• Says no to any spl. counter-terror law
• Opposes ‘preventive’ DOs to evaluate suspect’s ‘state of mind’ and Police powers to ‘detect’, ‘monitor’, ‘rehabilitate’ persons not reasonably suspected of any offence, and racial profiling, suspects being estimated to be ‘radicalised’ or prone to ‘religious extremism’ 
• Recommends person arrested for ‘terror’ to be produced before judicial officer sans delay, judicial officer be vested with authority to grant bail, prompt and meaningful access to legal counsel, only permit confession before judicial officer 

The Human Rights Commission of Sri Lanka (HRCSL) stated that any new legal provision under the general law relating to the offence of ‘terrorism’ should comply with the standards by the HRCSL, through the application of the ordinary law on criminal procedure and evidence, and also cautioned against enacting a special counter-terrorism law.

The HRCSL wrote to the Minister of Justice and National Integration, attorney Harshana Nanayakkara with respect to the repeal of the Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979 as amended (PTA). It also forwarded its findings and recommendations in Case Number Suo Motu-08-25 which concerned the arrest and detention of Mohamad Liyaudeen Mohamed Rusdi by the Counter Terrorism and Investigation Division (CTID) of the Police under the PTA. The Commission informed that despite the lack of evidence that Rusdi had committed any offence, the CTID had proceeded to arrest him, to refrain from producing him before a judicial officer, to secure a detention order (DO) against him, and to hold him in custody for 14 days before eventually recommending his release. Moreover, the Media Division of the Police had issued a prejudicial official media statement referring to Rusdi’s alleged ‘mental state’ and the possibility that he could commit an act of ‘religious extremism’ due to his ‘mental state’. Rusdi’s eventual release was then subjected to conditions stipulated in a restriction order (RO), which remains in force to date. The conditions include informing the CTID if he planned to change his place of residence, seeking the prior permission of the CTID if travelling overseas, and reporting to the CTID every week. Notably, the Commission found that the PTA does not permit ‘preventive’ detention, and that any arrest, DO or RO under the PTA should be based on reasonable suspicion of an offence being committed by the person concerned. Moreover, the Commission found that Rusdi had been subjected to ‘racial profiling’ by the CTID in violation of his Fundamental Right (FRs) to non-discrimination. The Commission informed that Rusdi’s FRs guaranteed by Articles of the Constitution had been violated by the CTID. It also recommended the discontinuation of the RO against Rusdi. 

The Commission informed that Rusdi’s case is emblematic of the oppressive nature of the PTA and the ease in which the law enforcement authorities could abuse its provisions. It highlighted five egregious features of the PTA, i.e., vague and open-ended offences, long-term detention without a trial, the dispensing of the requirement to produce a suspect before a Magistrate within a stipulated period of time, the denial of bail, and the admissibility of confessions made to Police officers. It emphasised that the PTA should be repealed for these reasons.

Additionally, the Commission presented recommendations with respect to basic legal standards applicable to any future offence of ‘terrorism’. The Commission recommends that the offence of ‘terrorism’ be dealt with under the general law. Any new offence with respect to ‘terrorism’ introduced under the general law should contain a specific and narrow definition of ‘terrorism’, such as the following: ‘Any person who by the use of force or violence unlawfully targets the civilian population or a segment of the civilian population with the intent to spread fear among such population or segment thereof in furtherance of a political, ideological, or religious cause commits the offence of terrorism’. It is recommended that any person arrested with respect to the offence of ‘terrorism’ be produced before a judicial officer without delay as envisaged by Article 13(2) of the Constitution, which provides that no person is ‘held in custody, detained, or deprived of personal liberty except upon and in terms of the order of (a) judge made in accordance with the procedure established by law’. It is recommended that a judicial officer be vested with meaningful authority to grant bail to any suspect taken into custody on suspicion of the offence of ‘terrorism’ or to a person accused of the offence of ‘terrorism’ in terms of the Bail Act, No. 30 of 1997. It is recommended that any person arrested or kept in custody with respect to the offence of ‘terrorism’ be granted prompt access to legal counsel. Persons deprived of liberty ought to be guaranteed prompt and meaningful access to legal counsel without arbitrary or unreasonable conditions being placed on such access. It is recommended that only a confession made by a person (suspected of the offence of ‘terrorism’) before a judicial officer be admissible in a court of law. Confessions or any other statements made before Police officers should be inadmissible as evidence in terms of Section 25(1) of the Evidence Ordinance, No. 14 of 1895.

The Commission pointed out that Rusdi’s case raises a serious concern with respect to the tendency of law enforcement officials to act in a manner that is in fact ultra vires even the provisions of the PTA. The Commission cautioned about the possibility that institutional actors may seek to legitimise ‘preventive’ DOs through a new special counter-terrorism law, whereby the purpose of detention is primarily to evaluate a suspect’s ‘state of mind’ in terms of their capability of committing an offence in the future. The Commission accordingly cautioned against attempts to enhance Police powers under a new special counter-terrorism law to ‘detect’, ‘monitor’ and potentially ‘rehabilitate’ persons who are not reasonably suspected of any offence, but based on racial profiling, estimated to be ‘radicalised’ or prone to ‘religious extremism’ and capable of offences in the future.