Concerns raised on vague nature of rehab under detention, impact on Constitutional HR safeguards/norms, lack of judicial oversight, thought policing, crackdown on dissent, suppression of minorities, chilling effect on speech/expression   

A Fundamental Rights (FR) petition was filed on 28 April 2021 at the Supreme Court (SC) challenging the Prevention of Terrorism (De-radicalization from holding violent extremist religious ideology) Regulations, Number 01 of 2021 (hereinafter referred to as the De-radicalization Regulations) made by the President.

The petition number is SC (FR) Application No. 130/2021.

The petitioners are Ruwan Laknath Jayakody and Kavindya Christopher Thomas. The instructing Attorney-at-Law (AAL) is Manjula Balasuriya. The petition was drafted by AALs Hiran Geeganage, Kaushalya Senadanayake Arachchi and Swasthika Arulingam. The matter is settled by AAL Sanjaya Wilson Jayasekera.

The Attorney General (AG), the Secretary to the Ministry of Defence, the Commissioner General of Rehabilitation and the Inspector General of Police (IGP) have been named, respectively, as the first, second, third and fourth respondents.

The De-radicalization Regulations, were issued under Section 27 of the Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979 as amended by Prevention of Terrorism (Temporary Provisions) (Amendment) Act, No. 10 of 1982 (hereinafter referred to as the PTA), read with Article 4(b) of the Constitution (regarding the sovereignty of the people, where the Executive power of the people, including the defence of Sri Lanka, shall be exercised by the President), and published in the Gazette Extraordinary No. 2218/68, dated 12 March 2021, contrary to the existing law which is the PTA. The De-radicalization Regulations have been laid down in addition to the previously published Prevention of Terrorism (Proscription of Extremist Organizations) Regulations, No. 1 of 2019 (Gazette Extraordinary No. 2123/3, dated 13 May 2019), and the Emergency (Miscellaneous Provisions and Powers) Regulations, No. 1 of 2019 (Gazette Extraordinary No. 2120/5, dated 22 April 2019).

In the instant application, the petitioners seek to impugn the arbitrary and ultra vires actions of the respondents in issuing the said De-radicalization Regulations.

The Minister of the Ministry of Defence of which the second respondent – the Secretary to the Ministry of Defence – is a part of, is empowered by the said De-radicalization Regulations to authorize of an extended period of “rehabilitation”, other than powers granted to him/her under the PTA. The fourth respondent – the IGP – is empowered under the said De-radicalization Regulations to do certain acts. Pursuant to the De-radicalization Regulations and the Gazette Extraordinary No. 2196/27, dated 06 October 2020, on the assignment of subjects and functions and Departments, State Corporations and statutory institutions to Ministers, the third respondent, the Commissioner General of Rehabilitation, reports to the Ministry of Defence instead of the Ministry of Justice.

De-radicalization Regulations and the Procedure

According to Regulation 2 of the said De-radicalization Regulations, its objective is that “any person who surrenders or is taken into custody on suspicion of being a person who by words either spoken or intended to be read or by signs or by visible representations or otherwise, causes or intends to cause the commission of acts of violence or religious, racial or communal disharmony or feelings of ill will or hostility between different communities or racial or religious groups after the coming into operation of these Regulations” is dealt with “in accordance with the provisions of the PTA”.

The offence referred to in the above Regulation 2 is the offence provided in Section 2(1)(h) of the PTA. However, while the objective of the De-radicalization Regulations is purportedly to deal with suspects, in connection with the said offence, under the provisions of the PTA, the rest of the De-radicalization Regulations contradicts this objective. While the PTA provides for a specific procedure for detention, trial and punishment (which, however, in itself is draconian and anti democratic), this whole procedure is disrupted by the extraordinary procedure established by Regulations 3 to 8 of the De-radicalization Regulations. Therefore, prima facie, the procedure introduced by these Regulations is ultra vires the PTA. The procedure introduced by the said De-radicalization Regulations is contrary to the procedure/mechanism laid down in the PTA.

