A counter terrorism law to stifle democracy and to foster terrorism
Posted on May 5th, 2019

Mahinda Rajapaksa  Leader of the Opposition MEDIA RELEASE

One of the pledges given by the present government to their foreign masters through UN Human Rights Council Resolution No: 30/1 of October 2015 was to repeal and replace the Prevention of Terrorism Act of 1979. The draft counter terrorism law that has been presented to Parliament for this purpose has encountered opposition from political and media activists on the grounds that the way it defines the term ‘terrorism’ leaves room for legitimate political and trade union action as well as the dissemination of information and protection of sources by the media to be labelled as terrorist activity. In the aftermath of the Easter Sunday bombings, the government has been trying to sell their Counter Terrorism Bill to the public with the claim that it has provisions to prohibit Sri Lankan nationals from having links with foreign terrorist organisations.

While the government’s proposed law is tough on ordinary citizens by having provisions that can be used to stifle political dissent and the freedom of expression, it is designed to treat terrorists with the utmost leniency to the extent where its actual effect will be that of protecting and giving encouragement to terrorists – not countering terrorism. Our Penal Code prescribes the death penalty for killing just one person, but under the proposed counter terrorism law, a terrorist convicted of killing hundreds of or even thousands of people can only be given a maximum sentence of life imprisonment. Furthermore while the Penal Code prescribes the death penalty for aiding and abetting in murder, the penalty for aiding and abetting in mass murder in the proposed law is just fifteen years imprisonment and a fine of up to Rs. one million. How is terrorism to be deterred by giving convicted terrorists lesser punishments than what the ordinary law of the land prescribes for the same offences? 

The proposed counter terrorism law also requires the police and the armed forces to treat terrorist suspects with the utmost solicitude. If a terrorist suspect is arrested by the armed forces, he has to be handed over to the OIC of the nearest police station within 24 hours. The latter has to examine him for injuries and present him before a JMO for treatment or a report. The Human Rights Commission has to be informed within 24 hours of the arrest so that they can determine whether the arrest has infringed the fundamental rights of the suspect. When a terrorist suspect is arrested, the arresting officer has to reveal his identity to the suspect and the suspect’s next of kin or associates despite a history in this country of terrorists having massacred entire families of armed forces personnel. The next of kin of terrorist suspects have to be provided ‘reasonable’ access to the suspect in a situation where today, the next of kin may well be the next suicide bomber coming to receive instructions. From the time of the arrest, the welfare of the terrorist suspect takes precedence over everything else.

All arrested suspects have to be produced before a Magistrate within 48 hours and the Magistrate is required by law to personally look into the well-being and welfare of the suspect. A suspect can be kept in detention only for two weeks and if this period can be extended only with the approval of a Magistrate. The total period of detention of a suspect cannot exceed eight weeks. Under the PTA in contrast, a suspect can be kept in detention for three months and this can be extended up to a total of eighteen months. A suspect arrested under the proposed counter terrorism law can be held in remand without instituting criminal proceedings for six months and this period may be extended for another six months on an order of the High Court. If criminal proceedings are not instituted within this extended period, the suspect will have to be granted bail. Under the PTA however, a suspect can be kept in remand until the conclusion of the trial. The proposed counter terrorism law requires the Human Rights Commission and the Magistrates to make unannounced visits to all places of detention and remand to look into the welfare of terrorist suspects and they have to ensure that the suspects are provided all the basic facilities. If the trial against a person remanded under this Act has not been concluded within one year, the High Court is mandatorily required to release the accused on bail.

Even at the trial stage, terrorist suspects are afforded special relief. The proposed law states that ‘if death or grievous bodily injury has not been caused’ or ‘if the security of the State has not been seriously affected’ by the suspect’s actions, and he displays contrition by among other things, publicly expressing remorse, providing reparations to victims and participating in a rehabilitation programme, the Attorney General may either suspend criminal proceedings or withdraw the indictment altogether. How can a person who has harmed no one and not endangered the security of the State end up being arrested and prosecuted under a counter terrorism law? In practice, it is very difficult to collect sufficient evidence against a terrorism suspect largely because of the unsettled conditions that would be prevailing in the country. If a terrorist suspect is arrested and charged in court but is still incongruously deemed to have ‘not caused any harm to anyone’ or ‘endangered the security of the country’ that would only be due to the lack of evidence and not because he has not committed the crime he is accused of.

