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The Janatha Vimukthi Peramuna (JVP) led National Peoples’ Power (NPP) Government’s draft ‘Protection of the State against Terrorism Act’ (PSTA) law rebuts the easy defence of apologists that the Government is more sinned against rather than being an active sinner (as such).

Repeating the abuse of the past

Put unapologetically and with the utmost gravity that the matter merits, the draft PSTA’s skillfully inserted albeit monstrous revisions cannot be viewed in a benevolent light notwithstanding the bright glow of Christmas cheer, another New Year and all that. This is despite initially approaching the draft PSTA in the optimistic belief that a ‘system change’ Government’s reinterpretation of the draft Counter-Terror Act (CTA, 2018) and the Anti-Terrorism Bill (ATB, 2023) could hardly be worse.

Confounding that optimism, it is becoming increasingly difficult to detach one-self from the horrors that the PSTA portends. Take for example, the imposing of so-called ‘Restriction Orders’ which may be issued against any ‘person’ when there are ‘reasonable grounds’ to believe that he or she is preparing to commit an offence under the Act. The Prevention of Terrorism Act (PTA), which the draft PSTA intends to replace, permits such Orders to be issued.

This is ‘where the Minister has reason to believe or suspect that any person is connected with or concerned in the commission of any unlawful activity…’ (Section 11, PTA). As such, movements of a targeted person outside the place of residence, travel without or outside Sri Lanka inter alia, may be ‘restricted’ along with similar inhibitions on activities, public meetings etc. Abused to the maximum limits, these powers were used ad infinitum against members of the JVP detained in their thousands under the PTA during its second insurrection in the South (1980’s).

The ATB’s nod to public concern

In 2018, the Wickremesinghe Government’s CTA continued the conferment of such powers. Clause 82 empowered the Minister to issue ‘Restriction Orders’ upon a recommendation made by the Inspector General of Police (IGP). That clause excited no small outrage at the time despite a cursory nod to critics by providing that an affected person may appeal to the Court of Appeal against such Orders. Responding to public concern, the ATB vested the power of issuing such Orders with the President upon the recommendation of the IGP.

Clause 80 stipulated that there must be ‘reasonable grounds’ to believe that any person is preparing to commit an offence under the Act. Further, this power was mandated to be exercised only after the Attorney General made an application to the High Court. Particular conditions had to be satisfied. Accordingly, the issuance of an Order was subject to it being ‘necessary’; for the prevention of the commission of an offence’, ‘to conduct investigations….’

The Order must also be ‘proportionate to the offence alleged to have committed or likely to be committed’ and should not amount to an ‘arbitrary deprivation of liberty or restriction on the exercise of fundamental rights, in terms of the provisions of the Constitution.’ Meanwhile, the ATB specifically provided for fundamental rights challenges to be filed to the Supreme Court against the imposing of such Orders.

Dispensing with limited
safeguards of the ATB

Reversing all these safeguards however, the draft PSTA sets the bar even lower than the PTA. Clause 64 unacceptably gives the power to apply for ‘Restriction Orders’ to ‘a police officer not below the rank of Deputy Inspector General of Police (DIG)’ who can approach the Magistrate’s Court in that regard. The consequences of this change should not be underestimated or shrugged off as unimportant in the scheme of things.

‘Restriction Orders’ under Clause 64 (3) of the draft PSTA cover a full range of prohibitions. These may curtail (a) movement outside the place of residence, (b) travelling within Sri Lanka, (c) travelling overseas and (d) travelling outside the normal route between the place of residence and a place of employment. In addition, restrictions may be placed on (e) the communication or association, or both, with ‘particular persons’ as specified in the Order.

Also included is (f) engaging in certain specified activities that may facilitate the commission of an offence under this Act. Expanding on the list as earlier contained in the ATB, the draft PSTA adds that restrictions may be imposed on (g) visiting any place specified in the Order. Such Orders may include requiring the affected person to report to a police station. Initially issued for one month, the Orders can be extended upon magisterial scrutiny to a maximum of six months.

Deliberate intent to weaken
rights protections

More seriously, the PSTA has thought it fit to ruthlessly discard all pre-conditions for issuing ‘Restriction Orders’ earlier specified in the ATB. Its framers have left the exercise of these extraordinary powers to the discretion (or lack thereof) of police officers. So to what should one attribute this deliberate departure from even the (contested) standard of the ATB other than the intent to weaken civil rights protections?

Meanwhile, the CTA’s provision to appeal to the Court of Appeal and the ATB’s right to file fundamental rights challenges against ‘Restriction Orders’ are both conspicuously absent in the draft PSTA. With warts and all, the PTA’s definition of ‘unlawful activity’ is noticeably less expansive than the long list of ‘offences’ that the draft PSTA prescribes, as discussed in some detail last week. It does not take an over-active imagination to conceive as to how this clause can be abused.

Read together with a highly worrying expanded list of ‘Terrorism Offences’ together with hair-raisingly broadly defined ancillary offences such as ‘Terrorism Associated Acts’, ‘Encouragement of Terrorism’ and ‘Dissemination of Terrorism Publications,’ the potential to violate the freedom of movement secured by Article 14 (1)(h) of the Constitution is high. The power to issue Curfew Orders and Proscription Orders are continued intact by the draft PSTA, both remaining in the hands of the President unlike in the case of ‘Restriction Orders.’

Even the ‘good’ in theory
is weak in practice

To reiterate, in what way can the draft PSTA’s weakening of minimum safeguards against abuse be accidental? This disturbing pattern of tightening Sri Lanka’s national security State at the expense of the Constitution is evidenced at a great many stages of the PSTA, much of which must be discussed later due to constraints of space. That laxity is sought to be balanced by ‘good’ provisions which remain weak in their implementation.

For instance, the PSTA stipulates that the IGP or any officer not below the rank of a DIG authorised by the IGP may apply to the Secretary, Defence for the issuance of a Detention Order against any person. ‘Reasonable grounds’ must exist to believe that an offence has been committed. Reasons must be given and the purpose specified. A suspect may then be detained in an ‘approved place of detention’ that is publicly listed and held under ‘approved conditions of detention.’

These safeguards look good on paper but our jurisprudence is littered with instances of rampant abuse of similar safeguards with frequent reprimands by the Supreme Court. Magistrates have been reprimanded for blindly following requests of police officers when suspects are produced before them. This is where expansion of police powers in laws like the PSTA poses peculiar dangers. In sum, a blithely choreographed dance in promising ‘a national security law in line with good governance’ has abjectly failed.

Disregarding bitter histories

We do not live in a nation where the Rule of Law is routinely practiced. Lived realities teach us that the security sector and law enforcement agencies are the most resistant to accountability and scrutiny. If any political party should be fully aware of that grim truth, it is those currently inhabiting the seats of the Government.

It is a pity that this bitterly historical learning has not been translated to firm policy decisions in power.