Focus on Rights December 10, 2006

The definition of terrorism in Clause 16 includes a variety of conduct that is caught up in the ordinary law of the land such as the definition of 'unlawful conduct" including "causing death or destruction to property', 'the use of coercion, intimidation, duress' as well as 'disruption or threatening of public order.' Such conduct comes within the ambit of the regulation when it is aimed at or is committed with the object of threatening or endangering Sri Lanka's sovereignty and territorial integrity as well as that 'of any other recognised sovereign State'.

Compared with some of their predecessor regulations that had surfaced following heightened intensity in the Northern war, emergency regulations proposed this week to combat terrorism may seem innocuous at first blush.

For example, I remember one marvellous instance when a regulation not so many years back, prohibited any statement pertaining to the official conduct, "moral" or the performance of the Head or of any member of the armed forces or the police forces etc.

The consequent dilemma was profound; did this mean that one cannot report on the moral conduct of the Head of the armed forces and so on, or was it that "moral" should, in fact, be read as 'morale', which latter explanation only made the whole only slightly better as far as explanations went. Thus, if one writes in a manner critical of defence strategy, would this mean that one is violating this regulation? Would this mean that journalists would be reduced to merely parroting the versions of the official information releases without embarking on actual reporting and analysis? The questions were many and varied.

In contrast, the regulations that have been proposed appear to contain no such obvious bloomers. However, a closer reading indicates some extremely problematic areas, some of which will be dealt with in this column.

Its preamble exposes a painfully defensive government, eager to impress upon the people that there was no option but to reactivate the mechanism of emergency regulations given the threat to the State. Consequently, person/persons or organisations who/which engage in terrorism or terrorist activity are outlawed in the first instance.

The worrying element comes in the fact that there is an addition tacked on in the middle of this clause which refers to "or any other political or governmental change." It is extremely unclear as to what is meant by that part of the sentence. Does this mean that presumed 'unlawful conduct' as for example, the 'disruption of public order' (which is a common enough phrase and can take in a wide variety of situations including road protests) is punishable in terms of the Regulation when it is committed with the objective of 'political or governmental change"? This envisages a dangerously arbitrary discretion given to the Competent Authority and can catch up the acts of a legitimate opposition and indeed, any form of dissent. Despite the assurance apparently extended by the cherubic Minister of Health at this week's press conference held to announce the promulgation of these regulations, that trade unionists and legitimate dissenters will not be adversely affected, one cannot but be left in an uneasy frame of mind.

Where journalists are concerned, the crux of the danger is, of course, obvious in some of the earlier clauses in this Regulation. Clause 5 states that no person shall provide information that is detrimental or prejudicial to national security to any person or group of persons or an organisation who/which engages in 'terrorism' (as defined) or 'terrorist activity'.

The last is defined separately in terms of actions prohibited by a cluster of laws including some sections of the Penal Code relating to offences against the State, the Prevention of Terrorism Act, the Public Security Ordinance and selected sections of two recent laws, namely the Prevention of Money Laundering Act, No 5 of 2006 and the Convention on the Suppression of Terrorist Financing Act, No 25 of 2005. Space is not sufficient in this instance to discuss the ambit of these various sections.

However, the inherent problems are clear. The supplying of information deemed as 'detrimental or prejudicial to national security' is prohibited. And it is a moot point whether the provision of such information to organisations engaging in terrorism or terrorist activity can be inferred from a publication at large, as for example from a newspaper. In the past, there have been occasions where reporting of security lapses, errors in defence strategy or even corruption in the armed forces have been deemed by an over enthusiastic Competent Authority to qualify as information intended to "help the enemy."

There is no doubt that such an interpretation cannot be applied as this would prohibit investigative reporting and act purely as a vehicle to enable the government to suppress information that would cause its embarrassment. That alone is contrary to established principles of international law in respect of the purposes for which emergency law can be employed, as laid down in the well accepted Johannesburg Principles on National Security, Freedom of Expression and Access to Information. It would have been infinitely better if the regulation had expressly protected legitimate reporting on security related issues.

Equally, the same objection is apparent in respect of that part of Clause 3, which prohibits the "promotion" or "encouragement" of those engaging in terrorism or terrorist activity. These are open-ended terms which are certainly capable of misapplication and could be applied in respect of a single unwary sentence as for instance, the recent and patently unfortunate assertion by a prominent businessman that the Liberation Tigers of Tamil Eelam are freedom fighters. Though obviously, these clauses of the regulation will impact most on the Tamil media in this country, their deleterious effect on the English and Sinhala language media also cannot be ignored. The consequences attaching upon violation of the regulation is severe, ranging from imprisonment of five to twenty years upon conviction in the High Court.

The intervention of a judicial authority in this regard, in reference to the determination as to whether an offence has been committed in terms of the Regulations, is however welcome as it signifies that there would be at least a measure of objectivity in the application of the Regulation and its several clauses.

In previous instances where there had been protests regarding the arbitrary formulation of emergency laws, the Supreme Court had intervened to direct that that guidelines would be drafted by governmental authorities in consultation with the editors for a smooth working of censorship regulations. Then again, the Human Rights Commission (HRC) of Sri Lanka had observed some years back that censorship regulations should be formulated in a manner that does not preclude the media from raising issues of public accountability in the national interest. Calling for the appointing of a collective body including a person with military knowledge as well as a senior journalist, to oversee the censorship as opposed to a single individual, the HRC remarked that such a body would, to a great extent, reduce the risk of subjective and abusive exercise of power and establish the right relationship between the censorship authority and the media. This could be extended to non-governmental organisations as well.

It is undeniably opportune that the Government gives some thought as to how such a collaborative relationship could be established before levels of distrust and suspicion invoke feelings of déjà vu and, (despite the protestations of good faith by the Rajapaksa administration), take us back to old unhappy times.