OHCHR Sri Lanka

Draconian law cripples Sri Lanka’s reconciliation hopes

“The country’s leadership needs to act on commitment to repeal Prevention of Terrorism Act”

First published at http://www.ucanews.com/news/draconian-law-cripples-sri-lankas-reconciliation-hopes/78188 on 3rd Feb. 2017

In March 2014, my colleague, Father Praveen and I were arrested and detained under the Prevention of Terrorism Act by the Terrorist Investigation Department, under Sri Lanka’s authoritarian government of former president Mahinda Rajapakse.

Three months ago, under the new government whose slogan has been good governance and rule of law, I was briefly detained and interrogated at the airport while traveling to the United Kingdom for meetings related to human rights. More than two years after the new government came to power, the investigation against me and Father Praveen continues and we are still terrorist suspects.

Court orders restricting our freedom of expression, obtained in March 2014 by the state are still in place. Our electronic equipment, confiscated at that same time, has still not been returned. The investigation led to me being publicly discredited as a terrorist supporter. My parents and I will find it difficult to ever recover.

We were arrested while looking into the arrest of a large number of Tamils in north Sri Lanka, including Balendran Jeyakumary, the mother of a disappeared child, who had been a vocal campaigner against forced disappearances. Although Jeyakumary was conditionally released two months after President Maithripala Sirisena took office in January 2015, she was re-arrested a few months later and detained for about a week.

She was again summoned for intense interrogation in August 2016. She still must report to the police every month and must go to court regularly. She also faces social isolation, struggles to find work and has been compelled to keep her young daughter in a hostel. The arrest ruined her and her daughter’s life.

 

Continuing use of the Prevention of Terrorism Act 

The United National Party and the Sri Lanka Freedom Party, the two parties that have ruled Sri Lanka since independence, have used the act to suppress dissent for decades.

In 2008, during the last phase of the war, the act was used to arrest, detain and convict Tamil journalist, J.S. Tissainayagam. In 2009, it was used to detain Christian activist, Santha Fernando. After the war, in 2013, it was again used to arrest and detain opposition Muslim politician, Azath Salley. These are a few better-known examples.

A coalition of the two main parties formed a government in 2015 and continued to use the terrorism act to arrest and detain people, mostly Tamils, albeit on less intense scale.

Some were abducted and later found to be detained. No one has been held accountable for these abductions, bringing into question whether the directives on arrest and detention by President Sirisena in June 2016 have had any impact.

The arrest and detention of Jeyakumary, Tissainayagam, Santha, Salley, as well as Father Praveen and I received national and international media coverage and we had the support of committed lawyers and activists as well as the diplomatic community.

I believe we were released, after periods ranging from few days to two years, due to that support. But people who didn’t get such attention, continue to languish in jail without charge. When they are charged, trials can take years.

In 2015, two Tamil mothers were acquitted after being detained for a total of 22 years. There has been no acknowledgement of their suffering, no apology and no compensation.

I have been told by detainees and lawyers that charges were framed and convictions obtained based on confessions made under duress, as the terrorism act allows such evidence to be admitted for trial. Most detainees I have met have been tortured. They have been scarred for life, mentally and physically.

 

Replacing the act but retaining its draconian features

Recently, I saw a leaked version of a draft policy and legal framework for the Counter Terrorism Act, that will replace the previous act. Like its predecessor, it contains many draconian clauses. It has vague and broad definitions that could infringe on free expression and activism and grants excessive powers to the police to detain people for long periods without judicial supervision.

The spirit and purpose of the old and new acts are similar: giving extreme powers to the executive, military and police in the name of preventing and countering terrorism, and disregarding life, liberty and dignity.

The previous act served as a license for enforced disappearances, arbitrary detention and torture. It removed lifesaving protections when they were most needed: within the first few hours and days of a person being arrested.

The new Counter Terrorism Act seeks to extend this license with a new label and face. No official information has been made available to Sri Lankan citizens about the replacement act either.

 

Sri Lanka’s international obligations and waning international interest

Numerous U.N. treaty bodies have pointed out the terrorism act’s incompatibility with Sri Lanka’s international obligations, most recently the Committee against Torture in December 2016.

For several years, the U.N. High Commissioner for Human Rights raised similar concerns. But at the same time, some U.N. officials appeared to be willing to ignore these concerns or place excessive confidence and faith in the Sri Lankan government. In a report released earlier this month, the European Commission said that Sri Lanka must ensure its counter-terrorism legislation is in line with international human rights conventions. But it still granted trade privileges to Sri Lanka assuming the “government has started a legislative process to replace the Prevention of Terrorism Act and is making good progress in releasing persons detained under it.”

This appears optimistic at best. While some detainees were released in 2015-2016, there have been many new arrests. Cases continue at a snail’s pace and even those released continue to be harassed.  The terrorism act reform process is shrouded in secrecy, with the government appearing to consult the European Commission, U.N. and a few experts of their choice, instead of being transparent with the victims, their families and the Sri Lankan people.

 

Way forward

Repealing the Prevention of Terrorism Act and getting justice for detainees is a crucial element in forging reconciliation. How can we victims and our families talk of reconciliation if we are still being detained, investigated and face continuing restrictions?

How can we talk of reconciliation if there is no acknowledgement, no apology and no reparations? How can we believe guarantees of non-reoccurrence when the new government did not repeal the act for two years, when secret processes are underway to bring in similar laws, and persons continue to be abducted?

