Political prisoners and counter terror laws

First published at http://www.sundayobserver.lk/2018/09/23/news-features/political-prisoners-and-counter-terror-laws on 23rd September 2018

On 14th September, eight Tamil detainees in the Anuradhapura prison, detained under the Prevention of Terrorism Act (PTA) since around 2009 commenced a fast. Their cases are yet to be concluded, with a major reason for delays being the non-attendance of officials from the Attorney General’s department who are prosecuting the cases. One of the cases has not had a hearing for about 5 years. They are demanding to be released or be subjected to short term “rehabilitation” – a form of detention that doesn’t entail a judicial trial and sentence.

The term ‘Political Prisoners’ is used in relation to those detained under the Prevention of Terrorism Act (PTA). The Government rejects the term ‘political prisoner’, insisting that cases need to be resolved through legal than political perspective, though the crimes these detainees are suspected to have committed have a political context involving an armed struggle with political objectives. The Opposition leader, who is also the leader of the Tamil National Alliance (TNA) has stated in Parliament that “these cases have a certain political dimension and cannot be addressed as purely as a legal issue” and that “circumstances of not addressing the national question reasonably makes it obligatory to address this issue politically”.[1]

Examples of prolonged detention

Prolonged detention has been a hallmark of detention. In the last few years, men and women have been acquitted as not guilty after being detained under the PTA for as long as 15, 10 and 6 years.[2]A 2015 report indicated that as of early 2015, there were persons in detention for 18-19 years under the PTA without having their cases concluded and that it has taken up to 15 years to even file charges in some cases[3]. The National Movement to Release Political Prisoners has indicated there are 107 political prisoners as of now. A July 2018 document provides more details, such as;

* Up to 7 year’s detention without charge being filed

* Up to 13 years detention without completion of trials

* 46 against whom charges have been framed without their cases being concluded – with 16 of them being in detention for 10-13 years

* Another 13 have not even been charged – with 6 being in detention for 5-7 years

They are being held in 10 prisons in Colombo, Negombo, Mahara, Anuradhapura, Kandy, Batticaloa, Polonnaruwa and Moneragala. There are also 37 who have been convicted and 17 who have appeal cases pending. Some have been detained for 15-17 years before being sentenced. The severest sentences range from death sentence, life sentence, 600 years, 200 years and lesser sentences ranging from 1.5 years to 6 years.

Even some who had been released after going through the Government’s rehabilitation for those connected with the LTTE, have been re-arrested. In the case of two such detainees, they were re-arrested in 2010 and charges filed in 2013. After a few months, the Attorney General (AG) had withdrawn the indictment to change the charges. On Feb. 21, 2016, the three suspects had started a hunger strike. They had been brought before courts 36 times by this time. They stopped the hunger strike based on a commitment by the AG to present the amended indictment before courts within 2 weeks. But the amended indictment was only presented to courts in June 2017.

Re-arrests and transfers

Subsequently, the AG had informed them that the case will be transferred to the Anuradhapura High Court, which led to two of them, along with another accused, starting an another hunger strike, demanding the case to be brought back to Vavuniya High Court, insisting they will not be able to get a fair trial in Anuradhapura. The language of the courts in Anuradhpura is Sinhalese, while the language of the Courts in Vavuniya is Tamil. The three Tamil suspects does not understand Sinhalese. It is also very difficult to obtain legal representation for Tamil political prisoners in a Sinhalese majority area like Anuradhapura, and in this particular case, the senior counsel for the three suspects had refused to appear in Anuradhapura.

There is an ethnic bias in transfer of cases of Tamil suspects and accused from Tamil majority North and Eastern provinces to Sinhalese majority areas. When the complainants / victims were Tamils and the accused have been Sinhalese military personnel, cases were transferred on basis of security of accused. In the past, courts in Sinhalese majority areas had accepted confessions made by suspects in detention, whereas Courts in Tamil majority North have rejected such confessions.

Past protests and promises by politicians

In April this year, the “speedy release of all Tamil political prisoners” was one of the ten guarantees the TNA had reportedly sought when they had supported the Prime Minister during No Confidence Motion.[4] In July, TNA leader had promised activists to speedily resolve the problem of political prisoners. According to an activist, a Tamil Minister has not responded for a week to requests for a discussion after the latest fast had commenced. TNA MP and spokesperson Parliamentarian M A Sumanthiran had visited the detainees presently engaged in the fast and taken up the matter with the Prime Minister, but there has been no response yet.

