ERASING THE EELAM VICTORY Part 10 H
Posted on January 11th, 2020

KAMALIKA PIERIS

Revised 26.1.20

This essay    deals with two matters, the Report of Consultation Task Force on Transitional Justice and Reconciliation’ (Muttetuwegama Report) and   Yahapalana‘s proposed amendments to the Prevention of Terrorism Act.

CONSULTATION TASK FORCE ON TRANSITIONAL JUSTICE AND RECONCILIATION’

In January 2016   Prime Minister Ranil Wickremesinghe   appointed an 11 member body styled the ‘Consultation Task Force on Transitional Justice and Reconciliation’ comprising of the following individuals. Manouri Muttetuwegama – Chairperson , Pakiasothy Saravanamuttu – Secretary, Shantha Abhimanasingham PC, Visaka Dharmadasa, Dr. Farzana Haniffa The existing PTA sought to give the government additional teeth to combat offences such as killing, abducting or intimidating specified persons such as politicians, members of the armed forces, police and government servants, the robbery of state property and banks, the collection, possession or manufacture of firearms and explosives or carrying out propaganda promoting the commission of acts of violence or causing religious, or communal disharmony, said Chandraprema.

, K. W. Janaranjana, Prof. Sitralega Maunaguru, Mirak Raheem, Prof. Gameela Samarasinghe, Prof. Daya Somasundaram and Gamini Viyangoda. .

This task force put out a voluminous report. The report quickly disappeared from the public radar, said Chandraprema. However, Chandraprema has seen the report. He says the Report makes the following observations and recommendations.

1. The establishment of a secular state as a starting point for reconciliation.

2. The cessation of military involvement in civilian affairs, economic activities and civil administration.

3. Return of civilian lands acquired by the forces.

4. The release of detainees (LTTE) who have not been charged under the PTA or other laws.

5. The repeal of the PTA

6. A political and constitutional settlement of the conflict as a ‘pivotal’ prerequisite for reconciliation.

7. The ‘occupation’ of land by the military and other state agencies such as the Forest Department, is an impediment to reconciliation,

8. As is the ‘secondary occupation’ of lands and fishing waters by members of other ethnic communities

.9. Symbolic reparations in the form of official acknowledgment and apologies should be made by the state.

10. Monuments to be erected for lives lost in incidents such as massacres or disappearances.

11. Observance of ‘Maaveerar Dinam’ is allowed to continue

.12. Families of deceased LTTE cadres, be permitted to hang a photograph of their son or daughter in LTTE uniform, in their homes

.13. The restoration of burial plots of LTTE cadres to family members and the removal of all buildings subsequently erected on them.

14. The establishment of a Truth, Justice, Reconciliation and Non-recurrence Commission (TJRNRC) as an investigative body that would refer cases of criminal acts to a prosecutorial body.

15. No amnesties would be granted by the Truth Commission.

16. The findings of the Truth etc Commission to be included in school text-books.

17. A Special Court and Prosecutor be set up to try war crimes with the participation of international judges, prosecutors and investigators.

18. No LTTE members should be prosecuted by this Special Court because they have been through rehabilitation or have been prosecuted under the existing judicial system. The focus instead should be on leaders of the LTTE who were allied to the government or LTTE leaders assumed to be living abroad.

19. Phased demobilisation of security forces with an attractive early retirement package which could include pensions, admissions to schools for children, alternative civilian employment etc.

20. A national policy on victim centeredness is recommended and page 152 of the main report stresses the need for victims to ‘own’ the Truth etc Commission.

21. The indispensable role of ‘civil society’ in a transitional justice process be recognized legally.

22. District level State officials are to be instructed to work with ‘civil society’

.23. Funding of the judicial mechanism could be from the UN and the shortfall met through international ‘voluntary contributions’.

Nobody in this country is going to accept that these are views that have been formed after consulting the public.  They are so over the top. This reads more like a wish list written by a group of foreign funded NGO owners in a state of deep intoxication, said Chandraprema.

Chandraprema discusses some of the recommendations. The report says the government should seriously consider establishing a secular state. What they mean by this is the removal of the special place accorded to Buddhism in the constitution.

Sri Lanka has never been a theocracy. The special place accorded to Buddhism in the constitution is an acknowledgement of an age old tradition which is dear to the majority community in this country. Even though Buddhism is accorded a special place in the constitution, the state does not discriminate against other religions in this country. Quite on the contrary, even in an era when religious freedom was unknown in Europe, the Sinhala Buddhist Kings upheld religious freedom in this country, said Chandraprema.

