I was just a toddler when a little-known militant group, the LTTE, issued a communique on April 25, 1978, boasting of having assassinated nearly a dozen predominantly Tamil political leaders and police officers, including the Jaffna Mayor Alfred Duraiappah. As sectarian violence in the North continued to escalate, President Jayewardene and his Cabinet, in which my father served as Maheweli Development Minister, realized that the existing criminal laws were not up to the task of taking on this new and deadly threat. Terrorism was new to the world.
They tasked one of the sharpest minds in the Bar, Additional Solicitor General Tilak Marapana, to develop a new law to nip terrorism in the bud. Marapana assembled senior police and military officials in the North and listed out events that were out of control in the region – events like coordinated assassinations, witness intimidation, arms manufacturing and smuggling, and harbouring of terrorist suspects. They debated what powers the Government would need to combat these threats.
Marapana and his team quickly assembled a draft law that the Government would speed through Parliament. The “Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979” was so-named because President Jayewardene and his Cabinet, mindful of the dangers of such a law to the liberty of Sri Lankan citizens, gave the new law a three-year expiry date. They were certain that the LTTE could be wiped out in a matter of months. The Prevention of Terrorism Act (PTA) changed the game, but it was not enough. As the LTTE threat exploded into a full-blown civil war, by 1982 Parliament made the PTA permanent.
Over the next 27-years the PTA was an essential terror prevention tool. When deployed responsibly, it saved hundreds, even thousands of lives by allowing terrorists to be detained and held in custody before they could strike. It has been used to successfully investigate so many terrorism cases that the CID has published not a list but an entire book chronicling the successful operations and criminal convictions the PTA made possible.
Just as the PTA has saved lives when used responsibly, it has a history of reckless and malicious use to destroy innocent lives. Maverick UNP MP Sirisena Cooray was detained under the PTA on what the Supreme Court ultimately deemed to be politically trumped up charges. The Rajapaksa regime abused the PTA to detain Tamil journalists such as J.S. Tissanayagam and Nadesapillai Vidyatharan.
Defence Secretary Gotabaya Rajapaksa said, upon Vidyatharan’s 2009 arrest under the PTA that he was responsible for LTTE airstrikes in Colombo, and that anyone who defended him had “blood on their hands.” Vidyatharan was released and never charged. Throughout the Rajapaksa regime, the intelligence services abused their powers to monitor the telephone calls of Opposition MPs and journalists, including Ranil Wickremesinghe, for what they called ‘national security reasons’.
Such overreach was one reason the Yahapalanaya Government in 2015 pledged to repeal the PTA and replace it with a modern counter-terrorism solution. Another reason was a frightening truth. The PTA, for all its strengths, is a piece of wartime legislation designed to stop an ongoing conflict, not prevent a new one. Sri Lanka, and the world, have learned a lot about preventing and combatting terrorism in the nearly 40 years since the enactment of the PTA.
Six weeks after the brutal Al Qaeda attacks on September 11, 2001, the United States introduced the PATRIOT Act to augment their ability to prevent and combat terrorism. The United Kingdom amended its Regulation of Investigatory Powers Act (RIPA) to enhance their own counter-terrorism regime. But the Sri Lankan anti-terrorism strategy has not evolved in 40 years or adapted to a post-LTTE threat profile.
Terrorism today is a global threat.Terrorists have adapted to the 21st century.They hide their communications with encrypted messaging applications. They use the Internet to distribute propaganda and recruit new cadres.The domain of cyber-warfare is ripe for terrorists to exploit. To counter these 21st century terrorist threats, Sri Lanka was badly in need of a 21st century anti-terrorism solution.
In 2015 the Cabinet appointed a committee chaired by Law and Order Minister Sagala Ratnayake, comprising the Tri-forces commanders, IGP, TID, intelligence services, Attorney-General’s Department and human rights lawyers. For one and a half years, the committee debated the lessons of yesterday and the needs of today, and Sri Lanka’s role in the global war on terror. The committee forwarded their legal and policy framework to the Cabinet, who sent it on to the Legal Draftsman to formulate a Bill to be presented to Parliament.
As fate would have it, on September 17, 2018, nearly 40 years after he brought the PTA into being as an Additional Solicitor General, now Foreign Affairs Minister Tilak Marapana submitted to Parliament the Counter Terrorism Bill, draft legislation that is destined to replace his own creation from an era when his own children were around the same age as his grandchildren are today.
The Counter Terrorism Bill is a landmark proposition, and possibly the single most controversial piece of legislation introduced by any Government in living memory. It is the only bill in my lifetime that has been attacked from all sides of the political spectrum. Many have argued that it dilutes the powers of the PTA and leaves Sri Lanka vulnerable to terrorism. Others allege that it would leave our people open to civil rights abuses in the hands of an autocratic regime. Nationalist extremists and pluralistic human rights advocates alike challenged the constitutionality of the Bill before the Supreme Court – some to strengthen it, and others to dilute it.
Last month, this political hot potato landed on Parliament’s Sectoral Oversight Committee on International Relations, which I chair. It is our job to hold hearings on the Bill, give effect to the determination of the Supreme Court, and send the Bill forward for a vote in Parliament.
