Counter-terrorism draft: Handle with care

LSUNDAY, APRIL 9, 2017

ast week we mentioned that the proposed Inland Revenue Act is being drafted abroad for consumption locally. Now, several versions of a new draft Counter-Terrorism Act (CTA) are floating around in the unreliable domain of cyberspace and do not lend credibility to the art of legislative drafting by this Government.

The Government needs to put its stamp on the draft and publicly release that before presenting the Bill to Parliament so that there can be independent assessments. It is an irony beyond measure that international agencies, including the IMF and the European Union, before which the Government is genuflecting in a desperate bid to renew the EU GSP trade facility, are more privy to these drafting efforts rather than Sri Lankans themselves.

This Government is elected to power by the citizenry, not by international power brokers. As observed in the ‘Focus on Rights’ column by our legal columnist Kishali Pinto Jayawardena, the Government is responsible to its citizens, most importantly regarding the content of future laws that may impact upon those very citizens.

There is little doubt that Sri Lanka does need a counter-terrorism law, what with some 12,000 LTTE cadres who were simply let loose after the war ended. With a sulking Diaspora stoking fires, and geo-political uncertainties, a good counter-terrorism law with checks and balances is necessary. However, the question is how much a Government can resist using these laws to suppress legitimate democratic dissent when its provisions are not adequately tightly drafted? In the past, critics including journalists have been arrested and imposed stiff sentences purely for exercising the freedom of expression.

The revised version of the draft CTA brings over ‘terrorism related offences’ from the Prevention of Terrorism Act (PTA) to include ‘words either spoken or intended to be read or by signs’ etc which ‘causes or intends to cause the commission of acts of violence between different communities or racial or religious groups.’ This must be with intent to cause harm to the ‘territorial integrity or sovereignty of Sri Lanka or the peaceful coexistence of the people.’

A heavily criticised reference to ‘unity’ in that paragraph has been deleted. As accepted in the revised CTA draft itself, this is due to the fact that the term is vague. Nonetheless, that omission alone does not cure the equally vague meaning of other terms under which citizens had been imprisoned before. Meanwhile, the wide definition of ‘confidential information’ contained in the revised draft contradicts the Right To Information (RTI) Act both in spirit and substance. Does this contradiction not make a mockery of RTI?

The proposed regime establishes a Special Unit operating under the Inspector General of Police. A Superintendent of Police (SP) or higher in rank can call for information from banks and other financial institutions without an order from the Magistrate. This includes any financial service provided to any person, any financial transaction carried out by such person, details of bank accounts, fixed deposits, remittances, withdrawals and certified statements. Is the Government intending to set up another feared FCID?

The danger here if the Bill is rushed through the House without adequate legal scrutiny, a Government may be allowed to abuse its provisions far more than the PTA it seeks to replace. We must not forget the PTA was enacted also with those in power at the time optimistically promising that it will only be ‘temporary.’ Instead, its provisions came to replace the normal law for many decades. That past must not be repeated.