The deprivation of liberty under national

security laws: What can be done to

provide immediate relief?

by Ambika Satkunanathan

- on 01/26/2015
During the past fortnight there have been many calls
for the immediate repeal of the Prevention of Terrorism Act (PTA). Given the
fluid and complex political context, and the upcoming parliamentary
elections, it appears unlikely this will happen in the short term. However,
there are a number of immediate measures the government could
implement to illustrate its bona fides, and begin the process of re-building a
relationship of trust with citizens, particularly Tamil speaking persons who
constituted the majority of those arrested under national security laws. In
addition to immediately reviewing the cases of those in detention and
remand, and either releasing them or filing charges based on credible
evidence, one of the other measures that could be taken is rescinding
regulations issued under the PTA in August 2011 following the lapsing of the
state of emergency.

According to section 27 (2) of the PTA, regulations made under the Act
come into operation upon publication in the Gazette. Section 27 (3) states
that regulations issued under the PTA have to be presented to Parliament
for approval as soon as convenient and any regulation that is not
approved by Parliament will be deemed to be rescinded from the date of
disapproval. It however makes no mention of what is considered a
convenient period, nor the status of regulations that are not presented in
Parliament for an extended period. Unlike in other countries, in Sri Lanka
there is no parliamentary committee on subordinate legislation to scrutinize
the exercise of rule-making powers by the executive and ensure it is done
within the power/authority of the executive, i.e. that it is not ultra vires and
there is no abuse of delegated powers.
Given the weak parliamentary committee system with the two standing
committees on bills that are tasked with studying bills and proposing
amendments largely inactive during the previous regime, the regulations
were never presented in parliament.
Regulations issued under an Act should not widen the purposes of the Act
or impose onerous restrictions not envisaged in the principal Act. However,
the regulations issued under the PTA stipulate that a person can be held at
a rehabilitation centre for a maximum period of 24 months, while the
maximum period of administrative detention under the principal Act is 18
months. Additionally, since laws that restrict the liberty of citizens should
be interpreted strictly, the Minister of Defence, it can strongly be argued,
exceeded his authority by issuing said regulations.
According to the Supreme Court in Thavaneethan v. Dayananda
Dissanayake, Article 15 of the Constitution which places restrictions on the
operation and exercise of fundamental rights does not permit restrictions by
executive action, i.e. by regulations, with the sole exception permitted by

emergency regulations under the Public Security Ordinance because those

are subject to constitutional controls and limitations. Moreover, the
decision states Article 15 (7) of the Constitution, which enables the
imposition of restrictions on fundamental rights via law that is enacted in
the interest of national security and public order, is not applicable to
regulations made under the PTA or other statutes that are not subject to
constitutional controls to which emergency regulations are subjected.
Based on these factors it could be contended that the regulations issued
under section 27 of the PTA are ultra vires.
Of these the regulation used most widely is the Prevention of Terrorism
(Surrendees Care and Rehabilitation) Regulations No.5 of 2011. The term
surrendee is used in the regulation since its scope of application is limited
to those who surrendered voluntarily. However, in practice, many against
whom there was inadequate, or no evidence to file charges, were sent to
rehabilitation centres for periods of up to 2 years, a practice which
continues to date. Even now, many who are detained under national
security laws accept the rehabilitation option for they fear if they do not,
they will be incarcerated indefinitely.
According to the regulation, being part of the rehabilitation programme
does not preclude the person from being arrested for an offence. As there is
no mention of the period within which the investigation should be
concluded, prosecution could be initiated against a person any time before
the conclusion of the period of rehabilitation. Hence, the surrendee has no
certainty regarding his/her legal position, i.e. whether s/he might be
prosecuted, until the completion of the rehabilitation period. There are no
oversight or review mechanisms, with decision-making regarding
surrendees resting entirely with the Secretary, Ministry of Defence. If the
person is prosecuted and found guilty, the Court may order rehabilitation,