According to the purported new procedure, individuals could be arrested under, inter alia, the aforementioned Regulations – the Prevention of Terrorism (Proscription of Extremist Organizations) Regulations and the Emergency (Miscellaneous Provisions and Powers) Regulations – as well as the PTA as amended. The De-radicalization Regulations authorize individuals who are not Police officers to so arrest 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 by the Minister of Defence as to whether such arrested individual needs to be detained for investigations, under Section 9 of the PTA. The De-radicalization Regulations also appear to give wide discretion to the first respondent, the AG, to determine as to who should be produced before a Magistrate for an order for rehabilitation for up to 12 months in lieu of instituting criminal proceedings before a court of law. The De-radicalization Regulations also empowers the Minister of Defence to extend such rehabilitation for a further period of 12 months, and this appears to be done without any judicial intervention of a Magistrate.

As per the said impugned De-radicalization Regulations, it is the first respondent, the AG, an administrative authority, who decides as to whether such person should be referred to a rehabilitation programme, in lieu of instituting criminal proceedings, and the Magistrate before whom such person is referred to, has only to act upon such written “approval” of the AG, and just to rubber stamp the AG’s recommendation {vide Regulation 5(4)}. It is also the AG, a State administrative officer, who decides as to whether a person whose rehabilitation is unsatisfactory to the authorities “be indicted in lieu of rehabilitation” {vide Regulation 6(2)}. The De-radicalization Regulations also provides that it is the Minister of Defence, the Executive, who decides and can order either for the release of the person after one year of rehabilitation or for further rehabilitation for another maximum period of one year, even without any sanction by a Magistrate.

Therefore, it could be reasonably believed that whatever be the nature of the purported “rehabilitation”, in the context of the nature, modus operandi and mechanism of “rehabilitation” not being defined or explained in the Regulations, such arrestee, surrendee or detainee would be held in de facto detention or effective imprisonment, authorized either by administrative or Executive authority, thereby endangering the liberty of such individuals at the whims and fancies of such authorities and of those sought to be empowered by the said impugned De-radicalization Regulations, including the fourth respondent, the IGP, and his/her subordinate officers, and officers authorized by, delegated to or acting under any one of the respondents.

Also, a number of words and phrases used in the said impugned De-radicalization Regulations – “de-radicalization”, “extremist religious ideology”, “rehabilitation”, and “reintegration” – are overboard, vague, undefined, unexplained and therefore would be interpreted and used to legitimize and suit the subjective wishes of the Executive or administrative authorities to subject arrestees, surrendees or detainees to torture, cruel, degrading or inhumane treatment or intimidation in order to extract forced confessions, and/or incriminating evidence against themselves and/or other detainees or political opponents or those who hold dissenting views.

In light of the tenor of these De-radicalization Regulations, there is reasonable apprehension that individuals arrested in terms of these De-radicalization Regulations could be subjected to Executive or administrative detention under the guise of rehabilitation, without proper judicial evaluation of the evidence against the individuals arrested, surrendees or detainees.

Therefore, the petitioners are of the reasonable apprehension that these De-radicalization Regulations run counter to the fundamental safeguards in the Constitution, international human rights norms, and interferes with the judicial power of the people.

The petitioners are also unaware of whether the De-radicalization Regulations have been placed before the Parliament and duly approved as required by the PTA, as the failure to be so approved, would result in such De-radicalization Regulations being rescinded.

It is reported that the Counter Terrorism and Investigation Division, the Criminal Investigations Department, as well as the State Intelligence Service are purportedly to make recommendations pertaining to who should be rehabilitated, and even that individuals not directly linked to the Easter Sunday terror attacks of 21 April 2019 will be subjected to rehabilitation. The petitioners are further aware of an interview that the Minister of Public Security Dr. Sarath Weerasekera has given to the media on 04 April 2021, based on which interview, the petitioners believe that the said De-radicalization Regulations would also have a chilling effect on free speech, expression, association and assembly.

Rehabilitation and the Principles of Criminology

Rehabilitation or more particularly ‘criminal rehabilitation’ is a concept found in the discipline of criminology and has its own unique meaning, and cannot be used loosely or vaguely to suite Executive or administrative interests or convenience.

Criminal rehabilitation is, as a reasonable generalization, a correctional mechanism in the criminal justice system, used to educate and train criminal offenders in order to return to the society and to reintegrate them back into the society, and to thereby prevent recidivism. Therefore, it is necessary that a person, before being sent to rehabilitation, be found guilty of any criminal offence by a competent court or judicial authority in the exercise of the judicial mind and under the normal procedure of the justice system that guarantees a fair trial to such arrestee or detainee. The concept of “rehabilitating the surrendees and detainees” as contemplated in the said impugned De-radicalization Regulations is misconceived and erroneous.