The task force wants land in the north and east to be returned to their owners. What is interesting is the observation that even land ‘occupied’ by other state agencies such as the Forest Department and the Mahaweli Authority impinges on the freedom of the people and is therefore an obstacle to reconciliation. If the observations made by the task force are turned into policy, then Minister Rishard Baithiudeen would have to be given complete freedom to do just as he pleases in the environs of Wilpattu, said Chandraprema.

The task force has also talked about the ‘secondary occupation’ of fishing waters by members of other communities – an obvious reference to fishermen from the South visiting the East coast for seasonal fishing. These are fishermen moving from coast to coast in what has been an age old tradition among the fishing community in this country.

The Task force has recommended that LTTE cemeteries should be restored, the observance of ‘Maaveerar Dinam’ allowed to continue and the families of deceased LTTE cadres permitted to display a photograph of the deceased terrorist in LTTE uniform, in their homes. They also recommend the restoration of the LTTE cemeteries and that permission be granted to commemorate deceased members of the LTTE. These will help to keep the separatist dream alive and lionize the LTTE combatants who fell trying to achieve that goal.

 We are told that these recommendations and observations were prepared after consulting the public. how many members of the public would have asked for the commemoration of deceased LTTE cadres, asked Chandraprema .If anything should be memorialized it is the fact that they were got rid of, he said.

The judicial mechanism on war crimes is only to try members of the armed forces. No members of the LTTE are to be tried because they have been through rehabilitation or have been prosecuted under the existing judicial system. In addition, as a means of promoting reconciliation, all LTTE detainees who have not been charged under the PTA or other laws are to be released forthwith.

Chandraprema made special mention of the fact that apologies should be tendered by the Sri Lankan State to the victims of the armed conflicts that took place in this country. Furthermore, the government is to adopt a victim centered approach.

Following the lead of UNHRC Resolution 30/1, the Task force has also recommended that a war crimes tribunal with foreign participation be set up. But going beyond anything that Resolution 30/1 recommended, they have also suggested that no LTTE members be prosecuted by this body if they have been through rehabilitation or have been prosecuted under the existing judicial system. They have suggested instead that leaders of the LTTE who left the terrorist organization and allied themselves with the government of Sri Lanka should be tried for war crimes!.

 No amnesties should be granted to members of the armed forces suspected of war crimes.  A phased demobilization of security forces personnel with an attractive early retirement package including pensions, admissions to good schools for their children, alternative civilian employment etc. has also been recommended.

The task force has called for full participation of foreign judges and other personnel including defence lawyers, prosecutors and investigators in transitional justice mechanism to address accountability issues, foreign participation was required as those who had suffered during the conflict had no faith in local judiciary, which lacked expertise to undertake such a task. Human Rights Commissioner Zeid Ra’ad Al Hussein had also declared in Colombo in February 2016 that the judiciary here was incapable of undertaking the process. He questioned the integrity of the local judiciary. The above are only a sample of what this task force report contains, concluded Chandraprema

The UN Human Rights Commissioner’s update on Sri Lanka presented to the UNHRC on March 22 was effusive in its praise for the report of the Consultative Task force on Reconciliation Mechanisms and has requested the government to implement its recommendations. Sarath Weerasekera   observed that this Task Force report was welcomed by the Tamil National Alliance and the Global Tamil Forum. A copy of this outrageous report should be archived somewhere, for historical purposes.

DRAFT COUNTER-TERRORISM ACT, 2018

The draftCounter-Terrorism Act was approved by Cabinet on 11September 2018 and tabled in Parliament on 9 October 2018.

 The text is available on  https://www.parliament.lk/uploads/bills/gbills/english/6123.pdf

Interestingly, a meeting had been held between the ambassadors of several EU nations and the Prime Minister to finalize plans to repeal the PTA and to replace it with a new counter terrorism law acceptable to the EU. This meant that Ambassadors of foreign countries were directly involved in the process of drafting public security legislation of this country, observed critics.  

