ECONOMYNEXT – A top constitutional expert has warned against broad definitions of terrorism that will allow the State to harass citizens, activists and suppress criticism as Sri Lanka moves to redraw its anti-terror law.

Sri Lanka’s Prevention of Terrorism Act does not have a definition for terrorism.

“For an act to come within the definition of terrorism, it must involve ‘terror’ or a ‘state of intense or overwhelming fear’ or be committed to achieve an objective of an individual or organisation that uses ‘terror’ or a ‘state of intense or overwhelming fear’ to realise its aims,” explains Jayampathy Wickramaratne, President’s Counsel.

“Acts related to terrorism can occur without violence, such as when a member of an extremist organisation remotely sabotages an electronic, automated, or computerised system to achieve the organisation’s aim.”

But some action of the people may have elements of violence, which should not be covered by an anti-terror law.

When an earlier administration sought to redraw the PTA an attempt was made to define terrorism.

At the time Wikramaratne had pointed to the parliamentary committee concerned that many acts committed during the famous Hartal of 1953 would have come within the proposed offence and that Opposition politicians such as S.W.R.D. Bandaranaike, N.M. Perera, Philip Gunawardena and Colvin R. De Silva would have gone to jail as “terrorists”.

“One can say the same of acts committed during the Aragalaya on Galle Face. Even if some acts were not entirely peaceful, they were by no means acts of terrorism.

“Events involving violence in the aftermath of attacks on protestors, including the unfortunate killing of a Member of Parliament and the torching of houses of politicians, were dealt with under ordinary law, not under the PTA.”

“Special laws on terrorism allow deviations from standard laws in areas such as preventive detention, arrest, administrative detention, restrictions on judicial decisions regarding bail, lengthy pre-trial detention, the use of confessions, superadded punishments such as confiscation of property and cancellation of professional licences, banning organisations, and restrictions on publications, among others.

“The misuse of such laws is not uncommon. Our legal literature is replete with Supreme Court judgments and statements of the Human Rights Commission on the misuse of special legislation.”

The full analysis is reproduced below

The Elusive Definition: Terrorism Without Terror?

Dr Jayampathy Wickramaratne, President’s Counsel

For an act to come within the definition of terrorism, it must involve ‘terror’ or a ‘state of intense or overwhelming fear’ or be committed to achieve an objective of an individual or organisation that uses ‘terror’ or a ‘state of intense or overwhelming fear’ to realise its aims. The dangers of an overly broad definition go beyond conviction and increased punishment. Such definitions allow the State to harass individuals, especially critics of the government and civil society activists, and detain them for lengthy periods, thereby suppressing and discouraging criticism. Our legal literature is replete with Supreme Court judgments and statements of the Human Rights Commission on the misuse of special legislation.

Following its electoral promise to abolish the Prevention of Terrorism Act (PTA), the government has appointed a committee led by Rienzi Arsekularatne, Senior President’s Counsel, to draft a new law to replace it. Mr Arsekularatne has decades of experience in criminal justice, having worked as both a prosecutor and defence counsel. He represented many activists unfairly accused of crimes during the Aragalaya. As a legal advisor to the Catholic Church, he has a good understanding of the rights of victims and their families. He will thus be able to consider issues from the perspectives of the State, criminal justice, human rights, suspects, accused, activists, and victims.

Misuse of special laws

The PTA does not create an offence of “terrorism”; instead, it provides for special provisions regarding offences, most of which are already covered by law. In 2018, the Yahapalanaya government proposed a Counter-Terrorism Act (CTA) that sought to define terrorism.

Certain acts, not necessarily involving the use of violence, let alone terror, would amount to terrorism. When the Bill was taken up for discussion by the Sectoral Committee on Defence, the writer, then a Member of Parliament of the ruling coalition, argued that many acts committed during the famous Hartal of 1953 would have come within the proposed offence and that Opposition politicians such as S.W.R.D. Bandaranaike, N.M. Perera, Philip Gunawardena and Colvin R. De Silva would have gone to jail as “terrorists”. The Bill was withdrawn in the face of local as well as international concern.

