Complexities of framing anti-terror laws

Justice and National Integration Minister Harshana Nanayakkara on Tuesday presented the ‘Protection of the State from Terrorism Act’ (PST) Bill to parliament. This is in keeping with the election manifesto to the NPP in which repealing the Prevention of Terrorism (Temporary Provisions) Act (PTA) No. 48 of 1979 and replacing it with a new anti-terror law was among the main pledges. Since the bill was published in the gazette a couple of weeks ago, there has been much discussion about it with some sayings it is the same old wine in a new bottle while others see some positive features in the proposed law.

Most countries have anti-terror laws in place given that terrorism impacts globally. Despite this, a standardised definition of terrorism does not exist. The problem has to do with the widely held notion that ‘one man’s terrorist, is another man’s freedom fighter.’ Hence the complexity of formulating a one size fits all definition for terrorism

Due to this, definitions of terrorism have been largely left to the discretion of States, leading to varying interpretations in domestic counter-terrorism legislation. According to the UN Human Rights Commission (UNHRC), ambiguous definitions of terrorism in some States have led to policies and practices that violate the fundamental freedoms of individuals and populations and discriminate against particular groups.

In October 2004, the United Nations Security Council adopted a resolution to address the global threat of terrorism. It described the key elements of acts of terrorism. As far as a definition goes, it is on the lines that terrorism involves the intimidation or coercion of populations or governments through the threat or perpetration of violence, causing death, serious injury or the taking of hostages.

It is in the light of these complexities that the Sri Lanka Government is framing a new anti-terrorism legislation.

There are some significant changes in the PST Bill when compared with the PTA including defining the “offence of terrorism” as committing specified acts such as causing death, grievous hurt, hostage-taking, or serious damage to public infrastructure/cyber systems, provoking a state of terror in the public to advance a political or ideological objective etc. The PTA by contrast, does not contain an explicit, overarching legal definition of “terrorism”.

The proposed bill also states that engaging in peaceful protest, advocacy, dissent, strikes, or legitimate humanitarian activities is not a basis for inferring terrorism and excludes fair and accurate journalistic reporting, civil society advocacy, academic research, satire, and legal representation from terrorist offences. The PTA on the contrary was more draconian and there were no clear lines on what could be construed as an act of terrorism.

However, despite the improvements there are concerns that the law still leaves room for abuse. Those opposed to the bill say that the vague definition of terrorism and threats to national security will allow widespread abuses. One issue of concern is the new law permits arrests without a warrant and pre-trial detention of up to 18 months.

Now that the new bill has been tabled it could be passed within the next four to six weeks. The Government could be hurrying the process with the extension of the GSP Plus preferential trade facility due by December. One of the main concerns of the European Union has been the PTA and the group has been calling for its replacement with a more progressive legislation. Sri Lanka would need to make a fresh application for GSP+ tariff benefits as the current scheme will expire on 31 December 2026.

The PTA has outlasted its time by many decades and there is no question it must go. But in doing so, the replacement legislation should not become a bigger hurdle to the public and stifle individual rights and shrink the space for civil society. This is why the process will continue to be closely watched, not only in Sri Lanka but also internationally.