 The meeting had taken place on December 16, 2016 at Temple Trees under the chairmanship of the Prime Minister. The ambassadors present were James Dauris – British HC, Jean-Marin Schuh – Ambassador of France, Tung-Lai Margue – Ambassador EU, Joanne Doornewaard, Netherlands Ambassador, Joern Rohde – German Ambasssador, Paolo Andrea Bartorelli, Italian Ambassador and Victor Chiujdea, Romanian Ambassador.

The proposed Counter Terrorism Bill will encourage terrorists as it was meant to stifle political dissent and the freedom of expression while treating terrorists with the utmost leniency, said Mahinda Rajapaksa.

The draft counter terrorism Bill has encountered opposition from political and media activists because its definition of ‘terrorism’ means that legitimate political and trade union action as well as the dissemination of information and protection of sources by the media   can be labeled as terrorist activity said Mahinda Rajapaksa

Mahinda Rajapaksa has pointed out, inter alia, that the Bill 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, asked Mahinda Rajapaksa.

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, continued Mahinda Rajapaksa  .

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 said Mahinda Rajapaksa.

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, said Mahinda Rajapaksa .

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 acknowledgment 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, said Mahinda Rajapaksa  .

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 concluded Mahinda Rajapaksa.

Several civil society activists and organisations raised objection to the definition of terrorism as contained in the Bill, claiming that citizens protesting against state involvement in water pollution (such as Rathupaswela, a state decision to dump garbage in their neighbourhood (such as post Meetotamulla), impact of development projects such as Hambantota development zones and Port City and citizens demanding the release of lands occupied by the military could be treated as ‘offences of terrorism’.

Civil society representatives also raised objections to the Central Data Base for arrests and detention provided for in the proposed Counter Terrorism Act. The draft legislation provides the Human Rights Commission of Sri Lanka (HRCSL) access from the outset and ensures every arrest and detention carried out under the law is logged at every stage.

Activists said that the database could result in information being shared between state institutions and international agencies, with the potential for those merely detained or charged being adversely affected in terms of reputation and freedom of movement.

Centre for Policy Alternatives  on the other hand, finds several improvements on the PTA in the draft, and in many cases has found provisions in the bill to be in line with international law and best practices.

Everything is documented from the moment of detention to prevent people from disappearing, an official familiar with the drafting process said. In the past, there were allegations of people disappearing, after being supposedly arrested under the PTA, these officials explained. With the central database in place, all arrests under the proposed CTA will be documented from the moment of detention and HRCSL will have full access to the information, resulting in safeguards for the suspects.

The CPA report found that provisions that stipulate arrest with privacy, medical examination of suspects, notification of arrests, the board of review for detention orders, the entitlement of the magistrate to visit any place of detention and the dramatic reduction of the maximum period of detention to eight weeks were significant improvements on the PTA.

The power of the magistrate to order a forensic medical examination when there is reason to believe a suspect may have been subject to torture, is a welcome provision, the CPA report on the Counter Terrorism Bill said. The provision is in line with Article 11 of the Sri Lankan constitution and Article 7 of the International Covenant on Civil and Political Rights (ICCPR), the CPA said in its report.

Media rights activists urged the Sri Lankan government to withdraw proposed anti-terror legislation, calling it a set of draconian laws aimed at suppressing media freedom and democratic rights. .

C. Dodawatta, convener of the Free Media Movement, a local media rights group, said the proposed act could be used to arrest and detain journalists for “distributing or making available any information to the public.” “But so far the government has failed to repeal the PTA and instead now they are bringing another legislation which seems worse than PTA,” he told reporters.  Dharmasiri Lankapeli, another media rights activist, said the legislation may result in the arrest of journalists for keeping sources secret, and “this would pose a great danger to media freedom and send more journalists to prison.” 

 Rights activist and lawyer Viranjana Herath said the proposed law could also be used to ban such things as taking photographs, making video recordings and making sketches. It also “will affect the freedom of assembly and association and could pose a serious threat to the freedom of expression and media freedom,” Herath said. He said Sri Lanka does not need new laws to combat terrorism, saying there are more than 20 existing laws and legal provisions to deal with offenses on terrorism. “Therefore, bringing new laws could be described as an attempt to suppress the voice of the people,” he said. 

Chandraprema commented at length on the Bill. The new counter terrorism law appears to be tailor made to protect future terrorists not to combat terrorism. Everything that this government does seems to go in a certain direction,  he said

The so called counter terrorism law that the Yahapalana government intends replacing the PTA with is actually not a piece of legislation designed to ‘prevent’ terrorism but to pamper terrorists, said Chandraprema .

