Colombo, August 7: The Sri Lankan Supreme Court has issued an interim order suspending the operation of the Prevention of Terrorism (De-radicalization from holding violent extremist religious ideology) Regulations No. 01 of 2021, which was published as a gazette notification on 12 March, 2021.
The suspension will be effective till August 24, when the case against the regulations will come up for the next hearing.
According to the government, the regulations were formulated with the objective of “rehabilitating” individuals “for causing or intending to cause acts of violence or religious, racial or communal disharmony or feelings of illwill or hostility between different communities or racial or religious groups.” But the way they are drafted and the manifest lack of safeguards against their misuse, have had a “chilling effect”on human rights workers and apprehensions in the midst of socially and politically vulnerable groups, especially the ethnic and religious minorities, the petitions in court say.
The petitions were filed by the Center for Policy Alternatives (CPA), human rights worker Sithara Shreen Abdul Saroor, and journalists Journalists cum human rights activists RuwanLaknath Jayakody and Kavindya Christopher Thomas.
The petitioners stated that individuals arrested under these regulations “could be subjected to executive or administrative detention camouflaged as rehabilitation” without proper judicial evaluation of the evidence against the individuals arrested, surrenders or detainees.
The regulations add further arbitrariness to the already draconian Prevention of Terrorism Act(PTA), which the UN Human Rights Council and the EU want to be replaced by a more internationally acceptable Act. The petitioners also wondered if the regulations had been placed before parliament and duly approved, as required even under the PTA.
Center for Policy Alternatives
The Colombo-based Center for Policy Alternatives (CPA) said in a statement after filing the petition that the regulations would curtail “political dissent” with no effective due process guarantees. The regulations are a clear violation of the “separation of powers”, with certain judicial powers being transferred to the executive arm of government. The so-called “rehabilitation” would result in the deprivation of liberty of individuals for up to two years, without any legal proceedings being conducted before a competent court, the CPA pointed out. Further, the regulations are a bid to instrumentalize and entrench the PTA, which itself, is inconsistent with Sri Lanka’s Constitution.
“Sri Lanka’s past has witnessed the disproportionate use of the PTA to target ethnic and religious minorities. With the removal of judicial oversight and effective due process standards, the current regulations will create a situation where even the limited safeguards provided by the PTA are removed, posing an extremely serious risk to fundamental rights recognized by the Sri Lankan Constitution,” the rights oriented think tank said.
“The vagueness and overbroad nature of these regulations are alarming and can lead to situations of abuse. For example, little to no details are provided as to what constitutes‘rehabilitation’, or what rehabilitation procedures are to be adopted at the ‘Reintegration Centers’, which are to be set up as per the regulation.”
“Further, there is a lack of information as towhat laws and regulations these centers may be subject to, in terms of the conditions to bemaintained and monitoring mechanisms to be in place. Such concerns are amplified in a contextof heightened militarized governance and weakening of independent institutions.”
“The regulations therefore, will have a chilling impact on civil liberties and the rule of law in Sri Lanka,” CPA said, calling for their immediate withdrawal.
Shreen Saroor
Shreen Saroor, founder of Women’s Action Network, said in her petition that the regulationsappear to authorize individuals who are not police officers to apprehend suspects, and keep them in detention for up to 24 hours prior to handing them over to a police station, and thereafter a decision could be taken as to whether such an arrested individual needed be detained for investigations under the PTA.
Saroor said that the regulations appear to give wide discretion to the Attorney General wide discretion about producing a detained person before a court for an order for rehabilitation for up to 12 months in lieu of instituting criminal proceedings in a Court of Law. It appears that the Minister of Defense may extend such rehabilitation for a further 12 months, and this appears to be done without the involvement of a court. This is contrary to the PTA. Further, the rehabilitating authority reports to the Ministry of Defense instead of the Ministry of Justice, she pointed out.
“I am of the reasonable apprehension that rehabilitation can be ordered without a proper evaluation of the evidence against the individual arrested,” Saroor said.
The rights activist further said that the regulations would be “utilized in a manner that subjects individuals to negative stereotyping based on race/religion and would be an added layer of discrimination targeting race, religion, political opinion or place of birth.”
Giving examples to clarifying her contention, Saroor said that the Minister of State Securityhad told The Morning newspaper on April 21, 2021, that he planned to ban Madrasa schools “if there are children aged 5-16 in the school and if they are being taught only religion and the language.”
In explanation he added: “Every child born in this country has to be taught according to the government education policy. Therefore, all the schools that are not adhering to that, will be closed.”
On March 23, 2021 | the News Ist website quoted the Commissioner General of Rehabilitation Maj.Gen. Darshana Hettiarachchias saying that individuals with no direct link to the 2019 April serial bomb attacks will be “rehabilitated”. Hettiarchchi said the government had decided to produce such individuals in courts and thereafter move them for rehabilitation. This move will be based on the recommendations made by the Terrorist Investigations Division, Criminal Investigations Department, and the State Intelligence Service, he added.
Saroor said that based on her experience of working in rehabilitation centers set up for Tamil Tigers suspects after the war in 2009, she feared that “individuals who were referred for rehabilitation do not have adequate opportunity to establish their innocence before a competent court of law, but are subjected to rehabilitation,essentially presuming guilt on the part of the detainees or surrendees.”
These individuals are subjected to continuous surveillance by the State and are often arrested allegedly for being involved in terrorist activity, merely because of their unproven guilt, she said.
She pointed out that the September 2010 report of the International Commission of Jurists entitled ‘Beyond Lawful Constraints: Sri Lanka’s Mass Detention of LTTE Suspects’ had raised concerns about the rehabilitation program which “subjected detainees to prolonged arbitrary detention and the risk of other human rights violations such as torture and ill-treatment, enforced disappearances, extra-judicial killings and violations of due process and right to a fair trial.”
Likewise, the Working Group on Arbitrary Detention in its Opinion No. 50/2012 and Opinion No. 26/2012 specifically said “vagueness can impact on fair trial rights.” The said Working Group had also stressed the importance of judicial oversight. Individuals have been held for substantial periods of time in pre-trial detention and sent for rehabilitation as observed in the ‘Report of the Working Group on Arbitrary Detention on its visit to Sri Lanka’which was compiled after a visit to Sri Lanka on the invitation of the Lankan government.
Two reports of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism in 2018 and 2020, which made observations on Sri Lanka’s previous rehabilitation programs, had highlighted the chilling effect that regulatory mechanisms could have, especially when there was insufficient judicial oversight.
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