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ATA: Neither the proponents nor the opponents know the ‘laws of terror’

“The object of life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane” 

– Marcus Aurelius Antoninus

By Dinesh Dodamgoda

The Morning: The Government published an Anti-Terrorism Bill (ATB) in the gazette on 23 March, with the primary aim of abolishing the controversial Prevention of Terrorism Act (PTA). Yet, amid opposition, the Government delayed tabling the ATB in Parliament.

The preamble to the ATB states, among other things, that terrorism in its various forms and manifestations is a threat to the ‘community of nations’. Therefore, Sri Lanka is under obligation to enact laws to give domestic legal effect to international instruments relating to countering any acts of terrorism and related actions to which Sri Lanka has become a signatory. 

Furthermore, Sri Lanka is committed to and desirous of eradicating and preventing domestic and international terrorism through enforcing an effective system for administering criminal justice against terrorism based on international norms, standards, and household needs. 

Thus, as expressed, the ATB aims to fulfil Sri Lanka’s global responsibility of preventing terrorism by upgrading the rule of law standards in implementing universal anti-terrorism instruments.

The opponents placed the ATB, among other things, in the context of the abuse of the PTA and Emergency powers carried out by the Executive branch of the State. Hence the opposition to the new bill was mainly based on protecting the rights of minorities, critics, and protesters from a ‘culture of torture and impunity’.

For the opponents of the ATB, the bill introduces new offences that could restrict the freedom of expression, gives new tools to the Executive branch to crack down on dissent and criticism, enables the Police DIGs to authorise detention orders, furnishes the President with discretionary powers to proscribe organisations, and enables the President to make new regulations under the act as per his wishes and whims. Furthermore, the bill contains overly broad definitions of the ‘offences of terrorism’ and vague and undefined elements.

As the reader may understand, arguments for and against the ATB are palatable to audiences with similar values; Sri Lanka must upgrade the rule of law standards in implementing universal anti-terrorism instruments whilst protecting fundamental rights from a ‘culture of torture and impunity’. Yet, where to draw the border line and find equilibrium?

The islanders’ mentality

The islanders’ mentality of Sri Lanka towards Counter-Terrorism (CT)/Anti-Terrorism (AT) was demonstrated by the Presidential Commission of Inquiry’s (PCoI) final report on the Easter Sunday attacks that attempted to examine State responsibility to protect against terrorism under the heading ‘Accountability’ in Chapter 19.

The PCoI was mandated to identify all authorities responsible for the failure to prevent the terrorist attacks and identify the authorities who failed to perform their duties and did not take proper action due to incapacity.

In doing so, the PCoI employed two sources as its legal bases: written laws within the meaning of Article 170 of the Constitution and judicial pronouncements. It is a pity that the PCoI was either unaware of the United Nations (UN) criteria for assessing the State’s responsibility to protect against terrorism or did not care. 

In the global context which the proposed Anti-Terrorism Bill intends to focus on, the Terrorism Prevention Branch (TPB) of the United Nations Office on Drugs and Crime (UNODC) recommended standards for UN member states to understand the nature of the state’s responsibility to protect against terrorism. 

A working paper titled ‘Preventing Terrorist Acts: A Criminal Justice Strategy Integrating Rule of Law Standards in Implementation of United Nations Anti-Terrorism Instruments,’ prepared by the TPB under the General Assembly Resolution 60/175 and published by the UN in 2006,  was designed to facilitate the task of advising national authorities by integrating the mandatory rule of law standards in the implementation of universal anti-terrorism instruments.

Unfortunately, the final report of the PCoI on the Easter Sunday attacks did not state whether it used the UN standards set out in 2006 to assess the nature of the State’s responsibility to protect against terrorism. 

The absence of such reference can also be due to the multidisciplinary nature of the proposed anti-terrorism law; one must have a perspective at least supported by two conceptual lenses: law and the discipline of counterterrorism/anti-terrorism.

Anti-terrorism laws

The UN standards set out in 2006 uses the ‘inherent right to life’ every human being has as the principal basis for the state’s responsibility to protect against terrorism.

Furthermore, Article 6 of the International Covenant on Civil and Political Rights (ICCPR) ensures the ‘right to life’ and over 150 of the 191 Member States of the UN have accepted the obligations of the ICCPR, of which Sri Lanka is also a signatory (yet Sri Lanka does not recognise ‘right to life’ as a legal obligation of the State).

The TPB believes that protecting life means preventing loss of life, not punishing those responsible for a successful or attempted deprivation. Therefore, the TPB emphasises that the protection of life by law thus demands legal measures to interrupt and interdict preparations for terrorist violence, not merely the identification and punishment of the perpetrators after a fatal event. 

Hence, ‘proactive law enforcement’ or legal measures a state should take to interrupt and halt preparations for terrorist violence stem from the right to life guaranteed by the ICCPR. Anti-terrorism laws are thus present to protect the most fundamental right, the right to life, and not to deprive it, as some narrow-minded human rights groups think.