 It seeks to provide terrorism suspects with a degree of safety and comfort not available to suspects being tried under the ordinary criminal law. For example, the punishment for the offence of terrorism is restricted to a maximum of 20 years in prison. It is only if deaths have taken place as the result of a certain act that a life sentence can be handed down.

Whereas the ordinary law of the land prescribes the death penalty even for the murder of a single person, any act of mass murder by a terrorist will attract only a life sentence at most. Aiding and abetting in an act of mass murder by terrorist will attract only a sentence of 15 years and a fine. Under the ordinary law even helping a person to commit suicide attracts a death sentence.

Under the proposed counter terrorism law, there is a category of offences called “Terrorism related offences” which include the following: a) committing the death of a specified person. b) committing the death of any person in the course of committing terrorism related offence c) attempting to cause the death of a specified person. d) committing the abduction or wrongful confinement of a specified person. e) taking a specified person  or a member of his family or a person of importance to such person hostage f) committing criminal intimidation of any person.

The list includes 36 other offences including killing witnesses, robbery, destroying state property, digital data theft, recruiting people to join a terrorist movement. Many people would be hard put to figure out how these terrorism ‘related’ offences differ from terrorism per se, continued Chandraprema .

 But these ‘terrorism related offences’ carry an even lighter sentence of a maximum of 15 years, a fine and confiscation of property. In the case of a terrorism related offence too, a life sentence can be handed down only if death occurs as a result of that act. One gets the impression that this category of offences called terrorism related offences has been created only to hand down lighter sentences to terrorist suspects. As for deaths occurring as a result of a certain act, this needs to be proved in court and if the prosecution is unable to prove that a certain person died due to a terrorist attack then the terrorist gets a light sentence.

Many terrorist leaders would be charged with aiding and abetting in the commission of terrorism related offence and this carried only a sentence of 10 years and a fine whereas under the ordinary law aiding and abetting carries the same penalty as the offence itself. Knowing of the commission of a terrorist or terrorist related offence and failing to inform the authorities carries a sentence of three years imprisonment plus fine. The law also stipulates that “Every practicable measure shall be taken to protect such persons from physical harm,”  continued Chandraprema .

When a person is arrested, in addition to issuing an acknowledgement to a person nominated by the arrestee, the arrest has also to be notified to the Sri Lanka Human Rights Commission within 24 hours. The IGP has to maintain a central register and database of those arrested under the counter- terrorism law. All suspects arrested have to  be presented before a Magistrate within 72 hours..If not the Magistrate will remand the suspect if the police make the request.

 However to remand a suspect, the Magistrate has to be convinced that the request is reasonable. What this means is that the Magistrate has the discretion to refuse a request to remand a suspect under the proposed law and to personally see the suspect and inquire into his wellbeing and welfare. Such interviews will be held in private in the absence of any police officer investigating the offence.

there is also to be a Board of Review chaired by the relevant Ministry Secretary and two other persons appointed by the Minister in charge of the subject. Any detainee can appeal against his detention to this Board of Review and the latter has to hand down a decision within two weeks. The decision of the Board of review can then be challenged in court if the suspect so wishes it. the obvious intention of such window dressing is to camouflage the laxity and indeed the solicitude this proposed law displays towards terrorists, said Chandraprema .

.The Yahapalana government’s proposed counter terrorism law has an inbuilt amnesty mechanism through provisions for the suspension or deferment of indictment at the discretion of the Attorney General.

The AG can impose conditions such as a public expression of remorse before a Magistrate, the provision or reparations to the victims as directed by the AG, voluntary participation in a programme of rehabilitation, social service or community services and a pledge to refrain from committing similar acts in the future.

 A confession made to a police officer will be valid only if the person who made the confession is presented for a medical examination both before and after the statement is given. The burden of proof will be on the prosecution to prove that such statement was made voluntarily. We see from the above that the purpose of the Yahapalana government’s counter terrorism law is to stand the old PTA on its head, observed Chandraprema .

 Terrorist suspects are to be given more protection and lighter sentences than ordinary criminals committing the same crimes. Prison sentences ranging from five years to life could be handed down for offences coming under this Act. The PTA conferred powers on police officers above the rank of Sub-Inspector to carry out arrests, searches of premises and any vehicle including aircraft and to seize anything related to unlawful activity.

