Tuesday, 25 July 2017

Lanka’s PTA vis-a-vis Australian anti-terrorism laws




By Shamindra Ferdinando

In the wake of UN Special Rapporteur Ben Emmerson, QC, lambasting Sri Lanka over the delay in repealing the Prevention of Terrorism Act (PTA), the Tamil National Alliance (TNA) has sought Australian intervention to pressure Sri Lanka over a spate of issues, including the immediate abolition of long-standing anti-terrorism legislation.

TNA leader R. Sampanthan and Jaffna District MP M.A. Sumanthiran made representations to Australian Foreign Minister Julie Bishop at the residence of Australian High Commissioner Bryce Hutchesson, in Colombo.

A TNA statement issued, soon after the conclusion of 45-minute meeting, quoted Trincomalee district MP Sampanthan as having told Bishop that the inordinate delay in repealing of PTA, in spite of Sri Lanka’s commitment to the International community, remained a major concern. The TNA said that it had received an assurance from Julie Bishop that she would take up issues raised by the TNA when she met Prime Minister Ranil Wickremesinghe.

Since its introduction, in 1979, the PTA had been extensively used by successive governments against the Tamil terrorist groups as well as the Janatha Vimukthi Peramuna (JVP) and much to the discomfort of the TNA, more arrests were made under the same law since the change of government, in January, 2015. Among those who had been arrested were former members of the defeated LTTE allegedly planning to assassinate MP Sumanthiran. Sumanthiran himself confirmed to the writer that the alleged attempt made on his life, by former LTTE cadres, was at the behest of Diaspora elements.

It would be interesting to know whether the Australian HC had briefed Bishop as regards the alleged attempt on the TNA lawmaker’s life and the four-party grouping’s long-standing partnership with the LTTE. In fact, the TNA had been formed, in late 2001, by the LTTE to advance its macabre eelam project and the outfit faithfully served terror master Prabhakaran until the very end.

Sri Lanka brought the war to a successful conclusion on the banks of the Nanthikadal lagoon, on May 19, 2009.

The recent spate of incidents, in the Jaffna peninsula, culminating with the killing of a police officer, near Nallur temple, over the last week end, close on the heels of the attack, on Coast Guard personnel, at Vallipuram, should be studied against the backdrop of efforts to abolish anti-terrorism legislation.

Interestingly, Australia felt the requirement to appoint a defence advisor only after the change of government, in January, 2015. Australia refrained from appointing a defence adviser during the war or immediately after in spite of some extremely corrupt elements in the Sri Lanka Navy (SLN) organizing large scale human smuggling operation.

Those who had been preoccupied with the abolition of the PTA never bothered to examine why Sri Lanka required such a law.

There cannot be absolutely no dispute as regards the TNA’s sordid relationship with the LTTE. The European Union Election Observation Mission, in mid 2004, had alleged the TNA secured the lion’s share of parliamentary seats, in the northern and eastern electoral districts, at the April 2004 parliamentary polls, thanks to the LTTE stuffing ballot boxes on its behalf. The writer had, on numerous occasions, highlighted the murderous TNA-LTTE project over the years.

Sri Lanka lacked the foresight to brief major powers regarding the LTTE and its allies. The TNA that had declared the LTTE as the sole representative of the Tamil community, in late 2001, and threw its political weight behind eelam war IV (Aug 2006-May 2009), today complained about the delay in the UNP-SLFP coalition addressing Tamils’ grievances. Sampanthan-Sumanthiran duo took up the following issues with Bishop: (A) Repealing of PTA (the statement issued by the TNA didn’t make any reference to new anti-terrorism legislation in place of the PTA) (B) Releasing of political prisoners (the TNA and some of those well paid NGOs refer to hardcore terrorists in custody as political prisoners) (C) Missing persons (vast majority of those who had been categorised as missing live overseas, including Australia. Some may have perished on their way to Australia in boats) and releasing civilian lands (in spite of releasing of significant portion of land held by the military), the TNA continues its campaign. President Maithripala Sirisena has publicly alleged that some northern politicians, an obvious reference to the TNA, had thwarted attempts to settle the internally displaced elsewhere. But, at the behest of the TNA, the displaced continued to insist their original places of living in a bid to force security forces to quit strategically important areas)

The previous government should be held responsible for Sri Lanka’s failure to expose the TNA. In spite of repeated warnings that its failure would one day allow the TNA to undermine Sri Lanka, the previous government did nothing. It wrongly asserted that a consensus could be reached with the likes of Sampanthan. Obviously, the former administration never anticipated the Sampanthan-Sumanthiran duo to pursue an agenda severely inimical to the country.

The ruling UNP-SLFP leadership seems blind to the fact that the TNA, now, pursued its strategy as the main opposition party in parliament, a position bestowed on the party by the coalition partners. The TNA has brazenly exploited the coalition partners to advance its strategy. In addition to the above mention matters, the TNA sought Australian backing for its efforts to bring in a new Constitution. Subsequently, the TNA raised the same issues with Under Secretary General for Political Affairs Jeffery Feltman at a meeting held at the UN compound.

