Abduction

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.

Can the Office of Missing Persons make a difference?

First published at http://www.ucanews.com/news/can-the-office-of-missing-persons-make-a-difference/77471 on 2nd November 2016

Ruki Fernando, Colombo
Sri Lanka November 2, 2016

Sri Lanka has a legacy of disappearances. According to the government, 65,000 complaints have been received since 1994.

The country also has a legacy of government failure to uphold the rights of victims’ families to truth, justice and reparations.

Sri Lankan society also has a legacy of apathy in the face of mass disappearances — in the past and even now.

Since the end of the civil war in 2009, families of the disappeared have become symbols of resistance and courage — the front line in the pursuit of truth and justice.

The international attention they have attracted has ensured that the present Sri Lankan government has given some priority to addressing disappearances. In August, parliament passed a law to establish the Office of Missing Persons.

The move followed a visit by the United Nations’ Working Group on Enforced and Involuntary Disappearances in November last year, 16 years after their last visit. The government also ratified the International Convention for the Protection of All Persons from Enforced Disappearances in May.

However, the government has stopped short of allowing Sri Lankans to lodge complaints directly with the committee monitoring the implementation of the convention. The criminalization of enforced disappearances, an obligation after ratifying the convention, has not happened.

The government had committed to nation-wide consultations on transitional justice mechanisms such as the Office of Missing Persons. But instead of consulting the people, the government relied on a secret process to come up with a draft bill to establish the office.

In May, the Foreign Ministry held a hastily convened briefing for a few activists. At the insistence of the activists, a further briefing was held with some families of the disappeared. Four days later the draft bill was approved by the cabinet and subsequently passed by parliament with some amendments, but without a substantial debate on the bill.

The Office of Missing Persons Act has some positive features. There are no time limits or geographical restrictions on claims, anonymity is guaranteed for witnesses and there are powers to summon people, obtain documents and issue search warrants and court orders. The Office of Missing Persons can also have branch offices.

But there are limitations. There is little place for victims’ families to participate in the Office of Missing Persons processes. Furthermore, the Act does not give the office the authority to prosecute. One of its clauses states that the office’s findings cannot lead to civil or criminal liability. There is also no requirement for the Office of Missing Persons to work in tandem with prosecutorial bodies.

Despite widespread poverty, there are no initiatives to ensure economic justice for families or offers of interim financial and material relief. The right of the families to reparations has been relegated to an Office for Reparations, a totally separate entity that is likely to take longer to establish.

Progress in the courts has been slow and unpromising. While there were regular hearings at the Magistrate Courts for disappeared Sinhalese journalist Prageeth Ekneligoda, there have been no indictments against any of the suspects arrested.

This month, the president expressed displeasure about military personnel being detained and his wife had complained of threatening calls. There appears to be no progress for many other cases, including well-known cases of Tamils such as journalist Ramachandran Subramanium, Catholic priests Father Jim Brown and Father Francis Joseph, and human rights activist Stephen Suntharaj.

Catholic priests have been amongst the disappeared, yet, by and large, church leaders and the Catholic community has not been an active supporter of the families of the disappeared. There have been some notable exceptions but these individuals have faced arrest, threats, intimidation and been branded “traitors.”

In the months leading up to the establishment of the Office of Missing Persons, several cases of abductions were reported, with at least 10 between March and June this year. At least two of those who disappeared have not returned, despite complaints to the police and Human Rights Commission. Some have been reported to have been found in police or remand custody and others dumped by the roadside after being abducted.

The Office of Missing Persons, like other transitional justice mechanisms, came out for the Sri Lankan government’s commitments to the U.N. Human Rights Council in Geneva in September 2015. It appears these were more about placating the international community than addressing the grievances of families of the disappeared.

However, there is still hope the Office of Missing Persons can make a difference.

For this to happen the office must appoint individuals of integrity and competence. These appointments should include family members of the disappeared. They should encompass women, ethnic and religious minorities. Independent international involvement is a must. The government should criminalize enforced disappearances before the Office of Missing Persons begins its operations.

