Successive Governments thrived on social misery and rooted terrorism, lawyer tells Sri Lanka Supreme Court: Submissions to Court against ATB – Part 01

Our Reporter

This article is in three parts. First Part is published here. Part 02 will be published on Wednesday and the Part 03 on Thursday. 

The case filed by poet Ahnaf Jazeem, who is a victim of Sri Lanka anti-terror law, against the government’s proposed Anti-Terrorism Bill (ATB), was taken up for support today (30) in the Supreme Court of Sri Lanka. Close to 40 cases had been filed challenging the proposed law. Hearing of the cases started on Friday (26) and each counsel for each of the cases got half an hour to make submissions.

The bench hearing the cases was constituted of five judges: Chief Justice Jayantha Jayasuriya, Justice Vijith Malalhpgoda, Justice A.H.M.D. Nawaz, Justice Shiran Gooneratne and Justice Arjuna Obeysekera.

On behalf of the petitioner Jazeem, submissions were made by counsel Sanjaya Jayasekera, who started saying that he is challenging the entirety of the ATB, which he said the “incumbent-no-people’s-mandate government” wants passed as law.

Jayasekera continued as follows: “I unequivocally and firmly stand for the repeal of the Prevention of Terrorism Act (PTA), the existing draconian anti-terror law, and stand against any substitute or replacement to reform it, including this Bill. I submit that the Bill in its entirety is anti-democratic and therefore unconstitutional.”

Jayasekera associated with the submissions already made by other counsel to show how separate clauses of the Bill are contradictory to a number of safeguards guaranteed in the country’s Constitution, especially in respect of people’s sovereignty,  individual liberty, equality and freedoms, which contradictions are in fact self-evident.

Demarcating his approach to the law, Jayasekera stated, while almost all submissions made before him approached commenting on the proposed Bill from the right, he approached the Bill from the “legal left”. 

In his submissions, Jayasekera stated, he is drawing attention of the court to his “fundamental theoretical arguments against this proposed law as to why it should not pass as law”.  He said he would “point out the real purposes of this law, and why this law is redundant, historically untimely, unwarranted and not necessitated as a general and permanent law for the democratic progress of our society on this land.”

Petitioner 

Introducing the petitioner Jazeem to court the counsel stated as follows:

“Before your Lordships’ court is an unfortunate victim of the current anti-terrorism law, the notorious PTA. The Petitioner Ahnaf Jaeem, a poet and a teacher, and the eldest son of a poor farmer in Mannar, was arrested by the Counter Terrorism and Investigation Division in May 2020 on allegations of having “published books on and taught his students ‘extremism’ and ‘racism”. He was then wrongfully detained purportedly in terms of the PTA for thirteen months, during which period he was subjected to severe physical and mental torture including being cuffed to a table day and night continuously for five months, and forced to record a self-incriminating statement. The case against him on a false charge of ‘indoctrinating’ his students under the PTA concluded with Jazeems’s acquittal in December last year, without even requiring to call proof in his defence. The Petitioner is living evidence to show how these laws could be abused against innocent individuals for political gains. The Petitioner therefore wants the PTA repealed, and not substituted for.”

We quote from Jayasekera’s submissions that followed:

Preamble 

“Contrary to what the preamble of the Bill attempts to convey, the law proposed by the Bill has no historical legitimacy for its passage, existence or implementation today in an aspiring democracy. This law is certainly the demand of authoritarianism, tyranny, autocracy and dictatorship and not of an aspiring, vibrant and progressive democracy. These laws, passed as permanent and general law, which could be used by the ruling elite and incumbent Governments against their political opponents and dissidents at their whims and fancies whenever they want, are the very trademark of authoritarianism, totalitarianism. This law is not necessitated by a situation of imminent threat to the security or survival of all or part of our population or its culture. This law is not necessitated by the demands of democratization during the post civil-war period, nor even after the Easter Sunday attacks. In any event, any imminent danger to the security of the population could be addressed adequately in ways any democratic country would respond to any such emergency situation, where Article 15(7) of the Constitution would seem to have some legitimacy of application.  A law that would deal adequately with a situation of imminent threat or danger to the security or very survival of all or part of the population or its civilization would definitely be of very temporary nature. A permanent and general law proportionately presumes a permanent and general circumstances. Sri Lanka has not faced any such general and permanent circumstances of Terrorism or general and  permanent danger or threat to the  security or survival of all or part of the population or civilization of this country. In such circumstances, how can an anti-terrirism law of the type of this Bill be passed and implemented as a law for all times, as a general and permanent law? Terrorism is a temporary and emergency situation, which needs only temporary and emergency response. To make such laws general and permanent is to hold liberty and constitutional freedoms disproportionately at suspense for all times. That has no legitimacy at all.  Even at the very extreme circumstances of threat and danger to the very survival of the population, a law to adequately deal with such circumstances could be legitimate only as temporary provisions. Therefore, I respectfully submit, this law is redundant and not necessitated by historical considerations.

Almost often, to enact is to limit freedoms. This observation is very much true in respect of penal laws relating to anti-terrorism laws, in whatever manner the word “terrorism” is defined, even when these laws could be of temporary nature and could be revived by emergency declarations.  

In fact, terrorism is only the terrible symptom, not the disease. I submit, what is required is not to pass and implement these harsh laws against the people, even temporarily, but to uproot the conditions that breed terrorist outfits in the society.  Those conditions are bound organically with conditions such as monumental level of social inequality and wealth polarization in Sri Lanka and around the world – the latest Oxfam report says that the world’s five richest men have more than doubled their fortunes to $869 billion since the start of COVID, at a rate of $14 million per hour, while nearly half of the world population, a five billion people, have been made poorer; the ethnic or other forms of discrimination and oppression, social injustice, democratic deficiency and imperialist and neo-colonial interventions are other contributory factors. In countries like ours, these conditions have impacted on chronic proportions. Turn to uproot these with socially progressive socio-economic and legal measures, then you get rid of terrorism. Successive governments of this country were never ready for this. Instead, they thrived on social misery. So, this Bill is all illegitimate.

The Bill also purports to commit the Sri Lankan populace to “protect other sovereign nations and their people from the scourge of acts of terrorism”. Would this law not enable the government to brand any anti-Zionist demonstration as aiding and abetting antisemitic terrorist activity and arrest and detain and prosecute the protestors? That would be a real situation, since, given that the Online Safety Bill is now passed, the government will declare, through its Commission, that what is true is that no genocide has taken place in Gaza, so any agitation against Gaza Genocide would be illegal and would amount to supporting terrorism.”

[Featured image: Enforced disappearances under draconian anti-terrorism laws in Sri Lanka rank top in the world]