The ICJ considers that revisions made to the draft of proposed anti-terrorism legislation, while positive, fail to sufficiently correct the deficiencies of the earlier draft and, if adopted, would risk serious human rights violations.
The revised bill, in its clause 3 continues to define acts of terrorism in a vague and overbroad matter and undercuts the inherent authority of the judiciary, as people may be detained for two months solely on order of the secretary of the Defence Ministry.
“The overbroad definition coupled with the restriction on the authority of magistrates to review initial Detention Orders is in contravention of fundamental rule of law principles and must be further revised if Sri Lanka is to deliver on its promise to protect the human rights of all of its inhabitants,” said Ian Seiderman, ICJ’s Legal and Policy Director.
The ICJ stresses that these provisions contravene article 13 of Sri Lanka’s Constitution, as well as article 9 of the International Covenant on Civil and Political rights, to which Sri Lanka is a party.
On 15 September 2023, the Ministry of Justice of Sri Lanka published the revised version of the Anti- Terrorism Bill (ATA), which would repeal and replace the Prevention of Terrorism (Temporary Provisions) Act No.48 of 1979 (PTA). A first draft of the Bill was published in March 2023 and according to government ministers the current revision was aimed at removing certain problematic provisions from the earlier draft. The ICJ had previously expressed concerns about that draft.
“Sri Lanka should dispense with special regimes like the ATA and instead address terrorism offences through criminal procedures that comply with the rule of law,” said Ian Seiderman. “At the very least, the Ministry of Justice must revise the present draft in line with international human rights law and standards before parliament takes action on it.”
Among the vague and overbroad provisions of the draft bill are the “encouragement of terrorism” (clause 10) and “dissemination of terrorist publications” (clause 11), under which persons can be detained for sharing or causing to be published statements which are interpreted by the authorities to be in support of terrorism or terrorism activities. The burden of proof for such offences would be unacceptably reversed under the bill, as the accused would be required to prove before the high court that they had not consented to or approved the utterance or publication of such statements.
The prescribed punishment for these offences is imprisonment up to 15 years and/or a fine up to one million rupees. Property owned by the accused may also be forfeited to the State.
The bill would provide the President with excessive powers to restrict the exercise of human rights, including to impose restriction orders on individual persons, proclaim curfews, designate prohibited places, and make regulations to implement “rehabilitation programmes” for persons regarding whom the Attorney-General has recommended a deferment or suspension of criminal action. Rehabilitation programmes in the past have served a punitive function, as accused persons have often been effectively coerced into accepting rehabilitation particularly in cases where the prosecutor has lacked evidence of criminal conduct.
The ICJ notes the several positive changes in the revised draft, including the removal of the death penalty as a possible punishment and removal of the power of the Deputy Inspector Generals (DIGs) of Police to issue Detention Orders (DO). The new draft would also allow the Magistrate to discharge suspects, in the absence of a DO, where the Magistrate determines that there is no justification for the arrest. DOs, which may only be issued by the Secretary to the Ministry of Defence would now allow for detention of two months without charge, as opposed to three months contemplated by the earlier draft of the bill. Finally, the revised bill removes mention of the Board of Review, which would have been empowered to hear appeals against DOs in the previous draft, and provides time limits for declarations of prohibited places by the President.
The revised draft also retains the improvements made to the PTA in the first draft including the removal of a provision which accepts “confessions” made before a police officer while in detention as evidence in courts; the issuance of a document by the arresting officer notifying arrest to a family member of the arrested person; employing women police to question or conduct searches of women detainees; access to translations in a language of the accused’s choice; and production before a magistrate every 14 days when a person is detained under a Detention Order (DO).
However, among its many flaws, the draft law is silent on compensation and redress mechanisms for those affected by abuse and misuse of the law. This is a significant shortcoming, as detainees have languished in custody for years under the PTA and have had the cases against them dismissed decades later.
Background
Past experience with the PTA has shown that provisions relating to ‘encouragement of terrorism’ or ‘dissemination of terrorist publications’ are open to abuse particularly against persons from minority communities including journalists. For instance, Ahnaf Jazeem ,whose book of poetry was spuriously identified as promoting “extremism”, was subjected to human rights violations, including arbitrary detention under the PTA. In May 2022, the UN Working Group on Arbitrary Detention stated that Sri Lanka had violated international human rights law by detaining Ahnaf Jazeem.
The ICJ has repeatedly called for the repeal of the Prevention of Terrorism Act, which has been used to arbitrarily detain suspects for months and often years without charge or trial, facilitating torture and other abuse. United Nations human rights bodies have also called on Sri Lanka to enforce a moratorium on the use of the Prevention of Terrorism Act and to repeal the Act.