WRITTEN SUBMISSIONS

IN THE SUPREME COURT

OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

In the matter of an application to

determine whether the Bill titled: “Anti
Terrorism” or any part thereof is
inconsistent with the Constitution in
terms of Article 121 of the Constitution.

Muhammadhu Jazeem Muhammadhu

Ahnaf,
(popularly known as Ahnaf Jazeem)
No.57/2, Pandaraweli, Chilawathrai,
Mannar
-PETITIONER-
SC (SD) No: 30/2024
Vs.

Hon. Attorney General

Attorney General’s Department
Colombo 12

-RESPONDENT-

TO: HIS LORDSHIP THE CHIEF JUSTICE AND THEIR LORDSHIPS THE OTHER
HONOURABLE JUDGES OF THE SUPREME COURT OF THE DEMOCRATIC
SOCIALIST REPUBLIC OF SRI LANKA

WRITTEN SUBMISSIONS IN SUPPORT OF THE PETITION AND ORAL

SUBMISSIONS

On this 01st day of February 2024

1. This matter was taken upon on 30th January 2024 before your Lordships’ Court and
the Counsel made oral submissions in support of the Petition of the Petitioner. Your
Lordships’ Court having ordered that written submissions be filed before 02nd
February these written submissions are made in support of the Petition and the oral
arguments made on aforementioned date. With respect, Your Lordships’ Court
would appreciate that due to the very limited time available, only the most

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 important theoretical and Constitutional concepts have been discussed, supported
by judicial and other authorities.

2. It is submitted that the provisions of the said Bill titled “Anti Terrorism” (marked as
X) published in the Government Gazette issued on 15 September 2023 are
inconsistent with the provisions of Articles 3, 4(a), 4(c), 10, 11, 12(1), 13(1), 13(2),
13(3), 13(5), 14(1)(a), 14(1)(b), 14(1)(c), 14(1)(d), 14(1)(e), 14(1)(f), 14(1)(g), 14(1)(h),
15(7) and 76(1) of the Constitution in the manner and for the reasons set out herein.

3. The said Bill has serious detrimental effects over individual liberties, the criminal
justice system, minority rights, freedom of expression and association, and over
democratic standards in general, and lacks legitimacy due to absence of popular
mandate.

4. The said Bill does not reflect the will of the people and /or is not in the interest of
the People of Sri Lanka. The Petitioner, being a victim of current Prevention of
Terrorism Act is entitled to challenge this proposed law. It is submitted that the
Petitioner is a living evidence of the harsh and cruel nature of any anti-terror law.

5. The said Bill contains egregious provisions of law and the conditions of terrorist
threats as contemplated in the preamble to the said Bill are mere speculation.
Further, the Petitioner states that there is no legitimacy for laying down a blanket
support to any ‘sovereign nations' against all forms of civil disobedience or revolt,
specially under circumstances of racial or ethnic or class intimidation, oppression or
occupation, as in Gaza by Zionist Israel.

6. The entirety of the said Bill introduces a parallel criminal justice scheme which is
triggered by identification of an offence as an ‘act of terrorism’, and the scheme
introduces a series of broad discretionary executive powers which deny and/or
abridge the rights of such suspects to the ordinary guarantees of fundamental rights.

7. The said Bill specifically seeks to interfere with the basic structure of the
Constitutional Democratic structure contemplated in the preamble of the

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 Constitution. Enactment of the said Bill, would demonstrably strengthen the
already-dictatorial powers of the Executive headed by the President. It will
permanently abridge fundamental rights guaranteed to people of Sri Lanka, remove
judicial scrutiny over violations of fundamental rights and pave the way for a police
state.

VAGUE AND OVERLY BROAD DEFINITION OF ACTS OF TERRORISM AND

OTHER OFFENCES

8. It is submitted that Clause 3 of the said Bill which sets out the definition of the
offence of terrorism is overly broad and fails to meet democratic standards. The
definition is given in two parts.

a) The first part in Clause 3(1) identifies the intention to “intimidating public or a
section of the public”, “wrongfully or unlawfully compelling the Government of Sri
Lanka, or any other Government or an international organization to do or abstain from
doing any act”, “unlawfully preventing any such government from functioning”, or
“propagating war or, violating territorial integrity or infringement of sovereignty of Sri
Lanka or any other sovereign country”

b) The second part in Clause 3(2) sets out the twelve broadly worded ‘acts or
illegal omission’ which include hurt (Clause 3(2)(a) causing serious damage to
place of public use (Clause 3(2)(e)), hostage taking, committing robbery, extortion
or theft of state or private property (Clause 3(2)(f)), causing serious risk to the
health and safety of the public or section thereof (Clause 3(2)(g)) obstruction or
interference to any electronic or automated system or to websites registered with
domains assigned to Sri Lanka (Clause 3(2)(h)), causing the destruction of, or
serious damage to, religious or cultural property (Clause 3(2)(i)).

