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The Draft Resolution: Can the UN help with Systemic Corruption & Economic Crimes?

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By Sanja de Silva Jayatilleka

At the informal consultations held on September 16, it is reported that the government had objected strongly to the Resolution now being drafted on Sri Lanka in Geneva, while however, proposing amendments to dilute it. This latter move indicates that its reading of the balance of support at the Council is that the resolution could be adopted at a vote, despite GoSL’s rigorous objections. The draft resolution now in the public domain includes many references to Sri Lanka’s “on-going economic crisis” and proposes ways to prevent its repetition.

In an Operative Paragraph (paragraphs that calls for some action), it “Calls upon the Government of Sri Lanka to address the ongoing economic crisis and help ensure it does not happen again, including by investigating and, where warranted, prosecuting corruption, including by public and former public officials, and stands ready to assist and support independent, impartial, and transparent efforts in this regard”.

The phrase “Calls upon” is the strongest language that can be used in the operative paras, which differentiates it from other language such as “urges”, “encourages” or “expresses concern”.

Noteworthy is the offer of the Office of the High Commissioner which “stands ready” to support a properly constituted investigation on corruption. With the resources at its disposal, including the Special Rapporteurs and other expert mechanisms, it is an offer that such an investigative body should avail itself of. Regardless of Sri Lanka’s response to the offer, the Resolution itself will give the Office of the High Commissioner the authority to gather evidence of such violations as part of its Sri Lanka Accountability Project:

“Requests the Office of the High Commissioner to enhance its monitoring and reporting on the situation of human rights in Sri Lanka, including …on the human rights impact of the economic crisis and corruption, and to present oral updates to the Human Rights Council…”

This gathering of evidence on Sri Lanka, which has been ongoing for several months, including the already completed uploading of the various existing databases of human rights violations to a single location at the OHCHR, will include data on corruption and other violations of economic rights including corruption. The draft Resolution bases its recommendations on its observation of the deteriorating economic situation in Sri Lanka which it describes in one of its paragraphs:

“Expresses concern at the human rights impacts of the economic crisis, including as result of increased food insecurity, severe shortages in fuel, shortages in essential medicines and reductions in household incomes, while stressing the need to promote and protect the rights of the most marginalized and disadvantaged individuals, including daily wage earners, children, older persons, and persons with disabilities.”

This is pretty comprehensive and accounts for the major violations of the implicit social contract between the citizens and the government. It is beyond question that “food insecurity” was not due to a dearth of dollars. Anyone with a TV saw how many farmers cursed the government on the evening news well ahead of the actual event, very clearly articulating that the country will be short of food following the new fertilizer policy, and the false promises of a magical organic variety, not to mention cash compensation for any shortfall. Their warnings and their curses were more explicit than any resolution could be, but were ignored.

“Severe shortages of fuel” had severe consequences, including several deaths while hapless citizens stood in queues, some including fishermen and farmers, three wheel-wheel drivers et al, unable to practice their livelihoods, leading to “reductions in household incomes” or eliminating the opportunity for any income at all in some cases. As the parliamentary COPE committee found out, the reason for the shortages had more than one reason, uncovering corruption of major proportions over many years. That the prorogation of Parliament made the COPE reports not actionable cannot make the citizens not see the proceedings and its revelations.

More pitifully, “shortages of essential medicines” has its own very unsavory story attached. A private TV station reported this week those responsible for the procurement of essential medicines were clearly unaware of the medicines that were in short supply at the various hospitals nor able to provide them on time. It was reported that an elaborate IT system for efficient procurement was in the making for five years at great cost and yet was incomplete at the end of that period and therefore, a new system was now in the process of being constructed.

This is hardly a surprise when the public was treated to the spectacle only a few months ago of an entire database of approvals for procurement of medicines, especially created according to government specifications mysteriously got wiped out completely, with no back up of that information! That this was in the aftermath of public concern over corruption during imports of Covid related medical supplies, didn’t do anything to reassure the long-suffering public that corruption which seemed to have permeated the entire system had any chance of being arrested. Instead, arrests are on-going of those who dare to protests against these practices which brought the country to bankruptcy adding to the already miserable lives of the people.