But in the end, the success of the Office of Missing Persons will depend on Sri Lankans. The families of victims and activists, including Catholics, will have to critically engage with the Office of Missing Persons in order to ensure it delivers on what it promises.

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.

UN Chief’s Visit to Sri Lanka Does Little to Address Struggles of Those Awaiting Justice

First published at http://thewire.in/65729/un-secretary-generals-visit-and-tears-of-sri-lankan-survivors/ on 13th September 2016

Ban Ki-Moon acknowledged the “big mistakes” the UN made in relation to Sri Lanka under his leadership, but is yet to lay out a concrete rights-based strategy for the country.

bankimoon_reuters

UN Secretary-General Ban Ki-moon with Sri Lanka’s Foreign Minister Mangala Samaraweera in Colombo. Credit: Reuters

Madushka De Silva disappeared on September 2, 2013 in Anuradhapura – Sri Lanka’s Sinhalese-Buddhist heartland in the North Central Province. The third anniversary of his disappearance coincided with Ban Ki-Moon’s visit to the country. On that day, the UN secretary general was so close, and yet so far from De Silva’s wife, Mauri Inoka.

While Inoka, along with about 12 activists, was confronting a hostile police on the streets of Colombo, who claimed to be concerned about the security of the secretary general, Moon was at the nearby Hilton Hotel with his delegation, politicians, government officials and some of Colombo’s diplomats and civil society activists. The secretary general, or even a member of his delegation, had no time to drop by and spend a few minutes with Inoka, who had submitted a formal complaint about the disappearance of her husband to the UN. When she went to the hotel to attend the secretary general’s “public” lecture, she was turned away, as she was not on the list of “public” who were invited to this “public lecture”.

Beyond the physical distance and barriers, Inoka’s frustrations with the new government appeared to be in stark contrast with the secretary general’s optimism and praise for the new government. Or perhaps, it showed the distance between the diplomatic niceties of the UN and the tears of Inoka and her children along with the tens of thousands like her.

 Attacks on freedom of expression and assembly

Inoka had spent the previous night and day on Colombo’s popular beachfront, Galle Face Green, observing a 24-hour protest vigil. For three years, she had been calling on authorities to investigate the disappearance of her husband and provide some interim relief to her and her children. However, she hasn’t receives any answers in the past three years and they don’t appear to be forthcoming in the future.

In desperation, Inoka, together with 12 friends and supporters, organised a peaceful and silent march towards the Presidential Secretariat and the Hilton Hotel. “We were armed with only photos of Madushka and banners. Vehicles and pedestrians passed by us freely, with absolutely no disruption. But despite our pleas, we were stopped by the police, violating our rights to freedom of expression and assembly,” she said. “After we were compelled to disperse, a lawyer and an activist at the protest were stopped and subjected to intimidation by the police when they were leaving.”

Instead of expediting the investigation into her husband’s disappearance, the police have started investigating Inoka and some activists who were supporting her. She and at least four activists have been summoned to the Fort Police Station on the morning of September 14. Some of the activists have expressed fears of being arrested.

On August 31, hours before the secretary general arrived in Colombo, several university students were reported to have been hospitalised due to the teargas and water cannons used by the police to disperse them from staging a protest march against a private medical college and demanding an increase in the university intake.

On the day after the secretary general left from Sri Lanka, the police stripped a young man on the road and assaulted him on charges of being a drug user. When a journalist challenged the police conduct, he too was assaulted.

Although the space for freedom of expression and assembly has increased since January 2015, such incidents have happened regularly in the past 20 months, especially in the highly militarised North.

Despite these incidents, the secretary general chose to unreservedly welcome the good governance initiatives of the new government.

Long wait 

More than 100,000 Sri Lankan families, who have reported missing relatives since the 1980s, share the pleas of Inoka.