9. It is submitted that the aforesaid definition of the “offence of Terrorism” is overly

broad and bad in law and under democratic principles. The definitional broad
wording lends itself to encompassing ordinary criminal offences, legitimate acts of
dissent and acts constituting an exercise of fundamental rights, including

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 a) Freedom of thought and conscience (Article 10 of the Constitution)
b) Freedom of speech, expression and publication (Article 14(1)(a) of the
Constitution)
c) Freedom of peaceful assembly (Article 14(1)(b) of the Constitution)
d) Freedom of association (Article 14(1)(c) of the Constitution)
e) Freedom to associate in public or private to manifest religion or belief in
worship, observe, practice or teach (Article 14(1)(e) of the Constitution)
f) Freedom to associate with others to promote and enjoy one’s own culture
(Article 14(1)(f) of the Constitution)
g) Freedom to by oneself or in association with others engage in lawful
occupation, trade, business or enterprise (Article 14(1)(g))
h) Freedom of movement (Article 14(1)(h) of the Constitution)

10. It is emphatically submitted that the offences described in Clauses 3, 6, 7, 8, 9, 10, 11,
12, 15, 16 (all offences in Part II are overly broad, bad, and draconian and will have
ripple and chilling effect on the democratic fabric of the society and upon the
democratic rights of the people of the country, especially the working people, the
marginalized, ethnic minorities, the political dissidents hostile to government
austerity policies and to freedom of expression and journalism. The Petitioner
submits that this proposed law, along with several other national security laws, hate
speech laws and laws to curtail social media activity will be used against
aforementioned sections of the society, gravely curtailing the democratic gains of
the society.

11. It is submitted that the definition of ‘offence of terrorism’ in Clause 3 lacks the
safeguards required by international democratic standards, democratic principles
and aspirations of the people and is overly broad. Such offences, if introduced
together with the broad powers of investigation (Part III, Part IV, Part V), arrest and
detention, some of which are removed from judicial scrutiny, will effectively and
permanently alter and/or narrow the scope of the fundamental rights enshrined in
the Constitution for the people of Sri Lanka. As such, Clauses 3(1), 3(2) read together
with Clauses 18, 19, 22, 28(2)(a), 31(1)(b), 39, 83 and the several Clauses on

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 investigative powers interfering with the liberties and freedoms of persons are
inconsistent with the Articles 3 read with Article 4(c) of the Constitution.

EXTRAORDINARY POWERS OF ADMINISTRATIVE DETENTION

12. It is submitted that the Clause 28(2)(a) read together with Clause 31(1)(b) of the said
Bill usurps the power of the Magistrate, and thereby the judiciary, to ascertain
whether there are adequate grounds for the detention of the suspect. Under normal
and ordinary law, it is the function of the judiciary to oversee every executive act
which deprives individuals of their liberty.

13. Every arrest under the normal law requires that a suspect be brought before the
Magistrate ordinarily within 24 hours and the police is required to justify the
limitation of liberty of the individual in custody. Under Clause 31 (1)(b), a Detention
Order sought by the Inspector General of Police or any officer not below the rank of
a Deputy Inspector General of Police authorised by the Inspector General of Police
and thereafter issued by a Secretary to the Ministry of Minister of Defence removes
all authority of the Magistrate to review the justification for the deprivation of
liberty and that too for a minimum period of 2 months (Clause 31(1)(c)) extendable
to a maximum period of 12 months.

14. It is submitted that under clause 31(2) of the said Bill, the power to issue a Detention
Order has been given for the following purposes:

(a) to facilitate the conduct of the investigations in respect of the suspect;

(b) to obtain material for investigations and potential evidence relating to the
commission of an offence under this Act;
(c) to question the suspect in detention; and
(d) to preserve evidence pertaining to the commission of an offence,

It is submitted that such purposes cannot justify the curtailment of physical liberty,
and that past practice has asserted that the detention in order to facilitate these

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 purposes have gravely violated individual liberties, which fact would be more
forcefully a reality with the enactment of the said Bill.

