Category: News

The ICJ is concerned that the newly proposed anti-terrorism legislation, if adopted as currently formulated, will give rise to a panoply of human rights violations and, much as the existing “Prevention of Terrorism Act”, is open to misuse.

On 22 March 2023, the government of Sri Lanka published the proposed 97-page “Anti- Terrorism Bill” (Gazette notification dated 17 March 2023), which, if adopted, would replace the Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979 (PTA). The Bill purports to do away with the provisions of the PTA that were considered in violation of international human rights law.

However, the International Commission of Jurists (ICJ) is extremely concerned, in particular, by clause 4(1)(a) of the Bill, which, if adopted in its current formulation, would introduce the death penalty for “the terrorism offence of murder”. Sri Lanka has been a de facto abolitionist country for decades, given that a moratorium on executions has been in place in Sri Lanka since 1976. The ICJ is opposed to the death penalty in all circumstances, as a violation of the right to life, and as the ultimate cruel, inhuman and degrading punishment.

“Purported threats to national security, whether or not arising in connection with acts of ‘terrorism’, should not be used as a justification for the death penalty”, said Livio Zilli, ICJ’s Senior Legal Adviser.
The Bill does feature certain improvements on the PTA, such as:

— the removal of a provision pursuant to which a detainee’s confession to a police officer without the presence of the detained person’s lawyer is admissible;

— the requirement for the arresting officer to issue a document notifying the arrest to the next of kin of the accused immediately or at least within 24 hours;

— employing women police officers to arrest/question and search women;

— guaranteed access to translation in a language of the accused’s choice of information relating to the arrest; and

— an obligation to bring the detainee before a magistrate every 14 days when the person is detained without a Detention Order (DO).

However, the ICJ considers that the Bill’s other problematic aspects clearly outweigh the positives. In addition to the above-mentioned concern about the introduction of the death penalty, of particular concern is the overbroad and vague definition in clause 3 of “acts of terrorism” that can be interpreted in a manner that stifles dissent and to crush peaceful protests. Clause 16 further identifies disobeying any direction issued under the Act as a “terrorist offence”. This creates a fresh category of offences likely to be misused by the present government and future administrations against any kind of opposition.

“If enacted as currently formulated, these vague and overbroad offences, similar to and building up on those contained in the PTA, are open to abuse and, as such, they violate Sri Lanka’s international legal obligations and the country’s own constitutional guarantees under Article 13,” said Livio Zilli.
A key precondition to a fair trial under international law is that criminal offences must be prescribed by law and conform to the principle of legality. The principle of legality requires that crimes be classified and described in precise and unambiguous language that narrowly defines the punishable offence with a clear definition of the criminalized conduct, establishing its elements and the factors that distinguish it from conduct that is not criminally proscribed. Criminal law must not proscribe any act or omission in terms that are vague, imprecise, arbitrary or overly broad. Vague laws undermine the rule of law because they leave the door open to selective and arbitrary interpretation, law enforcement and prosecution.

Moreover, if enacted in its current form, the bill would provide limited judicial oversight while granting law enforcement officials additional powers than those they currently enjoy under the PTA. For example, under clause 28 (2)(a) the Magistrate may not review a detention order made by any Deputy inspector general of police (DIG) in the country. Pursuant to clause 28 (b) (iii) as currently formulated, when a detention order has not been issued or placed before the Magistrate, a Magistrate could discharge an accused only if the Officer-in-Charge of the police station requested it and the Magistrate agreed to it. Such provision infringes the separation of powers by arrogating to the police a power that is properly that of the judiciary — in this instance by making the decision of the Magistrate to discharge the accused dependent upon the Officer-in-Charge requesting the accused’s discharge in the first place.

The maximum period of detention under a detention order is 12 months (clause 37) with the police having to file a confidential report that includes the allegation against the accused, the investigation’s findings and the reasons for further detention, with a Magistrate after the first three months (clause 36). The Magistrates cannot review a detention order ordered by a DIG. In the absence of a detention order, the accused is to be brought before a Magistrate every 14 days (clause 38).

While the Bill allows for Magistrates to visit places of detention and for the accused to have access to lawyers, Sri Lanka’s experience under the PTA in the last 44 years has shown that such safeguards do not offer much protection since Magistrates often do not have the time to visit places of detention, such as prisons, due to their workload. Similarly, even if detainees are granted access to lawyers, it has rarely ever been in private.

If adopted as currently formulated, the Bill would establish two bodies, namely the Board of Review chaired by the Secretary of the Ministry of Defence, and an Independent Review Panel to be appointed by the President, purportedly to ensure oversight. However, such bodies would lack the required independence necessary to carry out any effective oversight of the enforcement of the law. Rather, it would seem that, instead of acting as necessary checks on police abuses, both bodies would likely be helpful in concealing any irregularities that may characterize the legislation’s enforcement.