As a victim of the terrorism laws, what I think needs to be done is to ensure justice to all past and present detainees, repeal the legislation and, instead of focusing on equally draconian new anti-terror laws, focus on strengthening legal and institutional frameworks to combat crime and terrorism, while ensuring due process and protections.

The coming months could be crucial. The Council of Europe and the European Parliament must insist on the repeal of the terrorism act before enhanced trade status is granted. At the March session of the U.N. Human Rights Council, its member states and the U.N. High Commissioner for Human Rights must insist that the government fulfills its October 2015 commitment to repeal the Prevention of Terrorism Act in line with international standards. Both the U.N. and E.U. must stand for justice for terrorism detainees.

But what’s most needed is for the Sri Lankan people to recognize the injustices that have been done to their fellow citizens, brothers and sisters and express outrage about laws that infringe on their safety, freedom and dignity.

The president and prime minister must be transparent about efforts to bring in similar laws. Catholics and church leaders, the majority of whom have been silent, should be part of this, insisting that unjust laws are against the faith and that to justify them or be silent is a sin.

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Sri Lanka’s Transitional Moment and Transitional Justice

First published in the report “Human Rights situation in Sri Lanka: 17Aug 2015 – 17 Aug2016” by INFORM Human Rights Documentation Centre on 18th August 2016

Within the first month after winning the parliamentary elections in August 2015, the new Government made a series of commitments related to transitional justice. These were articulated through a speech by the Foreign Minister at the 30th session of the UN Human Rights Council.[1] These commitments were also reflected in the resolution on Sri Lanka that was adopted by the Human Rights Council on 1 October 2015.[2] The resolution came just after the UN High Commissioner for Human Rights had published a report which alleged war crimes and crimes against humanity and other serious violations of international human rights and humanitarian laws, by both the Sri Lankan government and the LTTE.[3]

Government’s commitments 

The present Government’s commitments included setting up an Office of Missing Persons (OMP), a Commission for Truth, Justice, and Guarantees of Non-reoccurrence, a Judicial mechanism with Special Counsel, which will have the participation of foreign judges, prosecutors, investigators and defence lawyers, and an Office for Reparations. The Government also committed to reduce the military’s role in civilian affairs, facilitate livelihoods, repeal and reform the Prevention of Terrorism Act (PTA), criminalise disappearances, ratify the Enforced Disappearance Convention[4] , review the victim and witness protection law, and range of other actions. Consultations to seek people’s views on transitional justice is underway across the country, under the leadership of some civil society activists.

The Enforced Disappearance Convention was ratified in May this year and the draft Bill to create the OMP was passed by Parliament on 11 August. There are positive features as well as weaknesses and ambiguities in the Bill[5]. Due to a history of failed initiatives, the minimal ‘consultations’ that occurred during drafting process and the lack of information on details, there appears to be very little confidence in the OMP amongst families of the disappeared. This is likely to be the case for other mechanisms, unless there’s a drastic change in approach from the government.

Reactions to transitional justice within Sri Lanka

Currently, the transitional justice agenda appears to be polarising Sri Lankan society. Opinion polls, and my own impressions, indicate that the Tamil community, particularly in the North and the East, who bore the brunt of the war, appears to favour strong international involvement. But the majority Sinhalese community appears to reject international involvement. Varying opinions have been expressed about forgetting the past, memorialisation, prosecutions, and amnesty. There are also different or contradictory opinions and expectations within each ethnic community and amongst survivors of violations and families of victims.

The Government’s transitional justice commitments have been criticised by the former President and his supporters. Even the release of a few political prisoners, the release of small amounts of land occupied by the military, and the establishment of the OMP to find truth about missing persons have been framed as an international conspiracy that endangers national security and seeks revenge from “war heroes”.

There does not appear to be an official Government policy document on transitional justice. The Government’s commitments have only been officially articulated in Geneva by the Foreign Minister and not in Sri Lanka . The Foreign Minister has been the regular advocate and defender of these commitments. Some of the meetings with local activists have been convened by him and the Secretariat for Co-ordinating Reconciliation Mechanisms (SCRM) is housed in the Foreign Ministry. All these contribute to the process being seen as emanating and driven by foreign pressure. Outreach on the Government’s transitional justice plans appears to focus on the international community and not towards Sri Lankan people.

The President and Prime Minister have not been championing the Government’s official commitments. For example, the duo have publicly stated that the commitment to have foreign judges in the judicial mechanism will not be fulfilled. Even this has not satisfied the critics alleging foreign conspiracy, and has disappointed some activists, especially Tamils, as well as survivors and victims’ families.

Developments on the ground

Monuments erected to honour the Sinhalese dominated military during the Rajapakse time continue to dominate the Tamil majority Northern landscape. Army camps that were built over some of the cemeteries of former LTTE cadres that were bulldozed by the Army after the war are still there. The loved ones of those whose remains were in these cemeteries have no place to grieve, lay flowers, light a candle, or say a prayer. While the numbers have reduced from those under the Rajapaske regime, intimidation and reprisals on families, attacks, and threats and intimidation of activists and journalists continue to occur. Limited progress on issues, such as the release of political prisoners, land occupied by military, continuing military involvement in civilian affairs in the North and East, reports of continuing abductions, and arrests under the PTA have raised doubts about the Government’s commitments. Although a few military personnel have been convicted and some others arrested on allegations of human rights abuses, the lack of progress in thousands of other cases only reinforces calls for international involvement for justice.