The said mechanism of rehabilitation, introduced by the said impugned De-radicalization Regulations, which purports to subject detainees to rehabilitation without them being found guilty of any offence, is contrary to and inconsistent with the recognized principles of criminal rehabilitation and criminology, and thus lacks any basis in theory, international best practices, and only paves the way for the establishment of a mechanism for Executive or administrative convenience and the abuse of the law.

In all its aspects, these De-radicalization Regulations make room for the Executive and/or administrative abuse of power to victimize, intimidate, harass and punish political opponents and those who hold dissenting views.

The impugned De-radicalization Regulations, as it is framed and intended to be, make room for the respondents to engage in ethnic profiling and discriminating minorities on the basis of political opinion, race, ethnicity, language and religion.

Experience of Previous Rehabilitation Regulations

Similar Regulations were in effect in 2011 titled the Prevention of Terrorism (Surrendees Care and Rehabilitation) Regulations, No. 5 of 2011 (Gazette Extraordinary No. 1721/5, dated 29 August 2011).

Such individuals who were referred for rehabilitation did not have an adequate opportunity to establish their innocence before a competent court of law, but were subjected to rehabilitation essentially presuming guilt on the part of the detainees or surrendees. As a result, 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.

The Briefing Note of the International Commissions of Jurists titled ‘Beyond Lawful Constraints: Sri Lanka’s Mass Detention of Liberation Tigers of Tamil Eelam (LTTE) Suspects: Sri Lanka: the Rights of ‘Surrendees’ and ‘Rehabilitees’’ dated September 2010, raised concerns about the rehabilitation programme 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 the violations of due process and the right to a fair trial.

Therefore, there is reasonable apprehension that the current De-radicalization Regulations, too will result in similar rights violations as before.

International Principles, Best Practices, Recommendations and Experience

Several recommendations of international bodies have considered the matter of Executive detention vis-à-vis rehabilitation. The Working Group on Arbitrary Detention of the United Nations (UN) Human Rights Council has issued several Opinions relevant to Sri Lanka such as Opinion No. 50/2012 concerning Uthayakumar Palani and Opinion No. 26/2012 concerning Pathmanathan Balasingam and Vijiyanthan Seevaratnam. These Opinions specifically refer to the fact that the vagueness can impact on fair trial rights (vide Paragraph 22 of Opinion No. 50/2012). Deliberation No. 9 of the Working Group on Arbitrary Detention concerning the definition and scope of the arbitrary deprivation of liberty under customary international law (dated 24 December 2012, bearing the reference number A/HRC/22/44) comments, inter alia, on the importance of judicial oversight so that an individual can bring proceedings before a court (vide Paragraphs 47 -51). 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’ (dated 23 July 2018, bearing the reference number A/HRC/39/45/Add.2).

Two Reports of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism in 2018 (Pages 1 and 16 of the Report titled ‘Visit to Sri Lanka’ dated 14 December 2018, bearing the reference number A/HRC/40/52/Add.3) and 2020 (Pages 1, 3-9 of the Report titled ‘Human rights impact of policies and practices aimed at preventing and countering violent extremism’ dated 21 February 2020, bearing the reference A/HRC/43/46), have made observations regarding Sri Lanka’s previous rehabilitation programmes and highlighted the chilling effect that regulatory mechanisms can have especially when there is insufficient judicial oversight (vide Paragraphs 24-27 of the 2020 Report).

The UN Human Rights Committee has issued a General Comment No.35  dated 16 December 2014 on Article 9 of the International Covenant on Civil and Political Rights (liberty and security of the person), which prohibits administrative detention as contemplated under the impugned De-radicalization Regulations.

The Radicalization Awareness Network based in Germany has authored a comprehensive ‘Rehabilitation Manual: Rehabilitation of radicalised and terrorist offenders for first line practitioners’, which specifically recognizes the mechanism of the rehabilitation of offenders, systematically implemented consequent to conviction after trial, and not in any event before the trial and under Executive or administrative detention.

There is a reasonable apprehension that any exercise of powers under the aforesaid De-radicalization Regulations by any one or more of the respondents would infringe the fundamental safeguards in the Constitution, international human rights norms, and interfere with the judicial power of the people guaranteed under Article 4(c) of the Constitution.

