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By Kalyananda Tiranagama
(Continued from yesterday)
Under the ATB, committing a terrorist act resulting in murder is punishable with death penalty; under the CTB it was punishable with life imprisonment; Under both Bills in the case of any other offence of terrorism, with imprisonment for a term not exceeding 20 years and fine not exceeding Rs. one million. In addition, the Court may order forfeiture of all movable and immovable property of the offender – S.4
Penalty for attempt, abetment or conspiracy to commit any such offence is imprisonment tor a term not exceeding 15 years and fine not exceeding Rs. one million.
Once this Bill becomes law:
Government Medical Officers Association (GMOA) will not be able to resort to strike action to compel the government not go ahead with signing ETCA with India or Free Trade Agreement with Singapore or, as it is an act of wrongfully or illegally compelling the govt. of Sri Lanka to do or to abstain from doing any act and as such action results in causing serious risk to the health and safety of the public or section thereof
Trade unions in the Petroleum Corporation, Ceylon Electricity Board, Water Resources Board, Railways or any other sector directly affecting the life of the people will not be able to carry on a mass protest campaign combined with strike action against the moves of the government to privatize state institutions, as their action may result in causing serious obstruction or damage to essential services or supplies.
People’s organizations or opposition political parties will not be able to carry on any mass agitation campaign demanding the government to take steps to conduct provincial council or general elections as it is an act of wrongfully or illegally compelling the govt. of Sri Lanka to do any act and as such action may result in causing serious damage to property, including public or private property, any place of public use, a state or govt. facility, any public or private transportation system, or any infrastructure facility or environment.
Any People’s or professional organization or political party will not be able to carry on a protest campaign at the Indian High Commission against the signing of ETCA or granting of Mattala or Palaly Airports to India or at the British High Commission against sponsoring a Resolution against Sri Lanka at the Geneva UNHRC or at the US Embassy against setting up a naval facility at Trincomalee as it is an act of wrongfully or illegally compelling any other government to abstain from doing any act and as such action may result in causing serious damage to property, including public or private property, any place of public use, facility, any public or private transportation system, or any infrastructure facility or environment.
No People’s organization or political party will be able to carry on a protest campaign at the UNDP Office in Colombo protesting against the UNHRC Resolution against Sri Lanka or demanding the withdrawal of baseless allegations of war crimes against armed forces of Sri Lanka as it is an act of wrongfully or illegally compelling an international organization to abstain from doing any act and as such action may result in causing serious damage to property, including public or private property, any place of public use, facility, any public or private transportation system, or any infrastructure facility or environment.
Police Directives curtailing Freedom of Movement
S; 62 of the CTB and S. 61 of the ATB enables the Police to take pre-emptive action preventing any public protest being conducted. Under S.61 of the Bill, on receipt of information that an offence under this Act is likely to be committed, a police officer not below the rank of a SSP may issue any one or more of the following directives to the public:
not to enter any specified area or premises;
to leave a specified area or premises;
not to leave a specified area or premises and to remain within such area or premises;
not to travel on any road;
not to transport anything or not to provide transport to anybody;
to suspend the operation of a specified public transport system;
k. not to congregate at any particular location;
l. not to hold a particular meeting, rally or procession;
m. not to engage in any specified activity.
Directives to be issued with prior approval of a Magistrate.
Directives to be published in the gazette and given wide publicity through other means.
Period of operation of a directive not to exceed 24 hours continuously at a time, and for a total period of 72 hours.
Military assistance may be obtained to give effect to any such directive.
Police may cordon off such area to give effect to such directive.
During the period of operation of such directive and the following 24 hours, the police may,
stop, question and search any person found within the effective area of such directive; b. enter and search any premises; c. stop any person who may attempt to enter or remain in the effective area of such directive.
Police may arrest any person who may act contrary to the directive.
Acting contrary to any such directive is an offence punishable by a Magistrate with imprisonment for a term not exceeding one year or a fine not exceeding Rs. 5000/- or both.
Any person who – a. violates or acts in contravention of an order made in terms of this Act; or b. wilfully fails or neglects to comply with a direction issued in terms of this Act; c. fails to provide information or provide false or misleading information in response to a question put to him by a police officer conducting an investigation under this Act, or; d. wilfully prevents or hinders the implementation of a lawful order or directive issued under this Act is guilty of an offence punishable with imprisonment for a term not exceeding two years and a fine not exceeding Rs, 500,000. – S. 14
Police Power to intercept letters and other private Communications
Police given power to intercept letters and other private communications and listen to telephone conversations for investigation purposes under these Bills. To determine whether one or more persons are conspiring, planning, preparing or attempting to commit an offence under this Act, a Police Officer not below the rank of a SP may obtain a Court order to intercept, read, listen or record any postal message, electronic mail, or any telephone, voice, internet or video conversation or conference or any communication through any other means. – S. 67 CTB; S. 66 ATB
All Responsible Officers Liable to be Punished
When a people’s organization or a professional association is charged with an offence under this Bill, the entire leadership of the association will become liable to be punished. According to S. 97 of the Bill, where an offence is committed by a body of persons, every director, principal executive officer, every officer of that body responsible for its management and control, shall be deemed to be guilty of such offence.