Towards Rights & Democratization beyond Transitional Justice framework

Unemployment, debt, and sexual and gender-based violence is widespread in the former war ravaged areas. The new Government’s economic and development policies are focusing on trade, investment, and mega development projects, which privilege the rich and marginalise the poor. Pre-war rights issues, such as landlessness, sexual and gender-based violence and discrimination, caste, rights of workers, including those working on tea estates, still need to be addressed.

A consultation process towards a new constitution drew a large number of public representations, dealing with many of the issues mentioned above. But the next steps are not clear, particularly in finding political solutions to the grievances of the country’s ethnic minorities.

The political leadership will have to reach out to all Sri Lankans, especially to the Sinhalese majority, about its reform agenda, while taking principled actions to win the confidence of numerical minorities such as Tamils and Muslims. At the national level, the coming together of the two major political parties and support of the two major parties representing Tamils and Muslims, makes this a unique opportunity to push towards radical reforms.

It will also be a challenge to go beyond a conventional transitional justice framework and use the transitional moment to move towards reconciliation, democratisation, and sustainable development, by addressing civil and political rights as well as economic, social, and cultural rights in a holistic manner, considering the yearnings of war survivors, victims’ families, and the poor, for truth, reparations, criminal accountability, and economic justice.

[1] Speech by Hon Mangala Samaraweera at the 30th session of the Human Rights Council, Geneva, 14 September 2015.

[2] Human Rights Council Resolution, Promoting reconciliation, accountability, and human rights in Sri Lanka, 14 October 2015, UN Doc. A/HRC/RES/30/1 (adopted 1 October 2015).

[3] Human Rights Council, Report of the OHCHR Investigation on Sri Lanka (OISL), thirtieth session, 16 September 2015, UN Doc. A/HRC/30/CRP.2.

[4] International Convention for the Protection of All Persons from Enforced Disappearance, adopted 20 December 2006, UN Doc. A/61/488 (entered into force 23 December 2010) (“Enforced Disappearance Convention”).

[5] For more on OMP, see http://thewire.in/42687/sri-lankas-disappeared-will-the-latest-missing-persons-office-bring-answers/

Activists in an international system: pushing for change in Sri Lanka

Local and international activists have been crucial in getting a UN response in Sri Lanka. A contribution to the openGlobalRights debate,Human rights: mass or elite movement?

Stephen Hopgood argued several years ago that it is activists, not states, who will make a difference in the future, and to a certain extent this has proved to be true in Sri Lanka. Undoubtedly, the primary struggle for human rights has to be waged at home. But there are also times when international support—such as the UN High Commissioner for Human Rights is crucial. For us, 2006-2014 was such a time.

In 2005-2006, I was working at the FORUM-ASIA Secretariat based in Bangkok. As the conflict in Sri Lanka escalated in 2006, I decided to go home and came back to chaos. There were large-scale enforced disappearances, extra-judicial executions, mass displacement, forcible recruitment (including of children), and severe restrictions on traveling and communication. It was also a time where human rights activists, including non-governmental organisation (NGO) workers, humanitarian workers, independent journalists, clergy and opposition politicians with critical views of the government, were killed, disappeared, detained or threatened. Domestic human rights protection mechanisms, such as the Judiciary, National Human Rights Commission and the Ad Hoc Commissions of Inquiries, had become completely ineffective.

It was a very dangerous time to be an activist living and working in Sri Lanka, and it is in this context that international solidarity became a crucial element of our struggle for human rights. The primary focus of our international advocacy was targeting the United Nations (UN), and a secondary strategy of engagement was towards the Commonwealth. The Commonwealth’s failure to intervene severely harmed its credibility, resulting in some heads of states boycotting the 2013 Commonwealth Heads of Government Meeting (CHOGM) in Colombo. And I still believe the level of atrocities we saw in the last phase of the war, particularly in 2009, could have been less if a UN Office of the High Commissioner for Human Rights’ field presence had been established.

In September 2008, when the government ordered all UN agencies to leave the war zone, the people appealed not to be abandoned. But we failed to persuade the UN to stay. In early 2009, as the war reached its peak and civilian casualties escalated dramatically, we as human rights defenders sought a special session with the UN Human Rights Council (UNHRC). We finally got it—but only after the war—and the outcome was a disaster for Sri Lanka and the UN.

The internal UN review that followed recognised that “events in Sri Lanka marked a grave failure of the UN” and that “many senior UN staff did not perceive the prevention of killing of civilians as their responsibility.” But in March 2012 and March 2013, with continued pressure from human rights groups, the tide started to turn. In March 2014, the UNHRC passed another resolution on Sri Lanka, asking the UN High Commissioner for Human Rights (OHCHR) to conduct an investigation into serious violations of human rights and related crimes in Sri Lanka. Though late and limited, this was a victory for survivors, victim’s families and some of us who had long campaigned for this, even when it seemed to be against all odds.


