Month: October 2018

The terror of counter-terror laws

First published at http://www.sundayobserver.lk/2018/10/21/opinion/terror-counter-terror-laws on 21st October 2018

With the second reading of the Counter Terrorism Bill scheduled for Tuesday (23), rights activists are still raising grave concerns about the proposed legislation.

For about 40 years, the Prevention of Terrorism Act (PTA) served as a license for torture, sexual violence, enforced disappearances, and prolonged detention. Three years have passed since the governmental commitment to repeal it, and it must be done now.

There are also many problematic clauses in the draft of the proposed new counter terror law,which has been tabled in parliament, with the original Sinhalese name, and a new English name – “Counter Terrorism”. Crimes must be prevented and responded to, including serious ones termed as “terrorism” and we already have a plethora of laws to do this. It is also possible to amend existing laws to include any new types of crimes that are not included. Therefore there is no need for a new counter terror law.

We have been living in a state of almost continuous emergency for about 40 years from1971 to 2011. Emergency regulations were reintroduced in March 2018 for a short period when there was violence against Muslims around Kandy. Under the Public Security Ordinance (PSO), the President has absolute discretion, without judicial scrutiny, to declare a state of emergency and ‘emergency regulations’ that can override all laws except the Constitution. Parliament can extend such emergency laws beyond 14 days. Emergency regulations can take away procedural protections on arrests, detention, and trials, which are guaranteed under criminal law, and they can be used for entry, search, seizure of assets and properties, providing powers of arrest to the armed forces, and accepting confessions made to the police. 1

Emergency regulations have also introduced definitions of terrorism. Our Constitution also provides for restrictions of rights2 in the name of national security, without them even being required to be ‘proportionate’. In addition to the PSO and emergency regulations, Sri Lanka has about 15 other laws,3 which can deal with offences that are listed under the proposed counter-terrorism law.

The Bill contains vague and broadly worded definitions of the intention required for the offence of terrorism:4 The defined actions include ones that can infringe on dissent and fundamental rights guaranteed under the constitution.5 Even the exception clause to the above – the exercising of a fundamental right – is subject to that of being done in “good faith”.

There is no compulsion to protect an arrested person from physical harm. Conveying information about the arrest to the arrestee in her or his own language is not compulsory and where it cannot be given immediately, there is no specified time frame to do so. Even if family members are present at the time of arrest, there is a 24 hour period provided, to notify the family of the arrest details. If family members are not present at the time of arrest, serving acknowledgement of arrest is not compulsory. It is not compulsory for female suspects to be questioned by female officers or have a female officer present.

The time frame for a detainee to be produced before a Magistrate is doubled to 48 hours from the 24 hours limit allowed under ordinary laws, increasing the possibility of abuse. A person could be remanded for upto one year without charges and without bail.

Through Detention Orders (DOs) a police officer can tell the judiciary (a Magistrate) what to do, and the Magistrate must obey, in terms of detaining a person, granting bail or discharging an arrestee. These DOs can last up to two weeks at a time and with approval of a Magistrate, can be then extended for eight weeks. Detention is in places and conditions decided by a Minister. Appeals against DOs are to be made to a“Board of Review”, comprising the Minister the Ministry’s Secretary, and two others appointed by the Minister. A detained suspect’s lawyer and family can only access her or him with the prior permission of the Officer in Charge (OIC) of the detention facility or prison.

Lawyers cannot be present during interview and taking of statements. Police are given 72 hours to notify the Human Rights Commission of Sri Lanka (HRCSL) of a detention under a DO, but no time frame is given for the HRCSL to be given a copy of the DO. The Bill gives power to an OIC to do a medical examination of a detainee to check for visible injuries, and if there are visible injuries, the OIC only has to produce a suspect before a Judicial Medical Officer(JMO)and obtain a report.

If a Magistrate or the HRCSL thinks a place of detention/remand does not conform to the requirements of humane treatment (after a visit), they are to notify the Inspector General of Police/Superintendent of Prisons. However, neither of them are obliged to provide ‘whatever is necessary for humane treatment’.

Under the PTA, only police officers can make arrests, enter premises, conduct searches, and seize material, but the new Bill also grants sweeping powers to the armed forces and the coast guard. Police can seek an order from a magistrate to stop a gathering, a meeting, rally or activity, without a chance for an affected party to be heard. A Minister can proscribe an organization and declare any public place or any other location as a prohibited place indefinitely- without prior possibility for the affected to challenge this- powers that even the PTA doesn’t provide for. Additional powers that the Bill provides but the PTA does not have, are for the President to declare a curfew and call out armed forces so as to maintain public order.

