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FR petitions filed against de-radicalisation regulations 

13 Apr 2021

  • Petitioners cite ambiguity, lack of due process, stigma, impact on Constitutional freedoms     

  A number of Fundamental Rights (FR) petitions have been filed with the Supreme Court against the de-radicalisation regulations – “Prevention of Terrorism (de-radicalisation from holding violent extremist religious ideology) Regulations, No. 01 of 2021 – that were published by an Extraordinary Gazette on 12 March.  Speaking to The Morning, petitioner and human rights activist Shreen Abdul Saroor said that this Gazette on de-radicalisation further strengthens the “draconian” provisions of the Prevention of Terrorism (Temporary Provisions) Act (PTA), No. 48 of 1979, which Governments past and present have pledged to reform in compliance with international  best practices.  “Past rehabilitation processes have created a legal black hole because many rehabilitated persons were produced before a Magistrate to prove their guilt or the level of guilt. There was no legal due process in sending them from detention for rehabilitation. The rehabilitated women have mental scars of being identified as rehabilitated Liberation Tigers of Tamil Eelam cadres. They are still under State surveillance,” Saroor further claimed, noting also the resultant social stigma for women surrounding the military-led rehabilitation process run predominantly by men.   The petition, which has been filed by Saroor, states that the de-radicalisation regulations counter the fundamental safeguards in the Constitution, international human rights norms, and interferes with the judicial power of the people.  Furthermore, the petition states that the regulations would both have a “chilling effect” and lead to “negative stereotyping” based on free speech, expression, association, and assembly.  Meanwhile, former Commissioner of the Human Rights Commission of Sri Lanka (HRCSL) Ambika Satkunanathan has also filed a similar petition stating that the regulations violate a number of Articles in the Constitution as the vague terms in the regulations lead to “over broad applications.”  The petition also states that since the de-radicalisation regulations allow for a person to be subjected to rehabilitation without being entitled to a fair trial, and prevents arrestees from accessing legal representation and preparing a proper defence, they make a person vulnerable to rights violations.  Similarly, the Centre for Policy Alternatives (CPA) and its Executive Director Dr. Paikiasothy Saravanamuttu have also challenged the regulations.  A statement by the CPA points out that the regulations “enable the denial of due process, due judicial protection and a fair trial, and result in an arbitrary deprivation of liberty, entailing infringement and/or imminent infringement of the FR guaranteed under Articles 12(1) – on the right to equality and equal protection of the law, and 13(2), 13(3), 13(4) and 13(5) of the Constitution, the latter provisions guaranteeing freedom from arbitrary detention and punishment, and concerning due process including the right to legal representation and a fair trial, and the entitlement to the presumption of innocence.”  Ahead of filing a FR petition regarding the same matter, writers Kavindya Chris Thomas and R.L. Jayakody have lodged a complaint with the HRCSL, pointing out that the regulations do not define “de-radicalisation” and as such cannot be interpreted as per the whims and fancies of executive and administrative authorities.  The complaint submitted in this regard further states that “It is anyone's right to have radical ideas and to think radically. The State has no democratic authority to regularise what an individual thinks as this is an absolute right guaranteed under Article 10 of the Constitution.”   According to the Gazette, the de-radicalisation regulations provide for any police officer, any member of the Armed Forces, any public officer, or any other person or body of persons authorised by Presidential order to take into custody anyone who is suspected of “by words either spoken or intended to be read or by signs or by visible representations or otherwise, causing or intending to cause the commission of acts of violence or religious, racial or communal disharmony or feelings of ill will or hostility between different communities or racial or religious groups”. In addition, persons can, as per the regulations, surrender to any of the aforementioned authorities.  The regulations were issued through the Extraordinary Gazette Number 2218/68.  The provisions of the regulations in the Gazette indicate that any person who surrenders or is taken into custody on suspicion of having violent extremist religious ideology is dealt with in accordance with the provisions of the PTA.  The regulations will also apply to those who surrender or are taken into custody and detained under the provisions of the Prevention of Terrorism (Proscription of Extremist Organisations) Regulation, No. 1 of 2019 published in the Gazette Extraordinary No. 2123/3 of 13 May 2019 and the Emergency (Miscellaneous Provisions and Powers) Regulation, No. 1 of 2019 published in the Gazette Extraordinary No. 2120/5 of 22 April 2019, and they would be referred to a rehabilitation programme as per the regulations.  They are to be referred to reintegration centres for the purpose of rehabilitation with the approval of the Commissioner General of Rehabilitation. These centres are to be approved by the Secretary to the Ministry of Defence.  In terms of the surrender or arrest, the regulations note that any person other than a Police officer to whom a person surrenders or who takes a person into custody, shall hand over such surrenderer or person taken into custody, to the Officer in Charge (OIC) of the nearest police station within 24 hours of such surrender or taking into custody.  However, where there is reasonable cause to suspect that a surrenderer or detainee has committed an offence, the said OIC shall submit a report to the Minister for consideration as to whether such surrenderer or detainee shall be detained for the purpose of conducting an investigation. Furthermore, where in the course of such investigation it is disclosed that such surrenderer or detainee has committed an offence, the matter shall be referred to the Attorney General (AG) for appropriate legal action. Where the AG is of the opinion that according to the nature of the offence committed, a surrenderer or detainee shall be rehabilitated at a centre in lieu of instituting criminal proceedings against him/her, such surrenderer or detainee shall be produced before a Magistrate with the written approval of the AG. The Magistrate may make the order, having taken into consideration whether such surrenderer or detainee has committed any other offence other than offences specified, referring him/her thereafter for rehabilitation for a period not exceeding one year.  The Commissioner General of Rehabilitation shall provide a surrenderer or detainee with psychosocial assistance and vocational and other training during the period of his/her rehabilitation to ensure that such person is integrated back to the community and society. The Commissioner General of Rehabilitation shall every three months from the date of handing over a surrenderer or detainee for rehabilitation, forward to the Secretary to the Ministry of the Minister of Defence, a report on the nature and the progress of the rehabilitation programme carried out in respect of such person, and the said Secretary shall submit such a report to the Minister. A surrenderer or detainee referred for rehabilitation may, with the permission of the OIC of the centre, be entitled to meet his parents, relations, or guardian, once every two weeks.  At the end of the period of rehabilitation, the Commissioner General of Rehabilitation shall, having regard to the nature and progress of the rehabilitation of such surrenderer or detainee, consider whether it is appropriate for the surrenderer or detainee to be released or be subject to a further period of rehabilitation, and forthwith submit his/her recommendation to the Secretary to the Ministry of the Minister, and the said Secretary shall forthwith forward such report to the Minister. The Minister may, after perusal of the report submitted to him/her, order the release of such surrenderer or detainee or extend the period of rehabilitation for a period of six months at a time; however, the aggregate period of such extensions shall not exceed a further year (each such extension shall be made on the recommendation of the Commissioner General of Rehabilitation). The surrenderer or detainee shall, at the end of the extended period of rehabilitation, be released.  Where any such surrenderer or detainee acts in a manner that is disruptive to the rehabilitation programme or detrimental to the interests of the other surrenderers or detainees, the Commissioner General of Rehabilitation shall inform in that regard in writing the OIC who applied to the Magistrate for rehabilitation and upon receipt of information from the Commissioner General of Rehabilitation, the said OIC shall apply to the Magistrate to revoke the order for rehabilitation and refer the matter to the AG to consider whether such person shall be indicted in lieu of rehabilitation.     

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