Flickr/Vikalpa (Some rights reserved)

 

In September 2015, the High Commissioner’s office released the report of its investigations. It detailed horrific narratives of unlawful killings, enforced disappearances, forcible recruitment of children, obstructions of movement to safe areas, sexual and gender based violence, torture, and arbitrary detention on a mass scale and in a systematic manner. The High Commissioner recommended the establishment of a Special Hybrid Court with international judges, prosecutors, lawyers and investigators to ensure accountability for the reported violations, along with other international action such as universal jurisdiction and vetting. The “hybrid court” and “international participation” appears to be what has caught the media attention. Going beyond this to address other needs such as truth seeking, reparations, memorialization, constitutional change and introspection is where more local activism is so desperately needed.

The strong involvement of survivors and the families of victims made a huge difference to international advocacy. While the international focus of Sri Lankan human rights defenders was on intergovernmental bodies, such as the UN, the Commonwealth and individual Governments, these would only change course if others—smaller in size but perhaps bigger in passion, determination and commitment—pushed them relentlessly. The strong involvement of survivors and the families of victims made a huge difference to international advocacy. Mothers, fathers, and wives came forward courageously to give testimony to high profile representatives from foreign governments and the UN, in Sri Lanka itself or in Geneva. Amongst those regular visitors and strong advocates was the wife of disappeared Sinhalese journalist, Mrs. Sandya Ekneligoda, and Dr. Manoharan, the father of a teenage Tamil boy killed on the beach in 2006.

Despite the government clampdown on local media, some international media continued to give coverage to stories of survivors of human rights violations and families of victims, in particular their struggles for truth and justice. Though their interest was not consistent and tended to focus on specific events, such coverage was essential since it was an opportunity to share an alternative narrative with the world. Several writers spent significant amounts of time with war-affected persons in the North and wrote books highlighting their stories, while others made films using materials from the last phases of the war and afterwards. They too had to face intimidations, defamation, severe restrictions on travel to the North, and surveillance and obstacles once they got there. Some were arrested, detained and deported. But these stories, through articles, video clips, films, photography and books, went a long way in keeping alive the dwindling world attention on Sri Lanka.

Probably the most controversial group has been the Sri Lankan diaspora. I met with several diaspora groups, some exclusively Tamil and some mixed with Muslim, Sinhalese and Tamil. Some diaspora groups clearly supported and justified the war and tried to cover up violence and abuses by the Liberation Tigers of Tamil Eelam (LTTE) and the Sri Lankan Government. But many with whom I engaged appeared to be fuelled by concern and care about what was happening in Sri Lanka, about the survivors and families of victims of human rights violations. Some groups became very influential in lobbying foreign governments and UN officials, and there is no doubt that they contributed to the developments in the UN in relation to Sri Lanka.

For us, the years between 2006-2014 were a time of desperation and emergency, when we local activists, students, artists and many other human rights defenders, needed the international system—but the international system would not have taken action if we hadn’t pushed for it. There is slightly more space now for us to work inside Sri Lanka, but it would be a mistake for our international friends to leave us now, especially after the long journey they have undertaken with us. We can only hope the UN and the Commonwealth step up.

As I give thanks, I look forward to a continuing journey.

*A longer version of this piece first appeared on Forum Asia.

Will UN rights chief’s Sri Lankan visit deliver outcomes?

First published at http://www.ucanews.com/news/will-un-rights-chiefs-sri-lankan-visit-deliver-outcomes/75236 on 17th February 2016

On Feb. 6, the day before a top U.N. official arrived at a camp for internally displaced people in Sri Lanka’s north it was visited by intelligence officers.

U.N. High Commissioner for Human Rights Zeid Ra’ad Al Hussein had planned to visit the camp in Jaffna province and the officers wanted to know who was organizing his visit and what they were going to talk with him about.

The camp is a sensitive issue because those living there have had their land occupied by the military for the past 25 years.

It was all a part of Al Hussein’s visit to Sri Lanka to monitor the progress of a U.N. Human Rights Council resolution that the Sri Lankan government co-sponsored in October.

Part of the resolution included a commitment by the government to return land to those who lost theirs during the country’s decades-long civil war.

Other commitments that Sri Lanka signed up to involve the repeal or reform of terrorism laws and reduction of the military’s presence in the north.

Through the resolution, Sri Lanka’s government also committed to establishing four transitional justice mechanisms covering reparations, missing persons, truth seeking and accountability through judicial mechanisms.

The intimidation of activists in the camp before Al Hussein’s visit is typical in Sri Lanka’s highly militarized north. This sadly remains a reality, despite the fact that the civil war ended nearly seven years ago.

The problems these areas face are many. They are impoverished with little economic prospects. The cemeteries of Tamil militants have been desecrated and traditional Tamil lands are now being cultivated by Sinhalese. Meanwhile Muslims struggle to return and establish themselves in majority Tamil areas a quarter century after they were evicted by the Liberation Tigers of Tamil Eelam.

These are but a few examples that some of my friends from the east discussed with Al Hussein who they met at a civil society meeting in the eastern city of Trincomalee on Feb. 7.

They said that Al Hussein and his team listened sympathetically, but despite the many issues examined, there were a few matters left out of the discussion. Among them were the predicament of survivors of Tamil Tiger massacres in Sinhalese “border villages” and how caste based divisions are resurfacing in the northern Tamil community.

Al Hussein’s visit could have been an occasion to ignite fresh momentum to deal with these issues. It could have been better used to re-energize survivors, families of victims and activists who are becoming frustrated and disillusioned with the direction the country is going in.

