Responding to Sri Lanka’s expansion of its draconian counter-terrorism legislation in March, a team of UN Special rapporteurs have published a damning report highlighting that the current legislation “risks jeopardizing the rights and liberties of persons who may be detained arbitrarily, especially religious and ethnic minorities, and may curtail political dissent”.

The report follows decades of concern over the Prevention of Terrorism Act which has been used disproportionately to arbitrarily detain Tamils and has been linked to accounts of torture and enforced disappearances. The European Union has recently passed a resolution similarly condemning Sri Lanka’s retention of the legislation and calling on the EU Council to consider temporarily suspending GSP+ privileges for Sri Lanka.

In noting, Sri Lanka’s to heed their recommendations and bring their counter-terrorism measures in line with global human rights standards, the UN experts state:

“We regret that these remedial measures have not been adopted, and rather than an additional set of rights-denying measures are being advanced by this Regulation, further undermining the protection of human rights in Sri Lanka”.

Failure to meet 'legal certainty'

In detailing their concern the panel highlights that “the law lacks precision in key aspects creating opportunities for misuse due to broadly worded and vague provisions”. They highlight that the terms “extremism”, “radicalisation”, and “deradicalisation” are not defined and that “extremism” has no purchase in binding international legal standards. This ambiguity may facilitate arbitrary detentions.

This is a particular concern under section 2 of the regulation which highlights that individuals may be prosecuted criminally or sent to rehabilitation if they surrender or are taken into custody on suspicion of causing or intending to cause ‘acts of violence or religious, racial or communal disharmony or feelings of ill will or hostility between different communities or racial or religious groups’ by ‘words either spoken or intended to be read or by signs or by visible representations or otherwise.’

The UN experts highlight that a criminal act need not be committed by the individual as authorities are granted the power to detain and deprive them of their liberty simply “on the basis of suspicion and without judicial process”.

Erasure of liberty

They further highlight the concerns that “religious beliefs and practices can be used as a placeholder in the classification of radicalization”. In 2019, the Special Rapporteur on freedom of religion or belief visited Sri Lanka and expressed alarm over the ambiguities within the PTA and highlighted how this had been used to target minorities and to suppress dissenting views. The UN High Commissioner for Human Rights further raised these same concerns this June noting the continued targeting of Tamils and Muslims in Sri Lanka.

The report further stresses that the provision could be used to “restrict journalists, human rights defenders, civil society actors, and others from reporting or expressing views on anti- terrorist operations”. Sri Lanka routinely harasses Tamil journalists across the North-East reporting on the militarisation of the homeland and have continued to detain high-profile human rights advocates such as the Muslim lawyer Hejaaz Hizbullah.

The UN experts maintain that “the right to freedom of thought, conscience, religion, or belief cannot be derogated from, even in time of public emergency”.

Arbitrary detention and torture

Section 3 of the legislation further permits detentions by “any police officer, or any member of the armed forces, or to any public officer or any other person or body of persons authorized by the President by Order”.

The report warns that this “provision allows the powers of arrest to be exercised by a wide array of individuals who may not be trained or have relevant, sufficient legal expertise to be authorized to undertake deprivations of liberty”. This section further enables non-law enforcement entities to detain individuals for up to 24 hours without a legal warrant or an investigation. The regulation, therefore, raises the risk for enforced disappearances and torture, inhuman and degrading treatment.

The report further raises concerns over the voluntariness of those who reportedly surrendered to authorities. They note that during a country visit, a UN Special Rapporteur reported “reported instances of surrendees being allegedly coerced into surrendering to avoid “severe consequences”.

“Past questions about the genuine voluntariness of ‘surrendees’ coupled with the possibility of coercion, torture, or the of the risk of enforced disappearance during the 24-hour unsupervised detention period, gives rise to considerable concerns” the report states.

Earlier this year, Tamil National Alliance MP, M.A. Sumanthiran raised this precise concern as he called for a full repeal of the PTA. Detailing how the legislation enabled forced confession, he stated:

“All you had to do was beat up a fellow, or do worse, and get his signature, you have solved the crime. The real culprit is still roaming free”.

According to the International Truth and Justice Project, there have been 178 documented credible cases of torture from 2015-2018. Since Gotabaya Rajapaksa came to power in late 2019, at least 5 cases have been documented abroad of abduction, torture, and sexual violence of Tamils. The ITJP notes, "this likely represents the tip of the iceberg".

Section 5(2) of the legislation also raises concern as it maintains that detention occurs ‘for the purpose of conducting an investigation.’ The officials note that whilst the phrase ‘reasonable cause for suspecting an offence has been committed’ is used, “the presumption that detention occurs before the commencement of an investigation can implicate further arbitrariness concerns”.

Rehabilitation is a deprivation of liberty

The report highlights the harm caused by the legislations use of “rehabilitation” emphasising that it is essentially “a criminal penalty without trial violates the right to a fair trial and due process”.

The legislation voids the rights a fair procedure as Section 5(4) details that the Magistrate will intervene “only to decide to either send the accused to the Reintegration Centre or instituting a criminal case against him because such surrendee or detainee shall be produced before a Magistrate with the written approval of the Attorney-General without a chance to hear the accused once”.

“The ‘judicial involvement’ consisting of a decision made by the Attorney General, confirmed but not fully reviewed by a judge, does not amount to a proper judicial process” the report emphasises.

The report further highlights that

“No criminal acts need to actually be committed before referral to rehabilitation occurs”.

The issue is further exacerbated by the provisions under Section 7 which permit for the Minister to “extend the period of rehabilitation based upon the recommendation of the Commissioner-General of Rehabilitation”. This detention may be extended an additional year brings the period of detention up to two years.

The report emphasis that this concept of 'rehabilitation' in lieu of criminal proceedings resulting in the incarceration of persons in ‘rehabilitation camps’ is a violation of the detainees’ right to a fair trial and will result in a violation of their right to liberty.

Rehabilitation or Re-education

Alarming Section 8 of the legislation states that “Commissioner-General of Rehabilitation shall provide a surrendee or detainee with psychosocial assistance and vocational and other training during the period of his rehabilitation to ensure that such person is integrated back to the community and to the society”.

Whilst seemingly innocuous, the report stresses that this “fails to meet minimal thresholds of legality under international law” and is overtly vague. They raise the concern that this this will be used to “target ethnic and religious minorities as well as domestic political opposition”.

The experts stress that these “trainings must not have the objective to deprive an individual of her religious belief or political views”.

“Indoctrination programmes, such as ‘re-education camps’, or threats of violence designed to compel individuals to form particular opinions or change their opinion, violate article 19 (1) of ICCPR” the report emphasises.

The report also notes that whilst the Bureau of the Commissioner-General of Rehabilitation was initially set up under the guidance of Ministry of Defence it has since come under the management of the State Ministry of Prison Management and Prisoner Rehabilitation. However, whilst it has been positioned “within the criminal justice system” it lacks “the safeguards that criminal justice offers”.

Denial of a right to family

The experts also raise alarm over the fundamental right to family as section 8 restricts visits contingent on the permission of the OIC of the Reintegration Centre and visits cannot exceed once every two weeks.

They warn that this “provision might further isolate the detainee from their society and from their communities in the case that a detainee is not granted permission to receive visits from the OIC of the Reintegration Centre”.

The expert panel was composed of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism; Working Group on Arbitrary Detention; Working Group on Enforced or Involuntary Disappearances; Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression; Special Rapporteur on minority issues; Special Rapporteur on freedom of religion or belief; and Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment.

Read the full report here.