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New anti-terrorism law undermines RTI
View(s):The word ‘Espionage’ dropped, but originally listed offences reintroduced
By Namini Wijedasa
The Counter Terrorism Act policy framework approved by the Cabinet this week has reintroduced offences originally listed under “espionage”– whilst merely removing the word “espionage” from the document.
As such, the draft makes it an offence to voluntarily engage in any illegal, unlawful or unauthorised act for the purpose of gathering any ‘confidential information’ — or directly gather confidential information — “for the purpose of supplying such information to a person who is conspiring, preparing, abetting, or attempting to commit terrorism or any terrorism related offence or any other offence contained in this Act.”
It is also an offence to provide to another person any confidential information, knowing such information will be used by such other person to conspire, abet, attempt or commit terrorism or a terrorism-related offence or any other offence contained in the Act.
All these provisions were included in the original 57-page policy framework that this newspaper first published in October 2016. The latest draft — which was rushed through the Cabinet on Tuesday in anticipation of a vote in Brussels on a motion to deprive Sri Lanka of the GSP+ on Thursday — is 73 pages long and has been fleshed out. The Sunday Times obtained a copy of the final version which was revised on April 23, 2017, and approved two days later by the Cabinet.
Confidential information has a broad definition under the CTA policy framework. It includes: “Any information not in the public domain, the dissemination of which is likely to have an adverse effect on national or public security.”
Questions now arise on the position of the CTA against the Right to Information Act, also enacted by this Government, which denotes that public security is not a ground to restrict information. The RTI Act only permits information to be withheld on the grounds of “national security, defence of the State or territorial integrity”. This means that the proposed CTA now contradicts the RTI Act. It would also prevail over the RTI Act because the draft CTA states that once enacted it will have priority over past laws.
A second draft of the CTA policy framework that was recently leaked to the media had removed the word “unity” from Part III which relates to Terrorism-Related Offences. This word has been reintroduced to the final draft under “Abetting terrorism, terrorists and Proscribed Terrorist Organisations”, where it states: “By words either spoken or intended to be read or understood or by signs or by visible representations or otherwise, instigates the committing of acts of violence or ethnic, religious, racial or communal disharmony, or feelings of ill-will or hostility between different communities or other groups so as to affect the unity, territorial integrity or sovereignty of Sri Lanka or any other sovereign country”.
On right of access of a suspect to an attorney-at-law and the right to representation by an attorney-at-law, the draft continues to be tied to the re-drafted amendment to the Code of Criminal Procedure (CCP). The Act to Amend the Code of Criminal Procedure (Special Provisions) Act, which was first published online by Groundviews, states that that “an attorney at law representing a person in police custody shall, from the time such person is taken into custody, be entitled to have access to the police station in which such person is being held in custody” on certain conditions.
But it also states that, “However, such access may be delayed to the extent provided herein, if the officer in charge of the police station has reasonable grounds to believe that the exercise of such right of access at the time such right is sought to be exercised” may lead, among other things, to the destruction of, interference with or harm to evidence that is connected with the committing of a cognizable offence, etc.
It also makes any statement made to a police officer by a person in police custody having had access to an attorney-at-law and in the presence of an attorney-at-aw “admissible in judicial proceedings against such person, subject to the provisions of the Evidence Ordinance”.
The full version of the Policy and legal framework of the proposed Counter Terrorism Act of Sri Lanka