with two-thirds majority in Parliament. Certain sections of the bill require the approval of the people in a national referendum,” the determination said.
“But if the bill is amended according to the Supreme Court’s recommendations, it can be passed in Parliament with simple majority support,” Rajapaksa said.
It is important to note that the Supreme Court has said that what is described in the ATB as “terrorist offenses” must be largely consistent with international law. The Court did not accept the definition given to terrorism in the Bill.
“The definition of terrorism should be in the line with the United Nations definition and the resolution on terrorist financing passed in 2001.”
“While determining the definition of a terrorist act, the definition given in the laws of the United Kingdom, Australia, New Zealand and Canada should be taken into consideration. It will be useful to consider the laws of these countries while amending the law of Sri Lanka against terrorism,” the Supreme Court said.
Defining terrorism is indeed an international problem. Even the United Nations has yet to find global consensus on it. One man’s terrorist is another man’s freedom fighter. Countries define or interpret terrorism based on the problems they face. Sri Lanka is no exception.
Ever since the ATB was published in the Government Gazette in March last year there has been severe criticism of its definition of terrorism. It is widely felt that the definition, which is vague and over-reaching, can lead to suppression of political dissent and violation of the fundamental rights of the people.
The legal community and local and international human rights organizations have expressed serious concerns about several provisions of the ATB based on Sri Lanka’s decades-long history of the widespread abuse of PTA and other criminal laws.
The government which had promised to bring in a progressive law following the criticisms raised at the local and international levels about the gross abuses under PTA has brought in a bill that, instead of removing the shortcomings, widens the scope of the definition of terrorism.
The bill widens the definition of terrorism to include acts of property damage, theft, robbery, etc. Some restrict the people’s freedom of assembly and freedom of speech. The ATB needs to be seen in the light of the abuses under the PTA and the ongoing steps taken by the government to suppress peaceful protests.
It classifies any protest against the government as an act of terrorism. Demanding the resignation of the government or the President can be interpreted as acts of terrorism. Strikes and street protests by trade unions demanding higher wages can be deemed as acts of terrorism that disrupt essential services and supplies. In fact the government is determined not to allow another popular uprising like the 2022 ‘Aragalaya’ the brought down the government of the Rajapaksas.
It is worth noting that, despite severe criticisms being made for months, Justice Minister Wijedasa Rajapaksa made it clear that no major changes would be made to the ATB. The recent Supreme Court determination clearly shows that the government has not taken into account the legitimate criticisms raised by the legal community, civil society organizations, local and international human rights organizations and made the necessary changes in the ATB.
The legal community and the civil society groups had requested that time be given for a detailed discussion on the ATB. The government did not take much interest in such discussions.
The Sri Lankan Bar Association pointed out that the ATB published in the Government Gazette last September (2023) did not include their observations.
The Supreme Court announced its determination at a time when the government was wanting to pass the ATB hot on the heels of passing the Online Safety Bill (OSB) in Parliament recently.
Will the government care to pass the ATB with a simple majority in Parliament by making necessary amendments as per the determination of the Supreme Court? Or will it abandon the bill in the absence of a two-thirds majority? These are important questions that need to be answered.
It seems that it is not possible to proceed with the ATB in the undemocratic manner government hastily passed OSB last month without including the various amendments stipulated by the highest court of the country.
Will bringing in a new law to replace the PTA also remain elusive like the attempts to abolish the Executive Presidency?
Two Fundamental Rights Petitions had been filed in the Supreme Court claiming that the Speaker certified that the OSB was passed without incorporating all the amendments that were necessary to make it constitutional.
The first petition was filed by Tamil National Alliance Jaffna District MP President Counsel M.A.Sumanthiran and the second by four members of United Centenary Front.
“The OSB was never enacted in a manner consistent with the Constitution. The document published as the Online Safety Act No. 9 of 2024 did not contain many of the amendments that Supreme Court recommended. Therefore, the Speaker has acted in breach of public trust.”
“The Supreme Court should suspend the Act and issue a restraining order. It should be declared that the Speaker’s certification of the Act is not legally valid and the Speaker has violated the Constitution. Records should be sought from him to determine on the basis of which advice he acted like that,” Sumanthran said in his petition.
The petition filed by members of the United Centenary Front has claimed that the Speaker certified the OSB in the days when the Parliament was prorogued which is unconstitutional and invalid in law.
Meanwhile, Public Security Minister Tiran Alles last week submitted a list of amendments to the OSA to the Cabinet amidst severe criticism regarding the wrong procedures followed by the government in passing the bill in Parliament. The Cabinet approved the amendments drafted up by a committee of four experts.
When the bill was debated over two days in Parliament last month, the government ignored the objections by the opposition that not all the amendments suggested by the Supreme Court had been included and rushed through the bill. At that time, Minister Alles said that the necessary amendments could be brought in at a later stage, exposing a serious flaw in the way the bill was passed.
Although the opposition parties sought an appointment from the Speaker for a discussion before certifying the bill, he did not heed the request.
A group of opposition MPs have embarked on a signature- collecting process to move a no-confidence motion against the Speaker.
However, Attorney General Sanjay Rajaratnam PC requested the Supreme Court to dismiss the Fundamental Rights petition filed by Sumanthiran MP challenging the Speaker endorsing the OSA.
Stating that the Parliament has passed the Act following the due process, the AG argued that the petition has been filed contrary to the provisions of the constitution.
The Supreme Court refused leave to proceed with the petition filed by Sumanthiran, according to www.adaderna.lk
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