To the existing legal arsenal against terrorism in Sri Lanka yet another legal weapon was added on 6 December 2006 with the introduction of Emergency (Prevention and Prohibition of Terrorism and Specified Terrorist Activities) Regulations of 2006. What is the need for this new legislation when there are legislations like 'Emergency Regulations' declared under Public Security Ordinance (PSO) of 1947, Prevention of Terrorism Act (PTA) of 1979, and Suppression of Terrorist Financing Act No. 25 of 2005 already in force?
The basic rationale outlined by the government for introducing the new law was that the "existing regulations are not sufficient to deal with the terrorist activities faced today.'' This means that the new law should be radically different from the existing legislations possessing new techniques, to "prevent, suppress, terminate and prohibit such further acts of terrorism and other specified terrorist activities."
Except for defining 'terrorism' for the first time, there is nothing new in the Act. Section 16 (i) of the Regulations says 'terrorism' "means any unlawful conduct which:
(a) involves the use of violence, force, coercion, intimidation, threats, duress, or
(b) threatens or endangers national security, or
(c) intimidates a civilian population or a group thereof, or
(d) disrupts or threatens public order, the maintenance of supplies and services essential to the life of the community, or
(e) causes destruction or damage to property, or
(f) endangers a person's life, other than that of the person committing the act, or
(g) creates a serious risk to the health or safety of the public or a section of the public or,
(h) is designed to interfere with or disrupt an electronic system, and which unlawful conduct is aimed at or is committed with the object of threatening or endangering the sovereignty or territorial integrity of the Democratic Socialist Republic of Sri Lanka or that of any other recognized sovereign State, or any other political or governmental change, or compelling the government of the Democratic Socialist Republic of Sri Lanka to do or abstain from doing any act, and includes any other unlawful activity which advocates or propagates such unlawful conduct." 'Terrorism', is thus defined in very broad terms severely affecting democratic values and fundamental rights.
In addition, the Act also brings in 'specified terrorist activity', which means, "offences specified in the Prevention of Terrorism Act, offences under the Public Security Ordinance No. 25 of 1947 and Regulations made thereunder (sic), offence under section 3 of the Prevention of Money Laundering Act No. 5 of 2006, offence under section 3 of the Convention on the Suppression of Terrorist Financing Act No. 25 of 2005, and offences under sections 114, 115, 116, 117, 121, 122, 128, 129 of the Penal Code." In fact, it has increased the scope of the law by incorporating provisions from all the existing laws.
Once again, immunity to law enforcement is provided under Sec 15: "No action or suit or proceedings shall lie against any Public Servant or any other person specifically authorized by the Government of Sri Lanka to take action in terms of these Regulations, provided that such person has acted in good faith and in the discharge of his official duties." Enormous discretionary powers entrusted by the existing special laws to the security forces have been blatantly misused before and creating the "uniform phobia" in Tamils. Language has been one of the critical variables that determined the behavior of the security forces, apart from consistent provocations by the LTTE. Ethnically mixed forces could have avoided such problems.
What is also unique about this law is the provision for 'Competent Authority' (CA) who can "grant approval either unconditionally or subject to stipulated conditions, to any person, group or groups of persons, to engage in any stipulated lawful transaction with any other person, group or groups of persons who may be acting in contravention" of the Regulations. The provision gives enormous discretionary powers to the CA over those individuals or groups involved in the peace process.
The safeguards in the new law are in the form of an 'Appeals Tribunal' comprising of the Secretaries to the Ministries of Defence, Finance, Nation Building, Plan Implementation and Justice (Sec 14). The Tribunal is empowered "to affirm, vary or rescind conditionally or unconditionally the decisions made" by the Competent Authority. However, this measure is highly inadequate as the members of the Tribunal are Presidential nominees and may not rule against the wishes of the Executive. The Judiciary should have been made responsible for this Tribunal instead of making this wholly an Executive affair.
Overall, the Sri Lankan state has failed to learn from history about the success or failure of extraordinary laws vis-?-vis terrorism. If proper corrective measures are not in place, the law will only further alienate the Tamil community.