Govt’s proposed counter-terrorism policy faces storm of criticism

Journalist J. S Tissanayagam was detained by the TID, indicted on charges of inciting communal disharmony and convicted and sentenced to 20 years RI, all under the provisions of the Prevention of Terrorism Act. He was subsequently granted a presidential pardon

A leaked draft of the Government's proposed counter-terrorism policy and legal framework that widens the net on terrorism-related offences has made human rights activisits in the country jittery, while lawyers say the proposed draft language for a new Counter-Terrorism Act (CTA) fails to address fundamental failures of the draconian PTA that it will replace. Some members of the draftin committee admit that the policy needs refining but insist the proposed legal framework offers several new safeguards to prevent abuse. But attempts by sections of the Government to suppress dissent officially recorded in the committee that finalised the policy in August 2016, have also raised fears about the Government's reform agenda being hijacked by proponents of the security state within the administration.

 By Dharisha Bastians 

On 7 March 2008, when journalist J. S. Tissanayagam walked into the Terrorism Investigation Division (TID) office in Colombo to inquire about an arrested colleague, he was detained for six months without charge, indicted on ‘inciting communal disharmony’ for writing articles alleging that the armed forces had committed war crimes, and convicted by the Colombo High Court and sentenced to 20 years rigorous imprisonment. 

On 8 February 2010, just days after he was defeated in a presidential contest, former Army Chief Sarath Fonseka was arrested and charged for ‘inciting communal disharmony’ and ‘propagating rumours’ over his disclosures about now widely credible claims about the ‘white flag incident’ at the end of the war. 

Six years later, human rights activist Ruki Fernando and Fr. Praveen Mahesan were arrested by the TID inside the village of Dharmapuram in Kilinochchi, when they were documenting the arrest and detention of Balendran Jeyakumari, a disappearances activist who had been arrested by the same unit on suspicion of harbouring a former LTTE cadre. 

All three detentions were made under the Prevention of Terrorism Act and Emergency Regulations but none of the arrests had anything to do with counter-terrorism efforts. They were part of a systematic Government crackdown on democratic dissent. As of August 2016, according to Government data, six individuals remain in TID custody as PTA detainees, while 44 persons arrested under the anti-terror laws are presently in judicial custody, awaiting trial. 

Since its enactment in 1979, as temporary provisions valid for only three years, the Prevention of Terrorism Act (PTA) has been widely denounced as the most draconian and oppressive law in Sri Lanka’s statute books; and poses a fundamental threat to democracy and civil liberty. Despite the PTA’s potential for widespread abuse as an effective tool to suppress political dissent, a case for repealing the law was difficult to make during the war, when rigid counter-terrorism measures had to be seen to be in place in the wake of brutal terror attacks all over the island by the LTTE. In fact in 1982, Parliament amended the law, repealing the three-year expiry on the provisions and making the PTA a permanent Act of Parliament. 

When the war ended in 2009, calls mounted by international human rights groups for the repeal of PTA. In 2010, the European Union presented a list of 15 conditions that if met, would make the country eligible for GSP plus - duty concessions that give Sri Lankan exports greater access to European markets. A key condition in this list was the repeal of provisions of the PTA that remained inconsistent with the International Covenant on Civil and Political Right (ICCPR) that Sri Lanka has ratified. While its predecessor dismissed the conditions out of hand, the new Government that swept to office in the January 2015 elections restarted negotiations on the European trade concessions, to stimulate the economy and boost exports. A Government decision to co-sponsor a UNHRC resolution in September 2015 strengthened the case for new legislation to replace the PTA. The resolution also called for repeal of the PTA and Foreign Minister Mangala Samaraweera promised the Council in Geneva that Sri Lanka’s new counter-terrorism legislation would be in line with Sri Lanka’s international obligations. 

One year later, as the Government races to meet these international commitments, a new counter-terrorism policy being proposed is mired in controversy, with some activists, human rights lawyers and opposition parliamentarians denouncing a draft of a document leaked a few weeks ago as ‘worse than the PTA’. 