The PTA only allowed seizure and forfeiture of properties of a convicted person, but the new draft law expands this to include those acquitted by courts or anyone else.

The Bill also legitimizes acceptance of a penalty such as a public apology, or reparation to victims of the offence- such as undergoing rehabilitation or engaging in community service. In the context of decades long court cases and high legal costs, the threat of fresh charges with high penalties may compel individuals to admit guilt rather than establish their innocence in a Court of law. The Bill also allows the Attorney General, the prosecutor, to play a judicial role by imposing penalties when withdrawing charges.

The new draft Bill improves on some of the draconian provisions of the PTA, but also goes on to provide the Minister, President, armed forces more powers than the PTA. We must not lower our standards to use a much abused draconian law like the PTA as a benchmark for any new law.

Extraordinary powers should always be an exception for limited purposes, limited periods and a limited geographical area, but the new law is a permanent all island law. It introduces offences that are vague and could criminalize exercise of human rights and dissent. It reduces checks and balances to safeguard life, liberty and wellbeing, reduces judicial discretion and grants extraordinary powers to a Minister, police, army and coastguard on top of the wide powers they could exercise even now through proclamation of emergency by the President. These are powers that have been heavily abused in the past and the new bill can facilitate continuation of such abuses. It can permanently militarize civil life, based more on security obsessed authoritarianism than democracy and rule of law. This must be opposed.

(The writer is a rights activist. A significant part of his work in the last few years has been about those detained under the PTA and those released. He has also been detained under the PTA, has a pending investigation for four and half years, and a court order restricting his freedom of expression)

[1]In the past, this has even included bypassing inquests required under ordinary laws for death of persons caused by the police or the army, or the death of persons while in their custody, and made it mandatory for all media organizations to submit their reports to the ‘Competent Authority’ prior to publication or broadcast.

[2]Such as right to be presumed innocent until proven guilty, freedoms of expression, assembly, association, and movement, equality before the law and non-discrimination.

[3] For example, Penal Code, Code of Criminal Procedure, Offences Against Aircraft Act No. 24 Of 1982, Suppression Of Unlawful Acts Of Violence At Airports Serving International Civil Aviation No. 31 Of 1996, Suppression Of Unlawful Acts Against The Safety Of Maritime Navigation No. 42 Of 2000, Prevention Of Hostage Taking No. 41 Of 2000, Prevention And Punishment Of Crimes Against Internationally Protected Persons No. 15 Of 1991, Suppression Of Terrorist Bombings Act, No. 11 Of 1999, Chemical Weapons Convention No.58 Of 2007,, Convention On The Suppression Of Terrorist Financing Act No. 25 Of 2005, Financial Transactions Reporting Act No. 6 Of 2006, Prevention of Money Laundering Act No. 05 of 2006 (as amended), Proscribing of Liberation Tigers of Tamil Eelam and Other Similar Organizations Law No. 16 of 1978, SAARC Regional Convention On Suppression Of Terrorism Act No. 70 Of 1988, United Nations Act No 45 of 1968 and regulations made under that to deal with terrorist financing and money laundering and which has led to listing of persons and organizations.

[4] Such as “intimidate a population”, “wrongfully or unlawfully compelling the government of Sri Lanka, or any other government, or an international organization, to do or to abstain from doing any act”, “prevent any such government from functioning” or “causing harm to the territorial integrity or sovereignty of Sri Lanka or any other sovereign country”.

[5]obstruction to essential services, obstruction, interference to any electronic or automated system and causing serious risk to safety of a section of a public.

The Struggle for Justice

First published at http://groundviews.org/2018/10/20/the-struggle-for-justice/ on 20th October 2018

Editor’s Note: The following are excerpts from a speech made at the Human Rights Education Award ceremony at the Law & Human Rights Centre in Jaffna, on 19th Oct. 2018

Dear friends,

I want to congratulate the Law and Human Rights Centre for organising this course. It is difficult but very important to do this in Jaffna, a place that sees continuing rights violations, impunity for serious violations in the past and courageous dissent and resistance, be it through protests, the arts, writing, or filing court cases.

Rights violations and struggles for justice

Today, after this event, I will be going to the Jaffna Press Club – for a commemorative event to remember life and work of Nimalarajan, a Tamil journalist killed on 19th October 2000. He is among many Tamil journalists killed, disappeared, assaulted, threatened, and intimidated during and after the war. No one has been held accountable. For many, justice for Tamil journalists appear to be less important than justice for Sinhalese journalists. Even now, Tamil journalists continue to face threats, intimidation, surveillance, interrogation. Not just them, but also families and friends.