Like Inoka, nearly all families await truth, justice and reparations. When the secretary general visited the war-torn Jaffna, several Tamil families of the disappeared, from across the North, lined up the streets with photos of their loved ones, placards demanding truth and justice, and with tears in their eyes.

Protesters rally as UN chief Ban Ki-moon visits Sri Lanka. Credit: Reuters

Protesters rally as UN chief Ban Ki-moon visits Sri Lanka. Credit: Reuters

A few days after the secretary general left, a young Sinhalese boy was reported to have disappeared in the Southern city of Hambantota after last being seen in police custody. The day before the arrival of the secretary general, an ex-LTTE cadre – a Tamil – was reportedly abducted in a white van, in the highly militarised Northern city of Kilinochchi.

He was later reported to have been found in police custody, just like several other Tamils who were abducted earlier this year. The whereabouts of at least two other Tamils who disappeared from the North earlier this year remain unknown despite complaints to the authorities.

Ironically, the abduction of the ex-LTTE cadre was reported to have happened on the International Day for Victims of Enforced Disappearances, in the same month parliament approved the setting up of an Office of Missing Persons (OMP) – the government’s latest initiative to address disappearances – and three months after Sri Lanka ratified the International Convention for the Protection of All Persons from Enforced Disappearances.

Despite serious concerns being expressed about the “consultation” process and the OMP by families of disappeared, byactivists and by the government’s own Consultation Task Force, long before and even during his visit, the secretary general chose to welcome both.

Tamils, whose lands are occupied by the military, also took to the streets of Jaffna when the secretary general present. Some of them travelled several hours and over hundred kilometers and were probably consoled by the fact that the secretary general had called for speeding up process of return of land so that they could return home.

Before the secretary general arrived in Colombo, families of the Welikada prison massacre and eyewitnesses who were being threatened and intimidated appealed to him for a meeting. They also pleaded with him to highlight the lack of progress in investigations and prosecutions in his private meetings and his public remarks to the media. While the contents of private discussions are unknown, there was no reference to impunity in relation to this single largest post-war massacre in any of secretary general’s public remarks.

He, however, did emphasise that the victims deserve to have their voices heard, that they deserve credible, transparent and solid transitional justice mechanisms and that they cannot wait forever. He also indicated that he had stressed the importance of these with political and military leadership.

UN’s failure and attempts to move on

The secretary general was forthright about what he called the “big mistakes” that the UN made in relation to Sri Lanka under his leadership, and that if the organisation had been more engaged, they could have saved several more human lives.

Despite this having been acknowledged in 2011 by the secretary general’s panel of experts and subsequently by a UN internal review report, the secretary general personally acknowledging this in Sri Lanka was of significance. He, however, stopped short of apologising for this monumental failure under his leadership and avoided facing those who were abandoned by the UN, despite some of them lining up the streets in Jaffna while he was there.

Instead, the secretary general remarked that the UN had learnt “very hard lessons from Sri Lanka where the fog of war had obscured the centrality of human rights” and that the UN had taken steps to ensure that human rights were at the centre of all its decision-making. He squarely attributed the Human Rights up Front (HRuF) initiative as a response to the mistakes the UN made in Sri Lanka and the lessons they had leant.

Looking ahead

If the UN’s HRuF were to become a reality, a good place to start would be Sri Lanka – the tragedy that led to the initiative. The report of the panel appointed by the secretary general helped kick start subsequent actions on Sri Lanka at the UN Human Rights Council and by the Office of the High Commissioner for Human Rights (OHCHR). However, a coherent rights-based strategy from the UN towards Sri Lanka is not yet visible.

The new government has improved relations with the UN and intensified engagement with UN officials. But despite this, the secretary general doesn’t appear to have elicited a major commitment from the Sri Lankan government during the visit, such as ways to engage with the Human Rights Council beyond March of next year, or establishing an OHCHR field office in Sri Lanka.

It is becoming increasingly difficult to engage with UN officials and the member states, especially to get a response for people like Inoka, the families and eyewitnesses of the Welikada prison massacre and the many survivors and families of victims from the North who ask, “will the UN listen to us, what they will do for us?”

