Was The Sri Lankan Law Adequate For Dealing With The Easter Bombers Before They Attacked?

Photo by Jewel Samad / AFP/Getty Images via ABCNewsGo

ASANGA WELIKALA- 04/28/2019

The Prime Minister has gone on record with the international media saying that, even though Sri Lankan authorities were aware of Sri Lankan jihadists who had returned from Syria who might be engaged in questionable activities, the country’s laws prevented action being taken. This is not true, and only serves to evade accountability, because there are a number of existing laws that could have been used to arrest and investigate these persons. The most obvious is the Prevention of Terrorism Act 1979 (the PTA), which authorises the arrest and/or detention of persons suspected of the kind of terrorism-related activities that those who had joined Islamic State (IS) and returned to Sri Lanka would clearly be covered by.

There is also the International Covenant on Civil and Political Rights Act 2007 which makes it a criminal offence to incite religious hatred and to propagate war. This Act also makes it a criminal offence to attempt, aid, abet, or threaten to commit acts of inciting religious hatred or propagating war. There is the Suppression of Terrorist Bombings Act 1999 which again covers attempts to commit, or aiding and abetting, terrorist bombings. There are also various provisions in the Penal Code in relation to murder, hurt, use of criminal force, and criminal conspiracy, as well as attempting to commit any of these offences, that could have been used. Finally, there are UN sanctions against IS which have been given effect by domestic statutory instruments under the United Nations Act 1968. These are regulations made under the United Nations Act 1968 to give effect to Sri Lanka’s international obligations with regard to the UN anti-terrorism sanctions regime. They were first made in 2012 and subsequently amended in 2016 to specifically include Islamic State (or Islamic State of Iraq and Levant, or Da’esh). The regulations set out the domestic machinery through which UN sanctions against these terror groups can be upheld.

Section 27 of the PTA could easily have been used to proscribe the National Thowheed Jama’ath (NTJ) or any other such organisation. This provision gives the Minister the power make regulations for the purpose of carrying out or giving effect to the principles and provisions of the PTA. A proscription order or regulation under Section 27 must be published in the Gazette and comes into operation on a date prescribed by the relevant Minister. As soon as convenient, such regulations must be brought before Parliament for approval, and they are deemed rescinded if parliamentary approval has not been given. The Liberation Tigers of Tamil Eelam (LTTE) was first proscribed in the wake of the bombing of the Temple of the Tooth in 1998 by emergency regulations. In 2001, when the government lost its majority in Parliament and the state of emergency lapsed, so did the ban on the LTTE. The President then used Section 27 of the PTA to reintroduce the proscription. Even after the state of emergency was terminated after the war in 2011, PTA regulations were made to continue to the proscription of the LTTE and the Tamil Rehabilitation Organisation (TRO), which are still in force. So even without a state of emergency, the PTA provides a wide proscribing power to the government in relation to organisations associated with terrorism.

It can therefore be seen that existing laws were certainly sufficient to detain, investigate, and convict, and even to proscribe, the individuals and groups currently being identified with the Easter Sunday attacks. Had the evidence that had been emerging about these activities been taken seriously and acted upon, then we could have made meaningful progress in preventing the attacks. If it had proved necessary, laws could also have been swiftly amended to deal with any gaps.

However, to the extent that there is an international dimension to these attacks, it is fair to say that Sri Lankan laws needed to be updated to take account of the new globalised context of terrorism. One of the purposes of the Counter Terrorism Bill currently being considered by a parliamentary oversight committee was to modernise our anti-terrorism powers framework in the context of global terrorism. It is important to stress that several critical defects in the Bill need to be corrected so that there are effective and adequate safeguards against the abuse of anti-terrorism powers. However, the government has been both opaque in the process of drafting and dilatory in enacting this legislation.  We are familiar with the criticism about the tardiness and inefficiency of governments when it comes to areas like economic development and even constitutional reform, where a globalised world constantly outpaces the Sri Lankan way of doing things. The events of Easter Sunday have tragically demonstrated the consequences of this lethargy when it comes to securing our society against internationalised terrorism.

While we can no longer afford the luxury of isolated indolence, the various instances of incompetence and dysfunction that allowed the attacks to happen do not justify the arrogation of excessive powers by the government after the fact. More than arguably, the emergency regulations promulgated last week in the aftermath of the attacks are overbroad and prone to abuse, and potentially transgress the outer limits of the restrictions on fundamental rights permitted by our Constitution. The same danger applies to kneejerk responses such as the announcement by the President that he has ordered the preparation of new counterterrorism legislation. Not only does the President not have any moral authority left to direct the country’s response to the Easter Sunday tragedy given his palpable responsibility for the errors and omissions that led to it, but he is an intentional violator of the Constitution and so demonstrably out of his depth in the high office he holds, that it would be ridiculous to entrust him with such a task. In combatting the clear and present danger of international terrorism, the importance of striking the proper balance between security and freedom cannot be overstated. For this, all counterterrorism measures going forward must conform to the minimum standards established by both the Constitution and international law.