The Government of Sri Lanka’s (GoSL) proposed Anti-Terrorism Act would empower the authorities to systematically violate fundamental human rights. The Government should withdraw the Anti-Terrorism Bill and ensure through consultations that any counter-terrorism legislation upholds international human rights standards.
The Government pledged to adopt an improved law following domestic and international criticism of abuses under existing counter-terrorism Legislation (the Prevention of Terrorism [Temporary Provisions] Act as amended [PTA]). But, instead of addressing the problems, the Bill would expand the definition of terrorism to include crimes such as property damage, theft, or robbery, and restrict the rights to freedom of peaceful assembly and speech.
“The proposed counter-terrorism Law would permit the GoSL to continue to use draconian measures to silence peaceful critics and target minorities. The Government’s crackdown on dissent and the misuse of the existing counter-terrorism Law to arbitrarily detain protesters highlights the obvious risk of abuse.
The Bill, which was published on 22 March, 2023, is intended to replace the notorious PTA, which led to widespread torture and arbitrary detentions since its introduction in 1979. While the new Bill contains some improvements, it includes provisions that will facilitate abuse. The Bill appears designed to give the President, the Police, and the military broad powers to detain people without evidence, to make vaguely defined forms of speech a criminal offence, and to arbitrarily ban gatherings and organisations without meaningful judicial oversight.
In response to criticism from Sri Lankan activists and lawyers, the United Nations (UN) Human Rights Council, foreign governments, and the European Union (EU), successive Sri Lankan governments have repeatedly promised to repeal and replace the PTA with rights respecting legislation.
This Bill is largely based on proposals presented in 2018 (the Counter-Terrorism Bill), when current President Ranil Wickremesinghe was the Prime Minister. The 2018 Bill was criticised over human rights concerns and was not enacted. Justice Minister, President’s Counsel Dr. Wijeyadasa Rajapakshe recently expressed satisfaction with the new draft and told journalists that “we won’t make any major change to the current version.”
In 2021, the UN independent expert on human rights and counter-terrorism (Special Rapporteur on Counter-Terrorism and Human Rights, Fionnuala Ní Aoláin) set out five “necessary prerequisites” to ensure that Sri Lanka’s counter-terrorism law complies with international rights standards. They include providing an appropriate definition of terrorism, ensuring precision and legal certainty, provisions to prevent arbitrary detention, measures that adhere to the absolute prohibition on torture, and due process and fair trial related guarantees including judicial oversight.
This Bill does not fully meet any of these standards. Its’ definition of terrorism is vague and overbroad and can include peaceful protests or acts that, while criminal, do not rise to the level of any reasonable definition of terrorism. Offences include participation in certain “unlawful” assemblies if the aim is to “intimidate” the public or “wrongfully” compel the Government to act in a certain way, as well as the “theft” or “robbery” of Government or private property, even if these acts are not intended to cause death or serious harm. The Government is currently facing strikes, including by public sector workers. Last year (2022), the authorities used counter-terrorism powers to arbitrarily detain three student leaders after widespread protests over corruption and mis-governance forced both the President (Gotabaya Rajapaksa) and Premier (Mahinda Rajapaksa) to resign.
While under the PTA the authorities can detain a suspect for up to a year on orders signed by the Defence Minister, this Bill gives the authority to issue detention orders (DOs) to Deputy Inspector Generals of Police, thus increasing the risk of abuse. The Police could take a detainee from pre-trial detention back into Police custody, and the Defence Secretary could transfer a detainee to the custody of “any authority.” This puts suspects at greater risk of torture and other ill-treatment, as abuses under the current Law demonstrate.
The Bill grants the Police and the military sweeping powers to stop, question, search, and arrest anyone, or seize any document or object without a warrant, if they believe that they have “reasonable grounds.” The military, which is not trained in law enforcement, would have 24 hours to transfer a detainee to Police custody, placing detainees at greater risk of abuse.
It also provides the President the power to issue regulations for “rehabilitation” programmes if the Attorney General (AG) has decided to defer or suspend prosecution. The AG could then “impose” “voluntary” rehabilitation on a person who has not been convicted of any crime. In 2021, the Supreme Court stayed similar regulations. The authorities have long committed human rights violations against people accused of terrorism or of drug use, who are incarcerated without trial in Government “rehabilitation” programmes.
The President, on the advice of the Police or the military, would be authorised to declare any location a “prohibited place”, with up to three years in prison for violations. This appears to be an attempt to prevent a repetition of the largely peaceful 2022 protests in Colombo. The Government had declared “high security zones” under the Official Secrets Act, which were withdrawn following widespread condemnation.
The Bill expands broad powers to criminalise speech that is “likely to be understood” as encouragement or inducement to commit or prepare for terrorism, with the burden of proof on the defendant to show that that was not their intention. These offences also apply to those who publish, distribute, sell, or transmit “terrorist publications” which could have a further chilling effect. In the past, the Government has used the PTA to detain people who commemorated Tamil victims of Sri Lanka’s civil war on social media on the grounds that they were “glorifying” terrorism, which is also an offence under these proposals.
The President would be authorised to ban an organisation if the authorities have “reasonable grounds” to believe that it is acting in a manner that is “prejudicial to the national security of Sri Lanka, or any other country.” In the past, the Government has proscribed Tamil diaspora organisations advocating for human rights and accountability as “terrorist organisations” and human rights organisations have faced Governmental interference in their banking and finances on the pretext of countering “terrorist financing.”
The Bill provides for the death penalty for the terrorism related offence of murder, although Sri Lanka has observed a moratorium on executions since 1976. Sri Lanka should abolish the death penalty, which we oppose in all circumstances because of its inherent cruelty and finality.
The Bill includes some new due process protections, including that confessions to the Police will not be admitted as evidence, and that female suspects should be searched by female officers. There are new procedures for reporting and notifying the reason for an arrest, providing access to translations of documents in a language that the detainee understands, and presenting a detained person before a Magistrate every 14 days. It also clarifies the procedures that a Magistrate should follow if a detainee appears to have been tortured.
However, the two ostensibly independent entities proposed under the Bill, the Board of Review to hear appeals against DOs, and the Independent Review Panel to advise on the implementation of the Law in respect of rights, would not be independent by Law.
Until new counter-terrorism legislation that upholds human rights is drafted, the Government should impose a full moratorium on the use of the PTA and take steps to repeal it.
Successive Sri Lankan governments have offered repeated assurances to the EU that they would uphold rights related commitments, including by repealing the PTA, in exchange for tariff free trade access under the Generalised Scheme of Preferences Plus (GSP+0. The trade access is conditioned to the ratification and effective implementation of key human rights treaties. In its latest monitoring report, the European Commission said that Sri Lanka “still has to deliver on a number of important reforms.”
Sri Lanka’s international partners, including the United States (US), the EU, Japan, India, and others should press for genuine reforms to ensure that this Bill meets Sri Lanka’s international human rights obligations. The EU should make it clear that replacing the present counter-terrorism Law with similarly abusive Legislation does not address its concerns and could affect Sri Lanka’s GSP+ status.
The Bill needs to be seen both in light of Sri Lanka’s abusive history of counter-terrorism powers and the current Government’s repression of peaceful dissent. Sri Lanka’s international partners should make it absolutely clear that they will not reward this abuse with trade preferences and other support.
(HRW is an international non-governmental organisation based in the US that conducts research and advocacy on human rights)
The views and opinions expressed in this article are those of the author, and do not necessarily reflect those of this publication.