Preventing Terrorism

The arrests of some protesters are made, with the full knowledge and concurrence of the President of the country, under the Prevention of Terrorism Act. The Resolution takes due note of this situation:

“Also expresses concern over other human rights developments since April 2022 including violence against and arrests of peaceful protestors…”

“Takes note of the introduction of amendments to the Prevention of Terrorism Act in March 2022, that detentions under this legislation continue to occur…”

There has been a massive public outcry against the recent arrests under the PTA of student activists who were prominent participants of the Aragalaya against the government. These arrests are seen by the public as being politically motivated and insidiously so, as the economic crisis deepens.

Surely, the government cannot think that it is part of their counter-terrorism strategy to arrest these protesters, where there have been no victims of terrorism. The usual excuse trotted out is the recent burning of the private residences of parliamentarians as the reason for the use of the PTA convinces no one, because these student activists were not by any stretch of the imagination implicated in those acts.

There is another zero draft, this time in the ‘thematic’ category, at the current session of the UN Human Rights Council on Terrorism and Human Rights. The draft includes the following:

“Notes with concern the measures that undermine human rights and the rule of law, such as the detention of persons suspected of acts of terrorism in the absence of legal basis for detention and due process guarantees, the use of torture, the unlawful deprivation of the right to life and other human rights and fundamental freedoms, and urges States to review the grounds of detention and to respect the rights to equality and non-discrimination in the administration of justice, and to a fair trial, as provided for by international law, including international human rights law, and, as applicable, international humanitarian law and international refugee law” and “Stresses the importance of ensuring access to justice and accountability, and calls upon States to ensure that any person who alleges that their human rights or fundamental freedoms have been violated by measures taken or means employed to counter terrorism or violent extremism conducive to terrorism has access to justice, due process and an effective remedy, and that victims of human rights violations and abuses receive adequate, effective and prompt remedy and reparations, which should include, as appropriate, restitution, compensation, rehabilitation and guarantees of non-repetition as a fundamental basis of any strategy to counter terrorism and violent extremism conducive to terrorism.”

Perhaps Sri Lanka’s Commission of Human Rights will take note.

IMF and Human Rights

The Resolution on Sri Lanka welcomes the staff level agreement between the IMF and the government. Yet in the Sri Lankan parliament, the government claims that there is no agreement yet, even though it may come as news to the IMF team which concluded their discussion in Colombo recently with a media briefing. Perhaps the Resolution ought to hold off on congratulating the government on that one since the government itself is claiming that they have failed to reach an agreement yet.

The Opposition has continued its calls for a transparent process in which parliament is given access to the contours of what was widely believed was a staff level agreement. The government is resisting those calls, with the Speaker claiming that the President is not in possession of any signed agreement which when finally presented to Cabinet, will be discussed in parliament. This is filibustering, clearly to postpone revealing more bad news to the people under severe economic strain. Why would the government care if not for electoral reasons?

This whole pile of economic garbage fell on the people due to government mismanagement, inefficiency and corruption. And yet, these people who couldn’t manage to steer the country safely through the recent storms are hoping to design a recovery package without any review by parliament, in time to prevent further exacerbation.

This administration has been referred to as the ‘40 thieves’ in the story of Ali Baba on more than one occasion on social media, to popular cheers, showing little confidence in their ability to implement any such plans, including privatization of state enterprises. They are sitting atop a massive public service for sure. Given the irregularities in the government financial statements discovered by its own Auditor General, I’d suggest that they move the vast majority into the Auditor General’s Office, empower him to prosecute the criminally corrupt, also using the Office of The High Commissioner for any resources and training, and more importantly, start proceedings to recover the stolen assets with the help that they have offered in the resolution. Sri Lankan people have every reason to critically support this draft resolution, for most of its content.



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Sumanthiran on what the budget does and does not do

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Speech made November 22

I have consistently recorded my opposition to Minister of Finance being the President. From 2010 onwards in this House, whenever the President in his capacity as Minister of Finance has presented a budget I have recorded that protest and I wish to record that today as well. When a person who is not a Member of this House presents the budget as the Minister of Finance, that seriously curtails this House’ ability to be in total control of public finance as the Constitution stipulates in article 148.

This also exposes another thing this time: And that is there’s a 21st amendment to the constitution that, was said to be going back to the 19th amendment – that is doing away with the 20th amendment – and that has been pointed out during that debate. It doesn’t really do that. Under the 19th amendment to the constitution the president could not hold any ministries; not even the ministry of defence.

