Image courtesy of www.orfonline.org.
The impact of law on individuals and communities is shaped by factors such as their ethnicity, religion, privilege, socio-economic status, and the socio-political context. What is the current socio-political context in Sri Lanka? There is a Government that is driven by Sinhala-Buddhist nationalism, which shows disdain for the rule of law and due process. In this environment, ethno-religious minorities that have faced historical discrimination, marginalisation, and violence live insecure, precarious lives.
It is in this context that the regulations on “Deradicalisation from holding violent extremist religious ideology” issued under the Prevention of Terrorism Act (PTA) on 12 March 2021 should be studied. The regulations aim to send persons who surrender/surrendered or are/were detained under the PTA, the PTA regulations, or emergency regulations issued after the Easter attacks in April 2019, to rehabilitation.
Perpetuating ethno-religious stereotypes
There are many reasons to be alarmed by the regulations, which also create a new offence. The definition of this offence is broad, vague, subjective, and includes causing or intending to cause “religious, racial, or communal disharmony” or “feelings of ill will or hostility between different communities”. Reliance on subjective rather than objective factors to decide if a person should be arrested, can, as the UN Special Rapporteur on Countering Terrorism while Protecting Human Rights has stated, “lead to the inclusion of non-violent groups on executive lists of ‘extremist’ entities, one notable example of which is groups responding to the climate emergency”. The Government’s reaction to those challenging environmental degradation shows that the likelihood of groups that are critical of the Government being labelled extremists is high.
There is also the risk that due to the subjective nature of the definition of the offence, the decision to arrest can be influenced by personal prejudices and unconscious bias. In the present anti-minority environment, it is highly likely that prevailing unofficial ethnic/religious profiling could increase and render a community or group, such as Muslims, to be viewed as “suspects”, often on the basis of ethnic or religious stereotypes.
The regulations thus move from what the Special Rapporteur describes as “sanctioning the acts of individuals” to “anticipating those acts”. This entails the Government criminalising acts “that are far removed from the commission of an act of terrorism”, but which the Government assumes predict that a person could commit an act of terrorism. Based on this assumption, persons can be sent to rehabilitation for what they could possibly do.
Is rehabilitation arbitrary detention in another guise?
The term “surrender” also lacks a clear definition. The regulations only state that anyone who surrendered in relation to an offence in the PTA would be considered a surrendee. The lack of legal clarity could enable human rights abuses, similar to what took place when the 2011 regulations on “Surrendees’ Care and Rehabilitation” were implemented. While the 2011 regulations require the “surrendee” to “submit a written statement that s/he surrendered voluntarily”, the current regulations have no such requirement. Therefore, there is no way to verify the voluntariness of the surrender. Even though the 2011 regulations required the person to sign a statement attesting the voluntariness of the surrender, in reality, even those that were forcibly taken away from camps for the internally displaced, or were detained by the military when they crossed into government-controlled territory, were termed surrendees.
The 2021 regulations empower “any police officer or any member of the armed forces”, or “any public officer or any other person or body of persons authorised by the President by order” to make arrests. This contravenes the best practices on policing, as it allows the President to authorise any person with no knowledge or experience of legal standards or due process, to make arrests. Further, it militarises law enforcement and creates a de facto state of emergency. The wide powers given to these individuals is dangerous in a society that places little value on the rule of law and due process, since it can result in arbitrary arrests.
The regulations further state that anyone other than a police officer who conducts an arrest has 24 hours to hand over the arrested person to the Police, which creates space for violations, such as torture to extract information.
According to the regulations, after a person is arrested, if the police officer has “reasonable cause to suspect” that a person has committed an offence under the PTA or emergency regulations, a report is sent to the Minister of Defence to consider whether the person should be detained on a detention order under the PTA for the purpose of investigation. The arrest thus takes place first, and the investigation commences only after the arrest, rather than persons being arrested due to evidence unearthed during an investigation. Moreover, there is no clarity about the legal provision under which the person will be detained until the Minister authorises the person to be detained on a detention order. As per the PTA, a person can be detained for a maximum of 72 hours after which the person either has to be produced before the magistrate or a detention order has to be issued.
After the conclusion of investigations, the Attorney General (AG) is given the power to decide whether the person should be indicted or sent to rehabilitation. This means that a person who has not been found guilty by a court of law can be deprived of liberty and arbitrarily detained for up to two years.
