Sri Lanka: ‘Bait and Switch' on Emergency Law

Emergency regulations lifted in Sri Lanka do not affect existing and new laws that allow the government to detain people for long periods without trial, Human Rights Watch said today.

The Sri Lankan parliament, at the request of President Mahinda Rajapaksa, allowed emergency regulations in place nearly continuously since 1971 to expire on August 31, 2011. However, the 1979 Prevention of Terrorism Act (PTA) and other laws and regulations permitting detention without charge for up to 18 months leave an abusive detention regime in place, Human Rights Watch said. And proposed legislation will allow the authorities to continue to detain more than 6,000 people now held under emergency regulations.

"The Sri Lankan government announced that the state of emergency is over, but it is holding on to the same draconian powers it had during the war," said Brad Adams, Asia director at Human Rights Watch. "Governments that have called for the repeal of the emergency powers should not be fooled by this cynical 'bait and switch.'"

Sri Lanka's emergency regulations granted the authorities sweeping powers of search, arrest, and detention, which have led to serious human rights violations, including arbitrary detentions, torture, and enforced disappearances. Thousands of people have been detained over the years in official and unofficial detention centers under emergency regulations, many without charge for years, in violation of international law.

In a February 2010 report, Human Rights Watch documented the detention without due process rights of more than 11,000 people suspected of affiliation with the rebel Liberation Tigers of Tamil Eelam (LTTE) in so-called rehabilitation centers. Nearly 3,000 of them remain detained more than two years later.

The sweeping powers granted under emergency regulations also contributed to the large number of enforced disappearances in Sri Lanka. An increase in cases after large-scale fighting resumed in 2006 between the government and the LTTE placed Sri Lanka among the countries with the highest number of new "disappearance" cases. Sri Lanka has yet to account for the vast majority of those forcibly disappeared over the past two decades.

Sri Lanka has come under increasing domestic and international criticism for keeping its emergency regulations in effect after fighting ended more than two years ago. Sri Lankan officials have touted the lifting of the emergency as important progress toward normalization.

But many of the powers in the emergency regulations can also be found in the existing Prevention of Terrorism Act, Human Rights Watch said. Just like the emergency regulations, the PTA allows for arrests for unspecified "unlawful activities" without warrant and permits detention for up to 18 months without producing the suspect before a court. The government need not charge the person with an offense. The act also provides immunity from prosecution for government officials who may commit wrongful acts, such as torture, under the legislation. Legal proceedings are prohibited if an official acted "in good faith," or in "pursuance of any order made or direction given under this Act."

Human Rights Watch and others have long called for the repeal of both the emergency regulations and the Prevention of Terrorism Act. The UN Working Group on Enforced or Involuntary Disappearances has since 1999 recommended that the Sri Lankan authorities abolish it.

Sri Lanka's attorney general, Mohan Peiris, whose term ended on August 31, said that the lapsing of the emergency regulations will not mean a change in detention practices: "No suspects will be released and there is no change even though the emergency has been allowed to lapse," he told reporters. He suggested that there would be further laws implemented to ensure that the government could continue to hold the detainees, including an "omnibus empowering provision that enables the secretary of defense or the president to pass regulations as it is deemed necessary."

Peiris also said that new regulations were in force providing a legal basis for the continued detention of people detained under emergency regulations. The government has not made the regulations public, a requirement under Sri Lankan law. An August 6 presidential decree granted search and arrest powers to the armed forces, but it is unclear how long the decree will remain in force.

"The government should repeal all its abusive detention laws and make all laws and regulations related to detention public, instead of engaging in token measures for PR purposes," Adams said. "And all those illegally detained under these laws should be promptly freed."