For the tenure of that president at that time, personal to him, to President Maithripala Sirisena, three named ministries were permitted in the transitional provision. Thereafter the president couldn’t hold any ministries. But now the President actually can hold any number of ministries. In fact he can hold all the ministries. So this is another occasion on which we can expose that lie to the country that some reform was made that executive powers were curtailed through the 21st amendment. No! no such thing was done.

Even the one positive thing that is being touted is the re-establishment of the constitutional council. That also, we pointed out, is a political body, is not a 17th amendment constitutional council. More members are from this House which makes it political, and that body starts with the appointment, amongst others, independent commissions. And in the last couple of days we found how this supposed independent commission chairmen have behaved. We saw the National Police Commission Chairman going to the VIP launch to receive a person who was chased out of this country, for fraud, for large scale corruption. And who else but the chairman of the National Police Commission is there bowing in two, and welcoming him back.

A few days before that we heard the chairman of the Office of Missing Persons, saying that only a few people went missing and all of them are living abroad. Now that very office was established to investigate missing persons. And the government commissions, there are many, all of those commissions have reported that over 20,000 people have gone missing. That’s a conservative number. And the chairman of the office that is appointed, supposedly an independent office, says nobody has gone missing.

And then the Honourable Minster of Justice explains and says “No he’s wrong, because he hasn’t understood the Government’s priority. The government has prioritised reconciliation measures which must deal with the issue with disappearance also and unfortunately this chairman does not know that.” Now that creates another problem. Why should an independent office chairman know what the government’s priorities are? If he is independent, why should he comply with what the government wants to do today? The government will not want to do that tomorrow, the government changes its mind, day to day but if this is an independent office and he has been tasked by law to make investigations into this several thousands of disappearances in the country, and this is what he says.

So this 21st amendment was just an eyewash, really did not make anything independent in the country, nor did it strip the President of any executive powers. That said, let me turn to the budget proposals. I want to concentrate on one matter, and that is with regard to the EPF. The EPF is Sri Lanka’s single largest fund, this fund has been dipped into and there are serious allegations of fraud and corruptions in the way investments have been made out of this fund. There have been five forensic audits conducted, but no action has been taken to date. The last annual report of this fund is 2016, forensic audits have revealed massive frauds, into earnings and savings by the working force of this country, and not a muscle has been moved; nothing has been done to date with regard to taking action on this.

I am highlighting this because the economic crisis that we are facing in this country is primarily due to corruption. And that is why the IMF in its report have said “there are corruption susceptibilities” and that is one of the challenges for the IMF in implementing their programme in this country. The President or the Finance Minister in his budget speech said that’ll be dealt with; the corruptions, but where? Nothing has been done.

The other issue is with regard to the office of the Attorney General, who advises the government, who appears on behalf of the government, who defends the government even when the Right to Information Commission orders the Central Bank to divulge certain information the Central Bank appeals, and the Attorney General appears. Now these are pubic funds, these are monies of people of this country. There is absolutely no transparency; evidently large scale corruption and fraud and all that is covered up by the government, by the Central Bank , by the EPF and by the Attorney General gives absolute sanction to cover it up.

Now with that background, how do we get out this economic crisis? The government pays lip service, but every action of the Government demonstrates the opposite. Earlier this morning the Hon. Anura Kumara Dissanayake cited the case of a Minster who asked an Ambassador for a bribe, that was reported, he was suspended from the cabinet, and he got a committee of his choice appointed which exonerated him. And he is back in the cabinet, now to add insult to injury that very minister has been appointed as the President’s nominee on the Constitutional Council which is supposed to appoint independent commissions – handpicked , handpicked because there is no one who is up to that mark, in the cabinet.

Now who has the brass to go and ask an Ambassador for a bribe? I suppose the other ministers are a little less corrupt. So you have to pick the most corrupt, to appoint to the Constitutional Council. You have a convicted extortionist as a Chief Government Whip. So how do we then tell either the IMF or anyone else that we are dealing with corruption? The Government has really no intention of doing any of that sorts, the President has no intention. Because these are President’s appointments, so you say one thing but you do just the opposite.

here is a book written by V.P.Vittachi – a small blue colour book, I have read some time ago on President Jayewardene’s conduct – its called “Sri Lanka – what went wrong?” And Mr. Vittachi coins a word and calls it “plonking”.

