March 29, 2023
A Statement by the Asian Human Rights Commission
Three major ‘strategies’ have been used in this draft bill on anti-terrorism 2023.which create very great confusion
about the meaning of the contents of the proposed law and its implications.Three ‘strategies’
The first of these strategies is not to define the meaning of terrorism. The meaning of the key word of this document is thus
kept wake so that many different and contradictory interpretations can be given in a way that could be quiet detrimental
to the basic legal notions held as fundaments in Sri Lankan legal system, thus creating unresolvable contradictions and
confusions on the operation of law and legal procedure in Sri Lanka. Such confusion could lead to dangerous
repercussions for, individuals, groups, organizations and to the nation as a whole. Fundamental principles relating to
governance, rule of law and human rights could be exposed to great danger by creating such a confusion.
The second strategy is to blur or even to erase the distension between the laws relating to anti-terrorism and the criminal law.
Deciding whether any act or omission is crime in terms of the penal code or similar statutes or which create offenses or
whether that amounts to a crime under anti-terrorism law is left to be decided by authorities without a guiding a legal
criteria to make a clear distention. Thus any interested party may twist what may amount to an allegation of crime into
an accusation of commission of an act of terrorism. This way interpretation can easily depend on political factors and
not on clear criteria based on law.
This same applies also to the criminal procedure. Whether an investigation into a particular allegation into a crime
will be done according to the criminal procedure code or by other methods proposed by this bill an anti-terrorism could
be done entirely subjectively. The result will be disastrous on the administration of justice in Sri Lanka.
The third is to peruse what amounts to a repeal, alteration or a fundamental change of the constitution, under the guise of an
ordinary act of parliament and their by virtually displace many of the core principles on which constitution has been
based. If this bill succeeds the anti-terrorism 2023 will virtually displace many of the fundamental aspects of the
letter and the esprit of the liberal democratic tradition of constitutionalism in Sri Lanka.
The Bill entitled Anti-Terrorism has been gazetted on the 17th of March, 2023. This Bill, though it is presented as a
proposed Act to be passed in the Parliament, in fact amounts to the amendment of the Constitution of the Democratic
Socialist Republic of Sri Lanka in terms of Chapter 12. The basic structure and conceptual framework of the newly
proposed Bill on Anti-Terrorism amounts to an implied repeal or altering or adding or a consequential amendment which
has been described in Article 82(1) of the Constitution. Article 82(2) of the Constitution states that “No Bill for the
repeal of the Constitution shall be placed on the Order Paper of the Parliament unless the Bill contains provisions
replacing the Constitution and is described in the long title thereof as being an Act for the repeal and replacement of
the Constitution”.
Although the proposed Anti-Terrorism Bill of 2023, does not mention that the purpose is for the replacing of the
Constitution and nor does its’ long title express any direct intention to repeal and to replace the Constitution, the
proposed Anti-Terrorism Bill amounts to however a fundamental alteration and change of the very substance of the
conceptual framework as well as the structural framework of the 1978 Constitution.
While a more detailed analysis can be provided, for the time being, the nature of the proposed Bill and how it amounts
to a fundamental alteration, change and amendment to the Constitution, can be summed up in the following manner.
The Constitution of Sri Lanka is based on the ‘fundamental notion of the sovereignty of the people’. Article 3 of the
Constitution states that “in the Republic of Sri Lanka, sovereignty is in the people and its’ inalienable sovereignty
includes the powers of the Government, fundamental rights, and the franchise.” Thereafter, in Articles 4(a), 4(b) and
4(c), the manner in which the sovereignty of the people is exercised through the Parliament, the Executive and the
Judiciary are enshrined, and added to that in Articles 4(d) and 4(e) is that the fundamental rights and the franchise
are an integral part of the notion of sovereignty that is embedded in the Sri Lankan Constitution.
The proposed Anti-Terrorism Law is aimed as an alteration of this position in a most fundamental way.
