In the recent past, the Government has introduced a number of new pieces of legislation which the Government claims will bring good to the people and, which the people, in large numbers, claim will bring harm to them and good to the Government. The Anti-Terrorism Bill (ATB) and the Online Safety Bill (OSB) which have been tabled in the Parliament are the most discussed among them. A number of local and international parties have attempted to force the Government to immediately withdraw the said Bills, which they claim suppress the fundamental rights (FR) and freedoms enjoyed by the people.

The Daily Morning spoke to attorney Swasthika Arulingam, a human rights lawyer and activist vocal on women’s rights, human rights, and politics, to discuss some key matters related to the said Bills in a backdrop where the Government has entered into the process of passing them regardless of the objections raised by many parties.

Following are excerpts from the interview:

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In the recent past, several new pieces of legislation have been introduced, and some others are currently in the process of being introduced. Is there a common feature that you see in such Bills?

One common feature in these Bills is that most of them have been brought without proper consultation with the parties that have been working on the relevant sectors and issues. For instance, the ATB was brought at a time when the people were calling for the repeal of the Prevention of Terrorism (Temporary Provisions) Act (PTA) and emphasising that there was no need for a separate anti-terror law. However, completely ignoring what the people have been asking for, the Government has brought the ATB. Another common feature is that all these Bills, particularly the ATB and the OSB, have been brought in some way to curtail the rights and freedoms enjoyed by the people.

What laws are often misused in Sri Lanka to suppress rights?

There are several laws that are often being misused in the country. For instance, since the day that the PTA was passed, it was never used to suppress terrorism. It was instead used to racially profile people and detain them, in most cases, for no reason. During the “aragalaya” (the people’s struggle [a series of public protests that demanded the resignation of the then President Gotabaya Rajapaksa and his Government]), three student activists were arrested and detained under the PTA for no reason. The Detention Orders (DO) issued under the PTA are also being misused. The DOs issued by the Defence Minister keep the detainee out of the purview of the Judiciary and several incidents of persons detained under DOs being subjected to torture and disappearances have happened in the past. Similarly, the laws that are going to be introduced will also be misused to suppress the people’s rights and freedoms. For instance, the Government’s argument is that they are going to ensure the safety of females and children by introducing the OSB, but, there are laws and procedures that are already in place to protect females and children. When a female is harassed through an online platform, they can go to the Computer Crime Investigation Division (CCID) under the Criminal Investigations Department (CID) and lodge a complaint. The issue is that the CCID does not take complaints seriously. It is not that they don’t have the power, they just don’t take the complaints seriously. The path to protecting females and children is already there, but, it is not properly executed. With these facts, anyone can understand that the Government’s argument is not correct. They have brought the OSB to curtail the freedom of expression of those who use online platforms, journalists, small scale businesses and others who are vocal online. 

There are civil society representatives who say that a country should have a special law to suppress terrorism. Another group says that there is no need for such a law. Who do you represent? Why is that? 

The group which says that we need special laws to suppress terrorism is either those who represent the interests of the Government or those who have never been victimised due to these suppressive laws or who have not been exposed to victims of such. They have no direct experience in terms of how legislation such as the PTA is used. Whichever Government came to power in our country throughout the past, they have been attempting to curtail the rights of the people so that they can arm themselves with protection. Therefore, those who are getting benefits from the Government would definitely endorse such moves. I am of the position that we don’t need an anti-terror law. That is because, let alone the PTA, we have passed several laws such as the Penal Code, the Public Security Ordinance, and the Convention on the Suppression of Terrorist Financing Act which specifically deal with various aspects of terrorism. Under the Public Security Ordinance, the President is empowered to declare curfew and emergency and to pass emergency regulations for a specific period of time, and such regulations have to be reviewed by the Parliament every month. It is not my favourite system, but it is something that is necessary. When there are such laws and procedures that are already in existence, we don’t need to have separate laws. 

What do you make of the definition of terror in the ATB? 

The definition of terrorism in the ATB is very broad. However, I will explain a smaller part of it. That is, if any individual or group does something to compel a Government to do something or not do something, that is an intention of terrorism as per the ATB. In that situation, if a trade union goes on strike demanding a Government to do something or not do something, and if the Government does not like it, it may fall under terrorism. Likewise, the ATB makes civil defence and resistance an act or an intention of terrorism. When the Government is corrupt, suppresses the rights of the people and bankrupts the country, we should be able to compel the Government to not do it, but, it has now been made into an intention of terrorism. 

What about the online aspects of terrorism being covered? 