The hard lessons learned by our police and prosecutors from war with the LTTE speak through the Bill. When a provision allowing the police to produce a detained terror suspect before ‘any Magistrate’ was challenged in the Supreme Court, some insisted that suspects should be produced before the ‘nearest’ Magistrate. Additional Solicitor General Yasantha Kodagoda explained that due to terror activities there could be a situation where the police could be unable to reach the nearest Magistrate.
Thought-provoking realities like this strike home the importance of a law that balances individual liberties with the harsh realities of terrorism that Sri Lanka has endured. Kodagoda would know. As a junior prosecutor, he personally rushed to the scene minutes after several suicide bombings, including those targeting the Central Bank and Presidents Premadasa and Kumaratunga, to advise and assist the police. It took him a little longer to reach the scene of my father’s assassination in October 1994, because he was out of Colombo.
Our Committee received the Bill from the National Security oversight committee. While nobody wants to rush this Bill to the floor, the six weeks between today and the conclusion of the budget debate will afford us valuable time to study a variety of perspectives on the proposed CTA and ensure that we get it right. In just the last month, the Committee has amended the Bill to conform with the Supreme Court determination and take vast strides forward on the fronts of civil liberties and transparency against the original Bill. For example, we added an amendment to qualify some of the emergency powers of senior police officers to require a “clear and present danger” to life before they could act in terms of the law.
A review panel has been introduced, appointed by the Constitutional Council, to hold law enforcement accountable and provide civilian oversight for the implementation of the law, in line with other modern democracies. We placed restrictions on the Government’s power to proscribe organisations as terrorist groups at will.
Prosecutors and police officers with decades of experience in dismantling terror networks have put serious thought into not only how we can respond to terror attacks, but how we can prevent them from occurring. My family and I will always be grateful for the role that the PTA played in helping to bring my father’s killers to justice. But there is nothing we would not have given for a law that could have nipped these murderers in the bud and allowed our father to live to see his five beautiful grandchildren today.
A few weeks before the LTTE killed my father, he had arranged to bring Mahajana Eksath Peramuna (MEP) Leader and very close family friend Dinesh Gunawardena into Parliament on the UNP National List. Today, ‘Uncle Dinesh’ is a fellow Member of the International Relations oversight committee. Having discussed the Bill in-depth with him over the last month, I can deeply appreciate what my father saw in such a deeply patriotic, intellectual sparring partner and graduate of the University of Oregon. He and Bimal Ratnayake have the interests of organized labour in their bones when they caution us that we must be precise in our definition of terrorism. As Kodagoda repeated to the committee, “one man’s terrorist is another’s freedom fighter.” Or some would say, a trade unionist. Or a journalist.
Even though the JVP and many in the UPFA have declared that they will not vote for the Bill under any circumstances, it would be bad governance, not ‘yahapalanaya’, for us to shut their legitimate voices out of such a critical national debate. Their input has challenged us to produce a better law through consensus and compromise.
Eminent legal scholars like M.A. Sumanthiran and 19th Amendment author Dr. JayampathyWickramaratne also provided their input on not only the definition of terrorism but other fundamental facets of the Bill.We all agree that the draconian provisions of the PTA need to be eliminated, and that our country is in dire need of many of the terror prevention tools that the CTA has to offer. And we have arrived at a definition of terrorism that is more liberal than those adopted by either the United States or the United Kingdom.
Just a few years ago, through a stroke of luck, a conscience-stricken ex-LTTE militant strolled into the TID and confessed of a plot to assassinate Sumanthiran. The TID, while caught off-guard, responded rapidly, using the PTA to its fullest to unwind the plot, detain the conspirators and secure their explosives before they could shed blood. Some of the plotters had links with Military Intelligence. Thanks to an unfathomable crisis of confidence by one of the terrorists, and the effective use of the PTA, five suspects have been indicted, and Sumanthiran remains among us today.
The foiled plot to assassinate Sumanthiran was not a last time we have gotten lucky. Just last month the CID chanced on a warehouse in Puttalam containing 100 kilograms of high explosives and almost as many electronic detonators. The four suspects they have arrested and detained remain mum.
Over and above all the provisions in the Counter Terrorism Bill to protect human rights by entrusting the judiciary to safeguard detainees from torture and abuse, the Bill provides essential tools for the police to conduct the kinds of difficult and sensitive investigations and intelligence gathering operations necessary to actively map out and uproot terror cells before they strike. It has provisions to proscribe the use of Sri Lankan soil to plan terrorist attacks overseas and vice versa. It lays out a robust framework for international cooperation against terrorism.
As legislators, we have a unique duty to empower the police and courts to defend our country against terrorists and our civil rights from abuse.The terrorists of yesterday have claimed the lives of 35 MPs including 9 Cabinet Ministers. In our own Parliament, Sajith Premadasa, my brother Navin and I lost our fathers. Kanchana Wijesekara nearly lost his father. Sudarshani Fernandopulle lost her husband. President Rajapaksa nearly lost a brother. Sarath Fonseka nearly lost his life to a suicide bomber. Every one of the scars that litter the Field Marshal’s body was put there by the LTTE. Each is a testament to not just his own courage but the soldiers under his command who put an end to the Tigers. Nearly every political family in our country has been scarred by terrorism in some painful way. This is an emotionally poignant process for every Sri Lankan.
While next month will be consumed by the budget debate, our goal in the International Relations oversight committee must be to send the Counter Terrorism Bill to the floor by April so it can be enacted and protect us from the terrorists of tomorrow.