One can say the same of acts committed during the Aragalaya on Galle Face. Even if some acts were not entirely peaceful, they were by no means acts of terrorism. Events involving violence in the aftermath of attacks on protestors, including the unfortunate killing of a Member of Parliament and the torching of houses of politicians, were dealt with under ordinary law, not under the PTA.

Protests and strikes are not tea parties. They may lead to tension and even violence. Strikes are intended to paralyse the institution or sector concerned so that a service cannot be provided. A strike in the health sector, causing a serious risk to the health and safety of the public, or a protest that may cause a serious risk to public safety, is not terrorism. Not every severe damage to a place of public use or governmental facility should be labelled terrorism. Such acts can be dealt with under the normal law.

The dangers of an overly broad definition go beyond conviction and increased punishment. Special laws on terrorism allow deviations from standard laws in areas such as preventive detention, arrest, administrative detention, restrictions on judicial decisions regarding bail, lengthy pre-trial detention, the use of confessions, superadded punishments such as confiscation of property and cancellation of professional licences, banning organisations, and restrictions on publications, among others. The misuse of such laws is not uncommon.

Drastic legislation, such as the PTA and emergency regulations, although intended to be used to curb intense violence and deal with emergencies, has been exploited to suppress political opposition. In the aftermath of the presidential election of 1982, several opposition politicians, prominent among them Vijaya Kumaratunga, were taken in for preventive detention under emergency regulations allegedly to prevent “a Naxalite-type coup”. They were released only after the completion of the notorious referendum, which extended the term of Parliament by six years. None of them was charged in court. It is evident that they were detained not to prevent them from attempting to overthrow the government, but to prevent them from campaigning against it. Even the ICCPR Act has been misused. Our legal literature is replete with Supreme Court judgments and statements of the Human Rights Commission on the misuse of special legislation. The JVP, the main party of the government, has been at the receiving end of such misuse for decades.

The writer argues that, as a fundamental principle, for an act to come within the definition of terrorism, it must either involve ‘terror’ or a ‘state of intense or overwhelming fear’ or be committed to achieve an objective of an individual or organisation that uses ‘terror’ or a ‘state of intense or overwhelming fear’ to realise its aims. This principle has been recognised internationally even subsequent to the 11 September 2001 (9/11) incidents.

Acts related to terrorism can occur without violence, such as when a member of an extremist organisation remotely sabotages an electronic, automated, or computerised system to achieve the organisation’s aim. However, if the same act is performed by, say, a whizz-kid without any connection to such an organisation, it would be illegal and should be punished, but not under a law on terrorism.
Principles to be followed in defining terrorism: International standards

The international community’s inability to agree on a definition of ‘terrorism’ has been a significant reason for the absence of a single multi-lateral treaty on terrorism. Yet, several treaties address issues involving the use of terror. Among them are those dealing with violence at airports and on aircraft, maritime navigation, crimes against internationally protected persons, hostages, bombings, nuclear terrorism and financing of terrorism. Sri Lanka is party to more than a dozen such treaties and has enacted domestic legislation to give effect to most of them.

In its resolution 1566 of October 2004, the UN Security Council used a wider phrase “criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act” but restricted it to “offences within the scope of and as defined in the international conventions and protocols relating to terrorism.” As mentioned above, most such treaties are already part of our domestic law.

The UN General Assembly, in its resolution adopted on 8 December 2005 on “Measures to eliminate international terrorism” referred to “criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstances unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them”.

The UN General Assembly reaffirmed this wording in January 2006 (Resolution 60/43), using the phrase “criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes.”

Thus, there is consensus within the United Nations, which has as its members developed countries, developing countries and least developed countries, that the threshold for a possible general offence of terrorism is the provocation of a state of terror.

The Parliamentary Assembly of the Council of Europe has defined an act of terrorism to be “any offence committed by individuals or groups resorting to violence or threatening to use violence against a country, its institutions, its population in general or specific individuals which, being motivated by separatist aspirations, extremist ideological conceptions, fanaticism or irrational and subjective factors, is intended to create a climate of terror among official authorities, certain individuals or groups in society, or the general public.” (Recommendation 1426 of 1999).