The proposed ATB covers online aspects of terrorism. It states that if someone tries to control or sabotage online structures such as telecommunication systems, it becomes an act of terrorism. It also focuses on terrorist publications. Such publications can essentially be anything from a physical publication to an online publication. If the Government declares something to be a terrorist publication, then the publisher becomes a terrorist. It is entirely on the Government to decide what a terrorist publication is. This is a very dangerous situation. 

What are the key issues that you see in the ATB? 

Firstly, the Government wants to have complete control over the FR and freedoms of the people and to curtail them by introducing the ATB. Even the PTA does not go to that extent. The second issue is that one does not have to have committed an offence which has been described under the ATB to get arrested. When it comes to most of the arrests under the PTA, they have been made for no reason. The persons are arrested and detained under the PTA, and released after years. At the end of that period, the relevant person is psychologically unfit to challenge the illegality of their arrest. That is exactly what the ATB will do. These days, with the “Yukthiya (Justice)” operation to combat drug trafficking and organised crime, the Police think that someone has drugs in their possession and arrest them. Similarly, they will make such unfair arrests under the ATB. When the people are arrested for no reason and then released, how many of them would have the money, time, and knowledge to go before the Supreme Court (SC) and seek justice. Thirdly, the ATB makes those who associate a person who is engaged in any act of terrorism also terrorists. How they define terrorism and how they connect people to it will have a very serious effect on the freedom of expression and freedom of assembly. This Legislation makes the FR Chapter of the Constitution almost defunct. 

If the ATB is passed, what kind of impact will it have on society? 

The passage of the ATB would definitely make people think twice before they say or do anything, come to the street and protest, and even assist a neighbour. That is because even if a person goes to a shop of a person who is linked to terrorism, the former would also be arrested as a terrorist suspect and you also become a terrorist suspect. The possible enactment of this Bill would make people stop trusting each other and that is when a society fractures and breaks apart. A society where one does not trust the other exists only during times of war. When there is legislation of this sort, such a society would exist even when there is no war. 

How does ATB affect the media and journalists? 

It is the Government that decides what a terrorist publication is if the ATB is enacted. Then, the journalists will start thinking twice before writing, opposing politicians, putting up videos, and even covering a struggle or protest. Once the ATB and the OSB come into effect, there would be zero space for online journalists to speak freely. Journalism is a profession, and they should not have to go out of the way to do their job. As lawyers, we do our job in the trust that nothing will happen to us whoever we represent. The same assurance should be there for the journalists. When that relief is taken away, only extraordinarily brave people will engage in it, but a profession should not be restricted in that way. Anyone who wants to be a journalist should be able to become one and do their job. 

Can the ATB affect the State media? How will it happen? 

Yes. For instance, if a journalist attached to a State media institution says that some practice is wrong, and they decide to report it another way or take the channel forward in a particular independent direction, they will be targeted as terrorists. It is already impossible to do independent journalism in State media institutions. After the ATB comes into effect, it will no longer be a mere restriction for journalists. They will also be targeted as terrorists. In addition, any journalist or media institution can become a victim of the OSB. 

What is the situation of the ATB as far as confessional evidence admissibility is concerned? 

In the PTA, it is directly stated that if you make a statement to the Police, it would be accepted as a confession and used as evidence against you in a criminal process. Under the normal criminal justice system, if you make a statement to the Police, it cannot be admitted as evidence against you. When it comes to the ATB, what they have done is that they have not said it directly, they have said it indirectly. They have said that no one can compel someone to make a statement, but, they (suspects) can make a statement under oath or submit an affidavit to the Police. It means that you can still give an oath and make a statement and submit an affidavit to the Police, and it is admissible as evidence. Under the ATB too, confession becomes admissible as evidence against a certain person. 

Is judicial oversight over detention adequate, as set out in the ATB? 

Under the PTA, the Judiciary did not have any oversight until 2021, and it even did not have the power to grant bail to PTA detainees. When it comes to the ATB, the magistrates have been granted several powers, and it is good. If a person is produced before the magistrate without a DO, the magistrate has the power to release that person or grant bail to them. However, this is restricted to people who are produced before the magistrate without a DO. When a person is produced before the magistrate with a DO, the magistrate does not have much powers. My view is that the Executive should never be given more powers than the magistrate. That is what the ATB will do, just like what the PTA did. 

What is the level of empowerment of the security forces other than the Police including for search and seizure? 

The military cannot arrest people under the PTA. It is only the Police that can do it. Through the ATB, they are empowering the military as well as coast guards to make arrests. Previously, that kind of power was given to the military only during emergencies. When the ATB comes into effect, the military can arrest us even on a normal day, and exercise almost all the powers that the Police has. 

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Buddhika Samaraweera

Attorney Swasthika Arulingam

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