A preventive criminal justice strategy

What we observed in the context of the Easter Sunday terrorist attacks on 21 April 2019, is that the Sri Lankan anti-terrorism/counter-terrorism regime was a set of mere instinctive, uncoordinated reactions to a terrorist threat rather than a well-informed, coordinated, forward-looking, proactive criminal justice strategy. 

Yet, a forward-looking, ‘proactive law enforcement’ or ‘preventive criminal justice strategy’ suggested by the TPB against terrorist violence requires a lot – a comprehensive system of substantive offences, investigative powers and techniques, evidentiary rules, and inter-state cooperation mechanisms. The TPB emphasises that such an integrated approach is necessary to implement the right to life guaranteed by the ICCPR.

The scope and elements of a preventive criminal justice strategy suggested by the TPB against terrorism first focuses on ‘identifying offences’ – a comprehensive system of substantive offences established by universal anti-terrorism conventions and protocols, criminalisation of terrorist acts in accordance with the rule of law principles and the ICCPR, mandatory criminalisation of terrorist financing, association de malfaiteurs and conspiracy, support for terrorism offences (the principle of legality; Res. 1373), punishing preparation of terrorist acts, incitement to terrorism (ICCPR Art. 20; SC Res. 1373 and 1624), civil and political rights impacted by incitement offences (ICCPR Art. 18-19), the Council of Europe definition of provocation/incitement, existing laws on incitement to violence, recruitment and procedural options concerning terrorist groups, possession of articles or knowledge related to terrorism, and training and other forms of association with terrorist groups.

Second, in terms of ‘procedural improvements,’ the TPB emphasises the need for integrating substantive and procedural mechanisms within the rule of law, acquiring information through community cooperation, controls permitting the development of national security intelligence into evidence, undercover operations and public policy considerations, duration of detention (Article 9-3 ICCPR, General Comment 8, Human Rights Committee), interrogation (ICCPR Article 7; Convention Against Torture Article 1), witness incentives, evidentiary rules, reinforcement of anti-financing measures by regulatory means, and misuse of non-governmental organisations.

Third, as the TPB warranted, the foundation of a successful global anti-terrorism strategy must ratify and implement the existing universal anti-terrorism instruments to permit investigative, evidentiary, and extradition ‘cooperation among states’. 

To achieve international cooperation, Sri Lanka must focus on developing international support mechanisms to legal bases for international cooperation, addressing double criminality issues, reducing other formalities of inter-state cooperation, fiscal and political offence exceptions, proactive development of human rights, refugee and asylum cases, and denial of a safe haven for terrorism.

The right to life

The fundamental lacuna in the proposed ATB is that the bill does not recognise the right to life as its primary legal and moral base, and therefore, in many ways, distances the ATB from its declared objective in the preamble – to fulfil Sri Lanka’s global responsibility of preventing terrorism by adopting an integrated approach to upgrade the rule of law standards in implementing universal anti-terrorism instruments. This integrated approach is necessary to enforce the right to life guaranteed by the ICCPR.

Some countries constitutionally guarantee the right to life, while others do not. For example, the US, the UK, Canada, France, Germany, New Zealand, and India guarantee the right to life. However, the Sri Lankan Constitution does not expressly recognise the right to life. Moreover, even the ICCPR Act No. 56 of 2007 does not recognise the right to life. 

Yet, as the proposed ATB’s declared aim is to upgrade the rule of law standards in implementing universal anti-terrorism instruments, the ATB must guarantee the right to life, or leave it alone without boasting about qualities or universal standards the proposed ATB does not possess.

On the other hand, human rights groups, if they are genuinely fighting to upgrade the rights of citizens, must bring the right to life slogan forward rather than mingling around an orthodox set of fundamental rights for the sake of doing it, if they are to get a breakthrough in elevating the standards of rights the citizens of Sri Lanka to enjoy.

As a final note, I wish to quote Paragraph 24 of the UN working paper ‘Specific Human Rights Issues: New Priorities, in Particular, Terrorism and Counter-Terrorism’ – a preliminary framework draft of principles and guidelines concerning human rights and terrorism by the Special Rapporteur on Terrorism and Human Rights of the Sub-Commission on the Promotion and Protection of Human Rights, GE.05-14597, June 22, 2005:

“International action to combat terrorism should focus heavily on preventing terrorism or terrorist acts. To the degree possible, international action should focus on developing and implementing forward-looking strategies rather than being responsive or reflective of individual acts or series of terrorist acts.”

So, we must think outside the box.

(The writer is an Attorney-at-Law and an MSc holder of Global Security from the Royal Military College of Science [Cranfield University], Shrivenham, UK. He has researched terrorism/counterterrorism at the University of Newcastle upon Tyne, UK and the Centre for Terrorism and Political Violence at the University of St. Andrews, Scotland. He received a Fulbright scholarship to study US National Security Policy Making at the University of Delaware, US, in 2011)

Source: The Morning

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