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Sri Lanka needs criminal laws to check terrorist activities- Prof. Rohan Gunaratna

2013 Dec 24

By Manjula Fernando

I n the backdrop of disturbingly frequent divisive comments and speeches made by certain TNA MPs in Parliament and during campaigns in the Northern Province, calling for the celebration of LTTE martyr days, a separate national anthem for the Northern Province and attempts at glorifying terrorist leaders, the Sunday Observer interviewed international terrorism expert and Head of International Centre for Political Violence and Terrorism Research at Nanyang Technological University in Singapore, Prof. Rohan Gunaratna for his views on these developments.

While proposing that Sri Lanka must draft a new law which is similar to the anti-Nazi law in Germany, to fight ideological extremism, since the existing law is inadequate Prof. Gunaratna said the Government must not fear international wrath to arrest, charge and prosecute whoever that may support a terrorist cause, be it a TNA member or any other.

“It was a mistake the Government made to permit either family members of terrorists or terrorist supporters to contest elections. By doing so, they are spreading the terrorist ideology once again,” he said.

Excerpts of the interview:

Q: TNA MP Sritharan made a speech in Parliament recently glorifying the LTTE, a ruthless terrorist organisation banned in over 30 countries including Sri Lanka. The MP seems to have taken a cue from Tamil Nadu politicians who have spruced up their LTTE support campaign lately, emboldened by a supposedly a weak Centre. There is also a call for a Tamil national anthem for the Northern Province. What are your views on these developments?

A: Sri Lanka should develop a law, similar to the law enacted in Germany after the defeat of Nazism. Sri Lanka needs a law that criminalises hate speech in public, display of terrorist insignia, and commemoration of terrorist events. It should be an offence to promote, instigate, agitate and glorify ideological extremism and terrorism directly and indirectly.

A few TNA politicians have made comments against the National Flag, National Anthem and the Central Government. In their pursuit to make internal issues international, the TNA politicians have addressed events organised by LTTE front, cover and sympathetic organisations in Tamil Nadu in India, Australia, UK, continental Europe and in Canada. Some have established contact and received money from the same organisations and individuals that have funded terrorism in Sri Lanka. The new law should be robust enough to investigate, charge, arrest and prosecute them. The Government should act as these elements have been acting against the Constitution, both within and outside Sri Lanka.
Fund-raising activities

Q: MP Sritharan is not the only Sri Lankan politician with alleged LTTE links. Can you name the others who either support, sympathise or attend Tiger memorial services, fund-raising activities or meetings in other countries?

A: The Sri Lankan Government should respond decisively to anyone seeking to glorify terrorist criminals. Otherwise, terrorism will re-emerge and the unity of Sri Lanka will be threatened again. A vast majority of Sri Lankans - Sinhalese, Tamils and Muslims - cannot afford to have a revival of violence because of a few who cannot get over the end of terrorism and the return of peace. The terrorists and their supporters are like pick-pockets. If there are gaps and loophole in the law, they will exploit it to spread extremist ideas that will lead to disharmony.

A few LTTE supporters have joined the Northern Provincial Council. For example, the Chavakachcheri Urban Council, in November, passed a resolution proposed by Councillor P. Sritharan and seconded by Councillor Kishore. They should be investigated for LTTE links and if there is any evidence, they should be charged and prosecuted. Some TNA politicians are engaged in advocating, supporting and participating in terrorist activities. Braving international pressure, the Government should have prosecuted them immediately after the conflict ended in May 2009.

It was a mistake the Government made to permit either family members of terrorists or terrorist supporters to contest elections. By doing so, they are spreading the terrorist ideology once again. If the Government does not act responsibly, the TNA will radicalise and militarise another generation of youth. By permitting the TNA, an LTTE proxy, to contest, mainstream Tamil leaders were deprived of coming to power. The Sri Lankan national parties should recruit educated and respectable Tamil leaders and groom them for leadership.

Q: Although the military face of the LTTE was crushed by the Sri Lankan Forces more than four years ago, remnants of the terror organisation still thrive elsewhere. In this light, should the Government take the recent domestic political ripples seriously?

A: The LTTE should be dismantled irrespective of geography. The LTTE remnants are operating through front, cover and sympathetic groups overseas and should be dismantled for three reasons. First, they are putting pressure on Tamil politicians in Sri Lanka to revive the LTTE agenda of separatism. Second, they are politicising and radicalising Tamils living overseas to support their agenda. Third, they are exercising constituency pressure in host countries through funds and votes. To create a distorted picture of Sri Lanka, they are providing misinformation and disinformation to foreign politicians and their political parties.