Persons arrested under the PTA have to be presented before a magistrate within 72 hours unless a detention order has been taken out on him. The magistrate can order such person to be kept in remand continuously until the conclusion of the trial. He may be released on bail if the Attorney General consents, said Chandraprema .

There are primarily three areas that are problematic in the so called draft counter terrorism law. These relate primarily to the procedures relating to the arrest, detention and trial of terrorism suspects. It can be seen that the provisions relating to the arrest and detention of terrorism suspects has been designed more with a view to ensuring the welfare of the terrorist suspect than dealing firmly with an extraordinary situation to protect the lives of ordinary people who expect the State to provide them with basic security.

 But the system was by no means as rigid as the one mooted under the proposed counter terrorism law. The executive arm of the state has to have some leeway to identify and arrest people they deem to be dangers to society without being put in a straitjacket of regulations that will afford protection to the terrorist but not to the ordinary people at the receiving end of that terrorist’s actions. Without the executive having that leeway, they will not be able to perform their duty of maintaining law and order, said Chandraprema .

Under the existing PTA, the detention order in the first instance is up to three months and can be extended up to 18 months with no court of law being able to question such detention. But under the proposed law a detention order is valid only for 30 days and cannot be extended beyond six months and if a detention order is to be extended beyond three months, a magistrate has to grant his approval. And the suspect can challenge the magistrate’s ruling in the High Court.

Not only are terrorist suspects to be afforded the maximum protection by putting the security forces in a straitjacket, the new counter terrorism law is to function as a kind of ‘Truth Commission’ for terrorist suspects too. if the terrorist suspect agrees to fulfill one or more of the conditions such as  tendering a public expression of remorse or an apology, provision of reparations to victims as specified by the AG, voluntary participation in a program of rehabilitation, giving a public undertaking not to commit any offence in this act and engagement in specific community service.

.Even when a terrorist is found guilty, the sentencing guidelines proposed in the new counter terrorism law stipulate that publicly denouncing terrorism, expression or remorse, young age or old age at the time of sentencing, coercion or duress under which the offense had been committed, consent on the part of victims to pardon to the terrorist, voluntary provision of reparations by the convict to the victims of the crime, public denouncement of violence and terrorism, genuine commitment to the preservation of the territorial integrity and sovereignty of Sri Lanka, participation in a program of rehabilitation prescribed by the judge will act as mitigating factors to reduce the sentence said Chandraprema .

This gives even a convicted terrorist a way to avoid long jail sentences. There will be no minimum sentence in the proposed counter terrorism law, so even convicted terrorists will be able to get away with minimal punishment by pretending to be remorseful or undergoing ‘rehabilitation’ or doing any of the other things recommended to win lighter sentences.

The existing PTA sought to give the government additional teeth to combat offences such as killing, abducting or intimidating specified persons such as politicians, members of the armed forces, police and government servants, the robbery of state property and banks, the collection, possession or manufacture of firearms and explosives or carrying out propaganda promoting the commission of acts of violence or causing religious, or communal disharmony, said Chandraprema.

Chandraprema  also observed that it was Minister Sagala Ratnayake who got this proposed counter terrorism law drafted. It was also he who headed the Constitutional Assembly Subcommittee on Police, Law and Order where it was proposed that all police powers (except in relation to a few specified and comparatively rare offences) be transferred to nine provincial police forces which would do their own recruiting from within the province on linguistic and residential criteria without transfers between provinces.

 It was also proposed by this Subcommittee that an unspecified special majority in parliament be required to extend a declaration of emergency and that such declarations and the emergency regulations themselves be subject to judicial review.

 If the changes to the structure of the police force and the restrictions on declarations of emergency envisaged by Minister Ratnayake’s subcommittee are combined with the counter terrorism law he has proposed, there will be no control at all over any terrorist problem that occurs in the North and East because it will be the police in those provinces that will have all powers over terrorists in their areas with the armed forces having to hand over all arrested persons immediately to the local police, concluded  Chandraprema.

Sunday Times carried comments on the Counter Terrorism Act. .The draft ‘Policy and Legal Framework relating to the proposed Counter Terrorism Act of Sri Lanka’ was approved by the Cabinet on Tuesday. It was drawn up over the past one-and-a-half years with select provisions in earlier versions drawing critical comments from rights activists. The latest draft, a copy of which was obtained by the Sunday Times, has addressed many of these concerns.

