by Dr. Paikiasothy Saravanamuttu
Last week, I sat through two meetings on the proposed replacement of the Prevention of Terrorism Act (PTA) and on the Counter Terrorism Act (CTA). The first was with the Parliamentary Oversight Committee on Foreign Relations and the second was with the Minister of Foreign Relations at the Foreign Ministry. They were both quite instructive – the first of their kind with civil society on the bill.
For the record, the position of the Centre for Policy Alternatives (CPA) is that the PTA should be repealed. The CPA also takes the position that there would be a replacement and therefore, the challenge is to make sure that the replacement was in keeping with the Constitution of Sri Lanka and best international practices. Other civil society representatives take the view that the CTA Bill is as bad or worse than the PTA and that the PTA should be repealed, and time should be taken to have a broad consultation on whether Sri Lanka required counter-terrorism legislation, and if so, what that should be. Some believed that no counter-terror legislation was necessary, that the offences in the CTA were already covered in the criminal law, and that there were emergency provisions to deal with terrorist acts.
The debate, as such there was, pivoted around the arguments of liberty and freedom on the one hand and order and stability on the other. Perhaps, the rise of populism has changed this too in favour of order and stability. The debate though will not cease. Indeed, it should not. It is in this context that the proposal by CPA that the implementation of the bill should be reviewed by a parliamentary committee and/or an independent assessor – probably a key criminal lawyer, every three to five years for example – should be viewed.
The threats to national security are constantly changing. Such an evaluation will reflect this and provide the opportunity to weed out those elements of the legislation that are too draconian in practice, and introduce, if required, additional elements to meet new threats. This can be done at the committee stage and without altering the structure of the bill, which the Supreme Court has opined on. This should be done bearing in mind the Constitution and best practices, and strengthening the safeguards to freedom and liberty.
Moreover, additional language can be introduced to tighten the safeguards and focus of the bill and prevent it from being overbroad. There is a list of offences that have to be read with the previous article regarding intentionality; there are questions pertaining to the rank of the officer entitled to make an arrest and the involvement of the military and coastguard in this; issues pertaining to the “nearest” magistrate, the period of arrest and detention, and the physical and mental condition of the arrestee. What is of interest here is the constant need to maintain the balance between freedom and order when one considers the practical application of the law.
Evoking progressive assurances
To those arguing that the PTA should be repealed and a broader consultation should take place, if at all, to consider its replacement, the issue of time should be considered. Is it not possible that the composition of Parliament could have changed, thereby making the prospect, say of an SLPP-dominated Parliament deciding on a CTA, a very real, if not frightening, one? Moreover, legislation should not be crafted in haste, as it would be the case if one had to respond to an action. The heat of the moment may well lead to calls for more stringent legislation than is required.
One hopes that the Government, therefore, will see the legislation to conclusion and not treat the exercise as cynics have averred as being decided by the Geneva Human Rights Council deadlines. Another commitment embedded in Resolution 30/1 deals with the Commission on Truth, Justice, and Reconciliation.
The Prime Minister was already brought the proposal to Cabinet, but has met with requests for further time. I believe that the commission will not be prosecuting anyone, but rather establishing the truth of what happened. This was the “ask” of the overwhelming majority of respondents to the Consultative Task Force (CTF). They wanted the truth established and acknowledged by the State. The question of culpability and prosecution will probably be deemed the remit of another agency. Notwithstanding this, it is important to know as to what the Government would do with the testimonies given. How is acknowledgement to be had?
Were the CTA and the Commission on Truth, Justice, and Reconciliation to be established, the Government can claim considerable progress in terms of fulfilment of commitments under Resolution 30/1. To this should be added the return of lands. Accountability in terms of a special unit is not in sight and perhaps will never be.
The overall question is as to whether the challenge of reconciliation should not be pursued more openly and with greater prominence. Survey results indicate that the general impression is one of slowness and insufficiency in respect of reconciliation. Over 50% of the population fall into this category and similar figures are recorded for accountability and the Truth Commission.
The one thing that this Government realised in 2015 is that transitional justice was needed and could not be brushed aside; that something had to be done was agreed upon and furthermore, what should be done was mooted throughout the country. Insufficiently though it was, it was done.
We are in an election year/s now. Is it not time to rekindle the challenge and promise of 2015 – to build a more decent society, debate, discuss, and decide on transitional justice?