The proposed counter terrorism law acknowledges this reality by requiring an accused person to express remorse for something he is not supposed to have done and even pay reparations to victims he is not supposed to have harmed, before the Attorney General suspends or withdraws the indictment against him. Such bizarre provisions in the draft counter terrorism law is an acknowledgement of the practical difficulties in prosecuting terrorism suspects under the ordinary law which requires a high evidentiary bar. Most often what can be achieved through anti-terrorist legislation is the suppression of terrorism rather than prosecution and punishment of terrorists, which is why such laws have to be tough enough to enable its primary purpose to be achieved. There is no argument about the fact that the Prevention of Terrorism Act introduced by the UNP government in 1979 is a tough law. But we have had to deal with the most ruthless terrorists the world has ever seen and that would not have been possible if not for such laws.     

Even in sentencing a terrorist after conviction under the proposed counter terrorism law, a reduced sentence can be handed down after considering mitigating factors such as a public denunciation of terrorism, provision of reparations to the victims and a public denouncement of violence etc. The government’s proposed counter terrorism law is in fact a comprehensive relief package for terrorists. If the proposed Counter Terrorism Bill is passed into law, it will seriously hamper ongoing efforts to suppress terrorism following the Easter Sunday bomb attacks. Since this country is once again confronted with terrorism, the government should be prevented from making any changes to the Public Security Ordinance of 1947 or the Prevention of Terrorism Act of 1979. Priority should be given to the people’s right to life over the rights of terrorists.

Mahinda Rajapaksa

Leader of the Opposition

2 Responses to “A counter terrorism law to stifle democracy and to foster terrorism”

  1. Susantha Wijesinghe Says:

    JUST A CLARIFICATION:- Do the Human Rights Commission and Magistrates visit the Victims to look into their welfare as well other than the suspects ? Way to go SRILANKA. Sickening Politicians.

  2. Ananda-USA Says:

    It is LONG OVERDUE that Rishard Bathiudeen, MLAM Hisbullah, Mujibur Rahuman, Asath Sally, and other Muslim politicians were ARRESTED, and INVESTIGATED not only for their complicity in the Easter Sunday terrorist attacks, but their ACTIVE SUPPORT for ILLEGALLY creating a EXTREME MUSLIM presence within Sri Lanka over the last 2 decades using their positions in Sri Lanka’s government bodies!

    ARREST them, INVESTIGATE THEM, CONVICT THEM if guilty, and PUNISH THEM to the fullest extent of the Law! If we let them away with their crimes, Sri Lanka will become an UNGOVERNABLE WAR ZONE like Somalia!

    ………………………….
    Speaker gives nod for probing MPs Alleged complicity with proscribed groups

    Island.lk
    May 6, 2019, 6:56 am

    By Shamindra Ferdinando

    Speaker Karu Jayasuriya, MP, yesterday, said that law enforcement and intelligence services were free to inquire into the members of parliament in connection with the ongoing investigations into multiple suicide bombings on Easter Sunday.

    Speaker Jayasuriya said so when The Island asked him what would be his response to a spate of allegations directed at some members of parliament, including UNP Colombo District MP Mujibur Rahaman by another UNPer Dr. Wijeyadasa Rajapakse, PC, former Justice Minister.

    Asked for further clarification of his position, Speaker Jayasuriya emphasized that it wouldn’t be his responsibility to direct law enforcement and intelligence services. The Island sought an

    explanation as to why investigating authorities required his prior approval to investigate lawmakers, Speaker Jayasuriya said that though he was informed, in writing of such developments, authorities could go ahead with investigations without interference.

    The parliament is scheduled to meet tomorrow (May 07).

    Referring to clashes in parliament between Government and Opposition lawmakers in the wake of what he called constitutional coup perpetrated in late Oct last year, Speaker Jayasuriya said that he didn’t interfere in investigations. Therefore, law enforcement authorities could go ahead with investigations into the alleged links of members of parliament with recent incidents, Jayasuriya said.