the period of which is not stipulated in the regulation, and can be

determined by the judge as part of the sentence.
In practice, sometimes persons who were held under a detention order (DO)
without being produced before a judicial officer for a period of 18 months
were later sent to rehabilitation for 2 years the person was therefore
moved from one form of arbitrary detention to another for a total period of
3 years. There have also been instances of persons being moved from
detention centres following the conclusion of the maximum period of
detention (18 months), to a rehabilitation centre from which the person is
moved to a detention centre again before the conclusion of the period of
rehabilitation (anywhere from a year to 2 years), before being remanded.
The total period of deprivation of liberty therefore exceeds 5 years, or
continues to date.
Persons released from rehabilitation centres continued to be subjected to
surveillance and monitoring by multiple state security agencies and the
military. Since there are no legal provisions in national law that allow for
such surveillance, this is cause for grave concern as it creates space for
numerous rights abuses by security agencies. Nearly 6 years after the end
of armed conflict, former combatants who have reintegrated into society
should be allowed to continue their lives peacefully without the monitoring
and interference of security forces. In exceptional circumstances, the
recommendation of the UN Human Rights Committee- the independent
body that monitors the implementation of the International Covenant on
Civil and Political Rights (ICCPR)- which called for the adoption of national
legislation that clearly and narrowly defines the exceptional conditions
under which former combatants could be subject to monitoring and
surveillance, should be followed.

Respecting and adhering to existing legal provisions and principles is

another means through which the government can illustrate its intent to
respect due process and the rule of law. For instance, the Presidential
Directives on Protecting the Fundamental Rights of Persons Arrested and/or
Detained issued by President Chandrika Kumaratunga, later re-issued by
President Rajapaksa on 7 July 2006 and re-circulated by Secretary, Ministry
of Defence, Gotabhaya Rajapaksa on 12 April 2007 to the Heads of the
Armed Forces and of the Police, set out basic rules that have to be followed
in relation to the arrest and detention of persons.
The Directives state that that no person shall be arrested or detained
under any Emergency Regulation or the Prevention of Terrorism Act No. 48
of 1979 except in accordance with the law and proper procedure, and by a
person who is authorized by law to make such an arrest or order such
detention. The Directives require the arresting officer to:
identify himself to the person being arrested or a relative or friend of such
person
inform the arrested person of the reason for the arrest
allow the detained or arrested person to communicate with a relative or
friend to inform of his whereabouts
record the statement of the person arrested or detained in the language of
the persons choice
allow the Human Rights Commission access to any place of detention and
have access to any person arrested or detained
inform the Human Rights Commission of every arrest and detention within
48 hours of the arrest
Article 4 of the Directives further states that when a child under 12 or a
woman is arrested or detained, a person of their choice should be allowed
to accompany the child or woman to the place of questioning. As far as
possible any child or woman arrested or detained should be placed in the
custody of Womens Unit of the Armed Forces or Police Force or in the

custody of another woman military or police officer. In addition to issuing

arrest receipts to families, authorities should also inform families of any
change of the place of detention. This is important since at present families,
many with extremely limited economic means, travel long distances to
prisons, detention or rehabilitation centres, only to find their family
members have been transferred to another location. Further, lawyers
should be allowed to confer with detainees in a private space without the
presence of security officers, and the current practice that prohibits persons
held at detention centres signing any document should be discontinued
forthwith, since it prevents detainees from legally challenging their
detention, for instance through a fundamental rights petition.
If as Foreign Minister Mangala Samaraweera stated, Sri Lanka wishes to
leave the culture of paranoia and debilitating fear psychosis and reestablish ties equally with all nations instead of isolating ourselves within
a rapidly globalizing world, one hopes the governments respect for the
rule of law and the rights of citizens will include respect for due process.
Taking concrete action to review the cases of those detained under national
security laws and ensuring their due process rights are respected would
signal the regimes commitment to being true to its stated vision which
includes appealing to the hearts and minds ofcitizens in the North and
East. It is entirely possible to do this without compromising on the integrity
or security of the rest of the country, a fact which has been recognized by
the highest court in this country. For instance, in Weerawansa v. AttorneyGeneral and Others the Supreme Court stated that constitutional
safeguards were applicable even when implementing the PTA and pointed
out that it would be wrong to attribute to Parliament an intention to
disregard those safeguards, thereby giving precedence to the liberty of the
citizen. Similarly, in Thavaneethan v. Dayananda Dissanayake, the Supreme
Court interpreted the PTA strictly, finding that it did not impose any

restrictions on the freedom of movement except in respect of specified

persons, suspected of unlawful activity in terms of orders made by the
minister. Moreover, the government can use as guidance the
recommendations of the UN Human Rights Committee which calls for all
security measures to be in compliance with the provisions of the Covenant
and contain clear prohibitions against arbitrary arrest and detention as well
as clear safeguards against torture and protections of the rights to freedom
of expression and association, and the trials of those arrested under
emergency and/or counter-terrorism laws to be conducted by independent
and regularly constituted courts with adequate safeguards.
Posted by Thavam