Last week, I sat through two meetings on the proposed replacement of the Prevention of Terrorism Act (PTA) and on the Counter Terrorism Act (CTA). The first was with the Parliamentary Oversight Committee on Foreign Relations and the second was with the Minister of Foreign Relations at the Foreign Ministry. They were both quite instructive – the first of their kind with civil society on the bill.
For the record, the position of the Centre for Policy Alternatives (CPA) is that the PTA should be repealed. The CPA also takes the position that there would be a replacement and therefore, the challenge is to make sure that the replacement was in keeping with the Constitution of Sri Lanka and best international practices. Other civil society representatives take the view that the CTA Bill is as bad or worse than the PTA and that the PTA should be repealed, and time should be taken to have a broad consultation on whether Sri Lanka required counter-terrorism legislation, and if so, what that should be. Some believed that no counter-terror legislation was necessary, that the offences in the CTA were already covered in the criminal law, and that there were emergency provisions to deal with terrorist acts.
The debate, as such there was, pivoted around the arguments of liberty and freedom on the one hand and order and stability on the other. Perhaps, the rise of populism has changed this too in favour of order and stability. The debate though will not cease. Indeed, it should not. It is in this context that the proposal by CPA that the implementation of the bill should be reviewed by a parliamentary committee and/or an independent assessor – probably a key criminal lawyer, every three to five years for example – should be viewed.
The threats to national security are constantly changing. Such an evaluation will reflect this and provide the opportunity to weed out those elements of the legislation that are too draconian in practice, and introduce, if required, additional elements to meet new threats. This can be done at the committee stage and without altering the structure of the bill, which the Supreme Court has opined on. This should be done bearing in mind the Constitution and best practices, and strengthening the safeguards to freedom and liberty.
Moreover, additional language can be introduced to tighten the safeguards and focus of the bill and prevent it from being overbroad. There is a list of offences that have to be read with the previous article regarding intentionality; there are questions pertaining to the rank of the officer entitled to make an arrest and the involvement of the military and coastguard in this; issues pertaining to the “nearest” magistrate, the period of arrest and detention, and the physical and mental condition of the arrestee. What is of interest here is the constant need to maintain the balance between freedom and order when one considers the practical application of the law.
Evoking progressive assurances
To those arguing that the PTA should be repealed and a broader consultation should take place, if at all, to consider its replacement, the issue of time should be considered. Is it not possible that the composition of Parliament could have changed, thereby making the prospect, say of an SLPP-dominated Parliament deciding on a CTA, a very real, if not frightening, one? Moreover, legislation should not be crafted in haste, as it would be the case if one had to respond to an action. The heat of the moment may well lead to calls for more stringent legislation than is required.
One hopes that the Government, therefore, will see the legislation to conclusion and not treat the exercise as cynics have averred as being decided by the Geneva Human Rights Council deadlines. Another commitment embedded in Resolution 30/1 deals with the Commission on Truth, Justice, and Reconciliation.
The Prime Minister was already brought the proposal to Cabinet, but has met with requests for further time. I believe that the commission will not be prosecuting anyone, but rather establishing the truth of what happened. This was the “ask” of the overwhelming majority of respondents to the Consultative Task Force (CTF). They wanted the truth established and acknowledged by the State. The question of culpability and prosecution will probably be deemed the remit of another agency. Notwithstanding this, it is important to know as to what the Government would do with the testimonies given. How is acknowledgement to be had?
Were the CTA and the Commission on Truth, Justice, and Reconciliation to be established, the Government can claim considerable progress in terms of fulfilment of commitments under Resolution 30/1. To this should be added the return of lands. Accountability in terms of a special unit is not in sight and perhaps will never be.
The overall question is as to whether the challenge of reconciliation should not be pursued more openly and with greater prominence. Survey results indicate that the general impression is one of slowness and insufficiency in respect of reconciliation. Over 50% of the population fall into this category and similar figures are recorded for accountability and the Truth Commission.
The one thing that this Government realised in 2015 is that transitional justice was needed and could not be brushed aside; that something had to be done was agreed upon and furthermore, what should be done was mooted throughout the country. Insufficiently though it was, it was done.
We are in an election year/s now. Is it not time to rekindle the challenge and promise of 2015 – to build a more decent society, debate, discuss, and decide on transitional justice?
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