The year 2024 is an important one for Sri Lanka. It is a presidential election year, and a resolution adopted by the UN Human Rights Council to gather evidence of international crimes for use in future prosecutions is due for renewal. After the public ousters of the former-elected President Gotabaya Rajapaksa in 2023, Ranil Wickremesinghe was appointed as the interim President. Since then, there have been a host of new laws that are either repressive in nature, or, in the case of bills related to transitional justice, do not address the concerns of victims. This article explores some of the main bills presented thus far.
The Anti-Terrorism Bill
The Anti-Terrorism Bill (ATA) was first introduced in March 2023, as previously explained in an article submitted to JURIST in May 2023. Despite being introduced as an alternative to the Prevention of Terrorism Act (PTA), which was implemented through emergency regulations, the bill in March received wider criticisms for being an even worse draconian law, leading to the Ministry of Justice calling for submissions for proposals on the ATA. As a result, a revised version of the ATA bill was gazetted and published subsequently in September of 2023.
The revised bill still shares much of the same concerns as the previous ATA bill and the CTA bill of 2018. This includes the broad definition of terrorism, which lacks significant clarity on distinguishing what a legitimate act of dissent is and an actual act of terrorism. In a statement published by the Human Rights Commission (HRC) of Sri Lanka, the commission detailed how certain sections, when read together, could potentially criminalize legitimate acts of public protests, including protests by trade unions. The HEC statement also expressed concern about the twelve months of detention a suspect can be held without trial and the enormous power vested in the Deputy Inspector General, an executive official who can now issue detention orders for a period of three months. Further, the increase of power vested upon the Senior Superintendent of Police, who may publish directives that restrict one from engaging in specific activities or movements, has also been a point of concern.
On January 10, 2024, the ATA bill was tabled in Parliament, and the published bill does not address any of the previous concerns highlighted.
Online Safety Bill
The Online Safety Bill (OSB), which was tabled in Parliament in October of 2023, has attracted calls for withdrawal from local and international persons and organizations because of its potential to expand the powers of the executive so as to repress the public’s freedom of expression.
While the bill does include provisions that criminalize activities such as fraud, cheating and child abuse under online safety, offences relating to “communication of false statements” dominate the bill. This includes statements of defamation, religious assembly through false statements, or any other negative statements published online regarding religion. According to this bill, there would be an Online Safety Commission, which is solely appointed by the President, as well as a Minister, who would have the power to introduce rules and regulations in addition to imposing directives on social media platforms. Among the many concerns highlighted, one central issue is understanding what online safety means within the provision of the bill. This is because the bill has a vague definition of what amounts to “prohibited statements” and because the bill provides the commission with the sole discretion to determine whether a statement would be regarded as “distressing.” In other words, allowing such wide discretion leaves room for abuse and violation of one’s freedom of expression and will chill the public from engaging in critical debates online.
The bill makes clear that anyone found guilty of an offence would face between five and twenty years of criminal liability in addition to fines. Interestingly, the bill also notes that intermediaries would also be held into account if they fail to remove unlawful content promptly. The latter aspect has led to practical concerns being raised, specifically in relation to the feasibility of requesting platforms to remove content deemed to be against the law of Sri Lanka within twenty-four hours. Criticism of this bill is also shared by the Asia Internet Coalition, a body that shares the concerns of tech giants. In a statement, the organization noted that in addition to the above, the Online Safety bill is unnecessary since various offences of the bill can already be found in the Penal Code Ordinance. The originization’s statement also points out that there are no proper due processes in place for affected parties to be heard or appealed.
Since the bill was gazetted in September 2023, there have been forty-five fundamental rights petitions filed to the Supreme Court. On November 7, 2023, the Court held that the OSB was constitutional if the bill made thirty-one amendments (to read on the amendments, refer to this document published by the Centre for Policy Alternatives). The Speaker of the Parliament noted that these special clauses needed to be passed by a special majority. However, he stated that if those clauses are amended at the Committee Stage, the bill could be passed by simple majority. The Committee Stage amendments, which were proposed by the Attorney General’s Department of Sri Lanka to the Supreme Court, are substantially different from the provisions of the original gazetted bill. This means for such substantial changes to be made, it requires the government to withdraw the present OSB and re-gazette its amended version. While initially, there was an agreement to revise the law as required, news reports note that the President has instructed to expedite the process and make arrangements to table the bill in Parliament in January 2024 without further delay.