Human rights activists like Ruki Fernando, who have personally experienced the effects of the PTA on dissenters, says the new policy would have a “chilling effect” on all forms of dissent, including legitimate political activity. In a letter addressed to President Maithripala Sirisena, lawyers and civil society activists insist the new proposals fail to address fundamental concerns with the PTA and further weaken human rights standards and protections. 

Widening the net

Of particular concern to critics of the draft counter-terrorism policy is an expanded section on offences under the proposed act, open to broad interpretation by law enforcement. 

The criticism of the counter terrorism policy proposed to the Government is centred around the new offences added to the proposed legislation and its failure to address fundamental problems with the PTA - namely the admissibility of confessions as evidence and the lack of access to lawyers, said leading Human Rights Lawyer and TNA MP M. A. Sumanthiran, speaking to Daily FT. “So the same restrictive processes are in place, but the net is much wider now on terrorism related offences,” he explained. 

During a two-day High Level Dialogue on Counter Terrorism and the proposed CTA, organised in collaboration between the Government and the United Nations for Government officials this week, independent counter-terrorism and human rights experts said the offences contained in the draft were “very broad in nature”. These experts explained that according to the UN Counter-Terrorism Implementation Task Force (CTITF) guide on conformity of national counter terrorism legislation with international humanitarian law, the definition of terrorism “must be clear and precise and not be overly broad.” 

Writing in the Oxford Human Rights Hub this week, human rights lawyer Gehan Gunatilleke points to Clause XVIII in the section of the new policy titled ‘Terrorism related offences’ which criminalises ‘words either spoken or intended to be read that threaten the unity of Sri Lanka’. Gunatilleke argues that this clause, if enacted, could seriously impede free speech in Sri Lanka and restrict the space for resisting impunity and the abuse of power. 

“For example, a journalist who criticises discriminatory language policy in the public sector could be accused of ‘threatening the unity’ of the country. Moreover, civil society advocates who press for the prosecution of war criminals and perpetrators of religious violence could be accused of ‘threatening unity’ through their advocacy,” he writes. 

Another clause under the broad offences included in the proposed legislation that has caused general disquiet, is the provision that refers to ‘illegally causing a change of Government of Sri Lanka’ (Offence of Terrorism clause c). Critics say this provision could be used to interpret political protests and demonstrations as attempts to ‘illegally’ overthrow a Government.

Government officials insist that the “Policy and Legal Framework of the Proposed Counter-Terrorism Act of Sri Lanka”, is not draft legislation, or even policy endorsed by the Government. A committee made up of bureaucrats, security sector officials, military chiefs and independent lawyers was appointed by the Prime Minister’s Office in April 2016, to propose a legal framework for the new counter-terror laws. This committee (see box for committee members) was chaired by Law and Order Minister Sagala Ratnayake and presented its report to the Prime Minister on 31 August 2016, four months after it began deliberations. The committee met on 23 occasions and the policy was subject to 20 revisions before it was finalised, authoritative sources told Daily FT. 

But even within this Government-appointed committee, divisions emerged about the language of the draft. Three members of the committee dissented with the majority version of the draft policy, urging more refined provisions that would make the new counter-terrorism laws more consistent with Sri Lanka’s international obligations. Two of the dissenting members - Attorney at Law Suren Fernando and Sri Lanka’s Permanent Representative to the UN in New York Dr. Rohan Perera PC, who participated in the deliberations in their personal capacity, proposed numerous footnotes recording their objections and suggesting amendments to the text, authoritative sources with knowledge of the deliberations told Daily FT. Foreign Secretary Esela Weerakoon, who represented the Foreign Ministry at the committee, also endorsed the dissenting opinions. Among the Ministry secretaries present, including from the Ministries of Defence, Law and Order and Justice, Weerakoon was the only official to endorse the dissenting views. 

Without footnotes

However, when the policy was circulated at the Cabinet of Ministers last month, the draft presented did not contain the 23 footnotes that implied the committee had been divided on some sections of the draft. 