15. In view of the above, Clauses 28(2)(a) and 31(1)(b) must be found ex facie
inconsistent with Articles 11, 12(1), 13(2) and 13(5). It is further stated that by these
Clauses the judicial power of the people as exercised by the Courts are usurped by
the Executive and such provision is inconsistent with Article 3 read together with
Article 4 (c) of the Constitution.

16. It is submitted that Clause 28(2)(b)(ii) of the said Bill curtails the power of the
Magistrate, and thereby the judiciary, to ascertain whether there are adequate
grounds for a suspect to be granted bail. The function of the judiciary to oversee
every executive act which deprives individuals of their liberty and to intervene
where necessary has been curtailed by the words ‘if the officer in charge of the relevant
police station requests or has no objection to bail being granted’. As granting Bail by the
Magistrate is limited to only where the officer in charge of the police station so
requests it or does not object, the hands of the Magistrate are tied and thereby the
judicial power of the people as exercised by courts is usurped by the Executive. As
such, this provision is inconsistent with Article 3 read together with Article 4 (c) of
the Constitution.

17. It is submitted that the power vested in the Magistrate to visit and interview a
suspect (Clause 32) does not constitute judicial review over said detentions.

18. It is submitted that:

a) Clause 31(6) of the Bill, whereby the President is empowered to specify

places of detention, creates an institutional network solely under the
purview of the executive that holds persons deprived of physical liberty,

and

b) Clause 40 of the Bill, which introduces a scheme by which a police officer

together with a Deputy Inspector General of Police without establishing the
commission of an offence, and in any event even if an offence had been
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 committed, by merely reporting an allegation, remove the suspect from
under judicially supervised custody to executive controlled custody
(detention)

are inconsistent with Articles 11, 12(1), 13(2) and amounts to an alienation of
the judicial power of the people as exercised by courts by the executive and
as such the provision is inconsistent with Article 3 read together with
Article 4 (c) of the Constitution.

OVERLY BROAD INVESTIGATIVE POWERS

19. It is submitted that Clause 64 of the said Bill is inconsistent with Article 12(1) of the
Constitution, whereby a police officer, for the purposes of investigation, is
empowered to secure orders with the approval of the Magistrate inter alia restrain a
suspect, collection of blood, hair samples, swab, biometrics including finger
impressions and freezing bank accounts or suspending services provided by a
service provider, such powers amount to interference with the rights of a persons
who are not necessarily suspects in a case, and which powers do not form part of
ordinary criminal procedure and has no justification for incorporation as powers
necessitated in the overly broad extraordinary circumstances described in the Bill.

POWERS ASSIGNED TO THE OFFICE OF ATTORNEY GENERAL

20. It is respectfully submitted that Clauses 70 and 75 read together with Clause 92 of
the said Bill are inconsistent with Articles 13(3) and 13(5) and is inconsistent with
Article 3 read together with Article 4(c) of the Constitution. These Clauses attempt
to legitimize an existing practice whereby persons in detention are compelled to
accept ‘rehabilitation’ which in effect is a form of punishment without finding of
guilt.

21. It is submitted while plea bargains are a practice in criminal justice proceedings and
are entered into where the suspect has been informed of the weight of the evidence
against them, the language of Clauses 70 and 75 designs a process of incentivizing

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 acceptance of a penalty and imposing a penalty respectively. The suspect is
essentially required to decide on the lighter sentence - making a public apology,
paying reparation to victims of the offence, undergoing rehabilitation or engaging in
community service, without being informed of the evidence against them. In a
context of laws delays, high costs of litigation and the threat of fresh indictment for
offences which attract high penalties under the said Bill, these provisions will
unfairly compel individuals to admit guilt.

22. It is submitted that Clauses 70 and 75 specifically empowers the Attorney General
to unfairly cause penalties to be borne by suspects. It is inconceivable that an
executive office is empowered to compel acceptance of or impose a penalty without
a presentation of material that demonstrates that guilt will be proven or after
proving guilt. Thereby these provision interfere with powers of the People as
described in Article 4(c) and 4(d) of the Constitution.