 

Overall, it appeared that Al Hussein took a political approach during his visit and gave priority to engaging with powerful politicians and officials.

He did though have time to visit the Temple of Tooth in Kandy (which was bombed by the Tamil Tigers) and Nallur Kovil in Jaffna, two of most sacred places of worship for Buddhists and Hindus respectively.

But the main part of Al Hussein’s visit to Kandy was to meet the influential Buddhist Chief Prelates who were later quoted in local media rejecting his rationale for international involvement in transitional justice.

Al Hussein appears to have failed to convince them about the trust deficit many Tamil survivors and victim’s families have of a process that’s entirely domestic and includes the serious deficiencies of Sri Lanka’s criminal justice system. Nor was he able to sway them about the importance of the government honoring the commitments it has made in Geneva on having international involvement in a judicial process dealing with accountability and justice for wartime abuses.

Several Tamil Catholic priests also met Al Hussein at a civil society meeting in Trincomalee. One of them told me that the U.N. official had been friendly, listened patiently and took notes diligently.

“There was not enough time to raise all issues,” the priest told me and advised me on areas I could stress on when I later had the chance to meet the high commissioner.

Overall, Christians are a minority in Sri Lanka’s North and East while also being a minority among the Tamil community. Despite this, Tamil clergy and the church have led institutions which have played a prominent and influential role in advocating for strong international involvement in pursuing accountability in Sri Lanka.

Going forward the clergy will have to analyze changes in domestic and international politics while understanding the situation at grass roots level. This will allow them to devise creative ways to engage and advocate in a way that is holistic and helps Sri Lanka reconcile with itself.

Significantly however, Al Hussein’s visit doesn’t appear to have generated any significant commitments by the Sri Lankan government, just like his agreement to defer war crimes investigation reports from March to September last year.

This is particularly worrying as the country’s president and prime minister have made public pronouncements to backtrack on key government commitments while resolutions and progress made on other commitments have been minimal. During this visit, the high commissioner could have set high benchmarks and left it to the politicians to deal with them.

Ruki Fernando is a human rights activist and consultant to the Justice, Peace and Integrity of Creation Commission of the Conference of Major Religious Superiors in Sri Lanka. He is also a member of the Asia-Pacific chaplaincy team of the International Movement of Catholic Students.

The challenge of doing what is right in Sri Lanka

First published at http://www.ucanews.com/news/the-challenge-of-doing-what-is-right-in-sri-lanka/74446 on 16th October 2015

After four contentious resolutions on Sri Lanka, the U.N. Human Rights Council in Geneva on Oct. 1 adopted a “consensus resolution” for foreign judges and prosecutors to help Sri Lanka try those accused of serious crimes during the decades-long civil war.

This resolution came as a response to a report by the U.N. Office of the High Commissioner for Human Rights, which the previous Sri Lankan government had aggressively opposed — going to the extent of threatening, intimidating and arresting Sri Lankans who supported it, including my own detention.

There were many Sri Lankans — civil war survivors and their families and activists — both inside and outside the country who braved government threats to testify to the U.N. investigation team. Their stories in the U.N. report reveal a long list of unlawful killings, disappearances, arbitrary arrests, torture, sexual and gender-based violence, forcible recruitment of children, restricting fleeing war-affected areas, attacks on civilians and hospitals, food convoys, churches, etc.

The report says these are systemic crimes that may amount to crimes against humanity and war crimes if proven in a court of law that both the Sri Lankan government and the rebel Tamil Tigers are culpable. It emphasized that Sri Lankan laws and judiciary were incapable of dealing with such crimes and that human rights violations still continue in Sri Lanka. It recommended a “hybrid court” with international judges and lawyers working with Sri Lankans.

 

Ground realities

The resolution doesn’t appear to have recognized the serious nature of the violations detailed in the U.N. human rights office’s report. It has “balanced” its findings and recommendations to accommodate political and ideological considerations of the Sri Lankan government that co-sponsored the resolution.

An example of a glaring omission in the resolution is justice for those detained for up to 19 years under the draconian Prevention of Terrorism Act, without having their cases concluded.

A few days before the resolution, a local court declared a Tamil mother “not guilty” after being in detention for more than 15 years. There has been no apology or redress for her. Some detainees of the Prevention of Terrorism Act recently began a hunger strike calling on authorities to expedite their cases. But nothing has happened.

The investigation against me also still continues, restrictions on my freedom of expression are still in place and my confiscated equipment still not returned.

In my travels in Jaffna, Kilinochchi and Mullaitivu recently, I saw no signs of a reduction in military involvement in civilian affairs despite a commitment to this in the resolution. The military continues to run farms, shops, restaurants, resorts and preschools. When I was traveling from Jaffna to Allaipiddy to visit a church that was shelled in 2006, resulting in the deaths of many civilians, I was stopped at a checkpoint by a policeman and armed soldier who wanted to know where I was going and for what purpose.

There are no signs that things are changing on the ground, even after the U.N. resolution.

 

Looking forward

In principle, the transitional justice mechanisms proposed by the Sri Lankan government through the resolution are positive. But the devil will be in the details. Who will be appointed to run these proposed mechanisms? How will they be appointed? What will be their mandate and way of operating? Answers to these will be key to its success.

The government has stressed consultations with all parties — but there is nothing to indicate that insights and inputs will be taken into account, especially by victims and their families, the majority of whom are Tamils.

