Anti-terror law after the Easter attacks
By The Editors
13 June 2019
Reading Sri Lanka’s proposed Counter Terrorism Act in the context of renewed ‘national security’ concerns. [INCLUDES INTERVIEW TRANSCRIPT]
Among the many political fallouts of the Easter attacks in Sri Lanka was the renewal of debates on the need for robust anti-terrorism laws. The government has sped up deliberations on a proposed law, Counter Terrorism Act (CTA), which seeks to replace the older, and notoriously draconian, Prevention of Terrorism Act (PTA). But how necessary is a new anti-terror law? Will it reign in the excesses of the previous legislation? And how likely is the government to implement the law without bias?
In this episode of Himal Interviews, our Deputy Associate Editor Shubhanga Pandey talks to human-rights researcher and lawyer Gehan Gunatilleke to examine these questions. Gunatilleke describes the problems of the proposed law, the Sri Lankan state’s dubious record in prosecuting cases of mob violence, and the dangers of anti-fake-news laws.
This is an unedited transcription from the podcast. Please listen to the corresponding audio before quoting from it.
Shubhanga Pandey: Hi Gehan, welcome to the Himal Southasian podcast.
Gehan Gunatilleke: You’re welcome.
SP: You’ve been following Sri Lanka’s counter-terrorism bill and have also written on it. Would you walk us through the rationale for the bill and also say what its current status is?
GG: I think answering this question requires a bit of a trip down memory lane. So, there was a Prevention of Terrorism Act that was enacted in 1979. This was meant to be a temporary law designed to deal with armed groups that had been emerging at that time. It was only meant to be in place for three years initially, but this law was made permanent in, I think, 1982. The law, that is the PTA, has a number of problems, but there are two really serious problems in my view. First, it makes confessions to police officers admissible as evidence. And this, of course, incentivises the torture of suspects. And it is a major violation of the right to be free from self-incrimination. This is a very basic legal right. The second major problem that I see with the PTA is that it places the burden of proof on the accused: that is to prove their innocence, rather than the prosecution to prove their guilt. So, this violates another right, which is quite fundamental, and that is the right to be presumed innocent until proven guilty. So, the PTA, which is the 1979 law, undermines two of the most basic legal rights owed to citizens in any democratic society. So naturally it was criticised both locally and internationally for decades and this really created a demand for the reform of this law.
Now in 2010, if we fast forward, the European Commission decided to withdraw a special trade concession facility that had been offered to Sri Lanka. That was called GSP+. One of the conditions for regaining GSP+ was reforming the PTA. And, specifically, addressing the two problems I just mentioned. So, in 2015 when the government changed, the new government decided to launch plans to regain GSP+, and it was at this point in 2015 that there was a serious commitment made to reform the PTA. Then in September 2015, the government cosponsored a resolution before the UN Human Rights Council and again committed to reviewing, repealing and replacing the PTA. The idea to enact a new law really emerged during this time.
So, this is the main objective of the new act: that is to introduce a law on counter-terrorism that was substantially compliant with some of our international human-rights standards. It’s been nearly four years since this initiative was launched, and there have been four years of deliberations. Now there is a draft Counter Terrorism Act, the CTA, which is being discussed by the Parliamentary Sectoral Oversight Committee. Now the bill is yet to be debated in Parliament. The recent Easter Sunday attacks has renewed discussion around this draft. But quite frankly I must say that there was a lot of pressure on the government to enact this law even before the Easter Sunday attacks, because retaining GSP+ was very much connected to completing this reform.
SP: Now you’ve argued that despite the improvements in the current draft compared to the older Prevention of Terrorism Act, there are still some problematic aspects to be existing. Could you tell us what those are?
GG: The main problem with the existing draft is that it actually subordinates the judicial power of the people to law enforcement officials. What I mean by that is that a judge, a magistrate is legally obliged to take the recommendation of a police officer when it comes to deciding what to do with a suspect, that is to detain the suspect or release the suspect on bail, to remand the suspect – all these options are presented to the police officer and it is the police officer that makes that essentially judicial decision, and requires the magistrate to unquestioningly implement that decision. So, I feel that for me this is the most fundamental problem with the current law.
