Sri Lankan law students are reporting for JURIST on the situation in that country since mass protests in July that forced the ouster of sitting Sri Lanka president Gotabaya Rajapaksa, the imposition of emergency rule and the parliamentary election of current president Ranil Wickremesinghe. Sandun Batagoda, a final year law student at the Faculty of Law, University of Colombo, files this dispatch from the Sri Lankan capital.
The dust has settled over the “Aragalaya”, but fears of retribution linger. In Sri Lanka’s Sinhala language, the word “Aragalaya” means “struggle” and was loosely used to describe the daily protests the Sri Lankan people have organized against the governments led by President Rajapaksa and Wickremesinghe. Although the demonstrations have declined, partly due to violent crackdowns, the embers of protest are still burning, and there is fear of retribution.
These fears were confirmed when the government proposed a draft Bureau of Rehabilitation Bill, submitted to Parliament on 23rd September 2022. In a nutshell, the Bill allowed the compulsory detention in centres of “drug dependant persons, ex-combatants, members of violent extremist groups and any other group of persons” and established a new administrative structure controlled by the Defense Ministry to operate “rehabilitation” centres staffed by military personnel. The Rehabilitation Bill also allowed the use of arbitrary and disproportionate powers. For example, the Bill allowed prolonged detention without judicial oversight, and government officials would be protected from criminal liability if they acted “in good faith.” The Bill also empowers officials to use undefined “minimum force” to “compel obedience” from detainees. Another provision provides that an official who “without reasonable cause” strikes, wounds, ill-treats, or willfully neglects anyone under rehabilitation can be punished by up to 18 months in prison, suggesting that there might be a “reasonable cause” to harm detainees.
In Sri Lanka, it is common for the government to abuse powers granted by legislation in the absence of post-enactment judicial review. Furthermore, the Sri Lanka Constitution provides explicit methods to pass Bills that are otherwise inconsistent with the Constitution by way of a special majority under Articles 83 and 84 of the Constitution. For example, the Prevention of Terrorism Act (PTA) passed during the 30-year-long civil war, inconsistent with the Constitution’s Fundamental Rights, was passed using a similar extraordinary method and is routinely used to arbitrarily detain minorities and anti-government protestors from the “Aragalaya”. Hence, when the Rehabilitation Bill was proposed in Parliament, it was immediately challenged by human rights organizations and interested parties.
The result was that last week, the Supreme Court of Sri Lanka determined that the Bureau of Rehabilitation Bill as a whole is inconsistent with Article 12(1) of the Constitution which enshrines equal protection before the law, and further reiterated that it is incompatible with Article 11 of the Constitution, which enshrined freedom from torture. In the Court’s decision, it was noted that all references to “ex-combatants, members of violent extremist groups and any other group of persons” were vague and should be deleted since they would lead to arbitrary action. Further, the Court concluded that the Bill is inconsistent with Article 11 because specific clauses ostensibly allowed the possibility of torture since the Bill authorized reasonable cause to harm detainees and disproportionate and vague powers to compel “obedience”. Although the Supreme Court’s judgement is laudable, there is still room for abuse since the use of compulsory rehabilitation of drug-dependent persons is a policy neither empirically supported by evidence nor did the Court recognize the right of drug-dependent persons to leave rehabilitation voluntarily. Therefore, the Court implicitly recognized the State’s punitive use of rehabilitation.
What is the way forward from here? It is unlikely that the government will attempt to pass the Bill inconsistent with the Constitution by way of a special majority, due to its rising unpopularity. Instead, the government will either abandon the Bill, or delete the inconsistent clauses and limit the regressive policy to drug-dependent persons to save face. At least given long history of abusive laws passed by successive Sri Lankan governments, the Bureau of Rehabilitation Bill did not escape the scrutiny of vigilant citizens and the watchful eye of the Supreme Court. Still, in the saga of abuse and protection of Human Rights, the Court’s judgement is only one step in the right direction.