He says President Jayawardene will say “I am turning right” this is the right way to go – I am turning right, and he will turn left. All the while he will insist, while travelling. “no ,no I am travelling right” that is plonking. Now the incumbent President learnt his political lessons from President Jayewardene. And one wonders whether that is what he is now practising, saying “we are dealing with corruption” but doing the very opposite to what will eradicate corruption.

The Tamil National Alliance’s Parliamentary group met today, and we took certain decisions with regard to this budget. We have highlighted various shortcomings, matters that are contrary to the well-being of this country, Particularly the high percentage of allocation to the defence sector. The country’s economy is contracting. Various fundamental service sectors are contracting, are reducing. Whilst in the last two years the allocation for the defence sector has been increased by 12 %.

Now this is not salaries and recurrent expenditure that is necessary. You must only visit one of the camps to see the high life that go on there. To test it out I went with the President and had lunch at the Vavuniya Air Force camp. The lunch is of a standard that is higher than what you can get in a seven star hotel. Nothing has come down. No one wants to touch that. The ceramicware, the food, everything. Nobody wants to touch that. You tell the country 70 % of our people have dropped one meal. 50,000 children are in danger of malnutrition. Government may deny it. But those are the real facts, and you want to keep the military happy. You don’t want to upset them. So that you can suppress dissent, so you can suppress people who protest that they don’t have food to eat. Now all of this is there and at a time like this one would have expected a programme through this budget to lift this country out of the economic crisis and it is not there, so we are opposed to this budget.

But for one reason, we took a decision today not to cast our vote on opposition. That is due to the reason that the President has in the last couple of days repeatedly said that he is taking steps to resolve the long standing Tamil National Question. Although we are sceptical – it is not because we trust it, but we don’t want to be blamed for opposing a President when he says “I want to solve this, come let’s sit down and talk” so for that very reason, we will today not cast our vote against this budget.

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The TNA’s position on Ranil Wickremesinghe

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By Uditha Devapriya

A Budget vote usually shows which parties support the government and which do not. Barring the Dullas Alahapperuma faction, the SLPP voted en masse for the second reading of the recent Budget. Except for MPs like Duminda Dissanayake, the SLFP voted against it. Despite some ambivalent, vague remarks from its MPs, the SJB also voted against it, with Sajith Premadasa outlining alternative policies that this government has not bothered to consider, let alone debate and discuss. For a while, it seemed as though the minority parties, especially the Tamil ones, would follow. Yet they have refused to do so.

The rationale of the mainstream Tamil parties is interesting. In recent weeks, President Ranil Wickremesinghe has signalled his intention to resolve the National Question. Some of his more recent moves, including the establishment of a Northern Province Coordination Sub-Office of the Presidential Secretariat, suggest that he is utilising the National Question to win favour and support from these parties. The fact that he located the Sub-Office, not in the fertile Jaffna District, but in the poorer Vavuniya District, shows that he is conscious about the cosmetics of what he is doing. Indeed, at the opening ceremony he observed that the government is seeking a solution in the North “that is acceptable to all.”

The minority parties have reacted accordingly. Having originally criticised the Budget and resolved to vote against it, the Tamil National Alliance soon reversed course. The TNA’s M. A. Sumanthiran declared that they would not oppose the Budget, stating that the President had repeatedly said that he wants to resolve the National Question and that he had invited Tamil parties to discussions. Sumanthiran did admit that they had “publicly expressed our scepticism”, but added that “nevertheless, when there is a hand that is stretched out from the President himself, we thought we must reciprocate in some way.” The TNA later elected not to take part in the voting process for the second reading.

Sumanthiran justified his party’s stance on the basis that it was a “signal of our bona fide on this matter.” Tamil parties have consistently flagged reforms relating to devolution and regional development. It is only understandable that they should revise their earlier position when the country’s President signals his desire to resolve these matters.

President Wickremesinghe’s record on minority rights is by no means clear-cut. Yet for the TNA, he appears to be a better bet, and a better deal, than the Rajapaksas. The issue here, which the TNA may be aware of, is that Mr Wickremesinghe is heading a government that is dominated by a party belonging to a family which most minorities view with disfavour. The flip side to this argument is that President Wickremesinghe calls the shots, and as such he is in a position to enlist the support of the party, and that family, for reforms relating to ethnic grievances and minority rights. So long as they think that the President will implement these reforms, Tamil nationalist parties will support him, however cautiously.

