12 October 2018

UN Human Rights Council 39th Session: Presentation of the Report of the Working Group on Arbitrary Detention on its visit to Sri Lanka and relevance to the new Counter Terrorism Bill .

The report of the Working Group on Arbitrary Detention (hereinafter referred to as the ‘Working Group’) on its visit to Sri Lanka from the 4th to the 15th of December 2017 was presented at the 39th Session of the UN Human Rights Council (UNHRC) on the 12th of September 2018. Sri Lanka’s permanent representative to the UN also responded to the Working Group’s report at the time of its presentation. Of particular relevance to the Transitional Justice process in Sri Lanka are the findings, conclusions and recommendations made by the Working Group with respect to the Prevention of Terrorism Act (PTA). These recommendations are timely given that Sri Lanka in September gazetted its proposed new counterterrorism legislation (CTA).

The Working Group observes that the admissibility of confessions under the PTA regime is especially problematic as suspects face an uphill battle at the trial to prove that a confession has been obtained under duress. At the ‘voir dire’ inquiry (an inquiry to determine whether a confession has been made voluntarily or not) the prosecution is initially required to prove − on a balance of probabilities − that a confession has been obtained freely. If the prosecution is successful, the burden thereafter shifts to the suspect to prove – beyond reasonable doubt − that the confession had been extracted under duress. The Working Group notes that the excessively long period of pre-trial detention coupled with the lack of medical intervention during detention makes it nearly impossible for a suspect at a trial to prove that a confession was given under duress. Section 80 of the Counter Terrorism Bill addresses some of these concerns by only admitting confessions to a Magistrate under strict conditions including that the person was examined by a government forensic medical specialist immediately prior to or soon after the recording of confessions, and that the report is produced before the prosecution at the ‘voir dire’ inquiry. The burden of proving that the confession was voluntarily made was also shifted under the CTA and lie with the prosecuting authority. These changes must be welcomed and proposals to retain admissibility of confessions obtained during administrative detention must be resisted.

The CTA Bill includes other changes doing away with the more draconian provisions of the PTA including the reduction of detention without judicial supervision from 72 to 48 hours. It also provides for increased monitoring and supervision by the Human Rights Commission of Sri Lanka. The Magistrate is also mandated to play a more active role in supervising the conditions of detention and is required to visit the suspect in detention without prior notice and to direct a medical examination in case of suspicion or allegation of torture. However, there remains important concerns with the Bill.

In particular the Deputy Inspector General of Police is given unilateral power to issue Detention Orders and Magistrates shall give effect to such orders. A possibility of appeal is only provided before a Board of Review effectively removing detention orders from judicial review for an initial period of two weeks after which the Magistrate’ authorization is required for an extension of the detention order. Further, the Bill allows for the security forces and coastguards to arrest suspects without warrants. This effectively prevents access to a lawyer in the initial 24 hours after which the suspect must be handed over to the Police. This initial period may be much longer if the arrest is made aboard an aircraft/ vessel or outside Sri Lankan territory. This creates an increased risk of torture. While the CTA Bill seems to have addressed some of the concerns made by the Working Group, the concerns expressed above are of significance.

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