The commitment to pay serious attention to crimes by Tamil Tiger rebels is welcome, although there will be skepticism on this front too, given the obvious reluctance to try self-proclaimed Tamil Tiger leaders now in government ranks.

Hopeful signs include the recent convictions of soldiers for a massacre that happened 15 years ago, as well as a separate conviction for the rape and sexual abuse of two Tamil women five years ago. Military officials have also been arrested for the killing of Tamil parliamentarians and the abduction of a Sinhalese cartoonist. But these should be looked at in the context of thousands of similar cases, some detailed in the U.N. report, often with complicity at the highest level and whose perpetrators enjoy total impunity.

The government’s several consultations with the military are of serious concern, since the military stands accused of some of the most serious crimes. The government’s public statements try to appease the majority Sinhalese community by emphasizing the protection of the military, instead of trying to convince them of the importance of justice for the mostly Tamil survivors and victims. The government simply doesn’t seem to have the political and moral vision and courage to take a principled position and do the right thing.

Media, civil society and religious leaders appear to be more focused on the international dimension of a judicial mechanism and paying less attention to mechanisms for missing persons, reparation, truth and reconciliation and other practical and important commitments that can make a difference to survivors and victims’ families.

Church and religious leaders should help their communities face up to the stories of their brothers and sisters crying out through the report, and reflect about what we have done to each other. They should move away from silence and inaction, especially from defending war criminals as “war heroes” or “martyrs.” They must insist that truth, justice and accountability are a must to guarantee reconciliation and non-recurrence of what Sri Lankans have suffered.

Ruki Fernando is a human rights activist and consultant to the Justice, Peace and Integrity of Creation Commission of the Conference of Major Religious Superiors in Sri Lanka. He is also a member of the Asia-Pacific chaplaincy team of the International Movement of Catholic Students.

(Sinhalese translation at http://www.vikalpa.org/?p=25134 and Tamil translation at http://www.jvpnews.com/srilanka/130018.html)

Court acquits Tamil mother after 15 years of detention under PTA

First published at http://groundviews.org/2015/10/05/court-acquits-tamil-mother-after-15-years-of-detention-under-pta/ on 5th October 2015

Last week, Tamil children in the North of Sri Lanka reportedly took to the streets to demand the release of their parents detained for years[1] under anti-terror laws[2]. This was hardly reported in mainstream Sri Lankan media. But many Sri Lankan media reported that two suspects in the Town Hall bomb case of 1999 (injuring former President Kumaratunga and countless others and killing 26[3]) were sentenced to 290 and 300 years respectively.

15-16 years for a conviction / release of a suspect

The two suspects were remanded on 18th September 2000 (possibly arrested even before that) under the PTA[4]. One of them had told a lawyer of torture[5]. Earlier this year, an Army officer was sentenced to death, 15 years after a massacre of Tamil civilians in 2000[6]. It took 16 and 15 years respectively for convictions to happen in these two cases. If appeals are made, it could take another several years for cases to conclude.

15 years to be determined not guilty – the PTA and the innocent detainees

Mrs. Vasanthi Ragupathy Sharma, a Tamil mother of three, was remanded on 27th July 2000[7] (date of arrest likely to be earlier, exact date not known) also as a suspect for the Town Hall bomb case and indicted in 2002[8]. After 15 years the High Court has determined she is not guilty. She is not alone. In May 2015, Courts determined that Mrs. Anthony Chandra, also a Tamil mother of three, was not guilty of any crime, after being detained since August 2008[9].

Problems faced by those detained under the PTA

A recent report that I was involved in[10] indicated that as of early 2015, there were persons in detention for as long as 18-19 years under the PTA without having their cases concluded and that, in some cases, it has taken up to 15 years to even file charges.

In that report, we identified that the PTA and ER have resulted in arbitrary arrest, prolonged detention without charges, long drawn out court cases, multiple cases against one suspect, inhumane detention conditions, torture, forced confessions and that the mental and physical well-being of detainees has been severely affected due to long term detention, and in the case of many, also as a result of rigorous interrogation and torture. There have been many cases of forced/coerced confessions where the detainee had not even known he was signing a confession as he/she could not understand the language it was written in. Many detainees have spent most of their youth behind bars.

Post release harassment & problems

The stigma attached to having been a “terrorist suspect” lingers. Even after they are released by Courts, society still considers them guilty. After her release, Mrs. Sharma has been facing problems finding a place to stay. Mrs. Chandra was unable to get back her job. Both have had no compensation and struggle to survive, with no income. Mrs. Sharma’s jewelry, handed over to Prison authorities on her remand, has not been returned. Prison authorities claim the jewelry has been lost[11].

Balendran Jeyakumary, who was released in March 2015 after 362 days in detention under the PTA without any charges,[12] was re-arrested and detained for almost a week in September 2015, despite having being released on bail after 362 days in detention. She is yet to be charged. For the supposed “crime” of looking into the circumstances of her and others’ arrests, I was detained under the PTA, along with a catholic Priest, in March 2014. While I was subsequently released without charge, 18 months later I am still not free. An overseas travel restriction was in place for 15 months affecting my frequent travels for human rights work. The investigation against me continues, the restriction on my freedom of expression still remains, and confiscated electronic equipment has still not been returned to me.

