Govts 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 counterterrorism 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 -Friday, 11 November 2016
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 Lankas statute books; and poses a fundamental threat to
democracy and civil liberty. Despite the PTAs 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
Lankas new counter-terrorism legislation would be in line with Sri
Lankas 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 Ministers 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 counterterrorism laws more consistent with Sri Lankas international
obligations. Two of the dissenting members - Attorney at Law
Suren Fernando and Sri Lankas 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 counterterrorism 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, Presidents 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 FTs
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 counterterrorism, 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 counterterrorism 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
Governments 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 Lankas history of abuse with antiterror 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 Lankas 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 rightsbased 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 rightsbased 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.
Posted by Thavam