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A draft policy and legal framework aimed at a new law on counter-terrorism to replace Sri Lanka’s Prevention of Terrorism Act (PTA) may well be a classic case of the cure being far worse than the disease.

A bare reading of the draft immediately gives rise to several questions that gravely impact on the protection of life and liberty. As reported, the Cabinet has forwarded the draft to a parliamentary Sectoral Oversight Committee on National Security. It is hoped that this Committee will give its most anxious consideration to the contents and breadth of what is proposed.

Whole range of new offences
The draft framework proposes a whole range of new offences, apart from the primary offence of terrorism. The additional offences include ‘terrorism related’ offences, ‘associated’ offences as well as an offence of Espionage. These encompass a variety of problematically broad acts.
Thus, for example, the definition of terrorism categorizes eleven acts including causing serious damage to the environment and the economy of (not only) this country (but also) any other sovereign nation. The one exception provided is when a person acts in good-faith in the lawful exercise of a fundamental right or following a lawful order or a judicial order. As (thankfully) declared, this is not tantamount to an act of terrorism. This safeguard however is qualified as will be discussed later.

The acts prohibited must be with the intent to, or with the object of or knowing or reasonably believing that they would bring about four listed objectives. These objectives include first, threatening, attacking, changing or adversely affecting the unity, territorial integrity, security or sovereignty of Sri Lanka or that of any other sovereign nation.

Prohibiting ‘ideological domination’?
Far more worryingly, the second ground relates to ‘illegally or unlawfully’ compelling the Government to ‘reverse, vary or change a policy decision’ or to do or abstain from doing any act relating to the defence, national security, territorial integrity and sovereignty of Sri Lanka and the protection of the people. The same prohibition applies in relation to the government of any other sovereign nation.

It is a matter for most profound puzzlement as to why ‘reverse, vary or change a policy decision’ has been brought into the ambit of this proposed prohibition. The impact thereof in regard to advocacy on reforming government policies, which may be categorized as ‘illegal’ or ‘unlawful’, is troubling.

The third ground specifies ‘illegally’ causing a change of the Government of Sri Lanka or of any other sovereign nation. And arousing justifiable consternation is the fourth ground listing ‘committing any act of violent extremism towards achieving ideological domination.’ Using terms such as ‘ideological domination’ brings us to new and terrifyingly unfamiliar territory of the ‘thought police’ as it were.

Using the old terminology of offences
Punishments include the death penalty upon conviction by a High Court if a death has occurred as a reasonable consequence. In other respects, imprisonment up to a maximum extent of 20 years, imposition of a fine and the confiscation of property can follow. The proposed ambit of the four listed objectives are so wide that even the exercise of a fundamental right intending or knowing or reasonably believing that it would bring about these results will not be excused.

Meanwhile, the definition of ‘terrorism related’ offences proceeds on almost the same terminology reflected in emergency regulations under the Public Security Ordinance. Similarly stringent punishments are proposed in this regard. Restraining elements of necessity and proportionality laid down in numerous judicial decisions in the eighties to mid nineties appear to be absent.

Further, the inclusion of an offence of ‘espionage’ in regard to the gathering and providing of ‘confidential information’ relating to the listed offences is exceptionally chilling. There is an unacceptably broad definition of what constitutes ‘confidential information.’ This awakens echoes of the much unloved colonial-era Official Secrets Act. This does not bode well for the new information culture supposed to be a clarion call of the Unity Government.

Abandoning first principles
The draft framework merits meticulous and critical scrutiny which is not possible in these column spaces. Other overriding concerns are many. It permits confessions to be given to a police officer above the rank of a Superintendant of Police continuing a heavily critiqued tradition identified as the primary cause of torture by state agents. It is little comfort that a forensic examination of a suspect by a government forensic medical specialist supervised by a magistrate may be mandated.

As the Supreme Court itself has observed, the inability of judicial officers to properly perform their tasks is a regrettable reality. For example, in the Maximus Danny case (SC Application No. 488/98 SC Application No. 488/98), the Court noted that “unfortunately, the Magistrate has almost mechanically made an order of remand because the police wanted them to be remanded.” Such instances are the rule rather than the exception.

That the law must not enable the procuring of confessions by coercion has been reiterated in authoritative precedents by Sri Lankan judges before emergency law completely subverted our legal structure. Confessions given not only to police officers but also any individual standing in a position of authority were automatically shut out. That was how rigorous the legal standard once was, sternly enforced by judges of extraordinary ability at the time. Abandoning first principles such as these and providing crumbs from the state security table in the form of increased magisterial oversight is no solace.

Worrying replacement of the PTA
Neither is the draft’s stipulation that the prosecution has to prove the voluntary nature of the confession. Discharging that burden will not be difficult given the way that the criminal justice system works. And as in the case of the now deferred amendment to the Criminal Procedure Code, access to counsel is only allowed after the recording of the first statement by the police, or the expiry of 48 hours from the time of arrest, whichever occurs first. These are all excellent aids to the disregarding of the Rule of Law.

It is therefore a supreme irony that the motivation for Sri Lanka’s contemplating a new counter-terrorism law was the passionate argument that the PTA’s broad powers to search, detain and arrest is contrary to modern human rights protections. What the draft attempts to do is clothe the outmoded and somewhat clumsy substance of the archaic anti-terrorism law in modernistic and infinitely deadlier garb.
That surely must be a cause of considerable public concern in these unsettling times.