There is also no mention in the regulations of the criteria used to determine who should be sent to rehabilitation. Under the 2011 regulations, persons against whom there was inadequate evidence to indict, were sent to rehabilitation because the Government presumed they supported the Liberation Tigers of Tamil Eelam (LTTE) and had to be rehabilitated. The concern that the current regulations might be used to do the same is heightened by the comments of Commissioner General of Rehabilitation (CGR) Maj. Gen. Darshana Hettiarachchi who stated that those with “no direct links to the 2019 April attacks will be rehabilitated”.
Even though the regulations state the AG will decide whether a person should be sent to rehabilitation, according to the CGR, the identification of persons to be sent to rehabilitation “will be based on the recommendations made by the Terrorism Investigation Division, Criminal Investigation Department, and the State Intelligence Service”. Do these entities, that have not been authorised by the regulations to be involved in identifying those to be sent to rehabilitation, have the expertise to make the decision? On what basis will these recommendations be made?
The regulations state that if the rehabilitee behaves in a “disruptive manner” during rehabilitation, the CGR can write to the Officer in Charge (OIC) of the police station who applied to the magistrate for the rehabilitation order, who then requests the magistrate to revoke the order. There is no definition of “disruptive manner” or the standards used to determine what is disruptive. This means, once again, the decision will be based on subjective factors. Furthermore, although the magistrate orders rehabilitation, it is the Minister of Defence, on the basis of the report of the CGR, who orders release or extends the period of rehabilitation up to another 12 months. The extension of the rehabilitation is therefore done by the executive and not a judicial authority, although the initial order is made by a judicial authority.
Abuse of the law: Validating extra-legal action
More than 10 years ago, in September 2010, then Deputy Economic Development Minister Lakshman Yapa Abeywardena told BBC that they were holding alleged former LTTE combatants at rehabilitation centres because the detainees were providing them with information about others who are still at large and “the authorities need to keep them for longer to extract more information about the rebel activities and people involved”. The real reason therefore was not to “rehabilitate”, but to interrogate them beyond the detention period allowed by law.
While the State has the right to interrogate persons suspected of committing terrorist offences, in Sri Lanka, national security has been used for decades as justification to disregard due process and detain persons for long, indeterminate periods without access to legal representation. For instance, alleged former LTTE combatants were not able to obtain legal representation during the rehabilitation process, nor access the evidence against them. At the time, many who were held at rehabilitation centres refused to legally challenge their detention for fear it would lead to reprisals, including the prolongation of their rehabilitation period. Those who are sent to rehabilitation under the 2021 regulations might have the same fears and will likely choose not to challenge their arbitrary detention.
There is evidence that the existence of such a law enabled state authorities to exceed their authority, abuse power, and take extra-legal action. For instance, in 2015 and 2016, the 2011 regulations were used to send persons who had not passed security checks required for certain state employment, such as grama niladhari (GN) officers (village officers), to rehabilitation.
According to the Human Rights Commission, “in May 2015 and March 2016, 16 and six GN officers, respectively in the North were informed by the Ministry of Home Affairs, which according to the law has no authority to order persons to rehabilitation, that they would have to undergo rehabilitation. In total, 11 persons completed this programme and were released after three months – seven women and four men. Of the seven women, one woman had a baby three months ago prior to being sent to rehab and hence, her baby along with her mother, lived with her at Poonthottam.”
Extra-legal action is also fostered by the fact that although the CGR, and thereby the reintegration centres, are within the purview of the Ministry of Justice (MOJ), it is the Minister of Defence who appears to be the main decision-making authority on rehabilitation. Additionally, the centres are managed by military officers, who are not accountable to the MOJ but to the Ministry of Defence (MOD). Even the CGR, who functions within the purview of MOJ, has to submit reports on rehabilitees to the Minister of Defence, not the Minister of Justice.
The drivers of ‘violent extremism’ are not what you think
Instead of targeting communities and using rehabilitation/re-education programmes that will only stigmatise and marginalise them, the Government should use evidence and human rights-based strategies to address the problem.
An United Nations Development Programme (UNDP) study quoted by the Special Rapporteur found that “governance challenges were key drivers of extremism. In particular, the role of the State as a push factor to violent extremism was noted by 71% of respondents, who identified ‘government action’ as being the critical event that finally pushed them to join a violent extremist group”. Hence, government action that discriminates and marginalises populations only fuels “violent extremism”, which the Special Rapporteur has pointed out flourishes “in environments characterised by poor governance and injustice”.
The solution to the problem therefore lies within the Government.