Terrorism without terror? The need to avoid over-broad definitions

Overbroad definitions of terrorism allow the State to harass individuals, especially critics of the government and civil society activists, and detain them for lengthy periods, thereby suppressing and discouraging criticism.

In his 2023 report on ‘Activities of the United Nations system in implementing the United Nations Global Counter-Terrorism Strategy, the Secretary-General warned against over-broad definitions: “Vague and overly broad definitions of terrorism and related offences in domestic legislation are a recurrent concern, further compounded by a frequent lack of appropriate safeguards to prevent their unlawful or arbitrary implementation in counter-terrorism. Such laws are not only contrary to the principle of legality under international human rights law, but they often result in heavy-handed implementation, leading to ineffective and counterproductive counter-terrorism responses. … In some contexts, counter-terrorism laws and measures continue to be routinely misused to label civil society actors, including human rights defenders, as terrorists and to prosecute them for terrorism-related offences with a view to obstructing their work.”

Martin Scheinin, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, stated in his report (A/62/263, paragraph 66): “In the absence of a universally agreed definition of terrorist acts, some States have included in their national counter-terrorism legislation a broad range of acts which do not, in terms of severity, purpose or aim, reach the threshold of objectively being considered terrorist acts, or the threshold required for exclusion from refugee status. Such broad definitions have in many instances been used to suppress legitimate activities which fall within the ambit of the freedom of opinion, expression or association enshrined in the International Covenant on Civil and Political Rights.”

The UN Human Rights Committee (HRC), the treaty body of the International Covenant on Civil and Political Rights (ICCPR), commenting on the Spanish Penal Code stated: ‘The vaguely defined crime of collaboration [with terrorist organisations] runs the risk of being extended to include behaviour that does not relate to any kind of violent activity. If conduct is criminalized as support to terrorism, it must be clear which elements of such conduct make it a terrorist crime.’

On a Russian law on terrorism, the HRC stated: ‘[T]he State party should: (a) Adopt a narrower definition of crimes of terrorism limited to offences that can justifiably be equated with terrorism and its serious consequences, and ensure that the procedural guarantees established in the Covenant are fulfilled.’
Upon the HRC stating that the offence of ‘encouragement of terrorism’ has been defined in the original section 1 of the Terrorism Act 2006 of the United Kingdom in broad and vague terms, the Act was amended to conform to the HRC’s views.

The United Nations Office on Drugs and Crime (UNODC) is the custodian of United Nations standards and norms in crime prevention and criminal justice, with a mandate to assist Member States in reforming their criminal justice systems to ensure the practical application of these standards. The UNODC Handbook on Criminal Justice Responses to Terrorism is instructive. Regarding the definition of terrorist acts and terrorism-related crimes, the UNODC emphasises that the “criminalised conduct should be described in precise and unambiguous language that narrowly defines the punishable offence and distinguishes it from conduct that is either not punishable or is punishable by other penalties.” The handbook was prepared with the participation of experts from around the world, who worked for several months, and was finalised at a workshop in Vienna. The writer was privileged to be a member of the team.

The Council of the European Union Framework Decision on combating terrorism of 13 June 2002, after the 9/11 attacks calls upon Member States to declare as terrorist offences intentional acts ranging from attacks upon a person’s life which may cause death releasing of dangerous substances, or causing fires, floods or explosions endangering human life which, given their nature or context, may seriously damage a country or an international organisation where committed with the aim of seriously intimidating a population, or unduly compelling a Government or international organisation to perform or abstain from performing any act, or seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation.

Article 421-1 of the French Penal Code on terrorism lists offences that would constitute acts of terrorism “where they are committed intentionally in connection with an individual or collective undertaking, the purpose of which is seriously to disturb public order through intimidation or terror.”

Sri Lanka: Anti-Terrorism Bill, 2023

Examining the Anti-Terrorism Bill, 2023, a five-member Bench of our Supreme Court acknowledged that a broad and open definition of terrorism confers a greater power on the Police than a narrow one. To bring the law more in line with international law, acts that constitute offences under the international conventions on terrorism to which Sri Lanka is a party must be added as wrongful acts under the proposed law.