Creeping Emergency Regulations into the Bill arming the President with Extraordinary Dictatorial Powers to Curb Democratic Rights
Review and Repeal of the Public Security Ordinance is one of the Recommendations made by the UN HRC in its Periodic Reports on Sri Lanka. The Yahapalana government gave an undertaking to do that. As Public Security Ordinance is part of the Constitution, the government cannot repeal or amend it without amending the Constitution.
When there is a serious threat to the law and order or national security or maintenance of essential services, the government declares a state of emergency in the country and make emergency regulations to deal with the situation. State of Emergency has to be approved by Parliament once a month. Otherwise it will lapse. What the government has done is to creep some of the provisions generally brought into force under the Emergency Regulations into the Bill so that it will become part of the normal law of the country.
None of the following provisions are found in the PTA. They are generally found only in the Emergency Regulations made under the Public Security Ordinance. Under Ss. 81 – 82, 83, 84 and 85 of the CTB, the Minister has been entrusted with Emergency Powers to issue Proscription Orders – S. 81; Restriction Orders – S. 82; and Curfew Orders – S. 83; to declare prohibited places – S. 84; and call out Armed Forces – S. 85. Now by the ATB, the President will be vested with these powers.
Threat of Proscription of Organizations
Notwithstanding anything in any other written law, on a recommendation made by the IGP or at the request of a foreign government, the President may proscribe any organization, initially for a period of one year, where he has reasonable grounds to believe that such organization is engaged in any act amounting to an offence under this Act, or acting in an unlawful manner prejudicial to the national security of Sri Lanka or any other country.
To proscribe an organisation under the Bill it need not engage in any terrorist activity prejudicial to the national security of the country. Under S. 82 (1) of the Bill, notwithstanding anything in any other written law, the President can proscribe any organization where he has reasonable grounds to believe that such organization is engaged in any act amounting to an offence under the Act, or is acting in an unlawful manner prejudicial to the national security of Sri Lanka or any other country.
(2) A Proscription Order may be made by the President for giving effect to – (a) a recommendation made by the IGP; or (b) a request made by any foreign government.
A Proscription Order may include one or more of the following prohibitions : Prohibiting (a) any person being a member; (b) recruiting members; (c) any person acting in furtherance of its objectives; (d) meetings, activities and programs being conducted; ( e) use of bank accounts; (f) entering into contracts; (g) raising funds or receiving grants; (h) transferring funds and assets; (i) lobbying and canvassing; (j) any publication of any material in furtherance of its objectives. A Proscription Order remains valid for a period of one year. It can be extended for one year at a time.
The organisations like the GMOA, Inter University Students Federation, Trade Unions in all public institutions and services and Farmers’ organizations that frequently carry on strikes crippling health services or agitational campaigns obstructing highways to compel the government to do or to refrain from doing certain acts will not be able to carry on their campaigns without facing the danger of being proscribed.
Imposition of Restriction Orders
On a recommendation of the IGP, the President may, with sanction of the High Court, issue a Restriction Order on any person, where he has reasonable grounds to believe that such person is making preparations to commit an offence under the Act and the conduct of such person can be investigated without arresting him, restricting (a) his movement outside the place of his residence; (b) travelling overseas; (c) travelling within Sri Lanka; (d) travelling outside the normal route between his place of residence and place of employment; (e) communication or association or both with particular persons specified in the order; (f) engaging in certain specified activities facilitating the commission of an offence under the act; (g) requiring such person to report to any police station on a specified day. – S. 83
Though there was a somewhat similar provision in S. 11 of the PTA in relation to a person concerned in any terrorist activity as defined in the PTA, this is much wider.
Police Directives issued in the guise for the protection of the public under S. 62 of the Bill can also be issued only under the Emergency Regulations. There is no similar provision in the PTA.
Such restrictions may be imposed remaining valid for a period, not exceeding one month at a time, up to 6 months.
The Court shall cause the Order served on the person and require the IGP to take all necessary steps to enforce it.
This talk of obtaining High Court sanction and serving and enforcing the Order through the involvement of Court is a façade adopted to cover up the arbitrary and undemocratic nature of the executive acts with judicial authority.
In the Counter Terrorism Bill, it is not the Court, but the Minister who shall cause the Order served on the person and require the IGP to take all necessary steps to enforce it.
Acting in contravention of a Restriction Order is an offence punishable by High Court with imprisonment up to 3 years and a fine not exceeding Rs. 300,000. – S. 83 (7)
Issuing Curfew Orders
Under S. 84 of the Bill, notwithstanding the provisions in the Public Security Ordinance, the President, may by Order published in the Gazette, declare a Curfew Order covering the entire country or part of the country, for the purposes of (a) controlling, detecting or investigating the occurrence of systematic and widespread acts of terrorism and other offences under the Act; (b) for the protection of national and public security from such acts; or (c) to prevent the systematic and widespread committing of acts of terrorism and other offences under the Act.
It is lawful for a Police officer to use reasonable force as may be necessary to ensure compliance with a Curfew Order. Violation of a curfew order is an offence punishable by a Magistrate with a fine not exceeding Rs. 300,000. (To be continued)
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