Foreign Minister Samaraweera, whose Ministry has become the sole Government agency advocating more progressive counter-terrorism legislation, sought to rectify the omission by submitting several key observations by the two independent lawyers in the committee, that were fully endorsed by the Foreign Secretary who was also party to the deliberations. Minister Samaraweera circulated a three-page document among members of cabinet as an observation with regard to the policy drafted by the committee. 

“The following observations are made with regard to the Report (of the majority of the members) of the Committee appointed to propose a Policy and Legal Framework with regard to a Counter Terrorism Act of Sri Lanka. I also note that the Secretary, Ministry of Foreign Affairs Dr. Rohan Perera, President’s Counsel, and Mr. Suren Fernando, Attorney-at-Law had expressed views along the lines of the observations contained in one, three and four below, and in respect of these matters, (as well as other matters specified by them in their dissenting views), indicated that they did not agree with the views contained in the Report of the majority. The dissenting views have not been circulated along with the Report of the majority, and some of the key views are covered in one, three and four below,” the note circulated in Cabinet by Minister Samaraweera said. 

The dissenting observations by Fernando and Dr. Perera, according to the Foreign Ministry briefing note in Daily FT’s possession, included reducing the period of detention to 48 hours before a suspect is produced before a magistrate, access to counsel any time after arrest, warnings that admissibility of confessions by detainees to the police could incentivise torture and suggests confessions be recorded by a magistrate instead. 

Prime Minister Ranil Wickremesinghe, who presented the policy to Cabinet last month, sought approval to send the report to a Parliamentary Sectoral Oversight Committee on National Security for observations. On 11 October the Cabinet decided to submit the document to the oversight committee with the dissenting observations.

At a workshop for members of Parliament on Monday (6) at which some members of the Sectoral Oversight Committee on National Security were also present, Additional Solicitor General Yasantha Kodagoda PC, who was a member of the drafting committee, gave a brief presentation on the proposed legal framework for counter-terrorism, and admitted that the draft had not been unanimous. 

Many of the dissenting observations seek to bring the proposed draft legislation in line with international best practice, ICCPR principles and international law, Daily FT reliably learns.

According to Article 9 (3) of the ICCPR, the requirement is to bring arrested persons “promptly” before the court, while the UNHRC General Comment on Article 9 stipulates that recognizes that 48 hours should be the maximum period between arrest and production before a judge.

International standards

The dissenting view suggests reducing the initial detention period before a detainee is produced before a magistrate to 48 hours, while the majority version has chosen to retain the 72 hour detention period in the existing PTA.  Dissenting observations in the drafting committee report on counter-terrorism policy discourage the admissibility of confessions at evidence, unless police officials are removed from the equation and confessions are recorded by a magistrate. 

The admissibility of confessions has been a long-standing grievance about the existing PTA. Confessions in custody are still admissible as evidence in many commonwealth jurisdictions including UK, Canada and Australia, which have sufficient safeguards to prevent abuse and torture. The new counter-terrorism policy and legal framework proposals, attempts to provide several safeguards against confessions under torture, by making an examination by a forensic medical specialist a statutory obligation both before and after the confession is made, and raising the rank of the police officer allowed to hear and record confessions. Another important safeguard, members of the committee say, is that the new draft shifts the burden of proof, making it incumbent upon the prosecution to prove that confessions were given voluntarily. Under the PTA, the suspect had to prove that his or her confession was involuntary and granted under duress. 

But human rights lawyers warn that the admissibility of confessions must be looked at in the context of systematic use of torture in police custody to extract information. The Human Rights Commission of Sri Lanka (HRCSL) in a report to the UN Committee Against Torture in October 2016, said that torture was “routinely used in all parts of the country”. The Commission also noted that 13 persons arrested under the PTA since April 2016 have complained of ill treatment and torture either at time of arrest or during initial interrogation. Despite the criticism, there are some redeeming features of the new CTA policy and some improvements on the existing PTA but activists and lawyers say this is much less than expected. 