The Tamil National Alliance has had a long and tenuous history with Ranil Wickremesinghe. On two occasions, in 2010 and 2014, it supported a candidate fronted by Wickremesinghe’s party, the UNP. On both occasions, Wickremesinghe declined to contest and supported a common opposition candidate against the incumbent. In 2010 the TNA supported the army commander who led the war against the LTTE. The party did not mind this, given that they viewed the Rajapaksas as the bigger evil. In 2015 the TNA supported one of Mahinda Rajapaksa’s former Ministers, despite that Minister claiming in international media that should he become president, he would not immediately phase out the army or remove army camps from the north and east. There too, the party followed a strategy of siding with its enemy’s enemy.

The TNA has very few objectives which it shares with other parties. It wants devolution of power, regional development, and radical constitutional and structural reforms. Among these reforms is one objective that tallies with the aims of liberal and left-liberal parties, the abolition of the Executive Presidency and its replacement by a parliamentary system. This, too, the TNA views as crucial to its objective of greater devolution: once the Presidency is abolished in toto, so the reasoning goes, it will become easier to devolve more powers to the periphery. It helps that the UNP’s willingness to capitulate to these demands over the last quarter-century, since 1999, has turned the TNA into a cautious partner.

This is despite the UNP’s less than stellar record on ethnic relations. Certainly, as the recent election of a second-generation Indian immigrant as British Prime Minister shows that ethnic politics, however progressive it may be, can often camouflage class issues. That is what we are seeing here today. Other Tamil political formations have demarcated the TNA, and like-minded parties, as regressive and reactionary. The excuse that the TNA have trotted out for their past choices – such as their support for Sarath Fonseka – that they prefer the lesser evil, pales away when you consider that, when it comes to the political establishment in Sri Lanka and its record on minorities, there has never been a lesser evil.

I think the Tamil Left, and more so the Indian Marxist Left, were more prescient in these matters than bourgeois Tamil parties. Even Left parties like the LSSP got most of it right in their analysis of the upsurge of Tamil nationalist sentiment in the 1970s: their argument basically was that if they were not anchored in class politics, such sentiments would soon evolve into fascistic movements. This is what the LTTE eventually became: as The Economist put it, they were for all intents and purposes “classically fascist.” That these parties today prefer right-wing, neoliberal outfits to centre-left and social democratic alternatives shows that they are yet to escape their past. In that sense, their recent moves vis-à-vis the Budget, and President Wickremesinghe, reveals that they have a long way to go.

The buck doesn’t stop there, however. For decades, the TNA, together with sections of civil society, the liberal and left-liberal intelligentsia, and sections of the New Left, have dabbled in tinkering with the Constitution. The reforms they have proposed, such as the abolition of the Executive Presidency, have provoked predictable nationalist opprobrium, but also more thoughtful and constructive responses elsewhere. My criticism of these proposals generally tallies with those latter responses: I understand where calls for these reforms come from, but firmly believe they are not only impractical given the geopolitical situation we are in, but also not an urgent imperative for the country’s democratisation.

Indeed, if the recent electoral Pink tides in Mexico, Peru, Colombia, and Brazil should tell us anything, it’s that reforms should first address economic grievances before engaging in broader political and constitutional changes. At the end of the day, the National Question in Sri Lanka is an eminently economic one. If we are to consider it, address it, and resolve it constructively, we need to assess its material dimensions better. And yet, barring relentless talk of devolution and the abolition of the presidency, there has been very little discussion about, say, spurring industrialisation and manufacturing, or achieving growth with equity (the Premadasa paradigm) in the north and east.

It’s not the Tamil parties only, of course. The New Left’s actions, especially its isolationist tactics, are problematic too. But while the JVP and the FSP have declared that they want to walk it out alone, the TNA has, over the years, built a reputation for band-wagoning with right-wing parties which have failed to deliver any benefits for the country or its minorities. As Dr Dayan Jayatilleka has note in a recent essay, Marxist Tamil politicians, from Comrade Sanmugathasan to Pathmanabha, warned against allying with reactionary and pro-Western parties. But this is precisely what the TNA has been doing for the last quarter-century, going as far as to oppose the People’s Alliance government, despite the many ambitious reforms it proposed, like the merger of the North and East, in deference to the UNP.

