De-radicalisation regulations anti-democratic: Executive legislation targets minorities and opponents
By Sanjaya Wilson Jayasekera
Last month, President Gotabaya Rajapaksa made regulations titled Prevention of Terrorism (De-radicalisation from holding violent extremist religious ideology) Regulations No. 1 of 2021 (hereinafter referred to as De-radicalisation Regulations) purportedly under Section 27 of the Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979 (PTA) read with Paragraph (b) of Article 4 of the Constitution, and published in the Gazette Extraordinary No. 2218/68 dated 12 March 2021.
Article 4(b) holds that the people’s executive power including the defence of the country shall be exercised by the President.
According to Regulation 2, its objective is that “any person who surrenders or is taken into custody on suspicion of being a person who by words either spoken or intended to be read or by signs or by visible representations or otherwise causes or intends 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 after the coming into operation of these regulations” is dealt with “in accordance with the provisions of the Act”.
The offence referred to in the above regulation is the offence provided in Sub-Section 2(1)(h) of the PTA. However, while the regulation purports that its objective is to deal with suspects in connection with the said offence under the provisions of the PTA, the rest of the De-radicalisation Regulations contradict this objective. While the PTA provides for a specific procedure for detention, trial, and punishment (which in itself is draconian and anti-democratic), this whole procedure is disrupted by the extraordinary procedure established by Regulations 3 to 8 of the De-radicalisation Regulations. Therefore, prima facie, the procedure introduced by these regulations is ultra vires the Act.
The minister is authorised under Section 27 of the PTA to “make regulations under this Act for the purpose of carrying out or giving effect to the principles and provisions of this Act”. However, Regulations 3(b) of the De-radicalisation Regulations purports to include offences under the provisions of the Emergency Regulations No. 1 of 2019, some of which are not contemplated under the PTA and specifically under the said Section 2(1)(h) of the PTA. The regulations to be made under Section 27 of the PTA cannot be used to lay down regulations in respect of offences under any other statute. Therefore, in this respect too, the said De-radicalisation Regulations are ultra vires the PTA.
It is mandatory under the PTA to produce a detainee before a magistrate at the expiry of 18 months – i.e. after the maximum period of detention under ministerial detention orders – so that the detainee could be remanded until the conclusion of trial.
However, contrary to this procedure, the De-radicalisation Regulations provide for referring such arrestee, surrenderer, or detainee, who is held in police custody under Section 9 of the PTA, pending the conclusion of the investigations, to be referred to a rehabilitation programme in a “rehabilitation centre” upon the direction of the Attorney General (AG) for a period of one year, which period could be extended for a further period of 12 months. It is the AG who decides whether such person should be referred to rehabilitation programme, in lieu of instituting criminal proceedings, and the magistrate before whom such person is referred to has only to act upon such written “approval” of the AG, and is just there to rubber stamp the AG’s recommendation (vide Regulation 5).
It is also the AG, a state administrative officer, who decides whether a person whose rehabilitation is unsatisfactory to the authorities “be indicted in lieu of rehabilitation” (vide Regulation 6).
It is then the minister, the Executive, who decides and can order either for the release of the person after one year of rehabilitation or further rehabilitation for another maximum period of one year. The further period of rehabilitation is also not required to be sanctioned by a magistrate, once so ordered for by the minister.
Whatever be the nature of the so-called “rehabilitation”, which is not defined in the regulations, the person would be in de facto detention, authorised either by administrative or Executive authority.
Thus, it is clear that the De-radicalisation Regulations authorise Executive and administrative pre-trial detention of detainees, arrestees, or surrenderers to a period of two years in so-called rehabilitation centres. This maximum period of two years of rehabilitation is in addition to the total period of one-and-a-half years of detention under ministerial detention orders issued under Section 9 of the PTA. A person could be indicted in high courts by the AG at any time prior to the expiry of the two-year rehabilitation period. Therefore, in effect, the law contemplated under these regulations purports to legalise the pre-trial detention of persons arrested or surrendered under the PTA to a maximum cumulative period of three-and-a-half years, and in respect of any other offences under Emergency Regulations to a period of two years.
“De-radicalisation” is undefined, overbroad, and therefore could be interpreted suitably by Executive or administrative authority to include within its meaning a vast range of ideas opposed to the views held by the Government, the mainstream establishment, or the ruling class. The mechanism of de-radicalisation too is not provided for and is unexplained. It is therefore open for all sorts of psychological and physical intimidation, brainwashing, and threats to be inflicted upon persons so referred to such rehabilitation.
This makes room for torture and degrading and inhumane treatment of detainees and thus intended rehabilitation could be another camouflage for such harassment of detainees in order for the Police to fabricate evidence and obtain forced confessions to consolidate their concocted charges against the detainees and political opponents.
It is anyone’s right to have radical ideas and to think radically. The state has no democratic authority to regularise what one thinks, and this is a right guaranteed under Article 10 of the Constitution. No person could be forced to think in the manner the government, the administrative, or Executive authority wants them to think and any such arrangement would be anti-democratic, arbitrary, and unlawful. Rehabilitation is a judicial decision, not an administrative or Executive decision. Rehabilitation is a deterrent method of crimes in lieu of punishment of incarceration and it is a judicial decision to be made at the conclusion of a trial of a suspect.
The minister is a political authority and is part of the Executive of the government. The AG too is an administrative authority. Thus, these regulations expropriate and usurp judicial powers which only magistrates or high court judges can exercise, and thereby prejudicially affect the judicial power of the people.
Therefore, in all its aspects, these regulations make room for the Executive and/or the administrative abuse of power to victimise, intimidate, harass, and punish political opponents and those who hold dissenting views.
The De-radicalisation Regulations is another weapon of the Government’s anti-people arsenal for ethnic profiling and discriminating minorities on the basis of political opinion, race, ethnicity, language, and religion.
In the circumstances, the said De-radicalisation Regulations are ultra vires, anti-democratic, unlawful, made with malice and ulterior motive and also for extraneous political reasons, and infringe and/or imminently infringe and continuously infringe several fundamental rights guaranteed to the people of the country under Articles 10, 11, 12(1), 12(2), 13(2), 13(3), 13(5), 14(1)(a), 14(1)(e), and 14(1)(f) of the Constitution.
These regulations also stand in the way of international human rights standards and recommendations that condemn Executive detention in the guise of rehabilitation.
The previous establishment of rehabilitation measures similar to the present De-radicalisation Regulations has shown dire consequences of such programmes affecting detainees who were subjected to such programmes. In 2011, under the slogan of counter terrorism, then President Mahinda Rajapaksa’s regime implemented similar measures under the Prevention of Terrorism (Surrenderers Care and Rehabilitation) Regulations No. 5 of 2011, especially targeting Tamil youth who were sent to rehabilitation on a presumption of guilt and under continuous military surveillance. Evidence supports that such rehabilitation programmes amounted to miscarriages of justice, preventing adequate opportunity for the detainees to establish their innocence in a fair trial. Reports abound about the ill treatment of such detainees by subjecting them to torture, enforced disappearance and extra judicial killings.
(The writer is an Attorney-at-Law)