The Bill also empowers the President to proscribe organizations on the recommendation of the Inspector General of Police (IGP) or of the government if there are ”reasonable grounds to believe” that the concerned organization has engaged in an act amounting to an offence under the proposed law or in “an unlawful manner prejudicial to the national security of Sri Lanka” (clause 82).

The President may also declare any place: a ”prohibited place,” if so requested by the IGP or the commanders of the armed forces or the Director General of the Coast Guard (clause 85). There is no time limit set for the period of prohibition and any place can potentially be declared a “prohibited place”. This easily allows for repression of any dissent since the police need not have to go before the Magistrate to obtain time limited restraining orders against protests as is the current practice, but instead, immediately get the site of protest declared a prohibited place. Such acts violate the right to be free from arbitrary arrest as per Article 13 of the Constitution, as well as the freedoms of speech and expression, of peaceful assembly and of association all protected under Article 14 of the Sri Lankan Constitution.

Further, the President may also issue regulations to implement “rehabilitation programmes” for persons for whom the Attorney-General has recommended a deferment or suspension of criminal action (clause 100). This is especially concerning since, in the past, accused persons have been coerced into accepting “rehabilitation”, particularly in cases where the State has had little or no evidence to put them on trial.

The ICJ has consistently called for the repeal of the Prevention of Terrorism Act, which has been used to arbitrarily detain suspects for months and often years without charge or trial, facilitating torture and other abuse. United Nations human rights bodies, including most recently the Human Rights Committee, have consistently called on Sri Lanka to enforce a moratorium on the use of the Prevention of Terrorism Act pending repeal and to repeal the Act. In this connection, the ICJ renews its call on Sri Lanka to repeal the PTA and immediately halt attempts to replace it with an even worse piece of legislation, as it is the case with respect to the current draft of “the Anti-Terrorism Bill”.

Further details have surfaced following the destruction and vandalism of the Athi Lingam and theft of various consecrated items from the temple. The Athi Sivan Kovil atop the Vedukkunaari mountain in Vavuniya, which has been a place of worship for Tamil people for many generations has been renamed as Waddamana Parwatha Viharaya on Google Maps. Additionally, the Archaeological Department of Sri Lanka has declared it to be an ancient Buddhist site.

In the past few months, the Archaeological Department had obstructed the temple administrators and worshippers by banning them from entering into the temple premises. This follows a case filed against the temple administrators by the Archaeological department at the Vavuniya Magistrate course in 2021.

The destruction of a heritage site of Tamil people has not only caused great distress among the public, but also has elicited strong condemnation of the destruction and vandalism. In the morning of 27th March, the Temple administrators lodged a complaint against the destruction and vandalism at the Nedunkerny Police station and students protested against the incident in front of the Jaffna University. They raised slogans such as “The Buddha who detached himself from the mind, is attached to our land”; “Is there no end to the hubris of Saffron robed monks?”; “Army, Navy, get out of our land,” “Archaeological Department, get out.”

One of the slogans “Vedukkunaari, Katchatheevu, Delft are our heritage” highlighted the ongoing rapid Sinhalisation of the Tamil homeland.

The temple administrators also made a complaint at the Human Rights Commission in Vavuniya against the Archaeological department, whom they suspect to be behind the destruction of the temple. Following their complaint, the temple administrators spoke to the media. They said,

“Following the ban issued by the Archaeological department from us entering the temple, it was the department’s vehicles that continued to go in and out of the temple premises. This is why we suspect the Archaeological department’s involvement in this act of vandalism. Everyone can see the ongoing Sinhala colonisation. This has caused great distress and we strongly condemn these acts.”

A protest involving multiple faith leaders took place in Nallur. Following these incidents many public figures in the North have come forward to express their concerns over these developments. Particularly, Fr Sakthivel, a long-standing advocate for Tamil rights said,

“The destruction of the Vedukkunaari mountain temple is a well-coordinated political move that is rooted in racism to provoke Saiva people into committing violence. Not only do we have to condemn these acts, but if we don’t call out the politics of it, the religious leaders, those in power, including Tamil politicians, we will experience a Mullivaikkal of politics.”

The temple administrators have also issued a public call to a mass protest against these incidents. The protest will be held on Thursday, 30th March, at 9:30am from Kandasamy Temple. The protest intends to march up to the Vavuniya District Secretariat. The administrators have called upon organizations, political parties, religious leaders, the public, and activists to join the mass protest to condemn the ongoing Sinhala colonisation.