Last week I choose to be with Inoka at her vigil and forego the meeting with the secretary general. But, despite survivors, families of victims and some activists trying to communicate reports of continuing violations, and the limited progress in addressing impunity to the UN, rights issues didnot feature prominently in the secretary general’s public remarks.

Neither was there much symbolic action expressing solidarity and support for the struggle for rights by Inoka and others like her.

The UN, especially the incoming secretary general should be careful not to get carried away with the “charm offensive” of the Sri Lankan government and its ambitious promises. Changes for the better, after an end of a three decade brutal war and a decade of authoritarian rule, should not lead to Sri Lanka being prematurely marketed as a “success story,” even before the survivors and the families of victims experience tangible changes in their lives.

While much of the reform must happen within Sri Lanka, the UN officials and member states still have an important role to play beyond praising the positive initiatives and the progress made. The secretary general, the High Commissioner for Human Rights and UN’s various mechanisms and institutions should try to provide an objective picture of the situation in Sri Lanka to the UN member states, find ways of continuing engagement over the next few years and give a central place to the tears, cries, struggles and expectations of Inoka and others like her.

Latest measures to address disappearances in Sri Lanka

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

 

By the time the new Parliament was elected in August 2015, families of the disappeared had emerged as strong civil movements in Sri Lanka. Their courage and persistence have helped bring about significant developments in relation to addressing disappearances.

The most significant is the Government’s decision to create an Office of Missing Persons (OMP), which received approval by Parliament in August 2016. Almost until the OMP was set up, a Commission of Inquiry, appointed by the previous President, continued to function. In July 2016, the Government introduced a draft law to facilitate the issuance of certificates of absence to families of the disappeared.[1] In November 2015, the UN’s Working Group on Enforced and Involuntary Disappearances visited Sri Lanka after the Government allowed entry, 16 years after their last visit.[2] In May 2016, the Government ratified the International Convention for the Protection of All Persons from Enforced Disappearances[3] and committed to pass legislation to make disappearances a crime under Sri Lankan law.

OMP

Despite a commitment to consult people about the proposed transitional justice mechanisms, the draft Bill for the OMP, the first of four transitional justice mechanisms initiated by the Government, was drafted in secret, even before formal public consultations began. Just before the draft bill was approved by Cabinet, there was a hastily convened briefing for few activists, followed by another slightly broader briefing, both in Colombo.[4]

The Bill was passed on 11th August with some amendments to the draft Bill. There was no substantial debate on the Bill, with the former President Rajapakse’s allies criticising it and the Government limiting itself to defending it. Neither the amendments nor the final version of the Bill, as enacted, are available at the time of writing this article.

The draft Bill had some positive features in relation to the right of the families to truth, with no restrictions on temporal or geographical restrictions, clauses guaranteeing anonymity for witnesses, opportunities for international expertise, powers to summon any person and obtain documents and other materials, make unannounced visits to relevant places, and seek search warrants and court orders for exhumations. The OMP will also have branch offices.

But there were numerous areas where the OMP Bill needed improvement.[5] The draft did not give the OMP prosecutorial authority and this may hamper the possibility to offer plea bargains, immunity in exceptional circumstances, and other forms of incentives to elicit information. Considerations such as gender and ethnicity were not specified. Families were not guaranteed involvement at any level in the OMP’s structures. There was no requirement for the appointing authorities to give time and opportunities to families of the disappeared and others to comment on nominees or make nominations for the seven Members (the highest positions in the OMP). The regularity to provide information to families was not specified and it was not obligatory to provide maximum information to families. There was no process set out for the OMP to take into account existing information and evidence before requiring families to give evidence again.

