Rule of Law Chronicles: Sri Lanka’s New Leadership Imposes a Series of Repressive Measures
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Rule of Law Chronicles: Sri Lanka’s New Leadership Imposes a Series of Repressive Measures

Following months of protests over rapidly rising inflation rates and economic turmoil in Sri Lanka, the government has imposed a series of repressive measures against its people. Officials were banned from expressing their own concerns about Sri Lanka’s beleaguered economy via social media platforms. Certain neighborhoods were subject to heightened security requirements which included an outsized impact on people’s right to voice their opposition to the government. And perhaps most worryingly, the government vested itself with the authority to impose arbitrary detention and rehabilitative treatments on certain groups of citizens.

In this article, I will explore this array of recent repressions, with an emphasis on the democratic stakes at play with the rehabilitation bill.

The Bureau Rehabilitation Bill

On September 23, the government released the Bureau Rehabilitation Bill, a novel piece of legislation that would embolden it to impose enforced rehabilitative detention on individuals determined to be “misguided combatants, individuals engaged in extreme or destructive acts of sabotage and those who have become drug dependant persons.”

Since its announcement, many have questioned the categories of individuals to whom it pertains.

As for drug-dependent individuals, myriad other laws already apply to them, such as the Acts on Drug Dependent Persons (Rehabilitation and Treatment) and Poisons, Opium and Dangerous Drugs, so critics question why new legislation is needed.

With respect to “misguided combatants and individuals engaged in extreme or destructive acts of sabotage,” critics suggest this language may betray a thinly-veiled attempt by the government to create a course of action against individuals who participated in peaceful protests and thus cannot otherwise be charged with property damage or other protest-related charges. Previously, this demographic had been protected under the constitutionally protected right to free assembly.

Since interim President Ranil Wickremesinghe came into power, individuals who participated in the protests have frequently been charged under the Prevention of Terrorism Act (PTA). As a result of these criminal charges, Sri Lanka has faced a severe backlash from local and international organizations. Some have therefore speculated whether this new bill will be used to remove the controversy the government has been subjected to for directly associating peaceful protestors as supposed “terrorists.”

Vague Terminology, Questionable Accountability

Section 3 of Part I of the bill, notes that its scope applies to “ex-combatants, members of violent extremist groups and any other group of persons who require treatments and rehabilitation.” Nonetheless, there is a lack of certainty in determining who may be regarded as a “violent extremist,” given that the phrase is not defined within the Bill.

Additionally, the legislation envisages the creation of an oversight bureau, but does not connect the group’s composition with the actual stated goal of “rehabilitation.” Per Part III of the bill, the six-person bureau will be led by a Commissioner General, who will be appointed by the Minister of Defence. The Council will have the discretion to remove the Commissioner if they fail to perform their duties. However, the Commissioner General later appointed must be one recommended by the Minister of Defence.

The bill further states that the army, navy, and air force are designated to exercise, perform, and discharge the powers, duties, and functions under this Act. The lack of accountability that the army will be subjected to for any degrading treatment is further enshrined in Section 22(1) of Part V, which states that:

“A liability, whether civil or criminal, shall not be attached to any officer of the Bureau or to any officer authorised by such officer, for anything which in good faith is done in the exercise, performance or discharge of any power, duty or function imposed or conferred on the Bureau under this Act.” (emphasis added)

The Bill also allows the army to “use all such means including minimum force” to preserve order and discipline among persons undergoing rehabilitation (Part V, Section 28(2)).

The Bill also states in Section 4 (d) of Part I, that the Bureau has the power to make those detained in rehabilitation centres engage in activities that can productively “enhance the economy,” potentially legalizing forced labour.

The heavy reliance on the Minister of Defence and the use of army personnel, which the bill infers will have blanket immunity, has been a point of contention. Further, a lack of avenues for judicial intervention provides enormous room for abuse by law enforcement personnel.

Other reasons to suspect the nature of the ‘rehabilitation centres’

The nature of this new proposed bill is also influenced by the government’s past actions. For instance, Sri Lanka already introduced and established a Commissioner-General of Rehabilitation under the Public Security Ordinance and the PTA in the early 1980s. The Commissioner General, in each successive term, has been a senior military officer. Hence, during and after the Civil War, the series of rehabilitation centres in the North and the South were also run by military personnel. During this time, Amnesty International reported alleged acts of torture, lack of hygiene, forced labour, and sexual abuse.

In the report, A Broken System, former Human Rights Commissioner Ambika Satkunanathan considered the militarized rehabilitation in Sri Lanka that has been running island-wide for alleged drug users. Her research revealed detainees had been subjected to forced labour and were denied access to needed medical treatment.