For instance, some previous drafts made confessions to police admissible in court. The latest version does not. Only confessions made to a magistrate are admissible; that, too, provided the magistrate who took the confession immediately prior to and after recording it causes the person who made the statement to be examined by a Government forensic medical specialist. Such report must be produced by the prosecuting authority during the voir-dire inquiry (a preliminary examination of a witness or a juror by a judge or counsel) that may be conducted for verifying the admissibility of the confessional statement, said Sunday Times.

The bill, once enacted, will replace the draconian Prevention of Terrorism Act (PTA) which gives police a 72-hour window to produce a suspect before a magistrate; allows detention orders to be extended every three months up to 18 months; and confines suspects to remand till the end of their trials, many of which take years to conclude.

It is reported, however, that the Cabinet sanctioned the draft CTA only on the understanding that it will be amended during the committee stage debate in Parliament to bring back admissibility of confessions made to police officers.

The Cabinet has approved a draft Counter Terrorism Act (CTA) that requires suspects to be produced before a magistrate within 48 hours and limits detention orders to a maximum of eight weeks. It also grants a magistrate the discretion to refuse an extension after two weeks and entitles suspects to bail six months after arrest if criminal proceedings are not instituted during that time frame, continued Sunday Times.

.The CTA places an obligation upon the magistrate to personally see the suspect, and look into his wellbeing and welfare through a private interview; and record any comment the suspect may provide”. Any magistrate shall also be entitled, without advance notice, to enter an approved place of detention as well as inspect such place, registers, detention orders and other books and documents and interview persons being held therein.

 Legal analysts pointed to other issues with the proposed law. For instance, the provisions on abetting terrorism make it illegal to gather any confidential information” with the intention or purpose of supplying it to a person who commits an offence or is conspiring, preparing, abetting or attempting to commit and offence under the Act.Confidential information”, as defined by the CTA, would also include any information relating to the police or the armed forces, on the conduct of any official activity, including law enforcement or military measure which is intended to be carried out or is being carried out, or has been carried out”. But the draft law does have a proviso excluding as an offence anything published in good faith with due diligence for the benefit of the public or in national interest in registered print and electronic media, or in any academic publication”  said Sunday Times .

.Another point of concern is a clause authorising Deputy Inspectors General of Police to issue detention orders which activists say confers great discretion on the police. This is problematic given the patterns of abuse of detention orders to coerce money from people,” the analyst pointed out. Technically, there is provision for a board of review but these things don’t work in practice.”On the whole, the new draft contains several aspects deemed welcome by the rights community. While it does contain a long list of offences, the Act strictly provides for identification, detection, apprehension, arrest, taking into custody of, detention, investigation or prosecution only of persons committing offences within the meaning of the Act, added Sunday Times .

the Bill also states: Any action taken by any person in good faith in the lawful exercise of a fundamental right, or in pursuance of, or to give effect to a lawful order given to him, or in accordance with or to give effect to a judicial order, shall not amount to an offence under this Act.”At the time of an arrest, the arresting officer shall inform the suspect the identity of the arresting officers; the offence alleged to have been committed by the suspect; and the right of access of the suspect to an attorney-at-law as provided for in written law.

  Every arrest shall be carried out with due regard to the privacy of the suspect. The next of kin or an adult member of the suspect’s family shall be issued an acknowledgment of arrest and custody within 24 hours. It must include the date, time and place of arrest; reasons for arrest; location of custody or detention; name identification and rank of arresting officer; and so on. The Officer-in-Charge (OIC) of the police station wherein the suspect is detained shall within 24 hours notify the Human Rights Commission of Sri Lanka (HRCSL) with all of the above as well as other information. The HRCSL is also entitled to prompt access to the suspect, continued Sunday Times .

The draft CTA mandates the Inspector General of Police (IGP) to establish and maintain a central database and register containing information with regard to each arrest, detention, remanding, grant of bail, discharge, prosecution, conviction or acquittal, and punishment of persons arrested under the Act. It shall include such other information as required to determine the lawfulness of the arrest, custody and detention; lawfulness of the deprivation of liberty of the suspect; and the need for continued detention or remand. The IGP shall provide information included in the database and register to the HRCSL upon request.