Having said that, it is quite apparent that the law is a major improvement on the Prevention of Terrorism Act, the PTA. And I think that it would be unfair to call the CTA worse than the PTA. But despite that, I think the CTA still requires this major problem to be resolved, because this is a very fundamental problem when the judges are required to take the advice of the police officer and unquestioningly implement that recommendation.
SP: Like you said, the conversations around CTA have been revived since April 21, and the government has also projected it as something that could have prevented something like the Easter attacks. In fact, the Prime Minister Ranil Wickremesinghe, claimed in an interview that there were no laws in the country to arrest Sri Lankans that joined foreign terrorist groups. How true is that claim?
GG: So, a number of lawyers and scholars have already gone into this claim in some detail. And there’s a fairly broad consensus that the claim that was being made is actually inaccurate. But, let me first of all say that the CTA is a piece of legislation. Even if it had been passed, it would not have compensated in any way for the chronic negligence of political leaders, or for the incompetence of the law enforcement and intelligence apparatus in processing information about threats and taking preventive action. There’s now sufficient information in the public domain to confirm that failure to prevent the Easter Sunday attacks had nothing to do with gaps in the law.
Second on the specific question of laws to arrest Sri Lankans who had joined foreign terrorist groups: there are plenty of laws that could have been used to arrest individuals participating in wars and insurgencies abroad. The Penal Code, for example, has provisions that cover this very point. Also, there was nothing stopping the government from actually proscribing international terror groups such as ISIS and making membership in these groups an offense. It only needed to pass regulations under the PTA to do that. And it could have been done by virtue of just a regulation. The Minister of Defense could have done that at any point. So, for me, claiming that Sri Lanka lacked the laws is simply inaccurate. What we lacked was political will and I think basic competence.
SP: So is there anything in the draft of the current bill the CTA which makes it more global in scope than the older law, because that’s the other claim made by the prime minister.
GG: I mean the short answer to that is that the CTA certainly expands the scope of the current PTA and is more comprehensive as a piece of counter-terrorism legislation. It does more explicitly deal with foreign terror groups for example. To that extent he is correct. I think the CTA being comprehensive in nature is quite an accurate description of the CTA.
SP: Now there has also been an interesting shift in the way in which both the proponents and the opponents of the bill have been talking about it. In the past the focus was on the impact of the bill on the rights of the individuals or associations, and now it seems to be all about national security. What do you think about this transformation in political rhetoric?
GG: Yes, that’s a great question, actually. I think there has been a very clear shift in the rhetoric, to be honest. The CTA was originally characterised as a law that made Sri Lanka more compliant with human-rights standards and that’s why the context of regaining GSP+ is actually quite important to understanding where the drive to enact this new law came from. So, proponents of the law claimed that this was in fact more compliant with human-rights standards, and in a strange way, opponents of the law refuted this claim. To be honest, as I said before, the CTA is an improvement on the PTA as far as human-rights standards are concerned. So, the Rajapaksa claim that it harmed trade-union rights – which was in fact one of the claims – and was more draconian than the PTA is simply untrue.
But at the same time any claim that it was totally compliant with international human-rights standards is also questionable. The CTA, as I said before, still needs vast improvement. It is fair to say that there has been a change in the rhetoric, because since the Easter Sunday attacks, the rhetoric has dramatically changed. Now, proponents of the law claim that this is the answer to Sri Lanka’s national-security crisis. This is, of course, a dubious claim, because Sri Lanka’s national security crisis is due to negligence and incompetence and not gaps in the law. The CTA alone cannot solve these systemic problems. At the same time the claim by opponents of the law, that it would harm national security, is also facetious. Because if you really think about it, the threat of suicide attacks by Islamist groups does pose a major threat to public safety and security. There’s no doubt there. But do we anticipate counter-terrorism laws like the CTA being used to deal with another major, if not worse, threat to national security. And I’m referring to the perpetration of indiscriminate mob violence in many parts of the country.
We’ve now had three major episodes of violence in the last two years, and not a single conviction to show for it. So just last week several suspects allegedly involved in the horrific mob violence in Kurunegala were released on bail. So, it seems that the CTA is not going to be deployed when this type of threat to national security arises. And it seems to me that the terminology of ‘terrorism’ is only deployed when the perpetrators come from minority communities. Whereas you get phrases like ‘communal clashes’ when perpetrators come from the majority community. This distinction illustrates the major prejudices that underlie the application of counterterrorism laws not just in Sri Lanka, but the world over. It seems to me that these laws are much more about reinforcing majoritarian power than about actually protecting citizens from danger.
