Draft Anti-Terrorism Bill challenged on grounds of severely curtailing people's fundamental rights

Supreme Court concludes hearing 31 petitions against the bill Additional Solicitor General says SC must determine whether bill is contrary to any provisions of the Constitution, rather than basing determination on surmise and conjecture as advocated by pe

Provisions of the draft Anti-Terrorism Bill (ATB) can be used to severely curtail people’s fundamental rights by labelling many forms of dissent such as public protests and strikes as “terrorism", petitioners who challenged the Bill before Supreme Court argued.

The hearings on the 31 petitions in the Supreme Court against the Bill ended on Friday with determination due to be sent to the Speaker.

A Supreme Court five-judge bench this week heard arguments on behalf of the petitions challenging the proposed ATB. The bench headed by Chief Justice Jayantha Jayasuriya also comprised Justices Vijith Malalgoda, A.H.M.D. Nawaz, Shiran Gooneratne and Arjuna Obeyesekere.

Additional Solicitor General Nerin Pulle on Friday making his submissions on behalf of the Attorney General noted that the ATB is not a piece of legislation which must be looked at just in the domestic context and that the bill seeks to update the present law on terrorism, which is now more than 40 years old, and provide for the prevention, detection, investigation and punishment of offences of terrorism in its international, transnational and domestic forms.

The Supreme Court in these applications must determine whether the Bill itself is contrary to any provisions of the Constitution, rather than basing its determination on surmise and conjecture as advocated by the petitioners, he observed.

He said the need for the Bill was heightened in the aftermath of the Easter Sunday terror attacks in 2019. In its report the Commission of Inquiry appointed under Presidential warrant to look into the attacks noted that there was an urgent need to enact new laws, and recommended that the new law to be introduced be even more stringent than the Counter Terrorism Bill of 2018. This Bill however is in fact less stringent than the Counter Terrorism Bill, which the Supreme Court has held to be

Constitutional.

He said the Bill has also taken into consideration concerns which were expressed with respect to the Counter Terrorism Bill and the Anti Terrorism Bill of April 2023, and has come into being after a consultative process.

He pointed out that the present Bill thus endeavours to protect the right to life, which has been guaranteed to every person in the country.

He noted that significant safeguards have also been introduced in terms of judicial supervision, supervision by the Human Rights Commission of Sri Lanka and also rights given to suspects including that of access to an Attorney-at-law so that the Bill strikes a proper balance between national security and civil liberties. Particularly, a person in detention is continuously monitored by the Magistrate. Any restriction imposed on rights are necessary, proportionate and for a legitimate aim as required by the Constitution.

A high degree of accountability is maintained throughout the Bill in terms of the authorities and officers granted powers therein. For example, with respect to both the armed forces and the police the Bill preserves command responsibility and imposes mandatory duties relating to notification and providing reasons for the exercise of their powers, he pointed out.

He said the bill is completely in line with the Constitution and further protects and advances the fundamental rights of the people and the challenges by the petitioners are completely unfounded.

Saliya Pieris PC, appearing for the Bar Association of Sri Lanka President and Secretary, submitted to court that the definition of terrorism in the Bill was too broad and will result in persons engaged in dissent being arrested and detained under the new Anti-Terrorist Law.

He pointed out that Clause 3 of the Bill was overbroad and would cover acts which were not terrorist acts.

Mr. Pieris pointed out the manner in which Sri Lanka’s security laws have over the years been abused by security and political establishments. He submitted that the abuse of the new law was a real-world probability and not a mere hypothesis as laws such as the PTA and ICCPR have been used to target political and personal rivals as well as minority communities. He argued the new Bill lacked the necessary safeguards which ought to be there to protect individual liberty.

He submitted that the new law gives the armed forces powers to arrest, which hitherto was available only in limited circumstances under the Public Security Ordinance. It would lead to indiscriminate arrests of persons by the armed forces.

Mr. Pieris also criticised the provisions relating to detention orders by the Secretary to the Ministry of Defence and said the Bill will prevent judges from examining the merits of the Detention Order during the first two months. Mr. Pieris was also critical of the provisions allowing the President to impose proscription orders at the behest of the Inspector General of Police.