Sri Lanka shouldn’t be blind to the fact that Australian’s position as regards Sri Lanka, is almost the same as that of the UN. Australia takes a different view in respect of the refugees and work closely with successive Sri Lankan governments to keep would-be asylum seekers out of Australia.

Australia-Lanka role in

‘extraordinary rendition’

Against the backdrop of Australia, also, speaking on behalf of the TNA, it would be pertinent to examine anti-terrorist laws adopted by the US ally in the wake of the devastating 9/11 attacks on the US. Australian measures are compatible with US anti-terrorism strategies. Interestingly, both Sri Lanka and Australia had been involved in the CIA’s ‘extraordinary rendition’ (mass scale operation to abduct, transfer and interrogate terrorist suspects outside US territory). The Open Society Foundation, in early 2013, listed Australia and Sri Lanka among 54 countries which facilitated the operation. The culprits included the leaders of the following countries spanning the continents of Africa, Asia, Australia, Europe, and North America: Afghanistan, Albania, Algeria, Australia, Austria, Azerbaijan, Belgium, Bosnia-Herzegovina, Canada, Croatia, Cyprus, the Czech Republic, Denmark, Djibouti, Egypt, Ethiopia, Finland, Gambia, Georgia, Germany, Greece, Hong Kong, Iceland, Indonesia, Iran, Ireland, Italy, Jordan, Kenya, Libya, Lithuania, Macedonia, Malawi, Malaysia, Mauritania, Morocco, Pakistan, Poland, Portugal, Romania, Saudi Arabia, Somalia, South Africa, Spain, Sri Lanka, Sweden, Syria, Thailand, Turkey, United Arab Emirates, United Kingdom, Uzbekistan, Yemen, and Zimbabwe."

Let me mention the Australian anti-terrorism laws in place, since March 2002, meant primarily to meet security threats posed by the Muslims. Australia has gradually intensified counter-terrorism measures over the years, finally leading to a major role for the Australian army in case of an emergency. Australia announced new measures a few days before Bishop arrived in Sri Lanka. The new measures will allow the army to determine its response in case of a terrorist attack without being guided by police. There cannot be any dispute whatsoever as regards Australia’s right to take anti-terrorism measures. Unfortunately, Australia seems blind, or not concerned, about post-war threats faced by Sri Lanka. Australia, as well as all those who had been demanding the abolition of the PTA, were reluctant to recognise the danger posed by well over 10,000 former LTTE cadres freed since the conclusion of the conflict.

Australian media quoted Premier Turnbull as having told those based at the Holsworthy Barracks in Sydney: "Our enemies are agile and innovative. We have to stay ahead of them. We have to ensure that every resource we have – legislative, military, police, intelligence, security – is always at the highest standard and able to be brought to bear to keep Australians safe."

Having praised the UK police response to the recent London Bridge attack, in which two Australians were killed, Turnbull said: "It is vitally important that frontline police have their skills improved to be able – and the training to be able – to deal with these incidents on the spot. The police will remain the first responders but the changes will allow them to work more closely with the army."

In fact, the latest measures will allow the army to operate on its own without being restrained by police.

Post 9/11 Australian

anti-terrorism laws

March 2002: Australia passed anti-terror legislation in the wake of 9/11 attacks. The bills included the Security Legislation Amendment (Terrorism) Bill of 2002. It amended the Criminal Code

June 2002: Parliament accepted the majority of anti- terrorism bills.

On 23 October 2002: Australia endorsed the Criminal Code Amendment (Terrorist Organisations) Bill 2002. The bill was meant to ‘enable the speedier proscription of terrorist organisations.’

According to the Code, it is an offence to even "recklessly" provide support or funds to a "terrorist organisation" with a maximum prison sentence of up to 15 years.

March 2003: The ASIO Legislation Amendment (Terrorism) Bill 2002 that had been withdrawn in Dec 2002, was reintroduced with amendments, and passed in June 2003. ASIO (Australian Security Intelligence Organization) is given the ability to "coercively question and detain a non-suspect citizen" under a ‘Special Powers Regime.’ ASIO is currently headed by a military veteran, Duncan Lewis, whose appointments command of the Special Air Services Regiment. Before joining the public services, Lewis had commanded troops deployed in Iraq and Afghanistan. As Director General, ASIO, Lewis is answerable to the Attorney General.

December 2003: Further powers are granted to ASIO through the ASIO Legislation Amendment Act 2003 enhancing its ability to question and detain individuals in order to gather intelligence regarding a "terrorism offence".

June 2004: The Anti-Terrorism Act 2004 introduced several controversial amendments to the existing laws, including the Criminal Code, "to strengthen the counter-terrorism legislation relating to membership of terrorist organisations and the offence of receiving training from a terrorist organisation."

August 2004: The Anti-Terrorism Act (No. 3) 2004 gave ASIO powers to "demand the surrender of Australian and foreign passports in certain circumstances."