This year and last year has been a year of protests in Sri Lanka – especially in the North and East. This includes continuous protests for more than one and half years by families of disappeared and by communities whose lands are occupied by the military. In addition to long drawn out roadside protests, families of the disappeared in Mannar and Vavuniya have published books documenting their stories. Some have met the President, others have made representations to international community representatives in Sri Lanka and Geneva. Some have filed court cases. Some of the leaders have been assaulted, threatened, intimidated and subjected to interrogation and surveillance. Even those inside prisons have been protesting – such as female detainees and political prisoners engaging in hunger strikes.

There have been a few significant victories emerging from these struggles. For example, last year, month long overnight roadside protests by communities in Pilakudiyiruppu and Puthukudiyiruppu led to the release of Army and Air Force-occupied lands. This year, the people of Iranaitheevu made a daring landing on their Navy-occupied island and reclaimed their traditional lands. Hunger strikes by political prisoners have led to reversal of unjust transfer of cases from Tamil areas to Sinhalese areas, and release on bail of some. Sandya Ekneligoda, whose husband disappeared, was threatened by a rough Buddhist Monk Gnanasara while inside court in 2016 – she refused mediation, insisted and courageously pursed justice in courts and finally, Gnanasara was convicted and put behind bars. These are exceptions to the rule, but it’s good to recall these struggles, and see what we can learn from those that were leading and involved in these.

We also need to be conscious of rights abuses, injustice and repression from non-state parties. Last month, a film looking at Tamil militancy, including the LTTE, in a critical way, was removed from the Jaffna film festival due to pressure from some people in Jaffna. Earlier this week, a photo exhibition, a substantial part of which included photos about rights violations in the North and East including disappearances and land, was not allowed to be held in the Peradeniya University by a student group. Last year, several months long protest was held against caste based oppression in Jaffna.

Protests have been held across the North and East against unjust schemes by microfinancecompanies that pushes people into debt and even suicide. The Catholic Archbishop of Colombo preached that human rights are not so important, that it’s a Western concept, that it’s only for people without religions, despite strong views supporting international human rights framework by successive Popes including Pope Francis. Most Muslim men and clergy resist reform of the Muslim Marriage and Divorce Act (MMDA) which legalises blatant discrimination of women and child marriage of girls. Some Buddhist clergy and their followers have been at forefront of violence against Christians and Muslims. Even as we try hold the state accountable, we must also expose and challenge armed groups, business enterprises, religious groups and in general oppressive social – cultural practices that facilitates, justifies and promotes rights abuses and undermines struggles for justice.

It is also a challenge to critically engage with new laws and institutions that we are faced with. These often fall short of legitimate expectations of survivors, victim families and affected communities. They are often compromised, or seek to whitewash old and existing violations and paint a rosy picture of the present situation. The Office on Missing Persons (OMP) established earlier this year and the Act on Reparations approved in Parliament last month are examples. But they also offer tiny rays of hope for a minimal degree of redress to at least a few survivors, victim families and affected communities and thus, we should be careful about rejecting them totally or boycotting them. The Right to Information Act and the Commission is an example of a recent development that have provided answers to some citizens who proactively sought answers about what’s hidden – such as military occupied land and military run businesses, entitlements in terms of flood relief etc.

I want to spend some time to talk about another draft law that’s before parliament now. The Counter Terrorism Bill. We must all stand for immediate and long overdue repeal of the PTA – the Prevention of Terrorism Act. But we must resist the temptation to compare the Counter Terrorism Act with the draconian PTA, and instead, focus on looking at extremely problematic clauses of the CTA which have the potential to restrict our rights and takes away essential lifesaving checks and balances in face of arrest and detention. It is not even compulsory to have a female officer question a female. It is not compulsory to serve acknowledgement of arrest and detention to family of the detainee. The draft restricts roles of the judiciary and confers extraordinary powers to the police, military, the Minister and the President. But we must also ask the more fundamental question of why we need a CTA, especially when we have a Public Security Ordinance, which gives enormous discretionary powers to the President to declare emergency regulations? Why do we need a CTA when our constitution allows restrictions on fundamental rights in special circumstances including for national security? When we have around 15 other laws, including those dealing with terrorism, hate speech that may cause communal disharmony, and money laundering? Laws such as the PTA, have served as license for enforced disappearances, arbitrary arrest and prolonged periods of detention, torture and sexual violence, and crackdowns on freedom of expression, assembly, association and movement. This is true for Sri Lanka and across the world. In Sri Lanka, it is Tamils who have been disproportionately affected by PTA and it is crucial that the Tamil National Alliance (TNA) which is the major political alliance representing Tamils in parliament, and also the opposition party, stands for the full repeal of the PTA, highlights the problematic clauses of the new counter terror law and oppose it’s enactment. And I believe all of us, especially Tamils in the North and East, must demand this from the TNA.

