• Observe ‘vague’ definition of terror with propensity for rights violations, urge judicial supervision of all stages involving suspects from the point of arrest, raise concerns with DO issuing authority and Prez’s arbitrary proscription powers

Following the observation that certain provisions of the Anti-Terrorism Bill (ATB) violate fundamental rights (FR) guaranteed under Constitution, the Committee of Experts appointed by the Bar Association of Sri Lanka (BASL) to study the ATB has recommended that the BASL inform the Ministry of Justice, Prison Affairs and Constitutional Reforms to revisit the Bill and amend the relevant provisions and/or to challenge it in the correct forum.

In its final report, which had been referred to BASL President, Attorney-at-Law Kaushalya Nawaratne, the Committee has noted that the relevant provisions do not encapsulate a clear definition of what amounts to offences of terrorism. “The stipulated guidelines are formulated in a vague manner. The relevant clause leaves room to be haphazardly and broadly interpreted in a manner that could infringe upon the rights of the citizens”.

The Committee further stated that judicial supervision should be present at all stages from the moment a suspect is apprehended, especially in relation to matters relating to detention orders (DOs) and the curtailment of the freedom of movement.

As the death penalty stipulated in the Bill will have no practical application, and nor would the said provision be enforced as the enforcement of the said penalty does not exist, the Committee has stated that the relevant provision should also be revisited by the Legislature.

Observing that the word “terrorist publication” in the Bill has a narrow interpretation and that the law enforcement authorities can misuse it to apprehend and take a citizen into custody upon instances where they show their displeasure or share content against the Government, the Committee stated that there must be a clear and precise interpretation in this regard.

The Committee has also recommended the Legislature to revisit the relevant provision of the Bill that gives a Police officer not below the rank of a Senior Superintendent of Police, under the approval of the relevant Magistrate, to issue directives to the public.

“The investigation of offences should be under the purview of the Judiciary and judicial officers. This is especially in relation to DOs and in respect of the procedure adopted in the investigation of alleged offences. It is also vital to afford the Magistrate to use their discretion in the decision of extending a DO, in light of the circumstances surrounding the alleged offence,” the report added.

It is also stated in the report that when there are no reasonable grounds to hold the allegations against a suspect, there is no reasonable reason to continue to hold the suspect within the custody of court or to release them on bail in view of the alleged offence and accusations against them. The Committee has recommended that the said provision be revisited and that the suspect be discharged instead of being released on bail.

Noting that the power to authorise a DO is an instance where a citizen's right and freedom of movement, which remain to be a constitutional guarantee, is curtailed, the Committee stated in its report that stringent scrutiny and adherence to the legal procedure of Sri Lanka is a mandatory prerequisite in authorising a DO. “The relevant provision should be revisited by the Legislature to provide the power to authorise a DO to be afforded to the Minister of Public Security.”

Observing that the President has been afforded unilateral power under the Bill to proscribe an organisation, and that the President is not under any obligation to obtain recommendations from any party in order to arrive at such a decision, the Committee has suggested that the relevant provision also be revisited. “The Committee notes that the requirement to communicate ‘reasons’ is necessary in light of the circumstances of proscribing an organisation.”

Considering the matters, the Committee has stated in its report that the said provisions in the Bill violate the fundamental rights enumerated under the Constitution. “Therefore, this Committee recommends the BASL to inform the Ministry to revisit the said Bill in order to amend the relevant provisions, and/or to challenge the Bill in the correct forum.”

The Committee appointed by the BASL was chaired by President's Counsel (PC) Palitha Fernando, and its other members were Rienzie Arsecularatne PC, Neville Abeyratne PC, Shavindra Fernando PC and Anuja Premaratna PC, and Attorneys-at-Law Amila Palliayage, Sandeepani Wijesooriya, Harithriya Kumarage and Imaz Imtiyaz.