Colombo, October 22 (Counterpoint): The Sri Lankan Supreme Court earlier this week ruled that the “Bureau of Rehabilitation” Bill presented to parliament on September 23 violated the constitution and that some of the key clauses will require a two-thirds majority and a referendum was enjoined in one case.
Principally, the court rejected clauses stating that the process of “rehabilitation” would apply not only to drug addicts but also to ex-militants and those with violent and extremist tendencies. It also objected to the involvement of the armed forces in the rehabilitation process. The court reprimanded the government for vague and imprecise wordings in the bill which could facilitate arbitrariness or wanton misuse by State personnel.
If the government of President Ranil Wickremesinghe, backed by the Rajapaksas-led Sri Lanka Podujana Peramuna, the single-largest party in parliament, had got the bill passed with all its draconian clauses intact, Sri Lanka’s international image, already tarnished by its handling of the peoples’ protest or the Aragalaya, would have suffered a further blow. Fortunately, the Sri Lankan system gives citizens the right to seek the Supreme Court’s determination on the constitutionality of a law before it is passed. Several leading figures had filed petitions against the Bill. This rescued the country from a major embarrassment.
The Bill sought to provide for the establishment of a “Bureau of Rehabilitation” for the rehabilitation of “misguided combatants, individuals engaged in extreme or destructive acts of sabotage and those who have become drug dependent persons.” The rehabilitation Bureau was meant to take over the functions of the existing Office of the Commissioner-General of Rehabilitation created under the Public Security Ordinance. This organization, set up at the end of the 30-year war, “rehabilitated” thousands of ex-cadres of the LTTE. After the August 2019 bomb blasts, some Muslims were also earmarked for rehab.
The Supreme Court, however, wanted the Bureau to rehabilitate only drug addicts. It said that the Bill enables the rehabilitation of an “extremely wide category of persons, without any criteria being laid down by the Bill in determining who is an ex-combatant, a member of violent extremist group or any other person who requires treatment and rehabilitation. “To that extent, we are of the view that Clause 3 is arbitrary and is violative of Article 12(1),” the court said.
Lack of a definition of these categories of persons raises the possibility that persons earmarked for rehab may not necessarily be subjected to a judicial process. They could be categorized by executive action arbitrarily. For example, Annex I to the Cabinet Memorandum on the Bill seeks to include even “suspects arrested during the course of investigations.”
“The Bill as a whole is inconsistent with Article 12(1) of the Constitution and therefore needs to be approved by the special majority of Parliament (two-thirds).” However, the court added that the inconsistency shall cease if all references to “ex-combatants,” “violent extreme groups” and “any other group or/persons” are deleted from the Bill and it is limited to the rehabilitation of drug-dependent persons and such other persons as may be identified by law.”
Involvement of Armed Forces
Clause 17 of the Bill says that the President may, upon the request of the Minister, designate all or any of the members of the Sri Lanka Army, Navy or Air Force “may exercise, perform and discharge the powers, duties and/unctions under the Rehabilitaion Act.” The Minister in charge, may, by Order published in the Gazette, specify the areas which the powers, duties and functions under this Act may be exercised, performed and discharged by the authorized members of the Forces. The powers, duties and functions conferred or imposed upon authorized members of the armed forces by this section shall be exercised, performed and discharged “notwithstanding that such powers, duties and functions are not conferred or imposed upon them by the provisions of the Army Act, the Navy Act, and the Air Force Act.”
Commenting on this, the court said: “it is clear that the administration and management of not only the Council but even the entire Bureau could be entrusted to the members of the Armed Forces by the President upon the request of the Minister. It is in this background that Mr. Hewamanna (a petitioner) submitted that there is no rational and proximate nexus between the objective of the Bill and the use of members of the Forces in the rehabilitation of persons and that in the absence of a nexus, the said Clause is inconsistent with Article 12(1).”
