Counter-ter­ror­ism draft: Han­dle with care

Sunday Times (Sri Lanka) - - NEWS -

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.

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