By Veeragathy Thanabalasingham 

Is the government genuinely committed to replacing the much-criticized Prevention of Terrorism Act (PTA) which has been in place for 45 years with a more progressive law? This question gains pertinence in the backdrop of the Anti-Terrorism Bill (ATB) which has already been presented to Parliament by the current government, and the Counter Terrorism Bill (CTB) introduced by the Yahapalanaya government in1916, provisions of both of which are more draconian than the PTA.

It is this exponential draconianism that has one questioning the government’s genuineness about repealing the PTA. Because with the alternate being equally or far more severe and eliciting the expected opposition, there is a strong likelihood of the government shelving the new bill and opting to continue with the reviled PTA.

The Supreme Court in its determination, after hearing more than thirty petitions challenging the constitutionality of the ATB, which was read out in parliament by Deputy Speaker Ajith Rajapaksa, deemed eight clauses of the Bill inconsistent with the constitution and must be passed with a two-thirds majority in Parliament. It was also determined that certain sections of the bill required the approval of the people in a national referendum.  Rajapaksa informed Parliament that if the clauses are amended according to the Supreme Court’s recommendations, the Bill can be passed with a simple majority in Parliament.

Among the issues highlighted by the Supreme Court was the definition of terrorist offences, which it did not accept and said should be largely consistent with international laws.

“The definition of terrorism should be in the line with the United Nations definition and the resolution on terrorist financing passed in 2001,” the Court said, specifying that while determining the definition of a terrorist act, the definition given in the laws of the United Kingdom, Australia, New Zealand and Canada should be taken into consideration.

“It will be useful to consider the laws of these countries while amending the law of Sri Lanka against terrorism,” the Supreme Court said.

Defining terrorism is indeed an international concern, with even the United Nations unable to arrive at a global consensus. The thought-provoking popular quote ‘one man’s terrorist is another man’s freedom fighter’ highlights the subjective nature of labelling individuals or groups involved in conflicts. Sri Lanka is no exception.

Ever since the ATB was published in the Government Gazette in March 2023, there has been harsh criticism over its vague and overreaching definition of terrorism, with concerns raised that it can lead to suppression of political dissent and violation of fundamental rights of the people.

The legal community and rights bodies, both local and international, have expressed serious concerns about various provisions in the ATB due to Sri Lanka’s long history of widespread abuse of the PTA and other criminal laws

Ironically, the ATB is the government’s response to international censure about gross abuses under the PTA. But instead of being progressive, as was pledged to various bodies, the ABT amplifies the shortcomings of the PTA and broadens the scope of how terrorism is defined to include a whole host of activities that could only serve to further suppress dissent and criminalize legitimate forms of protest and activism.

The Bill classifies any protest against the government as an act of terrorism.  This means protests demanding the resignation of the government or the president can be interpreted as acts of terrorism, as could street protests by trade unions demanding higher wages and strikes that disrupt essential services and supplies. In the current context, one would not be faulted for thinking that the main purpose of the bill is to prevent another popular uprising similar to the 2022 ‘aragalaya’ that brought down the government of the Rajapaksas.

The government has refused to budge from its stance on the ATB, with Justice Minister Wijeyadasa Rajapakshe pretty much articulating that stance when he said no changes would be made to the Bill.

This obduracy is reflected in the Supreme Court determination which shows the government has not taken into account the legitimate concerns raised by the legal community, civil society organizations, local and international human rights organizations or the calls to make necessary changes to the ATB. Calls by the legal community and civil society organizations for a detailed discussion on the ATB have also been ignored by the government.

The Supreme Court announced its determination close on the heels of the government adopting the Online Safety Bill into law, ignoring several of the Supreme Court-mandated amendments needed to pass it by a simple majority in Parliament. Will the government make the necessary amendments as determined by the Supreme Court and pass the ATB with a simple majority? Or will it abandon the bill altogether rather than face defeat in the quest for a two-thirds majority?

These are questions that need answers to, as it appears the government will not be able or is unwilling to proceed with the ATB in the manner it did with the OSB. So, will attempts to bring in a new law to replace the PTA remain an elusive quest similar to the multiple pledges to abolish the executive presidency?

Tamil National Alliance (TNA) Jaffna District MP and President Counsel M. A. Sumanthiran and the four members of United Centenary Front, filed Fundamental Rights petitions to the Supreme Court claiming the Speaker certified had endorsed the OSB without ensuring Supreme Court mandated amendments were adhered to.

“The OSB was never enacted in a manner consistent with the Constitution. The document published as the Online Safety Act No. 9 of 2024 did not contain many of the amendments that the Supreme Court recommended. Therefore, the Speaker has acted in breach of public trust.

“The Supreme Court should suspend the Act and issue a restraining order. It should be declared that the Speaker’s certification of the Act is not legally valid and the Speaker has violated the Constitution. Records should be sought from him to determine based on which advice he acted like that,” Sumanthran said in his petition.

The petition filed by members of the United Centenary Front claimed that the Speaker certified the OSB the Parliament was prorogued, hence it is unconstitutional and invalid in law.

Both petitions raised the pertinent issue of a conflict between the Legislature and the Judiciary in how the Supreme Court tackled the petitions.

However, the Supreme Court on February 29 dismissed Sumanthiran’s petition in limine, saying it could not intervene in matters that should be left entirely to the legislature, thereby averting what could have been a conflict between the Legislature and the Judiciary.

So now, the OSA ball appears to be back with the Legislature, with the opposition parties headed by the Samagi Jana Balawegaya set to submit a no-confidence motion against Speaker Mahinda Yapa Abeywardena in Parliament on Tuesday (5). Reportedly, all parties in the opposition have expressed their support for the motion. No prizes for guessing who will prevail.

– Veeragathy Thanabalasingham is a senior journalist and Consultant Editor, Express Newspapers Ltd