On the petitioner’s plea, the court said: “It is our view that the course of action provided in Clause 17 is not contemplated by the Cabinet Memorandum and therefore, such an action is contrary to the policy objective set out in the Cabinet Memorandum and the rationale. Furthermore, there is lack of clarity with regard to the status of the members of the Forces within the Bureau — i.e., are they officers or employees of the Bureau, and if so, whether the provisions of the Bill that applies to officers and employees shall apply to the designated members of the Forces. As the powers, duties and functions exercised by the said members of the Armed Forces are not powers, duties and functions conferred on them under the respective Acts [Army Act, Air Force Act or the Navy Act], it is not clear if such members would be subject to the disciplinary procedures contained in such Acts, thus leaving Clause 17 vague.”
“It is also noted that the provisions of Clause 26 in terms of which an employee of the Bureau who strikes, wounds, ill-treats or neglects a person undergoing rehabilitation shall be guilty of an offence may not apply to the members of the Armed Forces in view of the above lack of clarity.”
“In these circumstances, we are of the view that Clause 17 lacks clarity and is overbroad in its application and is therefore arbitrary, with the result that the said Clause is inconsistent with Article 12(1) of the Constitution. Clause 17 shall therefore have to be approved with the special majority (two-thirds) of Parliament.”
Norms for Judicial Oversight
On the need for proper judicial oversight, the court said that Clause 23 should be amended to say that “it shall be the duty of every Magistrate to visit every Centre for Rehabilitation situated within the Judicial Division in respect of which he is appointed, at least once in every month to ensure that the persons undergoing rehabilitation at the Centre are protected to the extent provided for in the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Act No. 22 of 1994.”
“The Magistrate who visits the Centre for Rehabilitation, shall personally see the person undergoing rehabilitation, and look into his well-being, welfare and conditions under which he is kept at such Centre; and record his observations and any complaint the persons undergoing rehabilitation may make. Where the Magistrate is of the opinion, that the persons undergoing rehabilitation may have been subjected to torture, the Magistrate may direct that the person undergoing rehabilitation be produced before a judicial medical officer or a government medical officer for medical examination, and a report be submitted by such medical officer to the Magistrate. Where the report of such medical officer reveals that the person undergoing rehabilitation has been subjected to torture, the Magistrate shall make an appropriate order.”
“The Magistrate shall also direct the Inspector General of Police to commence an investigation into the alleged torture in order to enable the Attorney-General to institute criminal proceedings against the person who is alleged to have committed the torture.”
Human Rights Commission’s Role
Further, the “Human Rights Commission of Sri Lanka may on its own volition or on a complaint received, visit every Centre to ensure that the rights of the persons undergoing rehabilitation at the Centre are protected to the extent provided by law, and make appropriate recommendations in terms of the HumanRrights Commission of Sri Lanka, Act No. 21 of 1996.”
Referendum on Clause 26
Necessitating a Referendum on Clause 26, the court said that to avoid criminality in the administration of rehabilitation, the use of harsh methods cannot be allowed under any circumstance. The bill only banned use of such methods “without reasonable cause”.
Clause 26 of the Bill reads as follows: “Any person employed in a Centre for Rehabilitation who without reasonable cause strikes, wounds, ill-treats or willfully neglects any person under rehabilitation commits an offence under this Act and shall be liable on conviction after summary trial by a Magistrate to a fine not exceeding two hundred thousand rupees or imprisonment of either description for a period not exceeding eighteen months or to both such fine and imprisonment.”
On this the court said: “ Although Clause 22 provides that any act done in good faith will not give rise to any civil or criminal liability, we are of the view that the words, “without reasonable cause” recognize that an employee of a Rehabilitation Centre can violate Article 11. We are therefore of the view that Clause 26, as it presently reads, is inconsistent with Article 11 and shall be approved by the special majority (two-thirds) of Parliament and by the people at a Referendum.”
The court however said that “the inconsistency shall however cease and the said provision may be passed by a simple majority if the words, “without reasonable cause” are deleted.
Given the Supreme Court’s observations, the Rehabilitation bill will have to be drastically amended or passed with a two-thirds majority. A hard option seems unlikely in the present fluid political situation, especially when there is no urgency about setting up a Rehabilitation Bureau of the kind envisaged originally.