The need for transparency about PTA detainees

Despite some statements[13], there is still no clear official information about those detained under the PTA. The list we examined for our report excluded those detained in places such as Boossa and TID headquarters in Colombo.

We highlighted new evidence reported to Courts by an investigating officer[14] and interviews to media by several Naval officers who had spoken to and served food to detainees held at a secret camp[15]. It is not clear what investigations have happened in relation to these and action taken against those alleged to be responsible.

In August 2015, the Attorney General’s Department is reported to have told Courts that “nothing had come to light with regard to former LTTE leader KP[16], who had been arrested 6 years ago. KP’s own public pronouncements, about his involvement with the LTTE are in the public domain[17]. After his arrest, the official Government news claimed that he was on the list of wanted persons by Sri Lanka, India and Interpol for a range of terrorism related and other criminal activities and that he has been accused of arms smuggling, conspiring the assassinations of VVIPs including former Prime Minister of India Rajiv Gandhi in 1990, and in control of billions in US dollars of LTTE funds to the LTTE’s terrorist activities, some of which was extorted from Tamils living abroad[18]. But there seems to be a reluctance to proceed on this case.

Continuing use of the PTA and continuing reports of torture

Last month, the UN Human Rights Council was discussing a long list of systemic crimes committed in Sri Lanka, such as unlawful killings, enforced disappearances, arbitrary detention, torture, sexual and gender based violence, attacks on civilians in places such as hospitals and churches, forcible recruitment etc., and widespread impunity, detailed in the reports of the UN OHCHR[19]. The resolution on Sri Lanka adopted by the UN Human Rights Council to follow up on the implementation of the recommendations has a commitment to reform/repeal the PTA – but it is silent about ensuring justice to those detained under the PTA for long years – including those released without being charged and those not found to be guilty after lengthy trials, such as Mrs. Sharma and Mrs. Anthony.

A report released by the International Truth and Justice Project – Sri Lanka (ITJP) cited 11 cases of white van abduction, unlawful detention, torture and sexual abuse in 2015[20]. We learnt of one case this year, where a man was abducted from off the roadside in the North, detained in a secret detention facility, interrogated and brutally tortured. The TID officer has informed a lawyer that 20 persons have been arrested under the PTA this year. In reality, this number is likely to be higher.

PTA detainees and reconciliation

How the Sri Lankan Government and people will ensure justice for Mrs. Sharma and Mrs. Anthony will be key factors to be addressed if we are to move towards reconciliation. And there are many other PTA detainees like them – who might end up being released as not guilty or released without even being charged after years of detention, those who are still in detention without being charged for upto 9 years, those still detained without the conclusion of their cases for upto 19 years and those being harassed after release.

Sinhalese translation at UN report on Sri Lanka and Freedom of Expression-Ruki-30Sep2015(Sinhala)

Tamil translation at UN report and Freedom of Expression in Sri Lanka-30Oct2015 (Tamil translation)

[1] http://www.tamilguardian.com/article.asp?articleid=16065 andhttp://www.tamilguardian.com/article.asp?articleid=16081

[2] Prevention of Terrorism Act and Emergency Regulations

[3] http://www.news.lk/news/business/item/10046-two-suspects-in-town-hall-bomb-blast-sentenced-to-290-and-300-yrs

[4] Based on information in a list of detainees in remand prisons examined by the writer in early 2015

[5] Interview with a lawyer in 2015, prior to conviction

[6] “The Mirusuvil case” http://groundviews.org/2015/07/02/the-mirusuvil-case-why-searching-reform-is-urgent-and-necessary/ &https://en.wikipedia.org/wiki/Mirusuvil_massacre#Case_follow_up

[7] The date of arrest is unknown, but likely to have been earlier.

[8] Based on information in a list of detainees in remand prisons examined by the writer in early 2015

[9] Interview with HRDs and lawyers who have been assisting and representing her

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

[11] http://www.radiogagana.com/archives/5524

[12] https://freejeyakumary.wordpress.com/?ref=spelling

[13] http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=126154

[14] The investigating officer was from the Criminal Investigation Department (CID) – a special unit of the Police

[15] http://www.dailymirror.lk/82249/have-they-been-killed-or-hidden

[16] Popularly known as KP, full name reported to be Shanmugam Kumaran Tharmalingam

[17] http://www.channel4.com/news/exclusive-interview-tamil-leaders-concede-defeat, http://www.channel4.com/news/exclusive-interview-new-leader-of-the-tamil-tigers, http://dbsjeyaraj.com/dbsj/archives/1607,http://dbsjeyaraj.com/dbsj/archives/1631 and an formal announcement athttps://www.tamilnet.com/img/publish/2009/07/21_July_LTTE_English.pdf

[18]http://www.priu.gov.lk/news_update/Current_Affairs/ca200908/20090807kp_arrested.htm

[19] News release with summary athttp://ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16432&LangID=E (The report is divided into two parts which are interlinked: The overarching Report of the Office of the United Nations High Commissioner for Human Rights on Promoting Reconciliation, Accountability and Human Rights (A/HRC/30/61), available at  http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session30/Documents/A_HRC_30_61_ENG.docxand the accompanying report of the OHCHR Investigation on Sri Lanka (A/HRC/30/CRP.2) which can be found at  http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session30/Documents/A_HRC_30_CRP_2.docx

[20] http://www.itjpsl.com/wp-content/uploads/2015/07/Torture-in-2015.pdf

UN report on Sri Lanka and Freedom of Expression

First published at https://samsn.ifj.org/un-report-on-sri-lanka-and-freedom-of-expression/ on 30th September 2015

Earlier in September, Ruki Fernando was in Geneva as the reports of the UN Office of the High Commissioner for Human Rights (OHCHR) released the longest page-report (251 pages) narrating the horrific stories of unlawful killings and enforced disappearances out of Sri Lanka. Having been investigated himself under the grounds of terrorism Act, one which the OHCHR report has called for reviews. Ruki accounts a personal involvement and knowledge as he writes about the new UN report, its pros and cons, and how it could affect the cases of missing Sri Lankan journalists like Subramanium Ramachandran and Prageeth Ekneligoda as well as freedom of expression at large. 