Human Rights Education and certificates

We cannot talk about human rights education, human rights courses and diplomas isolated from the above context. I would like to mention three elements I consider to be important in human rights education. One is the need to study philosophy, history, laws, institutions, gaining skills to research, theorise, analyse. Secondly, to learn about rights violations and abuses. Thirdly, to learn about struggles for justice. I have not followed any course or diploma in human rights, and learned the first in the process of the being involved in the second and the third. Unlike the first, the last two cannot be studied from the comfort of meeting rooms, or in hotels, classrooms, libraries or research online. We have to learn about violations and struggles against them from survivors of violations, families of victims and affected communities. By meeting them where they are – such as in their homes, in hospitals, prisons, IDP camps, or by joining them in their struggles – at a roadside protest, a hunger strike, an overnight vigil, in court battles, or negotiating with authorities.

I’m aware that some of you in the class, your friends, and your family members may also be survivors of violations. Some of you maybe already be involved in struggles for justice. I was impressed when most of you following the course agreed to visit the families of disappeared at the overnight roadside protest. And I’m happy to hear that some who participated are involved in LHRC work as volunteers.

Today, you will get a certificate. Receiving a certificate can be a nice feeling, give a sense of achievement, and practically, they can help you advance in your education and career. The certificate is a small indicator of you completing the course on human rights. But the real indicator of learning about human rights will be from what you do to prevent violations, fight against them, and support the struggles of survivors, victim families and affected communities. You may not get certificates when you do this, but instead, face persecution and reprisals from state, from your own community, colleagues, friends and families. I have faced and still face such challenges and often ask myself whether it was worth it. I hope you will rise to this challenge. I hope the course will support the emergence of a new generation of activists and strengthen ongoing struggles for justice.

No Peace in Rest

First published at http://groundviews.org/2018/10/19/no-peace-in-rest/ on 19th October 2018

The Sri Lankan State’s erasure of the complex history and experiences of the war manifest in varying ways across the country; military monuments that showcase a single victory narrative, the construction of Buddhist statues in Tamil-majority areas and the blatantly incorrect signboards at several of these locations. Then, there is the desecration of the Liberation Tigers of Tamil Eelam’s (LTTE) ‘maaveerar thuyilum illam’, which loosely translates to ‘great heroes’ resting places’.

Here lie bodies of LTTE cadres killed in combat. In the several cases where bodies could not be recovered, memorial headstones are erected. The people who remember them in their original state are quick to say that they were graveyards as much as they were gardens, or even temples, meticulously designed and maintained by the LTTE and their families. Now, some of them are cement fragments piled in the centre of a vast field, while others now form the foundation of a few of the many army camps that cover the peninsula.

On November 27, the thuyilum illams across the Northern and Eastern provinces would become the sites of community mourning and celebration of ‘Maaveerar Naal’, the LTTE’s ‘Great Heroes Day’ celebration. Held on the anniversary of the death of Shankar, considered to be the first ‘maaveerar’, a symbolic lamp is lit and the LTTE flag raised at 6.05pm, allegedly his precise time of death. It was the day Velupillai Prabhakaran, leader of the LTTE, would make his annual speech. These observances are said to provide the community with the feeling that by sacrificing their lives, the dead cadres would grasp eternity.

Commemorations are no longer carried out at the scale they were during the conflict, however they remain problematic due to the explicit promotion of the flag and symbols of a proscribed organisation. There are also questions around the heroic remembrance of those who, by giving their lives to their cause, orchestrated the death of civilians. This is so in the case of the Black Tigers, who dedicated themselves to specialised suicide missions at specific targets, many of which were civilian spaces. Survivors and families of victims of the LTTE’s atrocities, including Tamils, question why the cadres should be remembered and celebrated as heroes in public collectively, in events that often have a political dimension. However, those interviewed in this piece say the former cadres’ families only want the right to remember and grieve.