The detention period has been reduced under the new policy, from 18 months without trial under the PTA, to a maximum of 180 days or six months. Under the proposed counter-terrorism provisions, a 30-day detention order is extendable up to a maximum of six times and a magistrate may review the order after 90 days. Attempts have also been made in proposed CTA policy to minimise torture by guaranteeing detainees a private interview with a magistrate to inquire into his/her wellbeing who can refer the individual to a forensic medical specialist if there are allegations of ill-treatment or torture. If the medical exam confirms mistreatment, the magistrate can change a detention centre and remove detainees from the custody of officials accused of abuse. Access to counsel provisions contained in the new policy - a major issue with the PTA - have also been marginally improved, by stipulating that a detainee must be granted access to a lawyer following the recording of his first statement by police or after 48 hours lapse in detention. Under the existing practice, lawyers must request the TID for access to detainees and such access is granted at the discretion of the TID. Under the new provisions, a detainee can refrain from giving any statement to the police, and once the 48 hour period ends, access to a lawyer is guaranteed.

Rights-based approach

The attempt to suppress the ‘footnotes’ recording dissent by independent legal experts in the committee that drafted the new counter-terrorism policy has highlighted tension between reformist sections of the Government and a bureaucracy and security establishment with different institutional priorities, one human rights lawyer told Daily FT on condition of anonymity. The over-broad definitions of terrorism and the wide-ranging terrorism-related offences stand in direct contrast to the Government’s stated aims of reforming anti-terror legislation in adherence to international standards, these critics say. “The proposed language is like something only proponents of an overbearing security State could dream up,” the lawyer explained.

During the two day UN workshop for Government officials, representatives of the Office of the High Commissioner for Human Rights (OHCHR) and the Human Rights Commission of Sri Lanka – invited on the insistence of the Foreign Ministry - strongly opposed the content of the proposed CTA policy in its current form, Daily FT learns. HRCSL Chairperson Dr. Deepika Udugama told Daily FT that the Commission had only received an official copy of the CTA Policy this week, after making three separate requests for the draft from the Ministry of Law and Order. “The Commission is studying the report and will release a statement once that process is completed,” Dr. Udugama said.

With opposition mounting against the proposed legal framework on counter-terrorism - that the Government is yet to endorse and refer to the legal draftsman - two schools of thought are emerging on the new policy. The first, endorsed by civil society activists, is that the new policy must be withdrawn in its entirety. The other, endorsed by Government officials and members of the drafting committee, is that the framework can be tweaked, its language and definitions refined and tightened and amendments made to the proposed provisions that will bring the legislation in line with international standards. Sri Lanka’s history of abuse with anti-terror legislation makes it incumbent upon the Government to ensure that the new legislation will include a strong system of checks and balances, opens counter-terrorism processes to judicial review and minimises potential for abuse in the future. Seven years after the end of the war, Sri Lanka’s approach to combating terrorism, like its human rights agenda, remains hostage to a legacy of conflict. Just over two years from now, the country will mark a decade in post-conflict, but the tectonic shift from a war mentality that must happen within the security and intelligence apparatus and the bureaucracy has barely even begun. While national security will remain a major Government priority for years to come, the need for a paranoid security State is dissipating and State actors can now begin to adopt a rights-based approach to security sector legislation and reform like the CTA. In fact, counter-terrorism and human rights need not be mutually exclusive, says Bhavani Fonseka, a lawyer and senior researcher at the Centre for Policy Alternatives. A strong rights-based legal framework could also complement counter-terrorism efforts and ensure Sri Lanka meets its international obligations. “There are crucial links between human rights, rule of law and security,” Fonseka said. The sentiment was echoed in an Organisation for Security and Cooperation in Europe manual titled ‘Countering Terrorism, protecting human rights’ released in 2007. 

“Counter-terrorism strategies that are compliant with human rights not only avoid certain legal pitfalls, but may also prove more effective in the long term at winning the ideological battle against terrorism than strategies that themselves violate human rights. The notion of human rights protection has often been presented as being in conflict with protection from terrorism. Nothing could be further from the truth.”