Office of National Unity and Reconciliation Commission Bill
The Office of National Unity and Reconciliation Bill (ONUR) refers to making the already existing ONUR a permanent body. In 2015, as part of the government’s interest in implementing a national unity policy against ethnic, religious or social issues, an ONUR was established under a cabinet memorandum in April 2015. The purpose of this Office was to form a cohesive policy that respects all ethnicities in Sri Lanka in the interests of national unity and peace and execute projects in that respect. Initially, the ONUR was under the purview of the National Integration and Reconciliation Ministry. In August 2020, a gazette was issued to transfer the ONUR to the Ministry of Justice. Regardless of the transition of Ministries, since the ONUR was made by a cabinet memorandum it did not have enough powers to do its roles and responsibilities in an effective manner. Hence, for the longest time, there has been a need to make this office permanent through an act of parliament. Thus, by introducing this bill, the ONUR would be given special powers to effectively administer and perform activities. What this means is that, although this bill is needed in Sri Lanka, the proposed office, as of now, does not have checks and balances in place. More importantly, the commission has wide powers, with serious potential for it to be abused.
There are two main criticisms raised against this Office with respect to the proposed bill. The first is that the appointment and removal of members of the commission, a power that is solely shared between the President and the Minister appointed, could lead to the body being politically biased. The second most important criticism raised against the office is in relation to the role of the ONUR with community-based organizations. In S10(m)(o), the bill notes that “the office will guide and facilitate peace and reconciliation programs conducted by local organizations, including community-based organizations”. Many civil society organizations have raised concerns about the potential oppressiveness of the ONUR in monitoring and reviewing their projects centered on peace and reconciliation. Other concerns raised on the bill pertain to the immunity the commission members hold.
Bill on Commission for Truth, Unity, and Reconciliation in Sri Lanka
On January 1, 2024, the bill on the Commission for Truth, Unity and Reconciliation in Sri Lanka was gazetted. The need for such a Commission is associated with Sri Lanka’s obligations to implement measures that contribute towards transitional justice after the thirty-year civil war and ensuing civil rights concerns. The number of disappearances that remain unsolved, the emblematic cases, and the wide number of violations of human rights and war crimes committed by the government of Sri Lanka remain unaddressed in 2024, which is fifteen years since the war ended. Hence, not only have victims not received justice to date, but multiple resolutions have been passed by the United Nations Human Rights Council, demanding the government to take measures to find the truth and to hold perpetrators to account. However, this new bill does not offer hope for victims as they have consistently faced multiple commissions of inquiry to no avail. In fact, Sri Lanka has gained a reputation for facing an accountability deficit, with the victims feeling a sense of commission fatigue due to the number of times they have been subjected to recounting their accounts with no concrete steps taken towards addressing them. A detailed criticism of the TRC has been provided by the HRC of Sri Lanka.
The proposed Commission is appointed at the discretion of the President and the Constitutional Council. This itself raises concerns about whether the Commission would be politically biased. The bill as a whole, moreover, fails to address the demands of the victims who require accountability and instead would only be forwarded to the Office of Missing Persons if dealing with such a case or to the Office of Reparations, of which both institutions are regarded to not be as effective. The bill further grants immunity to the Office members while the bill also allows the Office to gain the assistance of the Police for investigations, a body that the public at present greatly mistrusts
With national elections set to be held this year, one may note that the above measures aim to ensure the government has more power and control over the public. On the other hand, one may further notice that certain laws, such as the bill on implementing a commission on truth, unity and reconciliation, are advancing to please the international community. Therefore, it remains to be seen how the above will progress in the coming weeks.
Naveera Perera is a law graduate from the University of London, currently pursuing her bar exams at Sri Lanka Law College.
