P.K.BALACHANDRAN | 14 AUGUST, 2021
Say Regulation gives room for arbitrariness and injustice.
COLOMBO: UN human rights Special Rapporteurs on various issues have jointly written to the Sri Lankan government pointing out various deficiencies and dangers inherent in the “Prevention of Terrorism (De-radicalization from holding violent extremist religious ideology) Regulation dated March 12, 2021.
The Rapporteurs’ missive dated August 9, expressed “serious concern and to encourage the rescission of the Regulation because its provisions are contrary to Sri Lanka’s international legal obligations.” The Sri Lankan government replied on August 11 and that is being processed, the Office of the High Commissioner of Human Rights (OHCHR) said (https://spcommreports.ohchr.org/TmSearch/Results).
The Rapporteurs had complained that the Lankan government had not implemented the remedial measures suggested by various Special Rapporteurs in regard to the Prevention of Terrorism Act (PTA) and that the government had in fact gone beyond that and initiated “additional rights denying measures” in the form of new a Regulation allowing detention for “de-radicalization” without provision for legal aid or legal supervision.
The missive regretted that the provisions mentioned in the Regulation criminalized conduct which were not properly and precisely defined on the basis of international counter terrorism instruments and not guided by principles of “legality, necessity and proportionality”.
Even the definition of terrorism did not conform to the international definition. The definition should conform to the Security Council Resolution 1566 (2004), the Declaration on Measures to Eliminate International Terrorism, and the Declaration to Supplement the 1994 Declaration on Measures to Eliminate International Terrorism, which were approved by the General Assembly, the Rapporteurs said.
It was pointed out that Section 3 of the Regulations allowed non-law enforcement entities to detain individuals for up to 24 hours without a legal warrant or an investigation, raising the risk of enforced disappearances, torture and inhuman and degrading treatment.
“Moreover, the inclusion of several provisions of the Regulation creating the capacity to formally deprive persons of their liberty without judicial process, described as ‘rehabilitation’ might constitute arbitrary detention under international law and was of profound concern to the Experts,” they asserted.
As per international law, any law should be clearly defined so that all were clear as to what constituted a criminal act. Ill-defined or overly broad laws are susceptible to arbitrary application and abuse, the Rapporteurs pointed out. And an ill-defined law is a violation of Art 9 of the International Covenant on Civil and Political Rights (ICCPR).
Further, the use of counter-terrorism law to quell legitimate activities protected by international law was inconsistent with the State’s obligations,” the missive pointed out.
What is “radical” was not defined in the Regulation. And It was not clear as to who would be subjected to “de-radicalization from holding violent extremist religious ideology. The term “de-radicalize” was also not defined.
The missive pointed out that the definition of “violent extremism” remains opaque and is deeply contested in the world, the Rapporteurs pointed out. Further, the term “extremism” has no purchase in binding international legal standards and, when operated in a criminal legal category, is irreconcilable with the principle of legal certainty.
The Rapporteurs were of the view that expression of an opinion which is contrary to those of the rulers, even those which shock and disturb the State or any section of the population, should be permitted. If this was not allowed, there would be no room for dissent.
The Rapporteurs raised concern regarding the provision for the arrest and detention of individuals based on charges of “intending” to cause “acts of violence or religious or racial, or communal disharmony or feelings of ill will or hostility towards different communities or racial or religious groups, through words spoken or intended to be read, or by signs or by representations or “otherwise.”
The term “intent” to cause disharmony or “could” cause disharmony tended to include a broad and indiscriminate range of expressions and might place undue restrictions on the freedom of expression. The probability of disharmony happening must be assessed reasonably, the Rapporteurs said. The addition of the word “otherwise” to the list of expressions had made the list an all-inclusive one, they pointed out.
The Rapporteurs reiterated that the freedom of expression, thought and belief could not be derogated from, even in times of a public emergency as per Art 4 (2) the ICCPR. They also noted that provisions against religious disharmony tended to be invoked more against religious minorities than against the majority.
The Regulations had gone beyond the Prevention of Terrorism Act to give authority to arrest to a wide of range of individuals who might not have sufficient legal expertise to undertake deprivation of liberty. In contrast, the PTA had given authority to arrest to only police officers of a certain level.
Section 5 (1) of the Regulation allowed, under Sec 3, a person to be detained for 24 hours before handing him over to the law enforcement agencies. Such a detention raised serious unease about arbitrariness creeping in ,the Rapporteurs said. They pointed out that many arrests were made without being recorded officially which would make the 24 hour detention questionable.
There was no provision in the Regulation to prevent torture which is banned under the Convention Against Torture. The danger in allowing torture is that those interrogating might not be trained in acceptable interrogation methods, the experts said. Further, there were no review protocols or provisions for the oversight of detention and interrogation.
On Rehabilitation and De-radicalization in general, the Rapporteurs said that these required the involvement of subject experts and should be legally based. Rehabilitation or de-radicalization should not be treated as a substitute for criminal charges or as a means to simply take persons out of their public and private lives and into the custody of the State.
There was no legal remedy for a person sent for de-radicalization. The Regulation did not provide the Magistrate with the power to release or give bail to a person during the period of his rehabilitation. The only permitted legal involvement was that the decision to recommend a person for criminal action or rehabilitation rested with the Attorney General, the top most law officer of the government. But his actions could not be reviewed by a judge as in the case of detention under other laws.
The Rapporteurs pointed out that the report of the working group on arbitrary detention in Sri Lanka had said that individuals sent for rehabilitation were detained arbitrarily. The concept of rehabilitation in the place of criminal proceedings is tantamount to denying a fair trial, they added.
The Experts expressed opposition to “re-education” and “indoctrination” which, in their view, was tantamount to compelling individuals to form particular opinions or change their opinions. This would be a violation of Art 19 (1) of the ICCPR.