No person shall be held in remand for a period exceeding six months from the date of arrest without instituting criminal proceedings. If such proceedings are not instituted within six months, the magistrate shall release the suspects on conditions to be stipulated by the magistrate. A board of review will be set up to grant administrative relief for appeals against detention orders. Rulings must be made within two weeks. Whenever a suspect is released from remand or detention, the HRCSL shall be informed said Sunday Times .

.The police must obtain a judicial order to gain access to information relating to any financial service provided by banks, non-banking financial institutions or designated non-finance business to a suspect; details of any financial transaction carried out by any person; details relating to bank accounts, deposits, remittances and withdrawals and financial services provided by such bank institution or business; details relating to securing of financial services by any person; and a certified statement of any account or other information pertaining to any account or transaction.

Judicial orders are also required for the police to, among other things, intercept, listen or record any postal message or electronic mail or any telephone, voice, internet or video conversation or conference or any communication through any other medium, said Sunday Times .

The draft CTA gives discretion to the Attorney General (AG) to suspend and defer the institution of criminal proceedings on a suspect for a period of not less than five years and not exceeding ten years. In such instance, the AG shall apply to the High Court for the imposition of one or more conditions on the suspect: to publicly express remorse and apology before the High Court using a text issued by the AG; to provide reparation to victims of the offence, as specified by the AG; to participate in a specified programme of rehabilitation; to publicly undertake that such person refrains from committing an offence under this Act; to engage in a specified community or social service; or to refrain from committing any indictable offence or breach of peace. The law also proposes day-to-day trials, other than during weekends, public holidays and court vacations, concluded Sunday Times

Prof. G.L. Pieris,  observed that the proposed Counter Terrorism Bill would encourage those still pursuing a separatist agenda. Instead of countering the threat of terrorism, it would definitely facilitate the terrorism project, Section 72 empowers the Attorney General to delay serving indictment for a period of 10 years. In terms of Section 77, if an indictment was served, it could be recalled right up to the moment of the delivering of a judgment. The provision for the Attorney General to accept an apology or/and offering to do community service in lieu of prosecution is a joke, Pieris said.

Pieris also criticized the need for the Human Rights Commission of Sri Lanka and the IGP to be informed as regards arrests made in terms of the new law. The new law was meant to mollycoddle terrorists/ However, the proposed law could be applied selectively to target trade unions, student community and even the media, he said.

Sub Section c, d and f under Section 3 could be exploited to prosecute those opposed to the incumbent government. the provision for remanding of a suspect in case he or she declined to answer questions violated the Article 13 Sub Article 5 of the Constitution. The new law challenged the presumption of innocence until proven guilty enshrined in Constitution,  Pieris said.

 Kishali  Pinto Jayawardene  made forceful observations on the Bill. Sri Lanka’s draft Counter Terrorism Act (CTA) is not a curate’s egg of mostly good with a little bit of bad thrown in. Rather, it is the reverse, she said.. The draft Act is a whole lot of bad with some good thrown into the unappealing mixture, she said.

These are ingenious traps set by ‘deep state’ security agents who have learnt to survive Governments and political regimes with consummate ease. Flippant assessments of the gazetted draft CTA are a deadly mistake. Unquestionably this is an aggravation of the existing counter-terror regime, not a reduction, as blissfully believed by some.

Those first drafts of a supposed Counter Terror framework staggered the nation as their contents were preposterous. In analysing the drafts ‘leaked’ to this newspaper at the time, it was pointed out in these spaces that, if this was the cure for the Prevention of Terrorism Act (PTA, 1979), then ‘the cure was worse than the disease.’ said Kishali.

Granted, the gazetted Bill is without the most outrageous clauses. Some may even suspect that the perversity of those drafts may have been on the calculated assumption that the outrage would subside once the clearly perverse clauses were taken out. what is required is the crafting of a narrowly tailored anti-terror law with tightly drafted clauses limiting themselves to few acts that are not captured by the ordinary law enforcement regime. That, this Bill is not, observed Kishali

There is over-breadth of offences and risks for media, she observed. Merely having an omnibus clause, (Clause 2(2)), that the Act ‘shall be enforced’ only in respect of defined ‘offences’ and not in regard to offences in the Criminal Procedure Code, falls far short of this objective. That clause is rendered largely meaningless for the reason that there is too much overlap between the offences in the Bill and ordinary criminal offences.

 Further, vague and general prohibitions remain. The use of terms such as ‘wrongfully’ compelling the Government to do or abstain from doing any act (Clause 3 (1) (b) as one ingredient of the primary offence is one illustration. There are plenty more  said Kishali .

