This brief highlights a key oversight in Sri Lanka's Anti-Terrorism Bill reform. Despite advocating PTA changes, there's a neglect of lessons from the US Insurrection Act – used to curb civil unrest and rights protests in the United States.
by Daya Gamage
Minister of Justice Dr. Wijeyadasa Rajapakshe at a meeting with the US Ambassador to Sri Lanka, Julie J. Chung, at his Ministry, on January 08, informed the latter that the Anti-Terrorism Bill had been submitted with necessary amendments. The Ambassador was informed that steps had been taken to discuss it with the representatives of political parties and civil organisations, and during the preparation of the Bill, the anti-terrorism laws of other countries were studied.
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| Samuel Corum/Getty |
Long before Chung assumed duties as the US Ambassador in Colombo, the US Department of State had been advocating changes to the Prevention of Terrorism Act (PTA) under pressure from certain influential organisations aligned with the LTTE. This writer was well aware of those deliberations at the US Embassy, Colombo, and the South Asia Division of the US State Department in Washington in the 1980s and the early 1990s.
The Bill with amendments was tabled in Parliament on January 11. Minister Rajapakshe informed the House that the provisions contained in the Anti-Terrorism Bill were less severe and harsh than those in the counter terrorism law in Great Britain.
If the Justice Minister and his officials had studied the US Insurrection Act, while going through such laws in other countries, Sri Lanka would have brought to the attention of State Department officials and the US Ambassador in Colombo the obnoxious features of their insurrection (terrorism) law, and pointed out the need to reform them as a safeguard against abuses by the US President, who is the sole ‘executor’ under the Act.
Minister Rajapakshe may not have taken up the US Insurrection Act’s autocratic features during his meeting with Ambassador Chung for two reasons: (a) the Minister and his staff had scrutinised the US Insurrection Act and found the autocratic powers it has given to the President of the United States with no provision for scrutiny by either the Congress or the judiciary but did not want to discuss them because they did not want to antagonise the US (b) they were not aware that an anti-terrorism legislation existed in the United States.
The purpose of this write-up is to inform the Sri Lanka legislators, who are now scrutinising the amended or revised Anti-Terrorism Bill, that there exists another terrorism law in the United States, and while Washington, and its Ambassador in Colombo advocate the reformation of the PTA ignore the obnoxious features of the US Insurrection Act, which has been used by Presidents to curb civil upheavals, riots and even human rights agitations on the US soil.
Legislators need to question the Minister of Justice if he and his staff scrutinised the US Insurrection Act, and if not, why.
The PTA has been amended several times by successive regimes, and this writer is aware of pressure Washington exerted on Colombo to do so since it was enacted by the Jayewardene government in 1979.
The US Insurrection Act was last amended in the 1870s.
The US Insurrection Act authorises the President to deploy the US armed forces to suppress insurrections, quell civil unrest or domestic violence. According to critics of the provisions of the Act the criteria for deployment are set out in vague and archaic terms that provide few meaningful constraints.
It has been left entirely to the President to decide whether these criteria have been met; neither the Congress nor the judiciary is given any role in the process. Past practices have shown that the Insurrection Act provides no limits on what actions military forces may take once deployed.
When the President activates the Insurrection Act, the1878 Posse Comitatus Act, which is the most important restriction on the domestic activities of the United States military; its coverage is limited in practice is disabled. The Posse Comitatus Act prohibits the participation in civilian law enforcement activities by members of the federal armed forces or federalised National Guard.
Under Section 252 of the Insurrection Act, “whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings,” the President may federalise any state’s militia and deploy it, and/or federal armed forces, to suppress the rebellion or enforce the law. This Section authorises the President to deploy the military and does not require a request by the state—or even the state’s consent.
Legal observers have noted that it is unclear in Section 252 what is meant by the term “unlawful combination.” It is similarly unclear what is exactly meant by the term “conspiracy,” and what would constitute “opposition” to “the execution of the laws” or “impending the course of justice under those laws.” If, however, the term “conspiracy” is accorded its modern legal definition, an attempt to prevent the law from being enforced—even an unsuccessful one—would qualify as “opposing the execution of the laws,” this provision would, in theory, allow the President, according to legal interpretation, to deploy the 82nd Airborne against two individuals plotting to intimidate a witness in a federal trial.
Although this type of abuse seems unlikely, it is opined that the same cannot be said for other ways in which these terms could be stretched. For instance, a President seeking to suppress dissent might consider an unpermitted protest against the implementation of a controversial executive order to be an “unlawful combination” that “opposes the execution of the laws of the United States.”
The widespread legal consensus in the United States is that the Insurrection Act represents an extraordinary delegation of authority, granting the President one of the powers that the founders of the US Republic feared most: the ability to turn a standing army against the American people. They insist that it is critical to ensure that any such authority is defined clearly, extends no further than necessary, and includes safeguards against abuse—including mechanisms by which the other branches of government may serve as checks. The US Insurrection Act conforms to none of these principles.
The US Insurrection Act fails to explain (1) what means of civilian law enforcement are included in or excluded from “the ordinary course of judicial proceedings,” (2) what constitutes an “obstruction,” “combination,” or “assemblage”—terms that are not defined in the statute, (3) what factors would render one of these occurrences “unlawful,” or (4) what level of interference or disruption would rise to the level of making it “impracticable” to enforce the laws.
Minister Rajapakshe should have brought to the attention of Ambassador Julie Chung Section 253 of the Insurrection Act, which allows the US President to use “the militia or the armed forces, or both,” or “any other means,” to take “such measures as he considers necessary” to suppress within a state, “any insurrection, domestic violence, unlawful combination, or conspiracy”.
It, according a legal luminary, “so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection”; or it “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.” As with Section 252, the President may invoke Section 253 without the consent of the affected state.
The above obnoxious clauses of the US Insurrection Act need to be discussed along with the PTA by Sri Lankan lawmakers to have a comprehensive understanding of how and why the ‘foreign advocates’ turn a blind eye to such provisions.
Section 253 of the Insurrection Act has nothing to suggest that the President must justify his determination, or be able to justify it, before any other body. For all practical purposes, courts have been left out of the process. The Congress similarly has no role in the current statute.
Section 253 goes further still. It allows the President to use military forces or “any other means” to “take such measures as he considers necessary” to enforce the law. The law quite literally places no limits on what actions the president can take under this provision.
Section 253 authorises the deployment of the military to suppress domestic violence, with or without states’ consent, if it interferes with the execution of federal law or any right or protection guaranteed by the Constitution. Even if domestic violence does not interfere with federal law or constitutional rights, it may rise to a level that requires military intervention.
The Insurrection Act contains numerous flaws. Its language is vague and archaic, creating confusion about what the law provides for. It gives the President sole discretion to interpret those terms and deploy the US armed forces as a domestic police force. It envisions no oversight role for the Congress or the courts and runs counter to the American tradition against military interference in the affairs of civilian government.
Taking up the US Insurrection Act during a discussion on the Prevention of Terrorism Act does not amount to antagonising the US.
Daya Gamage is a retired Foreign Service National Political Specialist of the U.S. Department of State once accredited to the Political Section of the American Embassy in Colombo. He is contributing columnist for The Island, a daily newspaper in Colombo.
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