BROAD EXTRAORDINARY POWER TO THE PRESIDENT

23. It is submitted that Clause 79 empowers the President to designate an organization

as a proscribed organization and Clause 79(3) sets out a multitude of ways in
which the activities of such an organization may be curtailed. Given the vague and
overbroad scope of offences created under the scheme of this Bill, these powers can
be employed against a broad range of persons and organizations including left
political parties and leaders and worker organizations. This potential interferes,
without any judicial oversight, with rights guaranteed under the Constitution
including freedom of thought and conscience (Art 10), right to equality and equal
treatment (Art 12), freedom of speech and expression (Article 14(1)(a)), freedom of
peaceful assembly (Article 14(1)(b)), freedom of association (Article 14(1)(c)),
freedom to form and join a trade union (Article 14(1)(d)), freedom to associate with
others to manifest religion or belief (Article 14(1)(e)), freedom to associate with
others to enjoy and promote culture and language (Article 14(1)(f)), freedom to
associate with other to engage in lawful occupation (Art14(1)(g) and freedom of
movement 14(1)(i) of the Constitution. Such granting of power amounts to a
violation of Article 3 read together with Article 4(d) of the Constitution.

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24. The Petitioner states that Clause 80(1) of the Bill empowers the President, after an
application is made to the High Court by the Attorney-General and High Court
sanction is obtained, to make Restriction Orders. The Clause appears to be
triggered against a person who has committed or is preparing to commit an offence
and as such all of the restrictions sought ought to be granted by a judicial officer
against a suspect. Such restrictions against a person merely for investigation is an
unacceptable scheme of restriction of civil liberties. As such this Clause is
inconsistent with Article 3 read together with Article 4(d) of the Constitution.

25. Under clause 81, the President also can also order for curfews for twenty for hours
without even any parliamentary scrutiny. It is submitted that this is anti-democratic.

26. The Clause 82 of the Bill which stipulates that the President, on the
recommendation made by the Inspector General of Police or the Commander,
respectively of, Army, Navy or Air Force or the Director General of Coast Guard
may designate ‘prohibited places’ contravenes Article 12(1) and this is entirely at
the discretion of the President. There is also no mention for how long such order is
effective and as result creates an opportunity for the government to permanently
designate a public place to be a prohibited place.

27. As such, this clause 82 is inconsistent with Article 12, Article 14(1)(a) (freedom of
speech and expression), Article 14(1)(b) (freedom of peaceful assembly), Article
14(1)(c) (freedom of association), Article 14(1)(d) (freedom to form and join a trade
union), Article 14(1)(e) (freedom to associate with others to manifest religion or
belief), Article 14(1)(f) (freedom to associate with others to enjoy and promote
culture and language), Art14(1)(g) (freedom to associate with other to engage in
lawful occupation) and 14(1)(h) (freedom of movement) of the Constitution.

28. Such a decision is removed from even judicial oversight. Therefore, the said Clause
85 is inconsistent with Articles 3 and 4 (a), 4 (c) and 4(d) of the Constitution.

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29. It is submitted that Clause 83(6) creates a scheme by which persons are deprived of
property in the first instance and thereafter placed in the position of having to
establish their claims. Such a scheme could be easily subjected to abuse also given
the wide scope of offences created under this Bill.

30. It is submitted that Clauses 92 of the Bill also usurps the power of Parliament to
legislate over matters such as rehabilitation programmes and in any event fails to
require the President in which office the Bill seeks to vest such power, to place the
regulations relating to rehabilitation programmes for legislative scrutiny. This
removes from accountability any decision and/or action duly done thereunder,
resulting in an inconsistency with Article 3 read with Article 4(a) and 12(1) of the
Constitution

31. The Clause 92 of the said Bill is also inconsistent with Article 76(1) of the
Constitution which states that ”Parliament shall not abdicate or in any manner alienate
its legislative power and shall not set up any authority with any legislative power.” And
delegation or alienation of legislative power does not falls within the narrow
confines set out in Articles 76(2) and (3) of the Constitution.

32. It is specifically submitted that that Clauses 19, 22, 48, 60(1)(6), (8), and (10) which
give wide extraordinary police powers to officers and members of the armed forces,
coastguard is a seriously detrimental to the fundamental rights enjoyed by the
people Sri Lanka. It seeks to militarize permanently daily life and as such interferes
with Article 10, Article 11 and Article 12(1) of the Constitution.

A BILL IN ITS ENTIRETY THAT FAILS TO PROTECT AND PROMOTE

HUMAN RIGHTS

33. In the Republic, the sovereignty is in the people and is inalienable. Sovereignty
includes the powers of the Government, Fundamental Rights, and the Franchise.
Article 4 is an elaboration of the exercise of sovereignty in relation to legislative
power, executive power, judicial power, fundamental rights and the franchise.

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 Therefore, it is submitted that the entire said Bill in seeking to remove from
legislative and judicial oversight and powers, alters the basic structure and design
by which sovereignty of the people is exercised, and as such the entire said Bill is
inconsistent with Articles 3 and 4(a) and 4(c) of the Constitution.