SP: So if the law is much more likely to be used for pushing majoritarian politics, are there safeguards built into the law to stop it from arbitrary use or from disproportionately going after members of the minority communities?
GG: To be honest, I don’t actually see this bill being enacted in Parliament anytime soon, because I think the appetite for law reform on counterterrorism is actually now limited. And I’d be surprised to see the CTA actually being passed this year. I see the government much more preoccupied with laws to combat things like fake news, which, I’m going to argue, is actually a major distraction. Things like fake news happen to be peripheral contributing factors to violence, because the real contribution comes from the fact that politically sponsored mobile mobs operate with complete impunity in Sri Lanka right now. So, the fact that these mobs can be deployed to escalate tensions and instigate violence, in my opinion, is the single most influential factor that enables violence today.
But you ask me about the protections – whether they are adequate in terms of preventing abuse. In my view, the protections are totally inadequate, because the selective application of the law is a much deeper systemic problem that, I think, cannot be resolved by legal reform alone. In my view, this is actually more a socio-political problem that requires transformation in political culture. Let me take an example, take the ICCPR Act, that is the International Covenant on Civil and Political Rights Act. The law here is actually modelled on international human-rights standards. So, for example, it specifically prohibits incitement to religious violence which is a replication of Article 20 of the ICCPR, that is the main treaty. Now this law, despite having this provision, has not been applied to actually prosecute and convict those who have instigated violence against religious minorities. Instead, we’ve seen it being used to arrest and incarcerate, for example, writers who have offended the Buddhist clergy. This is quite typical of these types of laws. So, I think we need to remind ourselves that even the PTA was seldom used to deal with offenders from the majority community. I do really anticipate the abuse of these laws in the future once they are enacted.
SP: So really the problem with these special laws is that they end up giving a lot of discretionary space for abuse.
GG: Yes, I think that’s correct, because I’ve made the point in the past that permitting law enforcement officials to basically arbitrarily determine which procedural regime of law applies to suspects, actually harms what I’m calling ‘legal certainty’. And what we mean by legal certainty is basically the principle that citizens can reasonably predict how the law would apply to them. Now the discretionary power of executive authority to apply very different laws – for example the Penal Code in one case and the PTA in another case – very different to suspects depending on their identity, really undermines this principle of legal certainty. So, for example, if a person has a Muslim name and is arrested on suspicion of being, say, involved in any type of violent activity or incitement to violence, the person is likely to be arrested under the PTA, because there is, already a prejudice surrounding persons with Muslim names as being involved in ‘terrorist activities’. Now this person is then immediately denied bail, access to legal counsel, detained for long periods of time, because the PTA procedural regime kicks in.
But if the suspect, say, for example, has a Sinhala name and is arrested for being involved in, say, mob violence or instigating violence against some minority community, the person is likely to be arrested under ordinary law, and then is likely to receive bail. But I’m not imagining these possibilities. This is precisely what happened in the wake of the Kurunegala anti Muslim attacks. Suspects arrested in connection with these attacks, as opposed to those who have been associated in some way, even peripherally, to the Easter Sunday attacks, these suspects were released on bail.
Frankly I don’t see a reason for a separate procedural regime, because the same procedure should be applying to all suspects, and bail should be denied on the basis of reasonable and objective facts presented to a judge. So special offences can be framed, and I mean special offences that include offences related to terrorism. But I think they can be framed provided prosecutors are still required to prove the elements of the offence beyond reasonable doubt in a court and during a trial.
SP: You mentioned earlier the issue of anti-fake-news laws and the cabinet has, in fact, approved proposals for introducing such laws. How do you see such developments?
