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Friday, February 23, 2024

In a joint letter UN Special Rapporteurs take proposed Sri Lanka’s Anti-Terrorism Act to the task!

In a letter to President Ranil Wickremasinghe on 27 April 2023 the Special Procedures experts identified that key amendments to counter-terrorism legislation in Sri Lanka require addressing these key benchmarks, including to:

1. Employ definitions of terrorism that comply with international norms.
2. Ensure precision and legal certainty, especially when this legislation may impact the rights of freedom of expression, opinion, association, and religion or belief.
3. Institute provisions and measures to prevent and prohibit arbitrary deprivation of liberty.
4. Ensure the enforcement of measures to prevent torture and enforced disappearance and adhere to their non-derogable prohibition, which has attained the status of jus cogens; and
5. Enable overarching due process and fair trial guarantees, including judicial oversight and access to legal counsel.

This communication was designed to lay the groundwork to consolidate the observations of human rights mechanisms and support progress towards meaningful and international law-compliant legislative review and reform of the PTA, or repeal and adoption of alternate legislation that prima facie addresses these minimum standards for international law-compliant counter-terrorism legislation by the Sri Lankan Government.

Compliance with international law obligations

We continue to underscore to your Excellency’s Government that, in order to bring such legislation into compliance with international law obligations, there must be significant reform and substantive dismantling of the existing and past features of the counterterrorism legislation, including the PTA and further regulations, which have led to alleged human rights violations, including the infringement of the right to peaceful assembly and association, arbitrary detention, torture and enforced disappearance. Without adequately addressing these key features and bringing any newly proposed legislation into full compliance with your Excellency’s Government international law obligations, such legislation will neither prevent, remedy nor repair both prior and future human rights violations, nor effectively counter terrorism.

With a view to facilitating a constructive and effective review of the newly proposed ATA legislation and supporting efforts towards compliance with international law standards, we highlight the continued benchmarks that must be addressed in line with previously communicated benchmarks as applied to the proposed ATA. We underscore that this letter does not constitute a full legislative review as previously conducted by the PTA and note that further provisions may be subject to communication by Special Procedures relating to compliance with international human rights law obligations of your Excellency’s Government.

1.Employ definitions of terrorism that comply with international norms

Benchmark 1: We recommend amending the definition of terrorism and other vague provisions and to ensure the definitions and language employed are in compliance with Sri Lanka’s international human rights obligations.

We respectfully remind your Excellency’s Government that, although there is no multilateral treaty on terrorism which inter alia defines terrorism, States should ensure that counterterrorism legislation is limited to criminalizing conduct which is properly and precisely defined on the basis of the provisions of international counterterrorism instruments and is strictly guided by the principles of legality, necessity, and proportionality. The definition of terrorism in national legislation should be guided by the definition found in Security Council resolution 1566 (2004) and also by 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.

Counterterrorism legislation should be in compliance with human rights obligations, protection of due process, and in line with the international prohibition against arbitrary detention. The Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism continues to offer a model definition of terrorism to guide Member States’ practice based on the above resolutions and international law standards.

We wish to convey that the proposed features of the ATA appear to contradict your Excellency’s Government international obligations, in particular the Universal Declaration of Human Rights (‘UDHR’), the International Covenant on Civil and Political Rights (‘ICCPR’), acceded on 11 June 1980; the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’), acceded on 11 June 1980; the International Convention for the Protection of All Persons from Enforced Disappearances (‘ICPPED’), ratified on 25 May 2016; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘CAT’), acceded on 3 January 1994, and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), acceded on 18 February 1982; the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), ratified on 5 October 1981. Moreover, such draft proposals might also run contrary to the 1992 Declaration on the Protection of all Persons from Enforced Disappearance, the 1992 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief.

While we acknowledge the exclusion of the language of “extremism” by past recommendations referenced in exchanges with your Excellency’s Government, we believe that the ATA, in particular, its Part II – Offences and Penalties, without addressing the conflicting features of the primary definition of terrorism, would continue to perpetuate the detrimental impacts on the promotion and protection of various fundamental freedoms that have been identified with the ATA and subsequent regulations. In particular, the ATA continues to lack precision in key definitional aspects of terrorism and expands the scope of terrorist acts, further detailed below, creating opportunities for misuse due to broadly worded and vague definitions of terrorist acts.

2.Ensure precision and legal certainty, especially when this legislation may impact the rights of freedom of expression, opinion, association and religion or belief.

Benchmark 2: We respectfully recall the previous communication to your Excellency’s Government and recommend the following:

a. Comprehensively review the proposed ATA legislation and consult with diverse stakeholders and affected communities to precisely define what speech is prohibited consistent with the requirements of article 19(3) of the ICCPR to ensure no unlawful interference with the freedom of expression and opinion, as well as of association.

b. Comprehensively review the vague language within the ATA, including section 3(1)(a)-(e), and examine the precision and legal necessity as featured in the model definition of terrorism, and the impact of these provisions on the precision, legality and necessity of all following provisions.

