By P.K.Balachandran
Colombo, May 9: The United Nations Special Procedure Experts (Rapporteurs) on various aspects of human rights have addressed the Sri Lankan President, pointing out serious flaws in the Anti-Terrorism bill now in parliament, particularly its unduly wide definition of terrorism.
The new Anti-Terrorism Act (ATA) is expected to replace the controversial Prevention of Terrorism Act (PTA) of 1979.
The Rapporteurs also slammed the Rehabilitation Act passed by parliament on 18 January 2023. They criticize the lumping of drug addicts with suspected terrorists and ex-combatants and giving the military overall control over the rehabilitation process.
Definition of Terrorism
The experts want the Lankan government to do the following:
Employ definitions of terrorism that comply with international norms; ensure precision and legal certainty, especially when this legislation may impact the rights of freedom of expression, opinion, association, and religion or belief; institute provisions and measures to prevent and prohibit arbitrary deprivation of liberty; ensure enforcement of measures to prevent torture and enforced disappearance and adhere to their non-derogable prohibition; and enable overarching due process and fair trial guarantees, including judicial oversight and access to legal counsel.
The experts’ five recommendations are:
1. Amend the definition of terrorism and other vague provisions and ensure that the definitions and language employed are in compliance with Sri Lanka’s international human rights obligations.
“States should ensure that counterterrorism legislation is limited to criminalizing conduct which is properly and precisely defined on the basis of the provisions of international counterterrorism instruments and is strictly guided by the principles of legality, necessity, and proportionality.”
“The definition of terrorism in national legislation should be guided by the definition found in Security Council resolution 1566 (2004) and also by the Declaration on Measures to Eliminate International Terrorism and the Declaration to Supplement the 1994 Declaration on Measures to Eliminate International Terrorism, which were approved by the General Assembly.”
“Counterterrorism legislation should be in compliance with human rights obligations, protection of due process, and in line with the international prohibition against arbitrary detention.”
“The ATA (Bill) lacks precision in key definitional aspects of terrorism and expands the scope of terrorist acts, creating opportunities for misuse due to broadly worded and vague definitions of terrorist acts.”
2. Comprehensively review the proposed legislation and consult diverse stakeholders and affected communities to precisely define what speech is prohibited consistent with the requirements of article 19(3) of the ICCPR to ensure no unlawful interference with the freedom of expression and opinion, as well as of association.
3. Amend provisions concerning arrest and detention to prevent the continued arbitrary arrest and detention of individuals inconsistent with international law standards; review and amend the bill in consultation with civil society and relevant stakeholders to limit the subjectivity in carrying out arrests.
4. Review and amend to ensure that there are standards and criteria, including record-keeping procedures, set out to ensure that a person has not been detained outside the bounds of the law before being handed over to the police station.
The Rapporteurs say that the bill “retains the most problematic and exceptional features” that may also allow, as alleged under the PTA. There could be unlawful deprivation of liberty across pre-trial detention. Bail may be denied. There could be undue delays in trials. Self- incriminating confessions could be obtained through torture or other forms of ill-treatment in the absence of legal safeguards against such practices.
The bill provides for wide arresting authority to “any police officer, member of the armed forces or a coast guard officer,” to “arrest without a warrant” on the basis of a range of factors that include mere suspicion.
The Rapporteurs say that “given the overly broad definition of terrorism and the subjectivity of provisions that go beyond reasonable grounds, these provisions would continue to present a high risk of misuse and violation of human rights and fundamental freedoms.”
They have asked the government to ensure the enforcement of measures to prevent torture and enforced disappearance and adhere to their absolute and non-derogable prohibition.
The provisions within the bill may provide the circumstances leading to arbitrary detention, enforced disappearance, and torture, cruel, inhuman, or degrading treatment, as it has been alleged under the PTA, they point out.
5. Ensure provisions to prevent extended deprivation of liberty without due process, and correct lacunae in judicial oversight of detention practices. The Rapporteurs recommend close review and amendment in consultation with civil society and other stakeholders.
The Rapporteurs recognize that some judicial oversight of the arresting authorities has been improved in the bill. However, the bill’s provisions on definitions, and detention and restriction orders, could still thwart due process and fair trial guarantees, they say.
“Such practices may allow systematic detention without trial, a practice that is inconsistent with your Excellency’s Government’s international legal obligations.”
They further point out that ‘judicial involvement’ under the PTA, which consisted of a decision made by the Attorney General, “confirmed but not fully reviewed by a judge,” continues to be paralleled in the bill through the limitations placed on the authority of Magistrates.
“This does not amount to a proper judicial process, which is required in any restriction imposed on the right to liberty,” the Rapporteurs point out.
Rehabilitation Act
On the Rehabilitation Act, already passed, the Rapporteurs say that it unfairly dumps drug addicts with terror suspects and “misguided combatants” and combines kinetic and security-focused features with curing drug addiction, causing concerns for human rights.
“We draw a distinction between voluntary and consent-based processes of rehabilitation for legitimate health purposes that would be compatible with the right to the highest attainable standard of health,” they say.
The Rehabilitation Act establishes a new administrative structure operated by the Ministry of Defense to oversee and operate the rehabilitation centers. Objecting to this, the Rapporteurs say: “We state unequivocally that the administration of such centers by military personnel who are not competently trained social or medical staff is in violation of the fundamental rights of those arbitrarily detained in such circumstances.”
Noting that section 27(2)) empowers officials operating such centers or in contact with detained persons, to use undefined “minimum force” to “compel obedience” from detainees, the Rapporteurs say that the authorization of the use of force against arbitrarily detained persons further compounds the harms experienced in detention.
“We note that the use of force against persons detained without judicial oversight is simply inconsistent with your Excellency’s Government obligations under international human rights law,” the Rapporteurs say.
In February 2023, the Sri Lankan parliament passed the Bureau of Rehabilitation Bill with 23 votes in favor and 6 votes against. Only 29 MPs were present in the 225-seat parliament for the vote.
EX-Combatants’ Protection
Calling for ex-combatants’ protection, the Rapporteurs point out that under applicable international humanitarian law, combatants should receive specific protections, and at the end of hostilities all prisoners should be released (and repatriated) without delay, except those held for trial or serving sentences imposed by judicial process as per article 142, Geneva IV; Additional Protocol I, Article 85(4)(b).
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