ATB driven by class hate, will be used against working class fighting austerity: Submissions to Court against ATB – Part 03

Our Reporter.

This is the Part 03 of the article we commenced posting on Tuesday (30), detailing the submissions made to Supreme Court of Sri Lanka against the Anti-Terrorism Bill, challenged by PTA victim poet Ahnaf Jazeem. Read Part 01. Read Part 02.

Testing Constitutionality 

Jayasekera also submitted to court that the standard of testing constitutionality of a Bill that the court should adopt is the Strict Scrutiny, as employed by the Supreme Court of the United States. He explained the concept to us as follows:

“The testing of constitutionality is primarily an exercise of ascertaining whether subject law is in agreement with the fundamental principles of liberal constitutionalism, which principles are crystallized in concrete form as specific provisions in the text of the constitution. Such principles essentially include the principle of limited government and equality, the liberties and freedoms of the individuals of the society, crystallized in the fundamental rights chapter of the second republican Constitution of this country. Thus, the standards of review of the Righteousness or Quality of a proposed law, suitable for a progressive constitutional democracy, primarily compel a court to assess the law to find out how far and in what manner the law would affect the constitutionally guaranteed rights of individuals, compared to “compelling government interest” in the legislation. This is basically the strict scrutiny test. There is no presumption of constitutionality of a Bill.  This is what is recognized as the human rights based/centered approach to legislation.”

According to Jayasekera, a closely similar approach is adopted in Australia too:

“In this regard Professor Michael Head writes as follows:

‘In Re Tracey; Ex parte Ryan, ((1989) 166 CLR 518) Brennan and Toohey JJ reaffirmed the principle that a law may be declared invalid if its scope or application potentially exceeds the Constitution. To borrow their fishing metaphor, if the ‘net’ cast by Parliament is too wide, in the sense that the legislation may cover cases with insufficient connection to a valid head of power, then it may be struck down.” [Head, Michael, “Counter-Terrorism’ Laws: A Threat To Political Freedom, Civil Liberties And Constitutional Rights” [2002] MelbULawRw 34; (2002) 26(3) Melbourne University Law Review 666, p684]

Head refers to the same case and says, “The High Court has assessed legislation according to whether it is ‘reasonably appropriate and adapted’ to the relevant power or purpose. A law may fail this test [proportionality test] if it unduly infringes on basic rights, such as freedom of speech.”

In respect of anti-terrorism law package of 2002 in Australia, Head also reminds the High Court Justice Michael Kirby’s plea that ‘every erosion of liberty must be thoroughly justified’, which only fell on deaf-ears (Ibid p669).

What I submitted is that the ATB, in its totality, from its overbroad (i.e. not narrowly tailored) and bad definition of the offences of “terrorism” (Part II) to enforcement mechanisms to punishments that could extend to life imprisonment, powers to ban and freeze the assets of any political party, organization, trade Union or rank-and-file committee of workers, would cover situations that would impinge upon and fail to safeguard those pristine democratic rights guaranteed by the Constitution.”

Strict Scrutiny Standard / Test

“Specifically, the strict scrutiny standard of judicial review is a legal test used by courts to determine the constitutionality of a law or government action. It is the most stringent standard of review and is applied when a fundamental right or a suspect classification is at issue. The application of strict scrutiny requires the government to demonstrate that the law or action in question serves a compelling state interest and is narrowly tailored to achieve that interest. This standard places a heavy burden on the government to justify its actions.

In the landmark case of Sherbert v. Verner 374 U.S. 398 (1963), the Supreme Court articulated the two essential prongs of strict scrutiny: first, the government must have a compelling interest for infringing upon a fundamental right, and second, the means chosen to further that interest must be narrowly tailored to achieve that compelling interest. This case involved a challenge to South Carolina’s denial of unemployment benefits to individuals who refused employment on religious grounds.

As Justice David Souter famously wrote in his dissenting opinion in Alameda Books v. City of Los Angeles 535 U.S. 425  (2002), “Strict scrutiny leaves few survivors,”  implying that when a court evaluates a law using strict scrutiny, the court will usually strike down undemocratic laws.,

The US Supreme Court found in Ashcroft v. ACLU 535 U.S. 564 (2004) that a federal law on online regulation failed strict scrutiny because the restrictions it put on free speech were not the least restrictive available.

While there are lesser degrees of review of constitutionality in other circumstances, the US Supreme Court has been applying the strict scrutiny test as a post-enactment review of legislation that gravely affects individual freedoms and liberties. 

What I am saying is that this standard is exactly the test that the Sri Lanka Supreme Court should apply in assessing the constitutionality of the ATB. 

There is no compelling, immediate state interest in the proposed law that legitimizes the severe restrictions and curtailment sought to be imposed by the law to the rights and freedoms of the people. Therefore, it is very clear that the ATB fails to satisfy strict scrutiny Test, rendering it unconstitutional.”

Purpose

Jayasekera also discussed the intentions of the government in the Bill with us.

“I pointed out why this law reform is historically unwarranted and not necessitated by any circumstances affecting the people of this island. But, the government wants this untimely law. Why? Let me be clear, this law is demanded by the government for one single purpose: to execute it against the growing “threat” of mass struggles of the working people against unbearable austerity. You are aware, on a number of occasions, especially during the historic mass struggles of April-July 2022, protestors were branded by some parliamentarians as terrorists and, the Prime Minister, making his inaugural speech in Parliament, said that acts of terrorism were perpetrated by the protesters; on other instances workers on strike were called upon to be dealt with as terrorists; student protesters were slandered and one student leader was even arrested and detained as a terrorist. The PTA is inadequate to cover these activities, and this authoritarian law, from its very definition of the offence of Terrorism, is essentially designed to  be used as a weapon of collective punishment against  the working class, the oppressed and the political dissent. It is driven by class hate. These preparations will irrevocably place the rule of democracy of this country into severe jeopardy. It is very obvious that this law carries with it mala fides, so ab initio illegitimate, and should not pass.”

Referendum 

The counsel also submitted to court that the Bill should not be placed before legislators for approval, nor  before people to be approved at a referendum, because the Bill, he said, is so low in its degree of democratic quality. 

Jayasekera told us, “the Bill is untimely and satisfies no compelling state interest, thus failing in the strict scrutiny test. It is in breach of Articles 3, 4, 10, 11, 12(1), 12(2), 13(1), 13(2), 13(3), 13(5), 14(1) , 14A and also 15(7) of the Constitution, among others. The Bill proposes a penal law. An advanced democratic society would not retrogress to approving stoning as a form of punishment. Such approval by the majority of representatives and/or by the people at a referendum would lead the society to a mob rule, not a democracy.”

Jazeem has prayed as reliefs from Court a determination and a declaration to that effect, effectively striking down the Bill. 

We are learnt that the written submissions in support of Jazeem’s petition and oral submissions have been duly filed today (01) in court along the line of argument as explained to us by Jazeem’s counsel.