Conflating Remembrance Day With Maaveerar Naal

Efforts in 2017 to remember those who perished in Mullivaikkal in May 2009 were restricted, because the police thought that those being mourned were LTTE cadres. The two are distinctly separate; Mullivaikkal commemorations in May are regarded as remembrance of all those who perished in the war, but a larger focus is on civilians. Similarly, journalists have written that it is ‘a grave blunder to assume that the ‘Maaveerar Naal’ of the LTTE is a day of national mourning for the Tamils of Sri Lanka.’

Though many in the North and East had family members who joined the LTTE and many Tamils are sympathetic towards the LTTE even today, not all Tamils have connections to the LTTE. There are those who have suffered under the LTTE; surviving assassination attempts, forcibly recruited, recruited as children, shot at when attempting to flee LTTE-controlled areas in May 2009, and more. These survivors, as well as families of Tamils who fell victim to LTTE’s violence, do not regard the LTTE as their representatives or as heroes.

There is also controversy as to why the JVP, who also took up arms against the state, and engaged in abuses against civilians, are allowed to mourn their dead publicly in heroes remembrances (viru samaruma) when the thuyilum illams have been destroyed by successive governments. It is interesting too to note that the JVP and the LTTE were described differently during the JVP insurgencies – the English and Sinhala media often referring to the former as ‘subversives’ and the latter as terrorists.

The destruction

The army would destroy the thuyilum illams in its path as it gained ground during the war, reducing the headstones and graves to rubble and in a few instances, we were told had even dug bodies out of the ground.

The State’s efforts to clamp down on post-war memorialisation meant that families of the fallen cadres had no opportunity to mark Maaveerar Naal. But there were also restorations and reconstructions as the LTTE gained access to and varying degrees of control of areas the Army had earlier captured. For example, in Kopay, in the Jaffna district the thuyilum illamwas destroyed once the Army gained control of the area in 1995. But after the ceasefire of 2002, the LTTE regained access, rebuilt and memorials began again. They even had placed a plaque at the entrance, with remnants of the destruction. As the ceasefire collapsed, the Army again destroyed it and built a camp over it, which still stands. Around 2012, some Tamils in the North and East defied government’s crackdowns and organized remembrance events, but these were not held in thuyilum illam sites. In 2012, when Maaveerar Naal fell on the same day as Karthiaai Vilakeeduu, the Hindu festival of lights, residents lighting lamps at the University of Jaffna came under attack from the security forces.

From 2016, families and communities, supported by some Tamil politicians, clergy and diaspora, started to publicly but mutedly markMaaveerar Naal. Some did this by arranging remaining fragments of headstones, clearing the overgrown fields, and restoring some order to what had been destroyed. Surveillance and the presence of intelligence personnel was recorded in many locations, and some thereby resorted to a single lamp lit near where the resting place used to be.

The Right to Remember and Mourn

The right of all communities, and families, to remember their dead who were lost in combat is laid out in international humanitarian law. Government-appointed bodies such as the LLRC and the Office on Missing Persons have also made recommendations on remembrance and memorialisation in general while the Consultation Task Force on Reconciliation mechanisms (CTF) has explicit reference to remembrance of dead LTTE cadres. One submission, quoted in the report, said ‘20 LTTE graveyards from across the North and East of Sri Lanka, comprising thousands of graves and commemorative plaques for LTTE fighters were bulldozed after the war’ and acknowledged that “the destruction of LTTE cemeteries, the grief it had caused and the need to preserve the sanctity of the dead’ was raised frequently during its hearings. The CTF then recommended the restoration of burial plots to family members and the removal of all buildings subsequently erected on them. The CTF also made a general recommendation noting that the ‘sanctity of all sites, where those who perished or disappeared in armed conflicts are buried, interred or symbolically remembered is respected.’

possible reason for the destruction of the thuyilum illams could be that the military who carried out these acts were motivated by a wish to ‘deny the defeated LTTE any focal points for resurgence’ . These actions, however, only serve to deepen divide between the ‘conquering’ and the ‘conquered’, hindering possibilities of understanding and reconciliation between groups.

As Sri Lanka nears ten years since the end of the conflict, many of the initiatives intended to address wartime abuses and post-war issues are yet to come to fruition. The families of the disappeared still wait for answers, and some have been engaged in protests for around 600 days at the time of writing. Land release is slow, and militarisation in the North and East remains an ever-present issue. These issues are compounded by the denial of their right to mourn their loved ones. The desecration of the thuyilam illam, in this light, acts not as a deterrent but as a ‘focal point for enhanced embitterment towards the government’.

Note: For a map of 14 locations, photos, description of each site with history, statistics, quotes from local people including family members of Maarveerar, see the full story at https://cpasl.atavist.com/nopeaceinrest