The conditions of such centres worsened when military personnel that acted as therapists were arrested in the Kandakadu rehabilitation centre after an inmate died following a severe beating.

If the new Rehabilitation bill passes, it is uncertain whether those arrested will be convicted. Human Rights Watch has noted that such rehabilitation centres have been operating without scientific evidence and have not provided any harm reduction services. They also cite the warning given by the United Nations Working Group on Arbitrary Detention in 2017, which noted that a military rehabilitation centre was not as effective nor the same as a medically appropriate rehabilitation centre. The statement warns that this violates international law.

The Verdict of the Sri Lanka Supreme Court

Since the Bill was presented to Parliament, eight petitions have been filed. Six of these petitions have been heard by the Supreme Court, which ultimately ruled that the Bill was inconsistent with Article 12 (1) of the Constitution, which reads “All persons are equal before the law and are entitled to the equal protection of the law.”

As a result, the Bill can only be enacted if it is passed by a special majority of the Parliament (Article 84 (2) of the Constitution), similar to how the PTA was once enacted.

The Supreme Court noted that the inconsistency could be remedied under the following two conditions: (1) if the three categories (references to ex-combatants, violent extremist groups, and any other group of persons) are removed; and (2) if the Bill is restricted to only those who are drug dependent. While the government attempted to argue that those who fall into the categories will be defined in the future, the Court highlighted the need for certainty.

The Court, moreover, noted that force could not be used against those in the centre, as it would violate Article 11, which reads “No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

An Uncertain Legislative Future

The Bureau Rehabilitation Bill is problematic on several grounds. Even if the Parliament removes the categories, the amount of arbitrary force inflicted upon an accused drug-dependent person raises questions about whether the end goal of rehabilitation will truly guide the process. It also provides another legal tool to inflict harm upon such individuals since two other legal Acts relating to drugs already exist. Moreover, because the Bill states that records on those detained in the centres are not to be released except by court order, it removes the public’s ability to assess the conditions of this rehabilitation.

What will happen to the Bureau Rehabilitation Bill is yet to be seen. If passed, even with the changes, it would be another legal mechanism the government will use to restrict freedoms. It is also another tool used to provide more power to the military when there is no indication of security threats. Simply put, it would be another version of the PTA that was enacted during the Civil War. It also remains to be seen what other measures the government will attempt to introduce to restrict the principles of democracy much further.

Directive Restricting the Free Expression of Officials

On September 27, the government published a directive titled “Expression of Opinions on Social Media by Public Officers.” The directive stated that state employees were prohibited from criticizing the government on social media platforms. This occurred after several public officials made statements on social media about food inflation rates in Sri Lanka, including complaints about the increasing level of children who were reported to have fainted in schools.

This is not the first time such a measure has been implemented. Last year, the government forbade public servants from criticizing the administration’s actions on social media. Anyone who defied the order faced disciplinary action by the State Ministry of Home Affairs. The Secretary to the Ministry of Public Administration thus warned public employees to use social media wisely.

Such a prohibition breaches a core feature of democracy; anyone, including public officials, should be able to express their opinions on platforms of their choosing. Social media platforms are an effective way of interacting with the public directly. Where public employees are not provided with the opportunity to criticize policies, states are better able to control the narrative and conceal the true state of affairs.

More Creative Means of Quieting Dissent

On September 23, Sri Lanka’s government banned public gatherings and protests in several parts of the capital city of Colombo by designating certain neighborhoods as high-security zones (HSZ). The order came via a government directive — or gazette — in the aftermath of a series of economic protests, which peaked on July 9th and have since declined.

In accordance with the gazette, would-be activists face a gauntlet of red tape. They must obtain written authorization from certain high-level officials before they can engage in public demonstrations in these areas, which include the neighborhoods surrounding numerous key governmental sites, such as the parliamentary complex, the complexes of the Supreme Court and other high courts, the Presidential Secretariat, the President’s House, Sri Lanka Navy Headquarters and Police Headquarters, the Ministry of Defence and Sri Lanka Army Headquarters,  Sri Lanka Air Force Headquarters, and the Prime Minister’s Office.

If anyone were to hold any form of gathering in the designated areas, the police would have the power to arrest such persons, who would then need to seek bail from the High Court, as compared to the usual procedure before a magistrate. The last time such a measure was implemented in the same areas was during the Civil war between the Sinhala and Tamils.

But hope is not lost; due to widespread controversy and questions of legality, the gazette was revoked on October 1st.