We again bring to your Excellency’s Government attention the ‘principal of legal certainty’ under international law,2 which requires that criminal laws are sufficiently precise so it is clear what types of behaviour and conduct constitute a criminal offence and what would be the consequence of committing such an offence.

This principle recognizes that ill-defined and/or overly broad laws are susceptible to arbitrary application and abuse. The Special Rapporteur on the promotion and
protection of human rights and fundamental freedoms while countering terrorism has highlighted the dangers of overly broad definitions of terrorism in domestic law that
fall short of international obligations. In her report A/HRC/37/52, she underscores that the use of counter-terrorism law to quell legitimate activities protected by international law is inconsistent with the State’s obligations. article 9 (1) ICCPR affirms the principle of legal certainty under international law and requires that any substantive grounds for arrest or detention must be prescribed by law and should be defined with sufficient precision. article 22(2) ICCPR provides that any restrictions on the exercise of the right to freedom of association must be “prescribed by law” and “necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.”

We refer to the proposed sections 3(1)-3(2) of the ATA, which appear to continue to establish overly broad definitions of terrorism that threaten to impinge upon the exercise of human rights and fundamental freedoms. These specific provisions implicate the exercise of the right to assembly, right to freedom of opinion and expression and fail to offer new counter-terrorism legislation that is sufficiently distinguished from the PTA to fulfil compliance with international law obligations. The retention of the most problematic and expansive features of the PTA could be used against human rights defenders, civil society, and those legitimately exercising their human rights and fundamental freedoms. The broadness of these provisions would undermine the legal certainty and precision of the full legislation and raises questions regarding provisions linked to “direct or indirect encouragement” or “inducement” in section 10 of the proposed draft, as well as sections 11, 12, and 16, and beyond.

3. Institute provisions and measures to prevent and halt arbitrary deprivation of liberty

Benchmark 3: We respectfully recall the above analysis, including the legal standards outlined in OL LKA 7/2021, and recommend amendment of provisions concerning arrest and detention as well as administrative and judicial safeguards to prevent the continued arbitrary arrest and detention of individuals inconsistent with
international law standards. Recommended benchmarks are as follows:

a. Review and amend the ATA, in consultation with civil society and relevant stakeholders, to establish a concrete basis from which arresting authorities are empowered, and to limit the subjectivity on the grounds permissible to justify an arrest.

b. Review and amend the ATA to ensure that there are standards and criteria, including record-keeping procedures, set out to ensure that a person has not been detained outside the bounds of the law before being handed over to the police station and to remedy the presumption that detention may occur before the commencement of an investigation.

As currently drafted, the ATA retains the most problematic and exceptional features that may also allow, as alleged under the PTA, for the unlawful deprivation of
liberty across pre-trial detention, bail, undue delays in trials, the admissibility of self incriminating confessions obtained through torture or other forms of ill-treatment, in absence of legal safeguards against such practices and the continued use of the death penalty. It may also continue to infringe on the right to challenge the legality of
detention, the right to legal detention, and the continued use of the death penalty. The ATA provides for wide arresting authority under Part III, section 19, to “any police
officer, member of the armed forces or a coast guard officer,” and to “arrest without a warrant” on the basis of a range of factors that include mere suspicion, including on the basis of arresting an individual “who has been concerned in committing an offence,” under the Act or when an arresting authority “receives information or a complaint which such officer or member believes to be reliable.” Given the overly broad definition of terrorism and the subjectivity of provisions that go beyond reasonable grounds, these provisions would continue to present a high risk of misuse and violation of human rights and fundamental freedoms. We draw your Excellency’s Government attention to the
relevant legal obligations attached to these alleged features and benchmarks as found in OL LKA 7/2021.

We further refer your Excellency’s Government to the standards set out above in articles 17(2)(c)-(f) of the ICPPED, articles 6, 9 and 10 of the 1992 Declaration on the Protection of All Persons from Enforced Disappearance, article 6 of the Declaration and article 23 of the ICPPED. These changes are necessary to address matters of fairness, due process, coercion, and arbitrariness raised by these provisions.

4. Ensure the enforcement of measures to prevent torture and enforced disappearance and adhere to their absolute and non-derogable prohibition.

Benchmark 4: We respectfully recall the standards and recommend immediate amendments to address the full scope of the requirements of the UN CAT and the
Standard Minimum Rules for the Treatment of Prisoners across all detention practices,rules, provisions, and powers. Meaningful amendments can only be made by ensuring
that these protocols are addressed and current conditions that increase the likelihood of torture are urgently remedied.

