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It is mystifying as to why the National Peoples’ Power Government sanguinely placed a draft ‘Protection of the State against Terrorism Act’ (PSTA) before the Sri Lankan public at the cusp of the dawning of a New Year, almost as if to pat itself on the back for a highly commendable act.

‘Bad’ Bills not susceptible to ‘good’ amendments

That is so despite the contents of the draft law confounding any inclination towards congratulations at several incisive points. In a fourth reflection on the draft PSTA in these column spaces, I return to the question asked at the start of this uncomfortable exercise. Is this displeasing document a result of confusion worse confounded on the part of the Government even while President Anura Kumara Dissanayake expounds on ‘balancing’ civil liberties with national security?

Suffice to say that the draft PSTA embodies no ‘balance’ as such in professing to replace the Prevention of Terrorism Act (PTA). It is no defence to plead that the draft narrowly confines its revisions to what the Supreme Court recommended in relation to the draft PSTA’s predecessor, the Anti-Terrorism Bill (ATB, 2023). When examining a Bill for its constitutionality, the Court does not engage in policy making or legal drafting.

Rather, it is the Government which is duty bound to ensure that its Bills reflect its mandate. It is also no excuse to explain that this is a ‘working draft’ subject to amendment. To be clear, the draft PSTA is not amenable to such an effort given its very many problematic clauses. In fact, the NPP Government’s walking back of even the few praiseworthy aspects of the ATB raises outstanding concerns, some of which have already been pointed to.

Cautions against abuse of power stripped away

The draft PSTA’s liberty to issue Restriction Orders against individuals continues to be a veritable sore point in that regard. To give the devil its due, the Wickremesinghe Presidency’s ATB reflected conformity to Rule of Law safeguards at least here. This power was mandated to be exercised by the President upon a recommendation of the Inspector General of Police (IGP) and consequent to the Attorney General making an application to the High Court.

Shrugging these safeguards off, Clause 64 (1) of the draft PSTA gives this extraordinary power to any police officer not below the rank of a Deputy Inspector General of Police (DIG). That is subject only to having ‘reasonable grounds to believe’ that any person is preparing to commit a ‘terrorism offence.’ The slew of cautions under the ATB including that the Orders can only be made if they are established as being ‘necessary’ for the specified purpose, are all stripped away.

Where Proscription Orders are concerned the draft PSTA follows the ATB but includes additional prohibitions. Further, the ATB required Proscription Orders to be issued for 1 year initially; there was no automatic extension. The President was obliged to take into account, ‘contemporary and reliable information and security needs’ in extending for further periods and that too, for periods not exceeding one year at a time.

Worrying impact on the media

That has changed under the draft PSTA.  Clause 63 (6) briefly declares that ‘a Proscription Order made under this section shall remain valid until rescinded.’ In other words, there is no prescribed time period; such Orders extend infinitum with no requirement for periodic re-consideration in the light of potentially changed circumstances. When read with Clause 6, there are grounds for concern. This makes it an offence inter alia, to cause the ‘dissemination of information on behalf of a proscribed organisation…’

Will this catch up, legitimate reporting on such organisations? The 2018 draft Counter Terrorism Act (CTA) also contained a variety of offences associated with a proscribed organisation including contributing money to a proscribed ‘terrorist organisation’ (Clause 10). But compared to both the ATB and the CTA, the PSTA is unacceptably lax. Certainly one cannot cavil at prohibitions imposed on recruiting cadre to a proscribed organisation for example.

But what is worrying is the undue latitude taken in framing the range of prohibited activities.  Additionally, while Clause 6 is subject to a proviso protecting an attorney at law discharging his professional duties in regard to a ‘proscribed organization’, there is no such generosity shown for media reporting on the same. Quite apart from its obligations to Sri Lankan citizens, how will such regressive departures impact internationally?

International best practice

The NPP Government has repeatedly pledged to the European Union that Sri Lanka will abide by global best practices when bringing in a replacement to the PTA. These guarantees are necessary to ensure continued access to the GSP Plus preferential trade facility. That was once revoked in 2010 for inter alia, not ‘effectively implementing’ key human rights conventions to which we are a signatory.

Taking one aspect of this promise, the international legal standard stipulates that the exercise of powers under anti-terrorism laws must be ‘necessary for the purpose’ and proportionate thereto. This is why the ATB brought in that requirement at several levels when conferring powers. This principle is well illustrated by Gillan and Quinton v the United Kingdom (2010) in which the European Court of Human Rights (EUCT) struck down ‘stop and search’ powers conferred on the police.

This was by way of ‘authorisations’ issued by the Government under the (now repealed) Sections 44 and 45 of the UK’s Terrorism Act of 2000 under which the police could act when it was ‘expedient’ to prevent ‘acts of terrorism.’ Upon their pleas being rejected by the Court of Appeal and the House of Lords, an anti-war demonstrator and a journalist who had been ‘stopped and searched’ by local police in the vicinity of a demonstration against an ‘arms fair,’ appealed to the EUCT.

Importance of precise language 

The Court found that the powers on which the police acted were neither sufficiently circumscribed or subject to adequate legal safeguards and were not ‘in accordance with the law,’ holding a violation of Article 8 (right to respect for private life) of the Convention. In consequence, then UK Prime Minister Theresa May imposed a stricter test to require the powers being exercised when that is ‘necessary’ to prevent terrorism rather than when ‘expedient’ to do so.

This case underlines the importance of the use of precise legal language which Sri Lanka could learn from. Clause 58 of the draft PSTA, for instance, allows the Secretary to the Ministry of Defence to order that a person in remand custody be kept in the custody of ‘any lawful authority’ until the conclusion of the trial. This is if the Secretary is of the opinion that it is ‘necessary’ or ‘expedient’ to do so in the interests of public security or public order.

The PSTA adds another element of, ‘where there is a threat etc of serious harm to the life of the accused…’ Regardless, terms such as ‘expedient’ need to be taken out; they have no place in the context of ‘balanced’ anti-terrorism laws. But overall, what exactly is the ‘intent’ behind the draft PSTA?  Is there an intentional effort towards civic repression in the same spirit as Ministerial threats to cancel licences of private media channels and the like, that are tossed around?

Oppressive laws may become karmic justice

This is tantamount to a ‘good cop, bad cop’ strategy. In other words, Ministers present ‘bad’ laws while the President reassures no evil intent. Quite apart from what may be useless appeals to stay true to election manifestos, there is a hard truth which the NPP Government may be reminded of.

No regime rules in perpetuity. Oppressive laws passed by one administration become the bedrock of repression by its successor against the very leaders who passed the laws in the first place.

Sri Lankan history is replete with instances of such poetic and/or karmic justice.