November 2004: The Surveillance Devices Act 2004 empowered police officers "to use listening devices, optical surveillance devices, tracking devices and data surveillance devices" and allowed police to "exercise the necessary powers to install, maintain and retrieve surveillance devices without a warrant in some circumstances."

September 2005: Australia declared several measures to strengthen existing laws. The measures included the introduction of control orders, preventative detention and new stop, question and search powers.

December 2005: Anti-Terrorism Act 2005 allowed up to 12 months of control orders and 14 days of preventative detention for terror suspects. It also allowed the banning of organisations for "inciting" terrorism and creates offences related to "urging hostility towards various groups."

May 2006: Telecommunications Amendment Act 2006 introduced number of laws related to interception of telecommunications, including interception of communications of a person known to communicate with a "person of interest".

June 2006: The sunset (expiration) clause of the "Special Powers Regime" introduced in 2003 to afford wide-ranging powers to ASIO is extended 10 more years to 2016.

February 2010: Australia released the Counter-Terrorism White Paper.

November 2010: Australia adopted the National Security Legislation Amendment Bill 2010 to further tighten anti-terror laws. Police are given extensive search and seize powers enabling them to enter premises without warrant in emergency situations related to terrorism offences.

October 2014: In the wake of heightened anti-terrorism alert, Australia adopted the first of three "tranches" of new laws, National Security Legislation Amendment Bill (No. 1) 2014. The laws granted unprecedented powers to ASIO–immunity from prosecution, powers to impersonate, use of force in executing a warrant, no warrant necessary in using surveillance devices, and the explicit allowance to add, modify and deleting files from computers.

Australia adopted the second set of new laws in October making it easier to prosecute Australian citizens engaged in "terrorist activities" or "hostile activity" overseas. Some major changes introduced in expanding the definition of terrorism, the new offence of ‘advocating terrorism’, to suspend a person’s passport for 14 days, criminalising travel to a designated area, etc. It also allowed the canceling of welfare payments for persons involved in terrorism and collection of biometrics at customs.

Australia adopted the third set of laws, The Counter-Terrorism Legislation Amendment Bill (No. 1) 2014 in Dec 2014. Amongst the changes: expanding the grounds upon which a control order can be requested and issued and the reduction of information required to be provided to the Attorney-General when seeking consent to request an interim control order.

March 2015: Australia adopted the fourth set of laws, Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015. Under these, telecommunication companies were required to retain phone and internet usage data of customers for two years and allow security agencies to access the records.

June 2015: The Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 is introduced on 24th June "to provide explicit powers for the cessation of Australian citizenship in specified circumstances where a dual citizen engages in terrorism-related conduct." The bill explains that "Australian citizenship involves a commitment to this country, its people and its democratic rights and privileges". The minister will also declare those organisations that are opposed to Australia or Australia’s values, democratic beliefs, rights and liberties.

Dec 2016: Australia passed unprecedented counter-terrorism measures that allowed convicted terrorists to be kept in jail even after the expiry of their sentences if Australia felt they posed a risk. Australia adopted new measures in response to a series of terrorist attacks since Sept 2014 in Australia and various parts of friendly countries. The legislation allowed Attorney-General to apply for an extension of a sentence of 12 months before it expired, though the original proposal was to apply six months before the date of expiry of a particular sentence.

Australia ignored criticism of the Greens and Liberal Democrats to go ahead with tough security measures.

Australia shouldn’t forget that terrorism, so far experienced by her, couldn’t be compared with horrors suffered by Sri Lanka, thanks to Indian intervention here in the early 80s. The LTTE caused massive destruction over the years until the previous government eradicated what Western powers, civil society and a section of the media considered indestructible. Australian anti-terrorism laws should be compared with the PTA as well as other anti-terrorism legislation adopted by Western powers, including Russia and India. Recent statement made by Emmerson, at the conclusion of his five-day visit here, was meant to humiliate Sri Lanka over its anti-terrorism laws. Emmerson is among those who had been demanding that Sri Lanka replace PTA with laws compatible with international laws. Perhaps, Sri Lanka should explore the possibility of adopting anti-terrorism measures on the basis of slew of Australian anti-terrorism legislation introduced since March 2002. The Australian laws are in line with general anti-terrorism measures adopted by those aligned with the US but in some cases even tougher than laws in place in other parts of the world.

Sri Lanka can never be complacent and ignore possible future threats. The country paid a huge price for failing to bring the war to an end much earlier. Had Sri Lanka launched sustained military campaign earlier, the LTTE could have been defeated years before the Nanthikadal battle. Perhaps, the Attorney General’s department should immediately initiate a project to study anti-terrorism laws in place in other countries (NATO countries, Australia and India) compare them with our PTA. The war-winning previous government never made an attempt to examine various anti-terrorism laws thereby jeopardised Sri Lanka’s security. It can never absolve itself of responsibility for not properly defending Sri Lanka.