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Tip of the iceberg: How oppressive laws interconnect

Tip of the iceberg: How oppressive laws interconnect

01 Apr 2023 | By Ambika Satkunanathan

 The Anti-Terrorism Bill gazetted by the Government in March highlights a critical issue: the interconnectedness of oppressive laws. As the Anti-Terrorism Bill refers to rehabilitation, is the Bill in any way connected to the Bureau of Rehabilitation Act?

The Bureau of Rehabilitation Act, which, when it was presented was subject to much criticism and challenged in the Supreme Court, has received no attention since it was enacted and came into force on 24 January 2023. 

Despite the Government revising the law to adhere to the determination of the Supreme Court on the constitutionality of the bill, the law contains provisions that will result in the violation of the rights of not only drug dependent persons, but also other groups the State deems deviant.

In an article written in October 2022 analysing the determination of the Supreme Court, I stated that the Bureau of Rehabilitation Bill is ‘just one building block in the State’s attempt to label certain social groups deviant, criminalise them based on their status/identity, use the law to arbitrarily detain them and subject them to a process of supposed rehabilitation. This process is militarised and will result in grave human rights violations’. This prediction has come true with the Anti-Terrorism Bill.

This article first sets out a summary of the contents of the Bureau of Rehabilitation Act and thereafter explains its connection to the Anti-Terrorism Bill.

 

The legal web of abuse

 

The Bureau of Rehabilitation Act contains an undefined broad category of persons, i.e. “any other person as may be identified by law as a person who requires rehabilitation,” who can be sent to rehabilitation by the State. 

One of the purposes of the act is to provide treatment and rehabilitation to persons who are required to be provided treatment by the 2007 Drug Dependents (Rehabilitation and Treatment) Act. The 2007 Act allows a policeman to forcibly produce a person to be examined by a Government Medical Officer (GMO) merely upon receiving information a person is a ‘habitual user of a dangerous drug and has since then become a drug dependent person’. After the examination, the person will be detained until the GMO provides a report on whether the person is drug dependent or not.

Thereafter, the Police will produce the person before a magistrate who can send the person to compulsory drug rehabilitation. The detention of the person after the examination by the GMO and before being produced before the magistrate is arbitrary, since the person would have been de-facto arrested and detained without evidence of wrongdoing, or even reasonable suspicion of such. Furthermore, the person is sent to compulsory rehabilitation despite data, both globally and in Sri Lanka, which demonstrates it does not work. 

Most importantly, it should be noted there is no medical test that can prove a person is dependent on drugs because it is possible to only prove the existence of drugs in the body at the time the test is done and the presence of drugs in a person’s body at a given time does not prove the person is drug dependent.

 

Protection of abusers while enabling abuse

 

One of the most concerning aspects of the Bureau of Rehabilitation Act is the entrenchment of the militarisation of drug treatment by the inclusion of the Secretary to the Ministry of Defence in the Council of the Bureau. 

The council also includes the Inspector General of Police or their representative, although these positions have no relevance nor expertise to drive, shape, and implement policies and processes on drug treatment. The power of the secretary to the Ministry of Defence extends to recommending the person the minister appoints as the commissioner general of rehabilitation.

A section in the act makes it an offence to introduce or attempt to introduce, supply or attempt to supply persons in the centres with drugs. Fact is, it will not be possible to smuggle drugs into centres without the assistance of the staff, as it is only they that have the authority and ability to enable it. 

In the Poisons, Opium, and Dangerous Drugs Ordinance, the main law governing drug control in Sri Lanka, the offence of trafficking or supplying certain drugs, such as heroin of more than 2g pure quantity, can attract the death penalty. However, the Bureau of Rehabilitation Act makes a similar offence subject only to a penalty of a fine not exceeding Rs. 500,000 or to imprisonment of two years or both.

While the death penalty is a cruel and irreversible punishment which should be abolished, similar offences attracting different penalties illustrates the State’s willingness to protect its own employees who might introduce drugs into a State-controlled environment in which persons are detained, while reserving harsh punishments, such as the death penalty, for the poor and marginalised persons.

The act requires the commissioner general of rehabilitation and other employees to sign Non-Disclosure Agreements (NDAs). In the context of grave rights violations recorded at rehabilitation centres, such an agreement would prevent whistleblowers from disclosing information about violations rather than safeguarding the privacy of persons detained at these centres. 

The act further states the records pertaining to a person in custody shall not be released except by a court order or in relation to an investigation in respect of the commission of a serious offence within the centre. This seems to be an attempt to restrict the right of the Human Rights Commission of Sri Lanka (HRCSL) to summon documents related to the investigations into the violation or imminent violation of a fundamental right.