    Having visited Ven. Galagodaatte Gnanasara at the Welikada prison on Saturday morning, MP Rajapakse accused four politicians namely MP Rahaman, All Ceylon Makkal Congress (ACMC) leader Rishad Bathiudeen, Eastern Province Governor M.L.A.M. Hisbullah (UPFA National List MP) and Western Province Governor Azath Salley (Former UPFA member of the Colombo Municipal Council) of backing those who perpetrated the Easter Sunday carnage.

    MP Rajapakse also blamed former SLFP National Organizer Basil Rajapaksa for the current situation. Basil Rajapaksa had empowered Rishad Bathiudeen during the previous administration, Rajapakse, who switched his allegiance to UNP leader Wickremesinghe in Dec 2014 said.

    President Sirisena in terms of the Emergency Regulations proscribed National Thawheed Jammath (NTJ) and Jamathei Millathu Ibraheem (JMI).

    TNA spokesman and Jaffna District MP M A Sumanthiran during debate on reimposition of Emergency Regulations in the wake of indiscriminate bombings, called for an investigation into Hisbullah’s activities.

    Responding to MP Rajapakse’s accusations, lawmaker Rahaman told The Island yesterday the learned President’s Counsel owed an explanation as to what he in his capacity as the Justice Minister did after declaring in parliament in late Nov 2016 of some Sri Lankan Muslim families’ involvement with the ISIS.

    MP Rahaman said that double Doctor Rajapakse should be ashamed of his pathetic conduct. “MP Rajapakse’s actions can be compared with that of singer Madumadawa Aravinda of the JHU. Both propagate lies as part of their overall strategy to whip up communal feelings. They are seeking political advantage out of the ongoing crisis,” Rahaman said.

    Responding to another query, the lawmaker said that Wijeyadasa, without further delay should make available all information in his possession to law enforcement authorities and intelligence services. The UNPer said that MP Rajapakse should explain what he did with information he possessed before he was removed from cabinet in Aug 2017 and the period leading to Easter Sunday bombings.

    Rahaman said that he was ready for an investigation at any level. Alleging his colleague operated from the Presidential Secretariat and was one of those advising President Sirisena, lawmaker Rahaman asserted that Rajapakse was making a desperate bid to divert attention away from those responsible for an unprecedented security lapse that facilitated the attack.

    MP Rahaman said that it would be a grave mistake on the part of President Sirisena to blame the security lapse on former Defence Secretary Hemasiri Fernando and IGP Pujitha Jayasundera. Fernando and Jayasundera couldn’t absolve themselves of the responsibility for the loss of over 250 lives, injuries to 500 and massive economic cost, MP Rahuman said. But, President Sirisena, who is also the Commander-in-Chief responsible for defence and law and order portfolios was responsible for the security failure, MP Rahaman said.

    MP Rajapakse lacked the guts to blame it on President Sirisena, hence the little show, Rahaman said, adding that he definitely would move court against the President’s Counsel over accusations made outside parliament.

    Rahaman said that all those who had been at the receiving end of Rajapakse vilifying campaign would move court against the UNP MP.

    MP Rahaman called Rajapakse a bankrupt politician now struggling to make a comeback after a spate of setbacks, including the abortive bid to take over the government in Oct last year by way of a constitutional coup. Rajapakse was one of those responsible for convincing President Sirisena to sack properly elected Prime Minister Wickremesinghe, UPFA to quit the government and call early parliamentary election on January 05, 2019 after having dissolved parliament on Nov 09, 2018.

    Rahaman called MP Rajapakse nothing but an opportunist. “I don’t have to tell, all know how he switched sides for his personal benefit and sought political advantage of any and every political issue.”

    Strongly denying any involvement with those allegedly involved in April 21 massacre MP Rahuman said he was prepared to assist law enforcement authorities.

    In addition to MP Rajapakse, UNP Chairman Kabir Hashim and Minister Harin Fernando, addressing the media, on separate occasions, alleged political involvement, with Hashim going to the extent of claiming one of the suicide cadres was a person released from judicial custody due to political intervention. No less a person than President Sirisena contradicted the UNP Chairman when he briefed the media regarding the developments on April 26 at the President’s House.

    Responding to a media query, President Sirisena said that Kabir Hashim shouldn’t have made unsubstantiated allegations. The President said that he personally raised the issue with the UNPer who didn’t have a credible response.

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