34. Thus and otherwise, the It is submitted that the Bill in its entirety and the provisions
of the said Bill are
a) inconsistent with the aforesaid provisions of the Constitution,
b) inconsistent with Sri Lanka’s international obligations, and
c) anti-democratic, discriminatory, unreasonable, arbitrary, unjust, and prejudicial
to and goes against the interests of the working class, breach the democratic
aspirations of the people, and do not meet the necessary democratic threshold even
to be placed before the People to be approved in a referendum by the People.

35. It is submitted that the Bill titled “Anti-Terrorism”, published in the Government
Gazette issued on 15 September 2023, in its entire content, is unconstitutional, and
lacks fundamental qualities required of a law for the same to be placed for approval
by legislators even with a two third majority, and does not meet the threshold of
democratic quality required to qualify it to be placed before the people to be
approved by the People at a referendum.

An untimely general Law

36. It is submitted that, contrary to what the Preamble of the Bill attempts to convey,
the law proposed by the Bill has no historical legitimacy for its passage, existence or
implementation today in an aspiring democracy. This law is certainly the demand of
authoritarianism, tyranny, autocracy and dictatorship and not of an aspiring,
vibrant and progressive democracy. These laws, passed as permanent and general
law, could be used by the ruling elite and incumbent Governments against their
political opponents and dissidents at their whims and fancies whenever they want,
and is the very trademark of authoritarianism, totalitarianism. This law is not
necessitated by a situation of imminent threat to the security or survival of all or

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 part of our population or its culture. This law is not necessitated by the demands of
democratization during the post civil-war period, nor even after the Easter Sunday
attacks.

37. In any event, It is submitted that any imminent danger to the security of the
population could be addressed adequately in ways any democratic country would
respond to any such emergency situation, where Article 15(7) of the Constitution
would seem to have some legitimacy of application. A law that would deal
adequately with a situation of imminent threat or danger to the security or very
survival of all or part of the population or its civilization would definitely be of very
emergent and temporary nature. A permanent and general law proportionately
presumes a permanent and general circumstances. Sri Lanka has not faced any such
general and permanent circumstances of Terrorism or general and permanent
danger or threat to the security or survival of all or part of the population or
civilization of this country. In such circumstances, how can an anti-terrorism law of
the type of this Bill be passed and implemented as a law for all times, as a general
and permanent law?

38. Terrorism is a temporary and emergency situation, which needs only temporary
and emergency response. To make such laws general and permanent is to hold
liberty and constitutional freedoms disproportionately at suspense for all times.
That has no legitimacy at all. Even at the very extreme circumstances of threat and
danger to the very survival of the population, a law to adequately deal with such
circumstances could be legitimate only as temporary provisions. Therefore, it is
submitted that this law is redundant and not necessitated by historical
considerations.

39. It is submitted that almost often, to enact is to limit freedoms. This observation is
very much true in respect of penal laws relating to anti-terrorism laws, in whatever
manner the word "terrorism" is defined, even when these laws could be of
temporary nature and could be revived by emergency declarations. As submitted,
an anti-terrorism law in Sri Lanka is redundant and not necessary due to historical
considerations and such laws, if any, should only be temporary and be emergency

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 responses to threats to the population's security. Giving such laws general and
permanent effect would hold liberty and constitutional freedoms disproportionately
at risk, hence there is no legitimacy for a general and permanent anti-terrorism law.
Even in extreme and urgent circumstances, such laws could only be legitimate as
temporary provisions.

Successive governments thrived on social misery and rooted terrorism, so the

proposed law is illegitimate

40. In fact, it is submitted, terrorism is only the terrible symptom, not the disease. What
is required is not to pass and implement these harsh laws against the people, even
temporarily, but to uproot the conditions that breed terrorist outfits in the
society. Those conditions are bound organically with conditions such as
monumental level of social inequality and wealth polarization in Sri Lanka and
around the world - the latest Oxfam report says that the world’s five richest men
have more than doubled their fortunes to $869 billion since the start of COVID, at a
rate of $14 million per hour, while nearly half of the world population, a five billion
people, have been made poorer; the ethnic or other forms of discrimination and
oppression, social injustice, democratic deficiency and imperialist and neo-colonial
interventions are other contributory factors. In countries like ours, these conditions
have impacted on chronic proportions. Successive governments never turned to
uproot these with socially progressive socio-economic and legal measures. Instead,
they thrived on social misery and were the cause of whatever terrorist activity that
were. This Bill therefore is illegitimate.

