Counter Terrorism Bill challenged in SC

Seven petitions challenging the constitutionality of the proposed Counter Terrorism (CT) Bill were taken up by the Supreme Court on Friday, with Counsel, including from the Attorney General’s (AG) Dept, making oral submissions.

The proposed Bill was tabled in Parliament on October 9 and, if passed, it would repeal the Prevention of Terrorism (Temporary Provisions) Act (PTA), No. 48 of 1979 (PTA), and introduce a new regime for the prevention of terrorism and other offences associated with terrorism committed within or outside Sri Lanka.

The petitioners are Duminda Nagamuwa represented by Niran Anketell, Young Lawyers’ Association and M. S. Chandrasekera represented by Nuwan Bopage, Wimal Weerawansa represented by Manohara de Silva P.C., S.C.C, Elankovan and S.S. Abdul Saroor represented by Pulasthi Hewamanna, Aslam Othman represented by Hejaaz Hisbullah and K. M. R. Fernando, Geethika Dhar masinghe, Shiran Illanperuma and Ekeshwara Kottegoda Vithana represented by Ermiza Tegal.

Counsel for petitioners argued that the Bill removed discretion of the Magistrate to grant bail and compelled him or her to act in accordance with requests of the police, which was an alienation of judicial power and violated Article 3 of the Constitution.

Additionally, the failure to permit the Magistrate the power to review detention orders, violated Article 13(2), they argued. That Article requires that any post-arrest detention be authorised by the Magistrate in the nearest location and no one else.

The Bill requires a two-thirds majority, as the PTA was also passed by such a majority, it was submitted. Meanwhile, the Minister is permitted to proscribe organisations that act in a manner prejudicial to national security, even if such organisation is not involved in criminal conduct.

“National security” was “overbroad and undefined”. Similar “overbroad” definitions meant that “compelling any Government to do something” by committing even low level offences such as grievous hurt, would amount to terrorism. When a detention order is to be extended, the Police can file a confidential report to the Magistrate, which could effectively lock out the suspect, creating a “system of secret justice that is unprecedented in Sri Lanka”, it was submitted.

Counsel said the Act gives unprecedented powers to an SSP to prevent movement in certain areas, prevent people from coming in or going out, prevent services, etc, based on “nothing more than information received, and not even a reasonable suspicion”.

It was also argued that the Bill introduces an entirely new criminal justice scheme which consists of a series of offences based on a broad definition of terrorism that is not in line with international standards. It will create a parallel criminal justice system. There is wide discretion given to a police officer or member of the armed forces to arrest a person under this Law.

This definition considers such broad factors as an intention to “intimidate a population” or to “prevent any such government from functioning” as sufficient to establish the offence of terrorism, Counsel argued. This definition also includes a range of acts which go beyond causing violence to persons, to incorporate damage to property, obstructing essential services and causing risk to the safety of the public.

Submissions were made by the AG’s Dept to the effect that counter terrorism legislation is necessary to effect the criminal justice response to terrorism.

ASG Yasantha Kodagoda, DSG Nerin Pulle, SSC Yuresha de Silva and SC Kanishka de Silva pointed out that separatist terrorism nearly led to cessation of the State. While there is peace now, there is no assurance that terrorism would not raise its head again, Mr Kodagoda submitted. He said the definition of terrorism was difficult to develop and agree on.

“The definition in the CT Bill is homegrown, having taken into account definitions of terrorism in other countries, and our own experiences, and contemporary forms of terrorism,” he said.

The PTA had several deficiencies, counsel for the AG’s Department argued. It did not have an offence of terrorism and the offences contained therein only reflected the type of offences terrorists committed in the late 70s. It had certain systemic features which may have contributed towards violations of Fundamental Rights. "Therefore, a decision was taken to repeal the PTA and replace it with a more efficacious CT Law, which takes into account contemporary forms of terrorism and respond to challenges faced when investigating, apprehending and prosecuting terrorists," Mr Kodagoda said.

In response to the allegation by Manohara De Silva P.C., that the proposed Law is impotent insofar as dealing with Sri Lankan diaspora (now citizens of other countries), Mr Kodagoda said the Bill, when enacted, can be used even with regard to ex-Sri Lankans who may be citizens of another country, if they engage in conspiracy or preparation to commit terrorism in Sri Lanka. Submissions continue tomorrow.