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Wednesday, November 30, 2022

Arbitrary Detention and Torture by Another Name: The Proposed Bureau of Rehabilitation – Ambika Sathkunanathan

Undeterred by the economic crisis, the government continues its attempts to enact regressive, repressive and counter-productive laws. The most recent is the Bureau of Rehabilitation Bill.

Lack of legal definitions

Persons to whom the proposed law applies includes former combatants, individuals who have ‘engaged in extreme or destructive acts of sabotage’ (‘members of violent extremist groups’),  persons who have a drug dependency and ‘any other group of persons who require treatments and rehabilitation’.

None of the terms used to describe persons to whom this law is applicable are legally defined in Sri Lanka. For instance, which objective criteria will be used to define a person who has ‘engaged in extreme or destructive acts’? Globally, terrorism, violent extremism and radicalisation, all terms with no agreed legal definitions, are being conflated and weaponized by countries to justify arbitrary and abusive state action. In Sri Lanka, post-Easter attacks, these terms have entered the lexicon of the security apparatus, thereby enabling the creation of legally undefined and uncodified nebulous offences, which are used to justify arbitrary state action that violates human rights.

Despite their commonplace usage, there is as yet no agreement on what constitutes extremist ideas, how a person holding such ideas becomes radicalized and when that person becomes a threat to society. Many countries however arrest persons not based on acts they commit but on what the state infers persons believe; these beliefs are considered deviant, dangerous and a threat to national security by the state and are equated with being radicalized. The supposed radicalization is deemed adequate to arrest the person under anti-terrorism laws. Furthermore, government ministers have been reported saying that protests against the government have portrayed Sri Lanka in a negative light and caused damage to the country and even likened them to terrorism. The government would hence view the protests as a destructive act, and a protestor could potentially be sent to compulsory rehabilitation. The arrests of protestors on 24 September 2022 because the police ‘thought’ they ‘might’ cause damage to public property and ‘might’ enter high security zones, heightens this concern.

Recent history demonstrates the dangers of using the aforementioned labels/terms with no definitions to identify people for supposed rehabilitation as it results in the arbitrary deprivation of liberty by the executive bypassing the judicial process. For example, following the end of the armed conflict, the Mahinda Rajapaksa government did not adhere to international humanitarian law standards to define former combatants. Instead, it used a wide definition, which contravened the international humanitarian law definition and resulted in the arbitrary detention of thousands of persons.  Given it is thirteen years since the end of the war, during which time the government has repeatedly claimed they rehabilitated 12,000 persons who were in the LTTE, why have former combatants been included in the proposed law?

Most importantly, the Supreme Court granted an order staying any action regarding rehabilitation when the Deradicalisation Regulations issued under the Prevention of Terrorism Act were challenged in the Supreme Court. The Bureau of Rehabilitation Bill, is hence a demonstration of government contempt for the Supreme Court and by extension the judiciary.

“Section 17 of the proposed law empowers the President, upon the request of the subject Minister, to issue a gazette designating members of the Army, Navy and Air Force to ‘exercise, perform and discharge the powers, duties and functions under this Act.”

Militarisation of the ‘rehabilitation’ process

The Governing Council established under the proposed law consists of the Secretary, Ministry of Defence and the Inspector-General of Police, who have no expertise nor mandate to be involved in any rehabilitative process.

The Commissioner-General of Rehabilitation, i.e. the Chief Executive Officer, is to be appointed ‘on the recommendation of the Minister assigned the subject of Defence’, further involving the defence establishment in decision making regarding the functioning of the Bureau. Given the appointment of military officials to public positions and the fact the nearly all Commissioner-Generals have been military or former military officials, a serving or former military official will most likely be appointed to this position. There is also no criteria stipulated for the position of Commissioner-General of Rehabilitation.