41. The Bill also purports to commit the Sri Lankan populace to "protect other sovereign
nations and their people from the scourge of acts of terrorism". It is submitted that
this law will enable the government, for instance, to brand any anti-Zionist
demonstration as aiding and abetting antisemitic terrorist activity and arrest and
detain and prosecute the protestors. Given that the Online Safety Bill is now passed,
the government will declare, through its Commission, that what is true is that no
genocide has taken place in Gaza, so any agitation against Gaza Genocide would be
illegal and would amount to supporting terrorism.

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 A law lacking Quality of a Quality Democracy

42. It is respectfully submitted that this proposed law fails to reach even the minimum
threshold of democratic quality required of a law of a democratic society.

43. The provisions of the law should be assessed in its possible implementation in order
to see how such provisions could be anticipated to be abused or arbitrarily applied.
Law and law enforcement or legal administration are two different spheres, where
rule of law is a matter of the latter. But, in the process of law-making, both the law
and law enforcement, that is the sphere of rule of law, are indispensable
considerations to make. Pre-enactment review is part of law making. Then, rule of
law cannot be assessed without past experience. A court therefore has to assess a
proposed law in light of both the basic laws and democratic principles and the law
in its future practical application. Such assessment is possible only when we
carefully take into consideration how the previous laws of the same type have been
used in the past arbitrarily against individuals in the jurisdiction, in Sri Lanka and
in other countries. So, the past experience is an unavoidable consideration before
your Lordships' Court. Past experience shows how the PTA was used against ethnic
minorities in the country during a nearly thirty year racist civil-war in the North
and East and thereafter against Muslim community just for political agendas.
Hundreds were kept incommunicado detention, for years without trial, some
abducted, some forcibly disappeared. This is the well documented general
assessment of this law, and the number of research in this regard is general
knowledge of the population of this country. In light of this past experience of close
to 45 years , it is a very reasonable assessment to arrive at that the proposed law,
with provisions granting overreaching powers to law enforcement officers, the
executive and administrative officers, to police officers, to the IGP, to the Secretary
to the Ministry of Defence, to the Attorney General, to the President, in respect of
arrest, detention or administrative custody, place of detention and rehabilitation of
suspects, would, if enacted, pose imminent threats to the realization of the
constitutionally enshrined fundamental rights, freedoms and liberty of the
individuals including presumption of innocence, even without any emergency

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 situation declared. This law therefore lacks the required democratic quality of a
quality democracy.

44. According to the famous and authoritative standard laid down by Larry Diamond
and Professor Leonardo Morlino, the authorities on the subject,

[A] quality or good democracy” is “one that provides its citizens a high degree of
freedom, political equality, and popular control over public policies and policy
makers through the legitimate and lawful functioning of stable institutions. A good
democracy is thus first a broadly legitimated regime that satisfies citizen
expectations of governance (quality in terms of result). Second, a good democracy is
one in which its citizens, associations, and communities enjoy extensive liberty and
political equality (quality in terms of content). Third, in a good democracy the
citizens themselves have the sovereign power to evaluate whether the government
provides liberty and equality according to the rule of law. Citizens and their
organizations and parties participate and compete to hold elected officials
accountable for their policies and actions. They monitor the efficiency and fairness
of the application of the laws, the efficacy of government decisions, and the political
responsibility and responsiveness of elected officials. Governmental institutions also
hold one another accountable before the law and the constitution (quality in terms
of procedure).”

45. Then these scholars identify “eight dimensions on which democracies vary in
quality. The first five are procedural dimensions: the rule of law, participation,
competition, and accountability, both vertical and horizontal. Though also quite
relevant to the content, these dimensions mainly concern the rules and practices.
The next two dimensions of variation are substantive in nature: respect for civil and
political freedoms, and the progressive implementation of greater political (and
underlying it, social and economic) equality. Our last dimension, responsiveness,
links the procedural dimensions to the substantive ones by measuring the extent to
which public policies (including laws, institutions, and expenditures) correspond to
citizen demands and preferences, as aggregated through the political process."

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 [Diamond, Larry, and Leonardo Morlino. “The Quality of Democracy: An
Overview”. Journal of Democracy, vol. 15, no. 4, Oct. 2004, pp. 20-31.)

46. These dimensions are closely linked and tend to move together, either toward
democratic advancement and deepening, or toward decay.

47. Again, Megon and Prof. Morlino write that the rule of law should be understood as
the ‘foundation upon which every other dimension of democratic quality ultimately
rests.’