The Court referred to the following definition of terrorism in the Draft Comprehensive Convention on International Terrorism, which was considered by the Sixth Committee of the UN General Assembly, and stated that, in its view, it offers a useful yardstick to measure the domestic definition.

“Any person commits an offence within the meaning of this Convention if that person, by any means, unlawfully and intentionally, causes: (a) Death or serious bodily injury to any person; or (b) Serious damage to public or private property, including a place of public use, a State or government facility, a public transportation system, an infrastructure facility or the environment; or (c) Damage to property, places, facilities, or systems referred to in paragraph1 (b) of this article, resulting or likely to result in major economic loss, when the purpose of the conduct, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or abstain from doing any act.”

With respect, it should be noted that, as the title of the document clearly indicates, the definition is from a draft specifically concerning the definition of international terrorism and that even the United Nations was unable to reach an agreement on it. Further, Draft Article 3 of the same makes it clear that the definition should not be applied to domestic terrorism: “The present Convention shall not apply where the offence is committed within a single State, the alleged offender and the victims are nationals of that State, the alleged offender is found in the territory of that State and no other State has a basis under article 7, paragraph 1 or 2, of the present Convention to exercise jurisdiction, except that the provisions of articles 9 and 13 to 17 of the present Convention shall, as appropriate, apply in those cases.” (UN document A/59/894).

It is worth noting that our own Dr. Rohan Perera, President’s Counsel and senior diplomat, chaired the UN Ad-hoc Committee on Measures to Eliminate International Terrorism, established by UNGA Resolution 51/210, which negotiated the Comprehensive Convention on International Terrorism. One hopes that the Arsakularatne Committee deliberating on a new law will consult Dr. Perera.

The Supreme Court referred to definitions of terrorism found in the laws of Australia, New Zealand, the United Kingdom and Canada. The Australian definition exempts advocacy, protest, dissent or industrial action that is not intended to cause the wrongful acts that would constitute terrorism. In Canada, acts committed in the exercise of the freedoms of belief, expression and association are exempted. The United Kingdom definition does not have such an exemption or “carve out.”

The Court referred to the exemption in New Zealand with approval under which “the fact that a person engages in any protest, advocacy, or dissent, or engages in any strike, lockout, or other industrial action, is not, by itself, a sufficient basis for inferring that the person” committed the wrongful acts that would otherwise constitute terrorism.

The Supreme Court agreed with the petitioners that the definition of terrorism in the Bill was too broad and infringed Article 12(1) of the Constitution, and recommended that an exemption similar to that used in New Zealand be inserted to qualify the definition.

While appreciating the Court’s finding that the definition in the Anti-Terrorism Bill was too broad, it is respectfully submitted that the political, administrative and law enforcement cultures of the country concerned are factors that must be considered. Australia, Canada and New Zealand are far ahead of developing countries such as Sri Lanka in that regard. In our countries, where the chances of misuse are greater, definitions should be narrower, with exemptions broader and more precise.

Tanzanian PTA

According to news reports, the Arsekularatne Committee will examine whether the definition of terrorism in Tanzania’s Prevention of Terrorism Act could be adopted by Sri Lanka.

The main provision in the Tanzanian Act that creates the offence of terrorism is section 4(2) which reads: A person commits terrorist act if, with terrorist intention, does an act or omission which- (a) may seriously damage a country or an international organization; or (b) is intended or can reasonably be regarded as having been intended to- (i) seriously intimidate a population; (ii) unduly compel a Government or perform or abstain from performing any act; (iii) seriously destabilise or destroy the fundamental political, constitutional, economic or social structures of country or an international organization; or (iv) otherwise influence such Government, or international organization; or (c) involves or causes, as the case may be- (i) attacks upon a person’s life which may cause death; (ii) attacks upon the physical integrity of a person; (iii) kidnapping of a person. Thus, the person who commits the acts set out must do so with a “terrorist intention,”

The definition of terrorism in section 3 leads to uncertainty: a ”terrorist act” means an act or omission referred to under section 4 of the Act, and the expression ”terrorist” shall be construed accordingly. Thus, to ascertain what a “terrorist intention” is, one refers to section 3 and is then directed back to section 4, with the result that every act or omission set out in section 4 is considered a terrorist act.