Section 17 of the proposed law empowers the President, upon the request of the subject Minister, to issue a gazette designating members of the Army, Navy and Air Force to ‘exercise, perform and discharge the powers, duties and functions under this Act. This provision formalizes and legalizes the involvement of the armed forces in rehabilitative processes via only a gazette issued by the President with no checks on this power. In the past, the military’s informal and extra-legal involvement in the supposed rehabilitation of former combatants and its continuing involvement in the compulsory rehabilitation of persons with a drug dependency has led to human rights violations. The most recent being the death of a person at the Kandakadu Rehabilitation Centre for which several military officers have been arrested. Further, it is unclear whether the military officers will be subject to the authority of the Commissioner-General of Rehabilitation when performing these duties and functions, giving rise to concerns about the chain of command and accountability of these persons.

Other issues

The proposed law requires the Commissioner-General of Rehabilitation and other employees to sign non-disclosure agreements. In the context of rights violations recorded at rehabilitation centres, including on-going ones at drug rehabilitation centres, such an agreement seems aimed at preventing whistle blowers from disclosing information about violations rather than safeguarding the privacy of persons detained at these centres.

The proposed law states the records pertaining to a person in custody shall not be released except by a court order or in relation to an investigation in respect of the commission of a serious offence within the Centre. It is unclear whether this provision seeks to restrict the right of the Human Rights Commission of Sri Lanka (HRCSL) to summon documents related to the investigations into the violation or imminent violation of a fundamental right.

The most egregious provision in the Bill states that any employee of the Centre who ‘without reasonable cause strikes, wounds, ill-treats or willfully neglects any person under rehabilitation’ commits an offence under this law. Such an act would constitute torture under the Convention Against Torture Act (CAT), yet there is no reference to the CAT Act. Firstly, the way the section is crafted assumes there can be reasonable cause to wound or ill-treat a person. If the provision is addressing instances of using necessary force in self-defence, that should have been explicitly stated. Instead, the manner in which the provision is framed justifies violence. Whereas in the CAT Act the trial has to be conducted in the High Court, according to the draft law it can be disposed of at a summary trial at the Magistrates Court. The penalty in the CAT Act is imprisonment of not less than 7 years and not more than 10 years, whereas in the proposed law it is maximum 18 months.  While not advocating an increased period of imprisonment, the discrepancy is being highlighted to illustrate that the government does not view violence at these Centres and against certain categories of persons as serious.

The proposed law states it is an offence to ‘obstruct’ the duties of a person employed in any Centre for Rehabilitation for which the penalty is a fine of rupees fifty thousand or up to six months imprisonment or both. Persons who have a drug dependency will experience withdrawal symptoms during the treatment process, which may lead to behavior which can be deemed to come within this section. This section therefore criminalizes aspects of the difficult treatment process.

When a person undergoing rehabilitation escapes from the Centre, the Bill empowers the police or authorized military personnel to apprehend the person. A person who has a drug dependency should not be subject to compulsory rehabilitation and has the right to withdraw from treatment any time they wish; a right this provision violates. The armed forces or police should not be involved in any aspect of a rehabilitative process. Further, the provision also does not state the police/armed forces should immediately hand over the person to the Centre, thereby leaving room for abuse by the police or military with no safeguards to prevent the use of violence.

The Bill authorizes any person employed at a Centre, including members of the armed forces, to use ‘minimum force’ to ‘compel obedience to any lawful directions’ issued to persons. This is legal authorization of torture because under no circumstances can the use of any degree of force be used to compel a person to obey an order. Persons held at such Centres would be powerless and entirely at the mercy of the staff. Authorizing the use of force in a country in which violence at places where persons are deprived of liberty, such as rehabilitation centre and by the armed forces is common, this provision enables and encourages violence. Moreover, in the context of denial of harm reduction strategies and abstinence being the only method used to force persons with a drug dependency to stop using drugs, such persons would experience severe physical symptoms which would prevent them from engaging in even normal day-to-day tasks. Since using violence to force such persons to engage in tasks has been well- documented, it is likely this provision will lead to the increase in the use of violence against persons with a drug dependence.

The government’s attempts to expand its abusive power and normalize and legalize abuse, violence and human rights violations continues apace.

(this article was first published in the Grandviews)

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