Mr. Pieris submitted that the court was duty bound to protect the rights of the citizen and submitted that the court had a legacy in protecting individual liberties and fundamental rights, tracing the history of court decisions from Bracegirdle to the Dissolution Case and the recent Easter Sunday and economic crisis judgments. He submitted to court that the doctrine of public trust developed by the court bound the court itself.

Mr. Pieris quoted from the speech given by Dr. H.W.Jayewardene QC, Emeritus President of the BASL, on the occasion of the retirement of Victor Tennekoon CJ in 1977:

“The courts of this country are the constitutional shield deliberately planned and inscribed for the benefit of every human being subject to our constitution, whatever race, creed or persuasion. No higher duty, no more solemn responsibility rests on a judge than that of translating into living law and maintaining this great guarantee of human freedom".

Under provisions of the draft Bill, any public protest can be labelled as an act of terrorism, said M.A. Sumanthiran, PC, who appeared for the Centre for Policy Alternatives.

He pointed out that rulers who were responsible for bankrupting the country were not removed from their positions by elections. Rather, they were forced out from their positions by mass street protests.

Under the draft Bill however, such acts can be interpreted as terrorist activities, Mr Sumanthiran claimed.

He added that under provisions of the ATB, any protest conducted against a foreign government or foreign organisation can also be interpreted as a terrorist act.

Since the courts have already held that being able to criticize the government is a fundamental right, the Bill cannot interpret such criticism as acts of terrorism, argued Mr Sumanthiran.

While the Constitution recognizes the right to peaceful protest as a fundamental right, the draft ATB even interprets peaceful anti-government protests as acts of terrorism, said Nigel Hatch, PC, who appeared for National People’s Power MP Vijitha Herath.

He stated that under provisions of the ATB, those who are critical of the government can be arrested and kept in remand custody for up to a year without being produced in court. Such actions amount to not just the curtailing of fundamental rights, but are also an attack on the very sovereignty of the people, said Mr Hatch.

Under the proposed ATB, even strikes can be labelled as terrorist activity, said Upul Kumarapperuma, PC, who represented Inter Company Employees’ Union president Wasantha Samarasinghe.

He also pointed out that while the power to issue Detention Orders is vested with the President under the existing Prevention of Terrorism Act, the new Bill places that power with the Secretary to the Ministry of Defence. While the President is answerable to the people, a government official like the Defence Ministry Secretary is not. As such,

Mr Kumarapperuma argued that it was not suitable to vest such power in the hands of an official.

In the event of any illegal activity taking place during the course of a strike, there are provisions under normal law to take action against it, said Jayampathy Wickramaratne, PC, who appeared for the Sri Lanka Working Journalists’ Association and journalist Tharindu Uduwaragedara, in reply to a query raised by Chief Justice Jayantha Jayasuriya. Mr Wickramaratne stressed that labelling such normal actions as terrorism is unjustified. He added that the Bill had enabled the police rather than the courts to interpret what constitutes as terrorism and emphasised that this is highly dangerous.

Attorney at Law Shaheeda Barrie also making submissions said that the powers of the judiciary was being curtailed and freedom of expression and the right to conduct meetings were restricted through the proposed legislations.

Shamil Perera, PC making submissions on behalf of Cardinal Malcolm Ranjith said the office of the UN Human Rights Commissioner too has expressed concerns about the restriction of judicial powers through this bill and the basic international human rights have been ignored in preparing the bill.

He noted the bill would have implications even for religious sermons adding that fundamental rights enshrined in the Constitution have been violated.

Appearing on behalf of the Sri Lanka Muslim Congress secretary, Attorney at law Rauf Hakeem in his submission said that the government which has been concerned about the ‘Aragalaya’ has introduced the laws to protect themselves and control any adverse situation that may threaten them.

Attorney at law Swisthika Arulingam making submission on behalf of the Young Journalists Association said clause nine of the Bill was a danger to journalists as gathering of information could be considered an act of terrorism.