Another example of obvious over-breadth is the juxtaposition of distinct categories of offences, variously titled ‘other offences associated with terrorism’, ‘specified terrorist acts’ and aggravated criminal acts associated with terrorism.’ These extended categories of various linked offences are defined as acts committed with ‘the intention of, or having the knowledge of, or having reasonable grounds to believe that such conduct has the effect of, adversely affecting the territorial integrity, national security and defence of Sri Lanka or, intimidating or terrorizing a civilian population.

’For the media in particular, there are palpable risks at hand. Clause 10 (g)) of the Bill summons chilling recollections of the harm caused by similar provisions in the past. That Clause defines aiding terrorism as  ‘intentionally and unlawfully distributing or otherwise making available any information to the public having intent to incite the commission of the offence of terrorism or other offence under this Act and to cause ‘the fear of such offence being committed.’ This is specifically ‘notwithstanding that such conduct does not expressly advocate such offence’  noted Kishali.

Read together with the primary offence of terrorism with its vague wording of ‘wrongfully’ compelling the Government to do or abstain from doing any act,’ the threat is explicit. Facing a practical situation, how is an editor or a journalist supposed to assess this ‘fear’ that is so airily referred to?

 Significantly, the conduct in issue need not ‘expressly’ advocate such an offence. This reduces the bar at which the offence of ‘aiding terrorism’ comes into existence. Moreover, use of the term ‘confidential information’ in additional offences specified in these sub clauses raises further concern in the light of the new ‘information regime’ trumpeted by this Government. The ‘good faith’ defence (Clause 10(L) is little protection in this respect. These are legal abstracts that can swing one way or another depending on who the judge is sitting on the Bench, observed Kishali.

.We have seen this peculiar phenomenon innumerable times. Where inflammatory terms such as ‘terrorism’ or national security’ comes into issue, it requires a judge of tremendous mettle and prowess to stand up to the task. Unfortunately we do not have that stern calibre of judges in our courts as a general rule, apart from a few exceptions.

 What is dangerous is that the proposed CTA will be part of the permanent law of the land, not an emergency regulation subject to challenge for fundamental rights violation in the Supreme Court. Consequently, to advocate for the Bill on the basis that only a little ‘fiddling’ is required to make it a preferable alternative to the PTA speaks to a remarkable lack of foresight. Its contents should surely have caused free expression advocates to take a well measured step back, said Kishali.

 Instead, we have a happy hunting pack of proponents of the draft CTA whose consternation at being strongly rebutted is rather amusing. But with the Bill on the perilous cusp of being enacted into law, these games are ill advised. The character and contents of this draft must be fundamentally revised, not just tweaked in parts. Timidly pussy footing around the definitions of terrorism or pruning the clauses relating to proscription orders, as objectionable as those clearly are, will not do.

In the alternative, journalists, dissenters and trade unionists will pay the price, not the ‘privileged’ here and overseas. Our familiarity with the horrors of the PTA will be nothing compared with the nightmarish possibilities implicit in its proposed successor. For there is enough ambiguity left in the draft CTA to make a national security autocrat, whose species we saw in full form during the Rajapaksa years, dance in unholy glee. It is the height of asininity to cheer on a draft such as this in the radically uncertain times that we live in. In fact, it is akin to the merry drunk who dances to the edge of a cliff, little knowing what awaits him on the rocks below. The difference is that here, it will be a nation dancing to disaster concluded Kishali.

Lasanda Kurukulasuriya also commented on the subject. She noted that  the PM urged the swift passage of the proposed Counter Terrorism Act (CTA), claiming that had it been passed the Easter Sunday massacre could have been prevented.

The government’s proposed new Counter Terrorism Act (CTA) has been opposed on the grounds that it could be used to suppress student unions, trade unions, media freedoms and the Opposition. It is also faulted for being lax in respect of terrorists, unlike the existing Prevention of Terrorism Act (PTA). Critics argue that the government’s real objective is to get rid of the PTA in compliance with the Geneva resolutions. Strangely, in cases where the terror suspect is a foreigner, the new law is said to prohibit action being taken without the consent of the country in which the suspect is a citizen. The consideration that such a provision could help protect ex-LTTE elements or sympathisers domiciled abroad, raises questions as to whether the drafting of this law had external inputs, said Lasanda ( continued)

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