[Magen, A., and L. Morlino. 2008. International actors, democratization and the rule
of law. London: Routledge. 2008, 7, Quoted by Dr. Marko Kmezić in 'Rule of law
and democracy in the Western Balkans: addressing the gap between policies and
practice', 2019]

48. Therefore, the degree of freedom, rule of law, and equality are indispensable
dimensions of assessing the quality of a democracy. In this light, it is submitted that
to make it a terrorist offense to compel Sri Lanka government or any other
government of the world (like that of Benjamin Netanyahu's for instance) or an
international organization (like IMF or NATO for sure), "to do or abstain from doing
any act", by acts or omissions which may possibly be interpreted to extend to
activities in a workers' or farmers' strike or protest or student demonstration, could
not constitute an element of a higher degree of a democracy. Administrative
detention or custody (Clause 72) on the orders of a secretary to a ministry without
judicial assessment as proposed could not constitute a legitimate element of a
quality democracy. Obtaining consent from an intimidated, exhausted, helpless
suspect to tacitly admit guilt without proof thereof and under duress, and subjecting
him to "rehabilitation" under degrading conditions do not constitute an element of
a quality democracy. So too are the powers granted to the executive president, the
highest political authority to interpret principles and lay down regulations and
determine the liberty of the person at his will; a number of these instances were
pointed out herein before in these submissions.

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49. It is respectfully submitted that such a piece of legislation could not be part of a
quality democracy.

Pre-enactment Judicial Review

50. It is submitted that the testing of constitutionality is primarily an exercise of

ascertaining whether subject law is in agreement with the fundamental principles of
liberal constitutionalism and democracy which principles are crystallized in
concrete form as specific provisions in the text of the constitution. Such principles
essentially include the principle of limited government and equality, the liberties
and freedoms of the individuals of the society, crystallized in the fundamental rights
chapter of the second republican Constitution of this country. Thus, the standards of
review of the Righteousness or Quality of a proposed law, suitable for a progressive
constitutional democracy, primarily compel a court to assess the law to find out how
far and in what manner the law would affect the constitutionally guaranteed rights
of individuals, compared to "compelling government interest" in the legislation
(strict scrutiny test). There is no presumption of constitutionality of a Bill. This is
what is recognized as the human rights based/centered approach to legislation.

51. In this regard quoted below is the study of Professor Anil Kalhan and others, where
they refer to the plurality opinion of Justice O’Connor in US Supreme Court case,
Hamdi v. Rumsfeld [542 U.S. 507, 532 (2004)]. They say, "it is vital for governments
to protect their citizens from terrorism, which endangers liberty in self-evident ways.
At the same time, democratic societies committed to the rule of law must resist the
pressures to “give short shrift” to fundamental rights in the name of fighting
terrorism, and the sweeping antiterrorism initiatives of many countries raise serious
human rights issues."

[Colonial Continuities: Human Rights, Terrorism and Security Laws in India,

Colombia Journal of Asian Law, 2005]

52. Professor Michael Head writes as follows: "In Re Tracey; Ex parte Ryan, ((1989) 166
CLR 518) Brennan and Toohey JJ reaffirmed the principle that a law may be

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 declared invalid if its scope or application potentially exceeds the Constitution. To
borrow their fishing metaphor, if the ‘net’ cast by Parliament is too wide, in the
sense that the legislation may cover cases with insufficient connection to a valid
head of power, then it may be struck down." [Head, Michael, "Counter-Terrorism'
Laws: A Threat To Political Freedom, Civil Liberties And Constitutional Rights"

[2002] MelbULawRw 34; (2002) 26(3) Melbourne University Law Review 666, p684]

53. Head refers to the same case and says, "The High Court has assessed legislation
according to whether it is ‘reasonably appropriate and adapted’ to the relevant
power or purpose. A law may fail this test [proportionality test] if it unduly
infringes on basic rights, such as freedom of speech."

54. In respect of anti-terrorism law package of 2002 in Australia, Head also reminds the
High Court Justice Michael Kirby’s plea that ‘every erosion of liberty must be
thoroughly justified', which only fell on deaf-ears (Ibid p669).

55. It is therefore submitted that the ATB, in its totality, from its overbroad (i.e. not
narrowly tailored) and bad definition of the offences of "terrorism" (Part II) to
enforcement mechanisms to punishments that could extend to life imprisonment,
powers to ban and freeze the assets of any political party, organization, trade Union
or rank-and-file committee of workers, would cover situations that would impinge
upon and fail to safeguard those pristine democratic rights guaranteed by the
Constitution.