Legitimising and enabling violence

 

According to the Bureau of Rehabilitation Act, an employee of a centre who ‘strikes, wounds, or willfully neglects any person under rehabilitation,’ commits an offence under this law. Such an act would constitute torture under the Convention Against Torture Act (CAT), yet there is no reference to the CAT Act in the Bureau of Rehabilitation Act.

Whereas in the CAT Act the trial must be conducted in the High Court, according to the Bureau of Rehabilitation Act it can be disposed of at a summary trial at the Magistrate’s Court. The penalty in the CAT Act is imprisonment of not less than seven years and not more than 10 years, whereas in the Bureau of Rehabilitation Act it is maximum 18 months.

While not advocating an increased period of imprisonment, the discrepancy is being highlighted to illustrate that the Government does not view violence at these centres and against certain categories of persons as serious.

The act states it is an offence to ‘obstruct’ the duties of a person employed in any ‘Centre for Rehabilitation,’ for which the penalty is a fine of Rs. 50,000 or up to six months of imprisonment or both. Persons who are drug dependent will experience withdrawal symptoms when they stop using drugs, which may lead to behaviour that can be considered to fall within this section. This section therefore criminalises aspects of the difficult process of dealing with drug dependence. 

When a person undergoing rehabilitation escapes from the centre, the act empowers the Police to apprehend the person, which violates the right of a person to withdraw from treatment any time they wish.

The act authorises any person employed at a centre, to use ‘minimum force to preserve order and discipline among the persons undergoing rehabilitation’. In the context of the denial of harm reduction strategies and abstinence being the only method used to force persons with a drug dependency to stop using drugs, such persons will experience severe physical symptoms which will prevent them from engaging in even normal day-to-day tasks. They are also likely to be disruptive and refuse to participate in activities. In such instances, staff will be empowered to use minimum force to preserve discipline, as these persons would be considered disrupting order and discipline.

Hence, this section legitimises the use of violence in a country where the use of violence against persons deprived of liberty is common. Specifically, this will result in an increase in the use of violence against persons with a drug dependence.

The Bureau of Rehabilitation Act requires the use of such violence to be reported to the magistrate but there is no procedure set out regarding the action the magistrate must take thereafter. It does not for instance require the magistrate to inquire into whether the use of force was justified. Hence, the supposed protection is in name only and does nothing to prevent violence or to hold those using violence accountable.


Crossroads of oppression

 

How is the Bureau of Rehabilitation Act connected to the Anti-Terrorism Bill? The Anti-Terrorism Bill empowers the Attorney General to suspend and defer instituting criminal proceedings, or in instances criminal proceedings have begun, to withdraw the indictment upon certain conditions if the offence has not caused death or grievous bodily injury nor endangered the State and the people of Sri Lanka.

One of the said conditions is ‘voluntarily’ participating in a rehabilitation programme. The question is, which law will be used to send such persons to rehabilitation? This is where the Bureau of Rehabilitation Act becomes relevant since it contains a section that says, ‘any other person as may be identified by law as a person who requires rehabilitation’ can be sent to rehabilitation.

In the past, it is when the State has not had enough evidence to indict a person that they have compelled persons to undergo rehabilitation by making them believe they could be indicted. During this process the persons had no access to the evidence against them and had no knowledge whether there were grounds for charges to be filed. These persons, who often had no legal representation and no legal knowledge, agreed to ‘voluntary’ rehabilitation due to fear the State could indefinitely detain them.

Although the Anti Terrorism Bill requires the Attorney General to apply to the High Court and obtain the sanction of the court for the conditions imposed, the role of the judge is limited. The judge has to only notify the person of the conditions imposed, give the person a hearing and ‘obtain’ the person’s ‘consent’ to rehabilitation. The judge does not have the authority to decide whether there is evidence to institute criminal proceedings against the person and if such conditions should be imposed at all.


Repeal and reject

 

Despite the amendments made in order to abide by the Supreme Court’s determination, the Bureau of Rehabilitation Act remains abusive and enables the violation of the rights of a particular group of persons. It could also be potentially used against other groups of persons the State views as deviants.

Therefore, there needs to be continued agitation not only to repeal this law, but also related laws, such as the Drug Dependents (Rehabilitation and Treatment) Act, and prevent the Government from enacting the Anti-Terrorism Bill, as they are all part of constructing a legal labyrinth of oppression.

 

(The writer is a human rights advocate and the former Commissioner of the Human Rights Commission of Sri Lanka) 


Disclaimer: The views and opinions expressed in this column are those of the author and do not necessarily reflect those of this publication


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