Just like how the US, India, Canada and the EU proscribed the LTTE and its affiliates, the Sri Lankan Attorney-General's Department should proscribe the LTTE fronts; TGTE, GTF, TCC, TYO and TRO. This will deter some ordinary Tamils from supporting and LTTE activists from continuing their activity overseas. Once these terrorist affiliates are criminalised, most Tamils will distance themselves from these groups.

As the TNA/LTTE is allegedly operating together, the Government should act against extremism and its vicious byproduct - terrorism.
Against the law

Q: Despite the LTTE being a banned outfit in the country, the TNA members seem to be at liberty to show solidarity with the group or its ruthless leader, V. Prabhakaran, and in no other place than the Parliament. Isn't it against the country's law?

A: The Sri Lankan Government, the political Opposition, and those concerned with the future of Sri Lanka should ensure that the Parliament is not exploited to disseminate terrorist propaganda. It is not only an insult to every Parliamentarian, the Government and Opposition, but to every family who sacrificed a father, a brother or a son to end terror and violence in Sri Lanka. One must not forget that the TULF, the predecessor of the TNA, also used the Parliament to spread its hate propaganda. The law must apply to all. Even if a Parliamentarian engages in extremist and terrorist support activity, the Government should take decisive action.

Q: If you were to assess the strength of the LTTE, have you proof to say that they have grown or withered significantly since May 2009? Is the outfit still scattered as it used to be or getting reorganised to pose a threat to Sri Lanka again?

A: The LTTE in Sri Lanka has been totally dismantled, but they are rebuilding a significant presence in India with the help of Tamil Nadu's pro-LTTE politicians such as Seeman and Vaiko. Although an LTTE training cell manufacturing IEDs (Improvised Explosive Devices) was disrupted by Tamil Nadu authorities, the Indian government lacks the will, in an election year, to take decisive action against pro-LTTE politicians in Tamil Nadu. Furthermore, the LTTE international network is reorganising itself in the West with hubs in Canada and the UK.

Sri Lankan Tamil diaspora attitudes, opinions and behaviour are constantly changing. About 90 percent of the Tamil migrants and diaspora distanced themselves from the LTTE immediately after the group's defeat. Prior to May 2009, the LTTE had territorial control in the North and the East and the relatives of Tamils were within the LTTE's reach. While a small percentage of radicalised Tamils voluntarily contributed, the LTTE extorted funds from most Tamils living overseas. The LTTE used implicit and explicit as well as collateral coercion from Sri Lankan Tamils overseas. Most of them are foreign citizens now and they are helping their relatives to migrate and join them in those countries. Most of the earlier migrants travel to Sri Lanka on vacation annually and they do not want to be blacklisted by participating in LTTE activities overseas.

Today, the LTTE international network is a shadow of what it was, but it is ‘struggling’ to reorganise itself. The key difference then and now is that the LTTE today is focusing on lobbying Western politicians and political parties, human rights NGOs and international organisations, especially the UNHRC. LTTE leaders who raised funds to buy weapons now portray themselves as human rights activists! In three-piece suits, they lobby governments, NGOs and international organisations.

The Sri Lankan Government should identify influential leaders and members of the LTTE international network and engage them. They should be given the option of rejecting the LTTE and embracing change by engaging in democratic politics. If they persist in continuing with LTTE activities, the Government should work with host law enforcement and intelligence to bring them home. The continuity of an active or dormant LTTE presence overseas poses an immediate, mid- and long-term national security threat to Sri Lanka.
Facing new challenges

Q: How should the Government face these new challenges in the political front? You once told the Sunday Observer that the pro-LTTE TNA MPs should be arrested and rehabilitated.

A: The Sri Lankan Government should develop a strategic plan to develop a permanent solution against separatism.

As expected, the Provincial Council system imposed by the Indian-crafted 13th Amendment has damaged the ethnic relationships forged between the North and the South. The TNA, like the LTTE, is not interested in reconciliation or harmony! The Government should abolish the 13th Amendment! Its continuity is unhealthy for Sri Lanka because the TNA is continuing to radicalise the Tamil youth. The Indian model is a glaring failure and does not suit Sri Lanka!

The devolution of power in the periphery should be replaced with devolution of power in the centre. For instance, the President can appoint a Tamil or a Muslim as Prime Minister. Similarly, the Government can appoint several Tamils and Muslims to the Cabinet, in permanent secretary and service commander posts.

In addition, the Government should integrate the communities and build a Sri Lankan identity. Today, 30 percent of Sri Lankan Tamils live outside the North and the East, and only 44 percent live in the North. With Upcountry Tamils, the percentage living outside the North and the East is 49 percent.

The process of integration should continue. Sri Lanka is a small country and no government genuinely committed to stability should permit the creation of ethnic or religious enclaves. It is in such enclaves that ethnic and religious passions, prejudice, suspicion and violence emerge.

