FR Petition Challenging De-Radicalization Regulations Filed At SC

 Concerns raised on vague nature of rehab under detention, impact on Constitutional HR safeguards/norms, lack of judicial oversight, thought policing, crackdown on dissent, suppression of minorities, chilling effect on speech/expression   

MAY 4, 2021

A Fundamental Rights (FR) petition was filed on 28 April 2021 at the Supreme Court (SC) challenging the Prevention of Terrorism (De-radicalization from holding violent extremist religious ideology) Regulations, Number 01 of 2021 (hereinafter referred to as the De-radicalization Regulations) made by the President.

The petition number is SC (FR) Application No. 130/2021.

The petitioners are Ruwan Laknath Jayakody and Kavindya Christopher Thomas. The instructing Attorney-at-Law (AAL) is Manjula Balasuriya. The petition was drafted by AALs Hiran Geeganage, Kaushalya Senadanayake Arachchi and Swasthika Arulingam. The matter is settled by AAL Sanjaya Wilson Jayasekera.

The Attorney General (AG), the Secretary to the Ministry of Defence, the Commissioner General of Rehabilitation and the Inspector General of Police (IGP) have been named, respectively, as the first, second, third and fourth respondents.

The De-radicalization Regulations, were issued under Section 27 of the Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979 as amended by Prevention of Terrorism (Temporary Provisions) (Amendment) Act, No. 10 of 1982 (hereinafter referred to as the PTA), read with Article 4(b) of the Constitution (regarding the sovereignty of the people, where the Executive power of the people, including the defence of Sri Lanka, shall be exercised by the President), and published in the Gazette Extraordinary No. 2218/68, dated 12 March 2021, contrary to the existing law which is the PTA. The De-radicalization Regulations have been laid down in addition to the previously published Prevention of Terrorism (Proscription of Extremist Organizations) Regulations, No. 1 of 2019 (Gazette Extraordinary No. 2123/3, dated 13 May 2019), and the Emergency (Miscellaneous Provisions and Powers) Regulations, No. 1 of 2019 (Gazette Extraordinary No. 2120/5, dated 22 April 2019).

In the instant application, the petitioners seek to impugn the arbitrary and ultra vires actions of the respondents in issuing the said De-radicalization Regulations.

The Minister of the Ministry of Defence of which the second respondent – the Secretary to the Ministry of Defence – is a part of, is empowered by the said De-radicalization Regulations to authorize of an extended period of “rehabilitation”, other than powers granted to him/her under the PTA. The fourth respondent – the IGP – is empowered under the said De-radicalization Regulations to do certain acts. Pursuant to the De-radicalization Regulations and the Gazette Extraordinary No. 2196/27, dated 06 October 2020, on the assignment of subjects and functions and Departments, State Corporations and statutory institutions to Ministers, the third respondent, the Commissioner General of Rehabilitation, reports to the Ministry of Defence instead of the Ministry of Justice.

De-radicalization Regulations and the Procedure

According to Regulation 2 of the said De-radicalization Regulations, 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 PTA”.

The offence referred to in the above Regulation 2 is the offence provided in Section 2(1)(h) of the PTA. However, while the objective of the De-radicalization Regulations is purportedly to deal with suspects, in connection with the said offence, under the provisions of the PTA, the rest of the De-radicalization Regulations contradicts this objective. While the PTA provides for a specific procedure for detention, trial and punishment (which, however, 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-radicalization Regulations. Therefore, prima facie, the procedure introduced by these Regulations is ultra vires the PTA. The procedure introduced by the said De-radicalization Regulations is contrary to the procedure/mechanism laid down in the PTA.

According to the purported new procedure, individuals could be arrested under, inter alia, the aforementioned Regulations – the Prevention of Terrorism (Proscription of Extremist Organizations) Regulations and the Emergency (Miscellaneous Provisions and Powers) Regulations – as well as the PTA as amended. The De-radicalization Regulations authorize individuals who are not Police officers to so arrest suspects, and keep them in detention for up to 24 hours prior to handing them over to a Police station, and thereafter, a decision could be taken by the Minister of Defence as to whether such arrested individual needs to be detained for investigations, under Section 9 of the PTA. The De-radicalization Regulations also appear to give wide discretion to the first respondent, the AG, to determine as to who should be produced before a Magistrate for an order for rehabilitation for up to 12 months in lieu of instituting criminal proceedings before a court of law. The De-radicalization Regulations also empowers the Minister of Defence to extend such rehabilitation for a further period of 12 months, and this appears to be done without any judicial intervention of a Magistrate.

As per the said impugned De-radicalization Regulations, it is the first respondent, the AG, an administrative authority, who decides as to whether such person should be referred to a 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 just to rubber stamp the AG’s recommendation {vide Regulation 5(4)}. It is also the AG, a State administrative officer, who decides as to whether a person whose rehabilitation is unsatisfactory to the authorities “be indicted in lieu of rehabilitation” {vide Regulation 6(2)}. The De-radicalization Regulations also provides that it is the Minister of Defence, the Executive, who decides and can order either for the release of the person after one year of rehabilitation or for further rehabilitation for another maximum period of one year, even without any sanction by a Magistrate.

Therefore, it could be reasonably believed that whatever be the nature of the purported “rehabilitation”, in the context of the nature, modus operandi and mechanism of “rehabilitation” not being defined or explained in the Regulations, such arrestee, surrendee or detainee would be held in de facto detention or effective imprisonment, authorized either by administrative or Executive authority, thereby endangering the liberty of such individuals at the whims and fancies of such authorities and of those sought to be empowered by the said impugned De-radicalization Regulations, including the fourth respondent, the IGP, and his/her subordinate officers, and officers authorized by, delegated to or acting under any one of the respondents.

Also, a number of words and phrases used in the said impugned De-radicalization Regulations – “de-radicalization”, “extremist religious ideology”, “rehabilitation”, and “reintegration” – are overboard, vague, undefined, unexplained and therefore would be interpreted and used to legitimize and suit the subjective wishes of the Executive or administrative authorities to subject arrestees, surrendees or detainees to torture, cruel, degrading or inhumane treatment or intimidation in order to extract forced confessions, and/or incriminating evidence against themselves and/or other detainees or political opponents or those who hold dissenting views.

In light of the tenor of these De-radicalization Regulations, there is reasonable apprehension that individuals arrested in terms of these De-radicalization Regulations could be subjected to Executive or administrative detention under the guise of rehabilitation, without proper judicial evaluation of the evidence against the individuals arrested, surrendees or detainees.

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