In early September, I visited the parents of Subramanium Ramachandran, a Tamil journalist from Jaffna who has been reported as missing since February 200, having been last seen at an Army checkpoint[1]. There has been nothing heard since and his parents, now in their 80s, still desire for truth and justice, but appeared to have given up hope that their son will return. From Jaffna, I went on to Geneva. There the anguish of Ramachandran’s parents and many other families and survivors, was brought alive through the reports of the UN Office of the High Commissioner for Human Rights (OHCHR)[2]. The longer 251 page report (OISL) narrates horrific stories of unlawful killings, enforced disappearances, arbitrary detention, torture, sexual and gender based violence, attacks on civilians in places such as hospitals and churches. It highlighted reprisals against those seeking to challenge and question authorities in order to expose the truth and seek justice, which journalist Ramachandran had tried to do. It revealed denials, failures to carry out investigations and prosecutions such as in Ramachandran’s disappearance. It highlights inadequacy of domestic mechanisms and recommended a special hybrid court with international judges, lawyers, prosecutors and investigators, as well as actions by member states of the UN. The OHCHR report also called for review of the Prevention of Terrorism Act – under which I was arrested last year and I am still under investigation. A gag order restricting my freedom of expression is still there, after having given interviews to BBC, CNN another media outlets. Many other journalists, opposition politicians, clergy and activists have been arrested and detained under this draconian law, which has been and is still being used to curtail dissent and free expression. As the UN report was being released, I was sitting next to families of disappeared (journalists), including Sandya Ekneligoda, wife of disappeared Sinhalese journalist Prageeth Ekneligoda, outside the meeting room in the UN, as we were not allowed to go inside. I tried my best to translate the High Commissioners remarks through the webcast to Sandya. Prageeth’s case was mentioned in both reports. Sandya had waged an unrelenting battle for truth and justice, including giving testimony to the OHCHR. She welcomed the report, emphasizing the importance of looking at the past to move forward. The OISL report detailed the killing of the Sunday Leader[3] editor Lasantha Wickramatunge, the series of attacks on the “Uthayan”[4] and the alleged detention, murder and desecration of the dead body by the Army, of the well-known LTTE female TV presenter Isaipriya. Ramachandran’s was amongst the many such cases that were not mentioned by name. The reports highlighted the widespread, systemic and repeated targeting of media known to be critical of the government over an extended period of time, insufficient protection offered to media workers who faced recurrent attacks and how this led to self-censorship and exile in fear of their lives, as well as fact that the number of journalists and media workers killed was amongst the highest in the world. The report however appears not to have dealt with the connection between free expression and broader patterns of serious violations. For example, it has not emphasized the lack of access and restrictions for independent media during the last phase of war or even after the war and how this and the general repression of freedom of expression prevented serious violations being highlighted. The UN reports also doesn’t recognize the widespread use of state and private media to discredit independent-minded journalists, press freedom activists and others critical of the government, which hampered their ability to report freely and also led to exile and self-censorship and the fact that a large proportion of journalists killed during the period were Tamils. The reports noted that “surveillance, interference and harassment of human rights defenders continued to be reported from the district level” in 2015, despite a “significant opening of space for freedom of expression at least in Colombo”. Indeed, few days before the launch of the reports, Police in North and East obstructed peaceful signature campaigns for a petition to the UN. The OISL report emphasized the importance of an environment where victims and witnesses can participate without fear in transitional justice mechanisms and that such a climate does not yet exist. Truth seeking, memorialization, prosecutions will depend on the extent to which people, particularly survivors and victims’ families feel free to express themselves without fear of reprisals. Media will have a major role to play in covering these processes independently. It will have to report the contents of the OHCHR reports, reactions or lack thereof in a responsible manner. This will depend on the extent to which media can function independently, without threats, restrictions or political interference. _________

[1] http://en.rsf.org/sri-lanka-army-said-to-be-holding-tamil-23-03-2007,21420.html

[2] News release with summary at http://ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16432&LangID=E (The report is divided into two parts which are interlinked: The overarching Report of the Office of the United Nations High Commissioner for Human Rights on Promoting Reconciliation, Accountability and Human Rights (A/HRC/30/61), available at  http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session30/Documents/A_HRC_30_61_ENG.docx and the accompanying report of the OHCHR Investigation on Sri Lanka (A/HRC/30/CRP.2) which can be found at  http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session30/Documents/A_HRC_30_CRP_2.docx

[3] English weekly newspaper, well known for its fearless exposes of corruption

[4] A Jaffna based Tamil newspaper with the highest circulation, which had consistently criticized alleged abuses by the government and the military against Tamils