Several UN experts have written to Sri Lanka's President urging for an immediate moratorium on the continued use of Sri Lanka's draconian "Prevention of Terrorism Act" (PTA) until the legislation is brought in line with international legal obligations.
In their letter, the UN experts stress their concerns that "enforcement of the PTA and subsequent regulations have resulted in significant and detrimental impacts on the promotion and protection of several fundamental freedoms".
The legislation also enables for the "unlawful deprivation of liberty across pretrial detention, bail, undue delays in trials, confessions obtained by torture and ill-treatment, the continued use of the death penalty".
The letter follows remarks by Sri Lanka's Foreign Minister, G.L.Peiris, in which he insisted that the government would not rescind this notorious legislation.
Responding to the UN letter, Human Rights Watch issued a statement highlighting that in 2017 Sri Lanka regained tariff-free access to the EU market through the GSP+ agreement before reneging on their commitments. This June the European Parliament condemned Sri Lanka's continued use of the PTA and the deterioration of human rights as well as calling for the EU to "suspend the favourable trading preferences granted by the GSP+ agreement". Human Rights Watch endorsed these calls stating:
"The outcome will ultimately depend on the EU’s level of ambition and assertiveness. The EU should not allow itself to be hoodwinked by a sham PTA reform".
Attacks on human rights defenders
The letter highlights the grave concern of the UN Human Rights Council over the use of counterterrorism legislation to "target human rights defenders" or "hindered their work and endangered their safety in a manner contrary to international law".
The letter adds the PTA specifically could "function to restrict journalists, human rights defenders, civil society actors, and others from reporting or expressing views on anti-terrorist operations".
The statement comes at a time when Tamil journalists have faced relentless attacks and intimidation from Sri Lanka's security forces.
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"Deradicalisation"
They further add that their "serious concern" has been worsened by the addition of an amendment focused on "deradicalisation from holding violent extremist religious ideology".
"We regret that these remedial measures have not been adopted and that an additional set of rights-denying measures are being advanced by other proposed Regulations since that time," they write.
They specify that this concern is driven by "law lacks precision in key aspects creating opportunities for misuse due to broadly worded and vague provisions".
"Under the 'offences' section of the PTA, individuals can be prosecuted criminally 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" they note.
The letter goes on to state that the language would "enable the deprivation of liberty on the basis of mere suspicion and without judicial process".
"No objective criteria have been clearly set out for any of the evaluations/decisions to be taken as to the constitutive components of this offence," they write.
Concern is also raised over the ambiguity of the phrase "intending to cause" as they note that the "threshold for those inchoate crimes should be the reasonable probability that the expression in question would succeed in inciting a terrorist act".
Attacking religious freedom
The UN experts also raise alarm over the potential scope for religious discrimination enabled by the legislation.
"There can also potentially be a breach of the obligation of persons belonging to ethnic, religious or linguistic minorities not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language, as enshrined in Article 27 of the ICCPR" they note.
Arbitrary arrests
The legislation, experts warn, may further enable arbitrary arrests as it confers greater authority on to ‘any police officer not below the rank of Superintendent or any other police officer not below the rank of Sub-Inspector authorized in writing by him in that behalf.’ This legislation has been further expanded within the past year and may allow for detention without charge.
Alarm is raised over the fact that there are "no standards or criteria set out to ensure that the person has not been detained for more than the permitted time period" - "72 hours before being handed over to the police station".
Those detained are not provided with a reason for their detention nor are their family members or loved ones who are also denied "communication with another regulating body". "There is no record maintained of which individuals are being taken into custody". This is particularly alarming given Sri Lanka's record as the country with the second-highest number of enforced disappearances.
The UN experts urge President Rajapaksa to "ensure preventive measures are in place to prevent torture and enforced disappearance and adhere to their absolute prohibition".
They add that the provisions may not "allow for a fair trial considering that detainees or surrendees are not given the opportunity to hear the case against them or the result of any investigation concerning their alleged activities".
"This might lead to severe restrictions on the liberty of persons and penalization of individuals without any access to due process guarantees, without charge, or trial. Such practices may allow systematic detention without trial, a practice that is inconsistent with your Excellency’s Government’s international legal obligations".
The experts further criticise the limited judicial involvement which consists of a decision made by Sri Lanka's Attorney General and confirmed but not fully reviewed by a judge. This "does not amount to a proper judicial process, which is required in any restriction imposed on the right to liberty" they write.
Recommendations
The letter calls on the Sri Lankan President 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 halt arbitrary deprivation of liberty;
4) Ensure preventive measures are in place to prevent torture and enforced disappearance and adhere to their absolute prohibition; and
5) Enable overarching due process and fair trial guarantees, including judicial oversight and access to legal counsel
Read the full statement here.