First of all, by many provisions spread through the proposed Anti-Terrorism Bill, the President directly acquires powers
of control over the life of the people on matters relating to exercise of their sovereignty, and on the exercise of the
Constitutional organs recognised in the Constitution, such as the Parliament and the Judiciary, exercising their
functions as a part of the exercisesof the sovereign power of the people, thus, virtually paving the way to attack the
right of franchise and also the fundamental rights of the people.
Under Article 35(1), “While any person holds office as the President, no proceedings shall be instituted or continued
against him/her in any court or tribunal in respect of anything done or omitted to be done by him/her either in his/her
official or private capacity.”
Throughout the proposed Bill on Anti-Terrorism, large of numbers of functions which are presently exercised by various
Ministries, organs of the State and other officers, are being taken by the President, directly under his/her control.
This implies that on any matters that may arise, by way of commission or omission, which at present would give rise to
the right of the citizen to seek the redress of courts, are to be taken away. Thus, on very vital matters which involve
arrest, detention, investigation, and many other matters, the citizens will lose the right to take up these matters
before a court of law. Therefore, the legality and illegality of any of these actions will be an irrelevant matter.
This is a most fundamental violation of not only the Sri Lankan Constitution but of any constitution in a republic that
claims to be based on liberal democracy. Thus, the Sri Lankan citizens will heavily lose the protection that they have
under a liberal democratic framework of governance once this Bill becomes the law.
Thus, the enlargement of the powers of the President, achieved by means of this proposed Bill, will bring to an end the
operation of the 1978 Constitution and many of its provisions automatically. There will be an alteration of the
Constitution in the most fundamental manner.
Associated with this is the issue that Sri Lanka’s Constitution is rooted in the foundational notion of the ‘rule of
law’. The very fact of an existence of a constitutional Government means that the supremacy of the law and the rule of
law are taken for granted as the foundation of governance in such a country. As one of the principal thinkers of the
American Constitution, Thomas Paine stated, “in the United Kingdom ,the King is the law, but in the United States, the
law is the king.”
What this Anti-Terrorism Bill does is to fundamentally change that position and to make the President the law and the
law to become an unimportant factor in dealing with many of the matters in Sri Lanka which have been brought under an
overall umbrella called ‘Anti-Terrorism’. Holding or not holding elections, the right of peaceful protests, the right of
peaceful assembly, the legitimate right of the freedom of the press and the basic rights relating to illegal arrest and
illegal detention which are most fundamental to the idea of protection and the freedom of the individual will be lost if
this proposed Bill comes into effect.
By implication, this will diminish even further the role of the Parliament. All matters which are mentioned as
activities around Anti-Terrorism, will be done outside the scope of the Parliament and all the oversight functions of
the Parliament on these matters, will be done by agencies which are directly controlled by the President and which are
outside the control of the Parliament. The virtual declarations of ‘emergency powers’ which were earlier under the
control of the Parliament, by way of various procedures of monitoring the situation, will be completely lost if this
Bill is passed.
Besides this, ‘new creatures’ have been created which in the future will exercise functions which the Constitution has
given only to the Judiciary. These are the functions relating to the arrest and detention of persons and also
investigations into various offences. The granting of powers to an officer not less than a person holding the rank of a
Deputy Inspector General of Police (DIG), amounts to the handing over of the powers of arrest and detention, entirely to
the hands of a Police officer. The Constitution does not allow any Police officer to hold any position involving the
exercise of judicial power. A DIG having the right to make detention orders for various period of time will be
exercising a power that is held most sacred within any democracy and within any country that holds the rule of law as a
foundational principle. All the provisions which give a DIG or persons above the DIG rank, these powers, will directly
contravene fundamental provisions of the sovereignty of the people as expressed in Articles 3 and 4 of the Constitution.
Besides that, a parallel form of criminal procedure is introduced through this Anti-Terrorism Law. All criminal
investigations in Sri Lanka have to be conducted within the framework of the Criminal Procedure Code and through the
various powers given to various ranks of officers recognised by the Criminal Procedure Code.