To be fair by the TNA, its MPs have unequivocally stated that they will not support the government if it does not deliver on its promises. Yes, it seems something of a stretch to think that the present political setup is conducive to the reforms that minority parties want. Nevertheless, even if we grant that the SLPP and the UNP are sincere in their desire to address and engage with minority grievances, the TNA should know that the resolution of those grievances, relevant as they are to the resolution of Sri Lanka’s National Question, is by itself not enough. Whatever constitutional reform package the government has, even if it appeases minority parties, needs to be buttressed by cohesive, inclusive, and progressive economic policies. Whether the government has such policies in place remains to be seen. Its actions over the last few months suggest that it does not.

The writer is an international relations analyst, researcher, and columnist who can be reached at udakdev1@gmail.com

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Only a temporary reprieve

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The Supreme Court’s determination on the constitutionality of the Bureau of Rehabilitation Bill 

By Ambika Satkunanathan

The Supreme Court’s determination on the constitutionality of the Bureau of Rehabilitation Bill was met with relief last week. While the determination affirms many fundamental principles and constitutional protections, it provides only a temporary reprieve. Human rights activists and legislators who are concerned about the state’s attempts to restrict human rights through laws and institutions should maintain vigilance with regard to this proposed law.

The submissions of the Deputy Solicitor General reveal the government’s thinking on this issue; it exhibits contempt for basic legislative principles and highlight the absence of evidence based policy making that has the well being of the public at its core.

The Supreme Court, in no uncertain terms, found that vague provisions in the proposed law prevent the public from understanding the ambit of the law and stated that if government authorities are “cloaked with power under vague provisions” it can lead to arbitrary action since the officials themselves will not know the extent of their powers.

In response to the Deputy Solicitor General’s submission that the court should consider the provisions as they exist and not speculate whether the law can result in an arbitrary exercise of power during implementation, the court affirmed it has jurisdiction to consider the threat of potential abuse of proposed laws. The court stated it does not have to await actual or imminent infringements by the implementation of the law if the concerns are based on “plausible possibilities”.

At a time when the government is weaponizing the law to restrict fundamental rights, the importance of these assertions by the court, which reiterate that law is made for the public, and hence the public should be able to understand the extent of its application, cannot be overstated.The government justified the (over) broad definitions in the proposed law on the basis it was not possible to be specific because the rehabilitation provided would depend on the category of persons to whom it was being provided. This illustrates the government had little or no idea about who was to be rehabilitation or how when it drafted the law.

The court did not accept the Deputy Solicitor General’s argument that future specific laws would define the category of persons who could be subject to rehabilitation, and said that would be a “dangerous route” to take, thereby recognizing the need for certainty in the ambit of the law.

The government’s claim it will draft laws in the future to specify who will be rehabilitated sounds disingenuous because even at present, there are laws that the government can utilize to send persons to rehabilitation such as regulations issued under the Prevention of Terrorism Act for the rehabilitation of former LTTE combatants.

A few critical issues however remain unresolved even following the Supreme Court’s determination. Although the court examined whether the provisions of the Bill are clear and whether there are adequate safeguards “for the achievement of the objective of the Bill” to prevent arbitrariness in the decision making process, the objectives themselves are problematic.

For instance, the cabinet memorandum on the Bill, which the court referred to and seemed to accept, proposes (compulsory) rehabilitation instead of imprisonment. Yet the reality is that where drug dependent persons are concerned, neither method leads to impactful outcomes. The cabinet memorandum further presents (compulsory) rehabilitation as a solution to prison overcrowding.

In reality, the solution that will lead to meaningful outcomes is the decriminalization of personal drug use and treating it as a health issue by providing voluntary, community-based solutions; not the establishment of more places of detention at which human rights can be violated.

The court states that the Bill’s inconsistency with the constitution shall cease if references to ex-combatants, violent extreme groups and “any other group of persons” are deleted, and Bill is limited to “drug dependent persons” and “such other persons as may be identified by law”. The court proceeds to accept that consent to rehabilitation must be without “duress, coercion or undue influence” and not as “an alternative to protracted remand”. Yet, at the same time, it accepts a contrary position, i.e. that (compulsory) rehabilitation (without consent) is possible through a judicial order.