We draw your Excellency’s Government attention to the relevant obligations attached to this benchmark in OL LKA 7.2021. The provisions within the ATA may provide the circumstances leading to arbitrary detention, enforced disappearance, and torture, cruel, inhuman, or degrading treatment, as it has been alleged under the PTA, contrary to articles 17 to 20 of ICPPED and articles 9 to 12 of the 1992 Declaration on the Protection of All Persons from Enforced Disappearance, as an international norm of jus cogens regardless of the State treaty obligations. We draw the attention of your Excellency’s Government to section 31(6), which may indicate that the ATA permits “approved places of detention” or sites of detention outside the remit of judicial authority. This provision does not specify whether the site, in addition to the number of approved places, would be made public, which tends to further limit the positive impact of provisions, such as section 34(a) which permits an officer of the Human Rights Commission to enter a site of detention without notice, or section 35, which permits a Magistrate to do the same without notice.

5. Enable overarching due process and fair trial guarantees, including judicial oversight and access to legal counsel.

Benchmark 5: Recalling the above analysis on the international human rights law deficits, specifically the lack of fair trial guarantees, continued and extended
deprivation of liberty without due process, and the full scope of overarching lack of judicial oversight of detention practices, we recommend close review and amendment
in consultation with civil society and other stakeholders of the ATA, in line with past communications detailing your Excellency’s Government obligations under
international law and to bring all procedures in line with due process obligations under the ICCPR and UDHR.

We recognize that some judicial oversight of the arresting authorities has been improved in the ATA, including some limited timeframes linked to judicial review and
the application of the provisions of the Code of Criminal Procedure Act as it relates to trials under this act. However, as drafted, the ATA’s provisions on definitions, and
detention and restriction orders, could still thwart due process and fair trial guarantees.Such practices may allow systematic detention without trial, a practice that is inconsistent with your Excellency’s Government’s international legal obligations.

The previously identified issues around ‘judicial involvement’ under the PTA,which consisted of a decision made by the Attorney General, confirmed but not fully reviewed by a judge, continues to be paralleled in the ATA through the limitations placed on the authority of a Magistrate Judge to order release under its section 28(2)(b)(iii) by the officer in charge of the relevant police station. This, as in previous communications does not amount to a proper judicial process, which is required in any restriction imposed on the right to liberty. In the report of the Working Group on Arbitrary Detention on its visit to Sri Lanka, the Working Group found that individuals sent for rehabilitation were detained arbitrarily. Their deprivation of liberty lacked a legal basis and was the result of numerous grave violations of the right to a fair trial, including a lack of effective legal assistance, the inability to access the evidence against them, and undue delay in being tried. section 31 of the ATA further expands the authority for detention orders, beyond the Minister of Defence as under the PTA, to the Deputy Inspector General of Police.

We continue to emphasize that standard criminal legal provisions and procedures that comply with standards of due process remain the most appropriate and legally compliant form of addressing terrorism cases and resort to exceptional measures such as schemes of detention orders should be removed from future legislation.

We draw your Excellency’s Governments attention to further provisions that impact the compliance of the proposed ATA with international human rights law standards, including its section 71, which although permitting the deferral of prosecution, may create conditions that compel individuals into coercive admissions of guilt; section 82 Presidential prescription orders), section 83 (Presidential restriction order), section 85 (Presidential establishment “prohibited places” and section 100 (Presidential orders for rehabilitation including in cases of suspended criminal proceedings).

Conclusion

We wish to reiterate the importance of meaningful reform of counter-terrorism legislation by your Excellency’s Government. The continued risk to the rights and liberties of persons who may be detained arbitrarily, especially religious and ethnic minorities, human rights defenders exercising their right to peaceful assembly and association, may curtail political dissent with no effective due process guarantees under the proposed ATA and still need to be addressed. Lack of sufficient judicial oversight and effective due process standards could facilitate institutional contexts where misuse of the law can occur. We urge your Excellency’s Government to commence a significant reform and substantive dismantling of the existing and past features of counter-terrorism legislation, including the PTA and further Regulations, which have led to alleged human rights violations. Further, we recommend an immediate moratorium on the continued use of the PTA, until such time as the necessary amendments to the proposed ATA can be made in consultation with civil society, and all relevant stakeholders. As it is our responsibility, under the mandates provided to us by the Human Rights Council, to seek to clarify all cases brought to our attention, we would be grateful for your Excellency’s Government observations on the following matters and the planned or in-process plans to address these continued issues and how it intends to bring the proposed ATA into compliance with international law obligations.

The letter is signed by

Fionnuala Ní Aoláin, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism
Mathew Gillett, Vice-Chair on Communications of the Working Group on Arbitrary Detention
Aua Baldé, Chair-Rapporteur of the Working Group on Enforced or Involuntary Disappearances
Irene Khan, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
Clement Nyaletsossi Voule, Special Rapporteur on the rights to freedom of peaceful assembly and of association
Mary Lawlor, Special Rapporteur on the situation of human rights defenders
Margaret Satterthwaite, Special Rapporteur on the independence of judges and lawyers
Fernand de Varennes, Special Rapporteur on minority issues
Nazila Ghanea, Special Rapporteur on freedom of religion or belief

UNHRC

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