Q: Do you think a nominal proscription of the LTTE will keep them and their support base here at bay? After a mere four years, the LTTE supporters within Sri Lanka seem to have gathered forces and become disturbingly outspoken. Do you have suggestions for new laws that will complement the existing law ?

A: The Prevention of Terrorism Act (PTA), modelled on the PTA of the United Kingdom, must remain. The PTA will also be a deterrence. However, the PTA is not designed to fight ideological extremism, the ‘precursor’ to terrorism.

To effectively prevent, deter and respond to the current and emerging wave of ideological extremism, the Government should develop a ‘Harmony Act’. Such an Act can fight communal extremism and religious sectarianism, twin challenges now facing Sri Lanka. The Government must not wait until a terrorist attack or a riot to deter the spread of either separatist or sectarian ideologies. Proactively, the Government should take steps to control and contain and, if necessary, take action against those who spoil peace in the island.

The Government should also de-register mono-ethnic and mono-religious political parties as they do not represent the Sri Lankan ideal. If the Sinhalese vote only for Sinhalese politicians, Tamils only for Tamils and Muslims only for Muslims, there will be no united Sri Lanka. The Government should restructure the electoral system to ensure that ethnic and religious politics have no future in Sri Lanka. Until the threat of separatism from the unreformed TNA and LTTE overseas actors exist, the security platform in the North and the East should continue.
South African model

Q: The Government seems to be looking at a reconciliation model on the lines of South Africa's Truth Commission. Is this the ideal model for Sri Lanka?

A: Every country should develop its own solution to address its challenges. Certainly, the Government has and can learn from some aspects of the South African experience. However, one should not transfer the South African model to Sri Lanka because Sri Lanka's socio-economic, political and cultural environment and conditions are very different to those of South Africa and it will not work.

In South Africa, there was institutionalised racism which was never the case in Sri Lanka. At the height of the fight against the LTTE in Sri Lanka, there was a Tamil foreign minister, a Tamil Police Chief and a Tamil chief justice. While the South African model is based on what happened in South Africa, the Lessons Learnt and Reconciliation Commission (LLRC) is based on the Sri Lankan experience. The situations and conditions are unique!

If the South African model is imposed here, it will not work! It will be like India imposing the 13th Amendment, leading to the Provincial Councils generating even more racism. The LLRC provides a good road map and it should be fully implemented. The Sri Lankan Government should invite South Africans to visit and study the progress on the LLRC. South Africa itself will benefit by studying not only the LLRC, but also Sri Lanka's rapid de-mining, resettlement of displaced persons, terrorist rehabilitation and the socio-economic development programs in the North and the East.

Q: How would you describe the new Chief Minister of the Northern Provincial Council (PC) and some of his comments which clearly contradict those expressed by some TNA MPs?

A: The new Chief Minister of the Northern PC has a great opportunity to make a difference. Educated in Colombo and with family ties to Sinhalese, more than anyone else, the Chief Minister knows that there is no ethnic conflict, but only ethnic politics in Sri Lanka. He knows from personal experience that a vast majority of Sinhalese, Tamils and Muslims are not racists. He should try to reform the TNA from an LTTE proxy to a party that no longer worships Prabhakaran and suicide bombers! At this point, the Chief Minister must expel LTTE worshippers from the party and educate the Tamil public that their leaders had led them astray and that they must learn to live in a multicultural society.

Operating under severe pressure, both from the Government and the TNA, the Chief Minister is having a hard time. The TNA MPs, instigated and inspired and now funded by the LTTE, are challenging him. Some racist elements of the TNA are undermining him.

The LTTE elements serving the PC should be counselled that the Prabhakaran era is over and that they must learn to live in a diverse society.

Finally, he must work on the sentiments of the Tamils who suffered during terrorism. Rather than asking them to plant trees on LTTE martyrs day in November, he should ask them to mourn their dead on the day they died! In that light, the PC should start to work in partnership with the Government and build a bridge between the people of the North and the South.

******************

German law

Reference to defamation of the State and its symbols, Paragraph 90a of the German law states:

(1) “Whosoever publicly, in a meeting or through the dissemination of written materials

[Section11(3)]

1. Insults or maliciously expresses contempt of the Federal Republic of Germany or one of its states or its constitutional order; or

2. Insults the colours, flag, coat of arms or the anthem of the Federal Republic of Germany or one of its states shall be liable to imprisonment not exceeding three years or a fine.

(2) Whosoever removes, destroys, damages, renders unusable or defaces, or otherwise insults by mischief a publicly displayed flag of the Federal Republic of Germany or one of its states or a national emblem installed by a public authority of the Federal Republic of Germany or one of its states shall incur the same liability. The attempt shall be punishable.