The right to pursue justice was compromised by the OMP not having prosecutorial authority and being given the discretion to share information with the external investigative and prosecutorial bodies where offences are involved. There was no provision to ensure that tracing investigations would be done in tandem with criminal investigations or that the OMP would ensure information and evidence discovered would be treated with best international criminal investigation standards, to enable them to be admissible during any subsequent prosecutions. Also, if enforced disappearance is not made a crime in Sri Lanka prior to the OMP beginning to operate, there will likely be barriers to holding perpetrators responsible for the crime of ‘enforced disappearance’ (and instead being limited to lower level crimes).

Slow judicial processes 

While there were regular hearings at the Magistrate Courts on the case of the disappeared Sinhalese journalist Prageeth Ekneligoda, there were no indictments against any of the suspects arrested. Further, there did not appear to be even minimal progress on many other cases, including well known cases of Tamils such as the journalist Ramachandran Subramanium, Catholic Priest Fr. Jim Brown, and human rights activist Stephen Suntharaj. Habeas corpus cases in relation to those who were alleged to have surrendered in front of eyewitnesses to the Army and then disappeared on the last day of the war dragged on, with the Army refusing to provide a proper list of those who had surrendered, despite repeated requests by Courts.

Continuing abductions

Alarmingly, cases of abductions continue to be reported, with at least 10 cases reported between 30th March and 30th June this year. At least two of those who disappeared have not returned, despite complaints to the Police and Human Rights Commission. Some have been reported to have been found in Police or remand custody after being abducted.

In order to make the OMP effective, the Government should criminalise enforced disappearances and ensure that the discretion and ambiguity in the OMP Act is used in favour of families of the disappeared. But even as the OMP starts its operations, habeas corpus cases and other cases related to disappearances pending for long years in the courts could be expedited. And unless there is a full stop to continuing disappearances and abductions, some of the steps the Government has taken to address past disappearances may not have much credibility.

[1] For information relating to concerns about the draft legislation on certificates of absence, see Memorandum to the Consultation Task Force, dated 23 July 2016, https://www.scribd.com/document/319070165/Memo-to-CTF-COA-22-July-2016.

[2] Preliminary observations at http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16771&LangID=E.

[3] 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).

[4] For further information, see Follow-up letter to the Foreign Minister on the OMP, dated 16 May 2016, https://www.scribd.com/doc/312730188/Memorandum-to-the-Foreign-Minister-THE-OFFICE-OF-MISSING-PERSONS.

[5] For further information, see Memorandum to the Consultation Task Force on amendments to the OMP Bill, dated 5 July 2016, https://www.scribd.com/document/317667408/Memo-to-CTF-OMP-Bill-5-July-2016. See also Memorandum to the Consultation Task Force, dated 1 May 2016, https://www.scribd.com/doc/311091283/Memorandum-to-the-Consultation-Task-Force-The-OMP-1-May-2016.

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/

On Rights and Justice: Some Perspective from Colombo

First published at http://www.huffingtonpost.com/taylor-dibbert/on-rights-and-justice-som_b_11250536.html on 28th July 2016

Ruki Fernando is a human rights activist based in Colombo, Sri Lanka. In this interview, Mr. Fernando shares his thoughts on a range of salient issues.

Sri Lanka’s former president, Mahinda Rajapaksa, took the country in an ever more authoritarian direction. How much has changed since Maithripala Sirisena became president in January 2015?

Authoritarianism has lessened and there is more space across the country for free expression, free assembly and free association. This was visible when Tamil people in the country’s North and East came out for the first time on May 18, 2015 — to grieve collectively and publicly for their loved ones who had died during the civil war. There was more space and less restrictions and less intimidation for this in 2016 compared to 2015. However, there have been regular incidents of surveillance, intimidation, harassment and threats on journalists and activists — particularly in the North and East, even though the intensity and regularity of these incidents appears to be less than it was during the Rajapaksa era.

I feel more safe and free, and now travel to the interior of the Vanni (in the country’s Northern Province). I also go home late at night on my own, using public transport — something I never did when the Rajapaksas were in power. But even after 18 months of “good governance,” I’m still under investigation by the Terrorist Investigation Department and my freedom of expression is restricted through a court order.