Fasts and protests by political prisoners in Sri Lanka have been common, including in 2015, 2016, 2017 and now 2018. After the 2015 protests, bail was granted to about 40 detainees. Last year, it took a fast of more than a month by three detainees to correct an unjust transfer of cases from Vavuniya to Anuradhapura. When detainees resort to drastic steps such as fasts and protests, there is temporary interest among politicians, media, activists and international community, but momentum and interest had often been lost afterwards, until another fast or protest is initiated by desperate prisoners. The negative impacts on mental and physical health of detainees and their families due to regular fasting is likely to be high, coming on top of the inhumane and degrading treatment and torture they are usually subjected to.

Negative impacts of the PTA

The PTA had resulted in arbitrary arrest, prolonged detention without charges, long drawn out court cases and multiple cases against one suspect. Mental and physical well-being of detainees have been severely affected due to long term detention and as a result of rigorous interrogation, cruel, inhumane and degrading treatment and torture. Many detainees have spent most of their youth behind bars. The stigma attached to having been a “terrorist suspect” lingers even after they are acquitted or released by Courts, with society still considering them guilty.

There have been many cases of forced/coerced confessions where the detainee had not even known she/he was signing a confession as she/he could not understand the language it was written in. The detainees currently on a fast have claimed that the only evidence against them are forced confessions.

A 2018 UN report indicated that 80% of those arrested under the PTA in late 2016 had complained of torture and physical ill-treatment following their arrest, in cases which were later dealt with under ordinary criminal law.[5] The same report quoted the most senior judge responsible for PTA cases as saying that in over 90% of the cases he had dealt with in the first half of 2017, he had been forced to exclude the essential confession evidence because it had been obtained through the use or threat of force. The judge in special High Court in Colombo had been quoted as saying he had only been able to accept one out of eleven confessions as evidence, while in Anuradhapura, out of fourteen cases, twelve were said to have been based solely on unreliable confessions.

The PTA has been used against opposition politicians, journalists and rights activists to suppress dissent. I have also been arrested and detained under the PTA and along with others such as Balendran Jeyakumary, and we are considered terror suspects more than four and half years after our arrests.

Do we need a PTA or any counter-terror laws?

The present Government promised to repeal this law more than three years ago. But it is still being used and there is no date announced for it’s repeal. Instead, the Government had engaged in secret processes to draft laws that would replace the PTA. Media reports earlier this month about a draft counter – terror law approved by Cabinet indicates that problematic clauses such as admission of confessions made to Police and enabling the Defense Ministry to be the authority to implement the provisions of this bill as a piece of legislation dealing with national security will be introduced at the Parliamentary Committee stage, eliminating possibilities of judicial review of such amendments.[6]

However, a more fundamental question is whether we need any counter–terror laws. There is wide-ranging powers available under the Public Security Ordinance, the possibility of including new offences under ordinary law, powers of Magistrates to deny bail in a variety of situations etc. Counter-terror laws provides the executive and security establishment extraordinary powers with minimal checks and balances as well as discretion usually vested with the judiciary, negatively affecting life and liberty, rights and dignity of persons, often serving as a license for enforced disappearances and torture.

Comparisons have also been made to the way detainees were treated in relation to the JVP insurrections, highlighting that Sinhalese political prisoners connected to JVP insurrections were released faster or pardoned than political prisoners connected to the LTTE, the vast majority of whom are Tamil. Protests, including fasts unto death, have been held regularly across the country, including by detainees themselves and their families, and discussions have been held with politicians, but with very little results. Until solutions are found for all political prisoners, both through legal and political processes, and unless we stop resorting to counter-terror laws, reconciliation and democracy will remain distant in Sri Lanka. Most urgent, and immediate, is to respond constructively to the ongoing fast in Anuradhapura. Blurb

The term ‘Political Prisoners’ is used in relation to those detained under the Prevention of Terrorism Act (PTA). The Government rejects the term ‘political prisoner’, insisting that cases need to be resolved through legal than political perspective, though the crimes these detainees are suspected to have committed have a political context involving an armed struggle with political objectives.

[1] http://srilankabrief.org/2017/10/tamil-political-prisoners-in-sri-lanka-…

[2] https://twitter.com/rkguruparan/status/923671056300339200 and http://groundviews.org/2015/10/05/court-acquits-tamil-mother-after-15-ye…

[3] http://groundviews.org/2015/09/05/pta-detainees-ignored-under-yahapalanaya/

[4] http://www.dailymirror.lk/article/TNA-s-key-role-in-defeating-no-confide…

[5] https://www.ohchr.org/Documents/Countries/LK/Sri_LankaReportJuly2018.PDF

[6] http://www.dailymirror.lk/article/Cabinet-nod-for-Counter-Terrorism-Bill… Attachments area

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