Image courtesy of https://factum.lk/.
(By Ranjith Padmasiri / Sunday Times) The Supreme Court has held that the “Prevention of Terrorism bill-or de-radicalisation from holding violent extremist religious ideology-Regulation No. 1 of 2021” is in violation of the fundamental rights granted under the Constitution.
“It is not practically possible for this Court to suggest amendments to rectify the regulations to align with all fundamental rights due to their inherent flaws,” Justice Mahinda Samayawardhena said in his judgment.
“The Court also makes the declaration that the impugned regulations are null and void,” Justices Buwaneka Aluwihare, PC, and Murdu N. B. Fernando, PC, agreed.
The regulations were challenged in the Supreme Court by the Centre for Policy Alternatives and its Executive Directors Paikiasothy Saravanamuttu, Sithara Shreen Abdul Saroor, and Ambika Satkunanathan. The petitioners filed the fundamental rights applications in their own right and in the public interest. The respondents are the Attorney General, Defence Ministry Secretary, the Inspector General of Police and the Rehabilitation Commissioner General.
The regulations were made by the President under section 27 of the Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979. The Additional Solicitor General appearing for the respondents submitted to the Court that their primary purpose was the de-radicalisation and rehabilitation of misguided youth who either surrendered or were arrested following the Easter Sunday attacks, driven by a violent extremist religious ideology.
The Bureau of Rehabilitation Bill was placed on the order paper of Parliament while the fundamental rights applications were pending. It was subsequently challenged in the Supreme Court for its constitutionality. The Court ruled that it was, as a whole, inconsistent with the Constitution and suggested ways to address the inconsistencies. Following the determination, the Rehabilitation Act No. 2 of 2023 was enacted. The regulations provided for the procedure for sending people for rehabilitation, the Additional Solicitor General said.
The Attorney General first objected that the FR application should be dismissed on grounds of “locus standi”—that the petitioners were not personally affected by the regulations. Justice Samayawardhena held, however, that: “The contours of fundamental rights jurisdiction have expanded over the years, and public interest litigation in response to violations and imminent violations of fundamental rights is no longer a new phenomenon in the global arena.”
In examining the purpose of the regulations, the Court said, “The definition of ‘extremist religious ideology’ presents inherent difficulties as religious beliefs may vary widely among individuals, with one person’s religious ideology potentially appearing extreme to another. In the absence of clarity, there is a risk of arbitrary decisions being made where certain attitudes, behaviours, attire, etc., can also be deemed as signs of extremist religious ideologies.”
According to Article 10 of the Constitution, the State cannot prevent a person from thinking or believing in some religious ideology on the basis that such thinking or belief is irrational or extreme. It sets “an absolute bar against such infringements.” Nevertheless, if such person manifests his thinking or belief, freedom of thought can be restricted as permitted by Article 15 of the Constitution.
“All seem to be in agreement that when there is an imminent threat in pursuit of ‘violent extremist religious ideology,’ the State can step in to prevent the harm for the greater benefit of all others,” the judgment stated. “However, prevention of harm cannot be the pretext for arbitrary use of power to curb the rights of the people.”
“Although no issue of a legal nature arises from the title of a statute, the unqualified concept contained in the title of the impugned regulations is inconsistent with Article 10 of the Constitution. This has been exacerbated by the fact that no definition has been provided for the term ‘violent extremist religious ideology’ in the regulations.”
Separately, Justice Samayawardhena observed that a contextual reading of the objectives of the regulations revealed no nexus “between the theme of the regulations as manifested in the title and the objectives of the regulations.” He said regulation 2 is “inherently illogical and irrational.”
“If the stated objective of the regulations are not clear, how can their impact and applicability be properly assessed or understood? The existence of such real uncertainties within legal provisions may give rise to subjective interpretation and arbitrary enforcement of the law, which may undermine the rule of law and legal predictability,” he said.
The Court held that regulation 2 is ultra vires the Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979. It also constituted an affront to Article 12(1) of the Constitution and it violated Article 13(1) of the Constitution.
Several other regulations were deemed by the Court to be in contravention of the Constitution while some matters, it said, must be tackled under the provisions of the Prevention of Terrorism (Temporary Provisions) Act and the Bureau of Rehabilitation Act.
Viran Corea with Lewis Ganeshathasan, Khyati Wikramanayake and Thilini Vidanagamage appeared for the CPA and Dr. Saravanamuttu. Suren Fernando with Khyati Wikramanayake appeared for Ms. Saroor. Pulasthi Hewamanna with Harini Jayawardhana, Fadhila Fairoze and Githmi Wijenarayana appeared for Ms. Satkunanathan. Additional Solicitor General Nerin Pulle with Deputy Solicitor General Avanti Perera appeared for the respondents.