Invocation of the FR Jurisdiction

The FR enshrined in the Constitution are applicable even when implementing the PTA and Regulations thereunder.

Rehabilitation, while under Executive detention, is not, under any circumstances, a matter which Executive or administrative authority can decide upon or exercise their discretion upon. Therefore, the said De-radicalization Regulations are ultra vires the PTA and the laws of the land, overbroad, contrary to the safeguards in the Constitution and the international norms and best principles of human rights as set out in various international instruments that Sri Lanka is a State Party to. Such safeguards extend to those held in Executive detention under the PTA Regulations as well.

The Petitioners state that the impugned De-radicalization Regulations are, inter alia, arbitrary, capricious, irrational, disproportionate and/or ultra vires the powers of the respondents, contrary to the PTA, overbroad, vague, contains no judicial oversight or regulatory mechanisms, and amounts to the infringement and/or continuous infringement of the FR as guaranteed under Articles 10 (freedom of thought, conscience, and religion and belief), 12(1) {right to equality and equal protection of the law}, 12(2) {right to non discrimination} and 14(1)(a) {freedom of speech and expression including publication} of the Constitution.

The Petitioners further state that the acts of commission and omission of the Minister of Defence represented in these proceedings by the first respondent, the AG, and other respondents and/or officers serving thereunder, and/or agents acting under the De-radicalization Regulations, also amount to a continuing infringement and/or imminent infringement of the FR guaranteed under Articles 11 (freedom from torture, cruel, inhuman or degrading treatment or punishment), 13(1) {freedom from arbitrary arrest}, 13(2) {freedom from arbitrary detention}, 13(3) {right to legal representation and a fair trial}, 13(4) {freedom from arbitrary punishment}, 13(5) {presumption of innocence} and 13(6) {prohibition of retroactive/retrospective penal legislation} read with Article 4(c) of the Constitution, of those detainees arrested and detained under the PTA. This is inasmuch as their rights may be adversely affected, as inter alia, the De-radicalization Regulations permit both arrest and detention contrary to the law and the presumption of innocence, without judicial oversight (which amounts to a fettering of judicial discretion). The De-radicalization Regulations also amount to a continuing infringement and/or imminent infringement of Articles 10, 12(1), 12(2), 14(1)(a), 14(1)(b) {freedom of peaceful assembly} and 14(1)(c) {freedom of association} of the Constitution of those detained under the PTA, inasmuch as, in addition to their right to a fair trial being affected, the De-radicalization Regulations can have a chilling effect on their freedom of thought, conscience, expression, assembly and association.

The De-radicalization Regulations, if implemented and/or not declared null and void ab initio or of no effect, would, as it purports to stand: i) authorize the Executive and/or administrative detention of detainees detained under the PTA for an excessively and disproportionately extended period of  time calculated with the period of detention imposed in the guise of rehabilitation under these De-radicalization Regulations, which is contrary to the limitation of time of Executive detention imposed by the PTA, the principal Act; ii) run counter to the fundamental safeguards in the Constitution, international human rights norms, and interfere with the judicial power of the people; iii) make room for the victimization of detainees on the basis of extraneous political reasons in violation of their rights to the freedoms of thought, conscience and religion, and non discrimination, and equality and equal treatment; iv) make room for the victimization of detainees merely due to holding radical and/or extremist ideologies; v) authorize the Executive or administrative authority of the Government to impose their views and ideologies forcefully upon detainees, failing which the detainees would be subjected to torture, cruel, inhuman or degrading treatment or punishment; vi) authorize the arbitrary Executive or administrative authority of the Government to chastise, punish, mistreat and provide opportunity for retribution on political opponents and those who hold dissenting views; and vii) and authorize the Executive or administrative authority of the Government to disproportionately and discriminatively target minority communities.

The first petitioner (Jayakody) has also lodged a complaint with the Human Rights Commission of Sri Lanka (HRCSL) in respect of the infringement, imminent infringement and/or continuous infringement of his FR due to the said impugned De-radicalization Regulations; however, the HRCSL is yet to communicate any steps taken in respect of the said complaint.

The petitioners have prayed the SC to declare that the De-radicalization Regulations permit and make room for the continuous and/or imminent infringement of FR guaranteed to surrendees, arrestees or detainees under the Constitution, and to therefore declare such De-radicalization Regulations as null and void and of no force or avail in the law.