Globally, including in Sri Lanka, evidence shows that compulsory rehabilitation is counter-productive and leads to quicker relapse. Further, compulsory rehabilitation contravenes human rights standards. It is due to this reason, the UN has repeatedly called upon countries to cease compulsory rehabilitation. The violation of fundamental rights during compulsory rehabilitation is hence not a “fanciful hypothesis” as there is documented evidence to that effect, especially at the military run centers at Kandakadu and Senapura.

The court also does not recognize right of a drug dependent person to leave treatment whenever they choose. Instead, the court says that steps have to be taken to apprehend persons leaving without authorization. Moreover, the court states that the issue of leaving rehabilitation when a person wishes has to be dealt with in regulations issued under the law.

However, if rehabilitation is not punitive, as claimed by the state, persons should be able to enter and leave rehabilitation voluntarily and any law enacted should be only to regulate the functioning of such centers to ensure they adhere to standards related to conditions, maintenance of records and confidentiality, much like the regulation of private healthcare providers.

While the court cannot rule on existing laws, it’s view that the current law dealing with drug dependent persons, i.e. the Drug Dependent Persons (Rehabilitation and Treatment) Act, provides curative means to deal with drug dependence does not align with evidence. Both in principle and practice, the current law is punitive, not curative. The abusive nature of the current law has to be studied in the context of proposed amendments to the Poisons, Opium and Dangerous Drugs Ordinance as well, because it expands the powers of the police and empowers them to refer a person to rehabilitation bypassing a judicial process.

This illustrates the state’s insidious attempt to extend its abusive tentacles, which the court has found to be unconstitutional. Simply put, if rehabilitation is voluntary, there is no need to empower the bureau to rehabilitate drug dependent persons. All that is required is for the government to dedicate resources to establishing centers, as well as ensure that existing centers adhere to human rights standards. Any law drafted to enable this would have to focus on the standards to which the centers have to adhere to ensure the rights of persons entering treatment voluntarily are protected.

The state has proposed the inclusion of once a month visits by the magistrate to the rehabilitation centers as a protection against torture. While this appears progressive, in practice, given the everyday nature of violence at the military run centers in particular, a monthly visit will do little to arrest deeply entrenched abuse.

Further, the purpose of law and processes should be to prevent abuse, rather than only to detect and address it after the abuse has taken place. Although the proposed new section also requires the magistrate to refer the case to the Inspector General of Police to commence an investigation into any cases of alleged torture, the historical failure to hold the police accountable and entrenched impunity raise grave doubts whether this will be adequate protection in practice.

The court reiterates there can be no derogation from the protection against torture enshrined in the constitution. Nevertheless, at the same time, it allows the provision that permits the use of minimum force to compel a person to obey lawful orders to remain intact. Since a person who is drug dependent will not be able to perform many functions during the withdrawal process due to physical and psychological changes they experience, this provision will allow the use of force for behaviour that is normal and to be expected during a withdrawal process.

This provision hence undermines the protection against torture guaranteed in the constitution. Additionally, the denial of evidence based and effective treatment options, such as harm reduction, and instead forcing persons to perform labour, may constitute inhuman treatment according to international human rights standards.

The cabinet memorandum on the Bill does not set out the empirical evidence on which the Bill is based. Nor did the Deputy Solicitor General make submissions in this regard. The result of disregard for evidence based policy making leads to the adoption of regressive positions on rehabilitation, such as labelling persons undergoing rehabilitation as persons with disabilities, which the court rightly states is inappropriate.

Interestingly, the Deputy Solicitor General submitted that the decision to involve the military in rehabilitation is a matter of policy and hence not within the purview of the court. The court found that since the cabinet memorandum on the Bill does not mention the involvement of the military, the Bill is not in line with the policy objective set out in the memo. The court further pointed out  the lack of clarity regarding military involvement, i.e., are they employees of the bureau, will the same disciplinary procedures apply to them? It is pertinent to note that through its argument to defend the involvement of the military in rehabilitation, the government has acknowledged that militarization is a government policy.

The Bureau of Rehabilitation Bill is just one building block in the state’s attempt to label certain social groups deviant, criminalize them based on their status/identity, use the law to arbitrarily detain them and subject them to a process of supposed rehabilitation. This process is militarized and will result in grave human rights violations.  Though containing many positive elements, the Supreme Court’s determination still leaves room for the proposed law to be used in relation to persons considered drug dependent persons, as it contains many provisions that will result in grave human rights abuses.(Groundviews)

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