Strict Scrutiny Standard / Test

56. The strict scrutiny standard of judicial review is a legal test used by courts to
determine the constitutionality of a law or government action. It is the most
stringent standard of review and is applied when a fundamental right or a suspect
classification is at issue. The application of strict scrutiny requires the government to
demonstrate that the law or action in question serves a compelling state interest and

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 is narrowly tailored to achieve that interest. This standard places a heavy burden on
the government to justify its actions.

57. In the landmark case of Sherbert v. Verner 374 U.S. 398 (1963), the Supreme Court
articulated the two essential prongs of strict scrutiny: first, the government must
have a compelling interest for infringing upon a fundamental right, and second, the
means chosen to further that interest must be narrowly tailored to achieve that
compelling interest. This case involved a challenge to South Carolina’s denial of
unemployment benefits to individuals who refused employment on religious
grounds.

58. As Justice David Souter famously wrote in his dissenting opinion in Alameda Books
v. City of Los Angeles 535 U.S. 425 (2002), “Strict scrutiny leaves few
survivors,” implying that when a court evaluates a law using strict scrutiny, the
court will usually strike down undemocratic laws.

59. The US Supreme Court found in Ashcroft v. ACLU 535 U.S. 564 (2004) that a federal
law on online regulation failed strict scrutiny because the restrictions it put on free
speech were not the least restrictive available.

60. While there are lesser degrees of review of constitutionality in other circumstances,
the US Supreme Court has been applying the strict scrutiny test as a post-enactment
review of legislation that gravely affects individual freedoms and liberties.

61. It is respectfully submitted that this standard is exactly the test that the Sri Lanka
Supreme Court should apply in assessing the constitutionality of the ATB.

62. There is no compelling, immediate state interest in the proposed law that legitimizes
the severe restrictions and curtailment sought to be imposed by the law to the rights
and freedoms of the people. Therefore, it is very clear that the ATB fails to satisfy
strict scrutiny Test, rendering it unconstitutional.

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 Purposes

63. It was shown hereinbefore in these submissions and in the oral submissions made
why this law reform is historically unwarranted and not necessitated by any
circumstances affecting the people of this island.

64. But, the government wants this untimely law. Why? It is respectfully submitted that
this law is demanded by the government for one single purpose: to execute it
against the growing "threat" of mass struggles of the working people against
unbearable austerity. Your Lordships' court is aware, number of instances,
especially during the historic mass struggles of April-July 2022, protestors were
branded by some parliamentarians as terrorists and, the Prime Minister, making his
inaugural speech in Parliament, said that acts of terrorism were perpetrated by the
protesters; on other instances workers on strike were called upon to be dealt with as
terrorists; student protesters were slandered and one student leader was even
arrested and detained as a terrorist. The PTA is inadequate to cover these activities,
and this authoritarian law, from its very definition of the offence of Terrorism, is
essentially designed to be used as a weapon of collective punishment against the
working class, the oppressed and the political dissent. It is driven by class hate. It is
respectfully submitted that these preparations will irrevocably place the rule of law
and democracy of this country into severe jeopardy.

65. Therefore, it is very obvious, it is submitted, that this law carries with it mala fides,
and is ab initio illegitimate and should not pass.

No to Parliament, no to People for approval

66. In the aforesaid circumstances, it is respectfully submitted that the Bill is so low in
its degree of democratic quality, that it is not qualified to be placed before the
legislators for approval and before people to be approved at a referendum. The Bill
is untimely and satisfies no compelling state interest, thus failing in the strict
scrutiny test. It is in breach of Articles 3, 4, 10, 11, 12(1), 12(2), 13(1), 13(2), 13(3),
13(5), 14(1) , 14A and also 15(7) of the Constitution.

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67. The Bill proposes a penal law. An advanced democratic society would not retrogress
to approving stoning as a form of punishment. Such approval by the majority of
representatives and/or by the people at a referendum would lead the society to a
mob rule, not a to democracy.

68. In light of these submissions, it is respectfully submitted that Your Lordships' Court
be pleased to determine and declare as per prayers (b) and (c) of my Petition.

Attorney at Law for the Petitioner

Settled by:

Kusal Kuruwita, LL.B (Hons), LL.M;

Kaushalya Sendanayaka Arachchi, LL.B (Hons) (London), LL.M;
Sanjaya Wilson Jayasekera, LL.B (Colombo), LL.M,
Attorneys-at-Law.

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