GG: I think this is a serious problem, because, a) fake news in other jurisdictions, like take for example, Malaysia recently passed a law on fake news, these laws have typically been used not to actually deal with news that is harmful to society. For example news that has prompted people to go out and commit acts of violence. It’s typically being used to prevent people or to punish people for spreading news that bring the state apparatus, or some state official, into disrepute. And the best example of that is in fact the Malaysian law. The first case that emerged out of that law was a case in which someone accused the police of inaction. So, I imagine that we are going to have situations, if this fake news law is passed, where the person that spreads actual harmful news, for example, that restaurants are mixing sterilisation pills into the food to prevent people from procreating. This is actually fake news that we’ve seen in Sri Lanka which targets the Muslim community. People who actually disseminate that type of news are not prosecuted under the law, but the guy who says the police was standing idly as the mob attacked his house and brings the police into disrepute, you have a situation where that person is arrested. That’s typically how these laws are applied.
So, I think we need to be very careful about allowing laws of this nature to be enacted in Sri Lanka, because it is going to ultimately be targeting proponents of human rights and the rule of law, and opponents of the state, and not actual perpetrators of incitement to violence. And having said that you must understand that the law on incitement is actually quite adequate and it hasn’t been used yet to deal with these elements. So, there’s nothing to suggest that the government will actually use a new law in a way that prevents incitement to violence. What is much more likely is that the law will be used to target opponents of the state, including the political opposition. And that would be another tool in the arsenal of the state to stamp out criticism.
SP: Yes, I think that’s a really important point. And it has an interesting contrast with the fact – which we realised while doing an overview of the different ways in which the governments of Southasia go after dissidents and journalists – that Sri Lanka has no criminal defamation law.
GG: The way governments have dealt with journalists in the past in Sri Lanka was not through legal means but by illegal means. You have the extrajudicial killings of journalists, we have the abduction and disappearances of journalists, journalists being beaten up, journalists having their offices torched. That’s the sort of methodology that was used in the past. And I think it is possible to say that Sri Lanka is growing in some direction of sophistication where those means may not be used more readily in the present. And we may see an appetite growing amongst state officials to equip themselves with legal means – and what I mean by legal means is legislative means – to attack journalists. And bringing things like fake news into the picture and even reconsidering things like criminal defamation maybe on the cards in the future.
SP: And the 1978 PTA, the Prevention of Terrorism Act, that has been used quite frequently against journalists.
GG: Absolutely. I mean one of the emblematic cases in which the PTA was abused was in fact against a journalist, J S Tissainayagam. What happened in that case was that Tissainayagam wrote an article in a monthly magazine that had a very, very small circulation to begin with, that criticised the government and the armed forces for the way in which the war was being prosecuted in the Eastern Province at the time. And there were allegations made that the armed forces had committed war crimes. He was prosecuted under the PTA for inciting communal disharmony through his article. And the argument that the prosecutor made was a very, very far-fetched argument: that Sinhala readers who read this piece written by him in this monthly article that had very poor circulation would somehow be incited to commit acts of violence against Tamil citizens, because the journalist happened to be Tamil and the armed forces happened to be predominantly Sinhala. That was in fact the argument made by the prosecution, and that was in fact the argument that the judge accepted and then convicted Tissainayagam for 20 years. He was subsequently pardoned and then released. Now he’s no longer in the country. But this is a classic example of the PTA being used against journalists, and particularly against journalists of a particular minority community, in a way that prevents criticism of the state.
SP: Just to go back to the CTA bill, you mentioned that it still hasn’t been debated in Parliament. Going ahead what do you think the fate of the bill would be?
GG: I think it will be eventually enacted. A lot of effort has gone into drafting this law. I think the drafters have to be credited for really attempting to bring in some fresh positions and views into our legal system that is a vast improvement on the PTA. I’m critical of the CTA with respect to certain specifics, and I’m also critical of the general idea of counterterrorism laws. But that doesn’t mean the CTA isn’t an improvement on the PTA. I just don’t think that it is likely that the CTA will be enacted anytime soon, because I think the window of opportunity for it to be enacted this year has probably closed. Because, as we now know, the presidential elections have been announced, people are going to be really be focusing on that priority, and legal reform, getting these laws passed is not going to be high on the priority list. I think if the same government was to somehow continue in a new dispensation, we might have the CTA back on the table, and there’s a chance that it would be debated and perhaps revised, improved and passed. But I don’t see that happening this year.
SP: I think on that note we’ll bring this podcast to a close. Thank you Gehan so much for your time and your perspectives.
GG: It was a real pleasure. Thank you very much.