The present proposed Anti-Terrorism Law completely ignores Sri Lanka’s established Criminal Procedure Code and attempts
to establish a parallel Criminal Procedure system when it comes to the Anti-Terrorism Law. Thus, there shall be two
kinds of Criminal Procedures established in Sri Lanka. One which follows the Criminal Procedure Code with all the powers
for all those who conduct their duties and all the protection for the citizens. Under the new Anti-Terrorism Law, all
such powers will be taken away from the authorised officers, whose powers are derived from the Criminal Procedure Code
and be handed over to other officers selected for that purpose, either by the President himself/herself or by the
President through the Inspector General of Police.
Besides this, many of the new agencies that are mentioned and also the new powers that have been mentioned have not been
defined with any precision and without any ambiguity as required in a law. The ambiguities that are left could be
utilised by any person in order to interpret this Anti-Terrorism Law in any manner that they like and therefore, all
kinds of abuse will result particularly given the fact of the overall law enforcement failures and weaknesses that exist
within the country.
This new proposed Law also paves the way for the possible organising of extra-judicial killings and also the possibility
of the recurrence of enforced disappearances. Once people are kept in places which are outside the normal places of
detention, that is the prisons, they lose the protection that they have within the prisons, and they could be subjected
to various kinds of exercises which may end up in extra-judicial killings. The practice of extra-judicial killings that
is happening, even within the restricted atmosphere as it exists now, have already come under severe criticism by the
Sri Lankan Supreme Court. This situation will worsen when there are no ‘fixed safeguards’ for the protection of the
people who are kept under such detention as proposed in the proposed Anti-Terrorism Law.
These also pave the way for the heavy increase of bribery and corruption within the Police. When the Police has the
powers to hold people under detention for long periods, as it is proposed in this new Bill, opportunities will open up
for various Police Officers of various ranks to exploit the situation for financial gains. We have seen the example of
11 children who were abducted and kept under detention in a Navy camp and later disappeared. It is known that they were
kidnapped for the purpose of seeking ransom. These kinds of practices will reemerge in a large scale given the kind of
record that Sri Lanka has particularly within the last 40 years or so.
Above all, Anti-Terrorism will be soon recognised more like a ‘political instrument’ for controlling those who represent
dissent, those who represent various Opposition political parties, trade unions, medical associations such as the
associations of doctors, and of other professions, journalists, academic associations, and all those who normally
exercise their fundamental freedoms.
Once the Anti-Terrorism Law operates, it will have a major blow on the human rights related provisions of Sri Lanka. The
defense by those who violate fundamental rights in the future will be that their actions or their omissions which amount
to offences were a result of their legitimate anti-terrorism activities and therefore, they will enjoy immunity from any
kind of legal action.
The result of all these is that the Parliament and the Judiciary will be seriously weakened, people will lose their
right of sovereignty to exercise their franchise, their right to express opinions, and to participate in legitimate
peaceful protests and to live a normal life. The result will be a culture of enormous fear which was a part of Sri
Lankan life not long ago. In the 1980s in the South and almost about 30 years continuously in the North and the South,
reminds one of a ‘nightmare nation’ where people had to live in fear and their life was threatened.
Another consequence of all this will be the increase of crime. The Police preoccupied with the so-called new political
function of anti-terrorism will have hardly any other time to deal with normal law and order related functions. Many
times, the senior persons in the defense establishment have claimed that within the last 40 years or so, the Police
function suffered a great deal because of having to deal with ‘security functions.’ Now, it will become even worse and
life in Sri Lanka will be even further insecure due to the so-called Anti-Terrorism Bill.# # #
The Asian Human Rights Commission (AHRC) works towards the radical rethinking and fundamental redesigning of justice institutions in order to protect and
promote human rights in Asia. Established in 1984, the Hong Kong based organisation is a Laureate of the Right
Livelihood Award, 2014.