Section 4(3) defines additional acts that constitute terrorism. Acts or threats, ranging from those involving serious bodily harm and the use of firearms and explosives to disrupting essential emergency services, will be considered terrorism if they are intended to intimidate the public or a section of the public, or to compel the Government or an international organisation to act or refrain from acting. Such acts must also be made to support or promote acts that qualify as terrorism under the Act. There are thus three essential elements: (i) the acts or threats mentioned; (ii) their purpose to intimidate people, the government, or an international organisation; and (iii) their aim to support or advance acts that constitute terrorism, meaning acts described in section 4(2). As mentioned earlier, this is problematic because one has to go to section 3 to ascertain what “terrorism” is and is redirected to section 4! And so, one goes around and around.

Tanzanian lawyer Deo J. Nangela in his paper titled “Institutional Democratic Practice, Human Rights, and the Police Force’s Accountability in Tanzania” published in the Law School of Tanzania Journal (Vol 2, No. 1, 2017) states: “In Tanzania, the Prevention of Terrorism Act has not given a straightforward definition of the subject either. Section 3 of the Act does not define the concept but defines which acts constitute it by making reference to Section 4 which enlists such acts or omissions labelled as constituting ‘terrorist acts’ when committed and provides further that the expression “terrorist”, shall be construed accordingly. Even so, Section 4, to which reference is made to by Section 3, does not provide a helpful explanation of what constitutes terrorism.”

HRCSL on laws on terrorism

The Human Rights Commission of Sri Lanka, in a letter to the Minister of Justice last month, called for the abolition of the PTA and recommended that the offence of “terrorism” be dealt with under general law. Any new offence with respect to “terrorism” should contain a specific and narrow definition of terrorism, such as the following: “Any person who by the use of force or violence unlawfully targets the civilian population or a segment of the civilian population with the intent to spread fear among such population or segment thereof in furtherance of a political, ideological, or religious cause commits the offence of terrorism”. The letter was copied to Mr. Arsekularatne.

Five features of the PTA were described as particularly egregious: vague and open-ended offences, long term detention —- up to twelve months — without trial, dispensing with the requirement to produce a suspect before a Magistrate within a stipulated period of time in total contravention of Article 13(2) of the Constitution, denial of bail to the accused once an indictment is served in the High Court, and the admissibility of confession to police officers as evidence, thereby encouraging the abuse of suspects in custody.

The letter to the Minister was in relation to the much-publicised arrest and detention of one Mohamed Rusdi for displaying two anti-Israeli stickers, which the Commission found to have violated several of his fundamental rights.

The Commission viewed Rusdi’s case as an example of how law enforcement authorities may venture even beyond the PTA, revealing an institutional demand for enhancing police powers under a new special counterterrorism law. While preventive detention and racial profiling in the absence of any reasonable suspicion of an offence are not permitted under the PTA, a new special counterterrorism law could very well legitimise such measures, the Commission stated. Did the Commission have any indication that law enforcement authorities were proposing measures such as preventive detention, which even the PTA does not provide for?

The Commission cautioned the Ministry of Justice and all those involved in the current process to be conscious of the dangers inherent in any suggestion to enhance the powers of law enforcement authorities. Such enhancement may pertain to new powers being granted to law enforcement authorities to “detect”, “monitor” and potentially “rehabilitate” persons who are not reasonably suspected of any offence, but based on racial profiling, estimated to be “radicalised” or prone to “religious extremism” and capable of offences in the future.

It is in the above context that the writer suggests that for an act to fall within the crime of terrorism, it must either involve “terror” or a “state of intense or overwhelming fear,” or be carried out to achieve a goal of an individual or organisation that employs “terror” or a “state of intense or overwhelming fear” to attain its objectives. A broader definition would result in misuse, as happened under the PTA for more than forty-five years.