The penalty shall be imprisonment not exceeding five years or a fine if the offender by the act intentionally supports efforts against the continued existence of the Federal Republic of Germany or against its constitutional principles.”

Reference to anti-constitutional defamation of constitutional organs, Paragraph 90b states:

(1) “Whosoever publicly, in a meeting or through the dissemination of written materials (Section 11(3)) defames a constitutional organ, the government or the constitutional court of the Federation or of a state or one of their members in this capacity in a manner detrimental to the respect for the state and thereby intentionally supports efforts against the continued existence of the Federal Republic of Germany or against its constitutional principles, shall be liable to imprisonment from three months to five years.

The offence may only be prosecuted upon the authorisation of the constitutional organ or member affected.”

Reference to terrorist support networks overseas, Paragraph 129b states:

“Criminal and terrorist organisations abroad; extended confiscation and deprivation

(1) Section 129 and Section129a shall apply to organisations abroad. If the offence relates to an organisation outside the member states of the European Union, this shall not apply unless the offence was committed by way of an activity exercised within the Federal Republic of Germany or if the offender or the victim is a German or is found within Germany. In cases which fall under the 2nd sentence above, the offence shall only be prosecuted on authorisation by the Federal Ministry of Justice. Authorisation may be granted for an individual case or in general for the prosecution of future offences relating to a specific organisation. When deciding whether to give authorisation, the Federal Ministry of Justice shall take into account whether the aims of the organisation are directed against the fundamental values of a state order which respects human dignity or against the peaceful coexistence of nations and which appear reprehensible when weighing all the circumstances of the case.

Section 73d and Section 74a shall apply to cases under Section 129 and Section 129a, in each case also in conjunction with Subsection (1) above.”

Reference to incitement of hatred against Germany, Paragraph 130 states;

(1) “Whosoever, in a manner capable of disturbing the public peace,

1. Incites hatred against segments of the population or calls for violent or arbitrary measures against them; or

2. Assaults the human dignity of others by insulting, maliciously maligning, or defaming segments of the population, shall be liable to imprisonment from three months to five years.

(2) Whosoever,

1. With respect to written materials (Section 11(3)) which incite hatred against segments of the population or a national, racial or religious group, or one characterised by its ethnic customs, which call for violent or arbitrary measures against them, or which assault the human dignity of others by insulting, maliciously maligning or defaming segments of the population or a previously indicated group

(a) Disseminates such written materials;
(b) Publicly displays, posts, presents, or otherwise makes them accessible;
(c) Offers, supplies or makes them accessible to a person under eighteen years; or

(d) Produces, obtains, supplies, stocks, offers, announces, commends, undertakes to import or export them, in order to use them or copies obtained from them within the meaning of Nos (a) to (c) or facilitate such use by another; or

2. Disseminates a presentation of the content indicated in No 1 above by radio, media services, or telecommunication services shall be liable to imprisonment not exceeding three years or a fine.

(2) Whosoever publicly or in a meeting approves of, denies or downplays an act committed under the rule of National Socialism of the kind indicated in Section 6 (1) of the Code of International Criminal Law, in a manner capable of disturbing the public peace shall be liable to imprisonment not exceeding five years or a fine.

(3) Whosoever publicly or in a meeting disturbs the public peace in a manner that violates the dignity of the victims by approving of, glorifying, or justifying National Socialist rule of arbitrary force shall be liable to imprisonment not exceeding three years or a fine.

(4) Subsection (2) above shall also apply to written materials (Section 11(3)) of a content such as is indicated in Subsections (3) and (4) above.

In cases under Subsection (2) above, also in conjunction with Subsection (5) above, and in cases of Subsections (3) and (4) above, Section 86(3) shall apply mutatis mutandis.”

Libel and Slander

“Paragraph 185

Insult

An insult shall be punished with imprisonment not exceeding one year or a fine and, if the insult is committed by means of an assault, with imprisonment not exceeding two years or a fine.

Paragraph 186

Defamation

Whosoever asserts or disseminates a fact related to another person which may defame him or negatively affect public opinion about him, shall, unless this fact can be proven to be true, be liable to imprisonment not exceeding one year or a fine and, if the offence was committed publicly or through the dissemination of written materials (Section 11(3)), to imprisonment not exceeding two years or a fine.

Paragraph 187

Intentional defamation

Whosoever intentionally and knowingly asserts or disseminates an untrue fact related to another person, which may defame him or negatively affect public opinion about him or endanger his creditworthiness shall be liable to imprisonment not exceeding two years or a fine, and, if the act was committed publicly, in a meeting or through dissemination of written materials (Section 11(3)) to imprisonment not exceeding five years or a fine.”

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