We write to you regarding the proposed Anti-Terrorism Act proposed by the Government of Sri Lanka (GoSL). The proposed Act was published in the official Government Gazette on 17 March 2023, and issued on 22 March. Indications are that it may be tabled in Parliament in late April 2023, after which it could be enacted as Law in May 2023, if approved by Parliament.
We categorically state that the proposed Act, which is intended to replace the draconian Prevention of Terrorism (Temporary Provisions) Act as amended (PTA), is an even more serious threat to democracy in Sri Lanka. We are demanding from the Government to withdraw this atrocious proposed Law and to repeal the PTA with immediate effect. We seek your support in this endeavour.
The draconian features of the proposed Anti-Terrorism Act
The definition of “terrorism” in the proposed Act is not in compliance with international guidelines and casts a wide net over ordinary criminal offences (Clauses 3, 8, 9, 10, 11, 12 and 16 of the Anti-Terrorism Bill).
The proposed Act empowers: any Deputy Inspector General of Police to detain a person without a Judge having meaningful oversight (Clause 31); any Senior Superintendent of Police can obtain from Court, curfew like orders (not to enter any specified area or remises, not to leave a specified area or premises and to remain within a specified area, not to travel on any road, and not to transport anything or anybody) (Clause 61); the President to proscribe organisations (Clause 82), to apply for restriction orders restraining persons in various ways (Clause 83), to declare curfew for 24-hour periods (a power currently provided only under the Public Security Ordinance to be used in public security situations with Parliamentary oversight), to declare “prohibited places” (Clause 85), and to potentially make law in the form of “regulations” and “directions” relating to the Police and the Military (Clauses 98 and 99); the Police to seize movable property (not land) for three days and ask a Magistrate to extend the detention of property for 90 days (Clause 86); the Attorney General, without having to prove a suspect’s guilt, to incentivise them to accept rehabilitation and other penalties (Clause 100); the Military to exercise powers of arrest, to search persons and places, and to take documents and articles to the military (Clauses 20 and 22), thus militarising civilian administration; Imposing the death penalty, overriding the moratorium on its use in place since 1976; and the State to remove protections granted to suspects under ordinary criminal law (Clauses 57, 58, 59, 67, 71 and 80).
The disingenuous intent of the GoSL
The GoSL has disingenuously proposed a Law with a far greater capacity to infringe the human rights of its citizens than the PTA. The proposed Act both retains and enhances PTA provisions that will shrink the space for active civilian participation in democracy, subject communities to intensive State surveillance, and militarise the State, thus intensifying the damage done by the PTA.
Sri Lanka must respond to the history of abuses and violations under the PTA
The PTA has been the source of countless human rights violations. Many Tamils detained under the PTA have spent up to 16 years in detention before being acquitted by Courts. Since 2019, many Muslims have also been similarly detained. The PTA has also been used to unjustly detain lawyers, religious leaders, journalists, student activists, Opposition politicians and human rights activists from all ethnic communities. Many PTA detainees have been subjected to horrendous torture. Commitments to replace the PTA cannot be used to covertly introduce even worse anti-democratic Legislation such as the proposed Act.
Sri Lankans are united in their call for the repeal of the PTA
Sri Lankans have called for the repeal of the PTA for many years. Over the past two years, there have been concerted public campaigns, including by PTA victims and their families, Opposition politicians, religious and community leaders, and lawyers to repeal the PTA. Previous attempts to reform the PTA (such as in 2022) and to replace it with similar Laws (such as in 2018) were cosmetic efforts to appease national and international pressure, without any genuine intention to address the massive rights violations accrued under it.
The proposed Act is a mockery in terms of compliance with international commitments
In 2015, the GoSL pledged to repeal the PTA and to replace it with “anti-terrorism legislation in accordance with contemporary international best practices” through the United Nations Human Rights Council Resolution 30/1, when the present Executive President Ranil Wickremesinghe was the Prime Minister. However, a careful analysis of the proposed Act reveals that the overarching content, tone and spirit are far from international best practices. The few positive features are ones that should be part of the ordinary criminal legal system regardless. The negatives far outweigh the positives in terms of the dangers to human rights, the rule of law and democracy.
Rising domestic agitation against the proposed Act
Since the publication of the proposed Act, it has been widely condemned in Sri Lanka, including by Opposition politicians, trade unions, academics, legal experts, religious and community leaders, and PTA victims and their families, through discussions, street protests and the media. Regional and International human rights groups have also condemned the proposed Act.
Our legitimate concerns
Given the limitations in the legal system and the difficulties for citizens to challenge draft Laws such as the proposed Act in the Supreme Court (SC), the highly political nature of this Government initiative and our past experiences in judicially challenging attempts at replacing or reforming the PTA, it is unlikely that we will get adequate redress from petitioning the SC to prevent the proposed Act’s enactment.
It is our considered and consistent position that the PTA must be repealed, and must not be replaced with any legislation that contains any extraordinary Executive powers. If absolutely necessary, subject to a process of consultation with, in particular, affected individuals and communities and the relevant experts, well defined new offences could be introduced to the Penal Code, subject to normal criminal law safeguards.
Given all of this, we urge you to utilise your offices and the diplomatic, political and economic relations that you have with the present GoSL to take up the principled position to promote and protect human rights, the rule of law and democracy for all Sri Lankans. We urge you to take a firm stance on the fact that the overall content, tone and spirit of the proposed act not only makes reform meaningless, but undermines Sri Lanka’s commitment to a counter-terrorism legal framework compliant with human rights protections.
Specifically, we appeal for you to urge the GoSL to: immediately withdraw the proposed Act gazetted on 17 March; commit to an immediate moratorium on the use of the PTA and to take expeditious measures to repeal it; consider the extensive array of terrorism related legislation in Sri Lanka, including the terrorism related offences in the Penal Code, as part of Sri Lanka’s compliance with international obligations to have comprehensive legislation to counter terrorism; review the existing legal framework for countering terrorism to identify any specific offences against the State that need to be introduced; draft well defined offences for insertion into the Penal Code which is subject to the safeguards in the Criminal Procedure Code; and make any deviations from normal safeguards afforded to criminal suspects, proportionate and justified and publish them for public consultation prior to enactment.
We are very open to engage in further discussions with you on this. We look forward to a quick response.
The views and opinions expressed in this article are those of the author, and do not necessarily reflect those of this publication.