As a human rights activist, what issues are taking up most of your time? What projects are you currently working on?

There are too many things than I could mention! I have been trying to assist a few families of disappeared persons in their continuing struggles. I have been trying to engage critically with the proposed Office of Missing Persons (OMP). I have been monitoring and documenting recent abductions and arrests under the Prevention of Terrorism Act (PTA). I’m continuing to work with a few communities whose lands have been expropriated by the military. I am trying to critique militarized and large, business-oriented tourism, and to promote a more community-centered, reconciliation-oriented form of tourism. I’m also spending time discussing transitional justice issues with rural Sinhalese communities, and participating in radio and TV discussions in Sinhalese. In addition, I have been trying to support exiled Sri Lankan journalists and activists to return to Sri Lanka, and to support Pakistanis and Bangladeshis fleeing their countries and seeking refuge in Sri Lanka. Lastly, I have been giving talks and interviews, and have been writing about these issues.

In terms of the government’s wide-ranging transitional justice agenda, how much has been accomplished thus far?

Some political prisoners have been released, mostly conditionally. Some lands occupied for decades by the military have been released. Last year, there were significant judgements convicting soldiers for the rape of a Tamil woman in 2010 and a massacre of Tamil civilians in 2000.

There have been arrests of military and senior police personnel in some important and high-profile cases of killings and disappearances. The new leadership of the Human Rights Commission has asserted their independence and challenged the government, though an overhaul of the institution to be fully independent and effective will take much longer.

On the other hand, the military’s involvement in civilian activities in the North — such as hotels, shops, preschools, farms and airlines, among other activities, continues. Buddhist domination with the help of the military, in the predominantly non-Buddhist (mostly Tamil) North also continues. There has been an alarming rise of abductions and arrests under the PTA in the North and East during the last few months. Impunity reigns and accountability seems far away for tens of thousands of incidents, despite the availability of compelling evidence in some cases.

The positive progress is politically symbolic and matters a lot to ordinary people in their daily lives. But overall, progress has been too little and painfully slow. And there have been too many backward steps for the few forward steps.

How have public consultations (for the country’s transitional justice mechanisms) been going? What, if anything could be done to improve the consultative process?

Six months after the appointment of the Consultation Task Force (CTF), the consultations on transitional justice have commenced. But it seems the government has not thrown its political weight behind it, championing and promoting the process amongst Sri Lankans, using its vast infrastructure and extensive outreach through the mainstream and new media. The government doesn’t appear to be supporting the process financially, and it seems dependent on foreign funding from the United Nations (UN), which has resulted in delays.

In addition, the government had initiated a parallel process of drafting in secret, legislature in relation to transitional justice institutions, even before the consultation process started. There needs to be a convergence of expert drafting processes and popular consultations with ordinary people.

As it is, despite the best efforts of the CTF and subsidiary bodies, politically, the popular consultations appear to be an eyewash, designed to placate foreign governments and UN officials, and tick the box.

Do you believe that it’s important for Sri Lanka’s transitional justice process to include international participation? If so, why?

The reality in Sri Lanka is that most Tamils, who are a numerical minority, who have suffered the most, and who have historical grievances that led to the civil war, don’t trust a purely domestic process. Sinhalese who are the majority community, don’t trust international involvement. So if the transitional justice process is about all communities, we need to negotiate a middle way, acceptable to most communities and people. But there’s also a danger that the aspirations of the majority may prevail. Then there is also the issue of whether competency and experience to the extent needed is fully available in Sri Lanka.

Regarding the accountability mechanism to address alleged wartime abuses, what role (if any) would you like to see international actors play?

Personally, I believe it’s important to have the participation of international judges, prosecutors, investigators and defense lawyers. Their participation should go beyond monitoring, advising and training. But being international alone will not guarantee independence and credibility. It’s crucial to ensure that accountability mechanisms have the acceptance of all communities and thus, the government must play the major role in reaching out to all Sri Lankans — in particular to the Sinhalese-Buddhist community, to stress the importance of doing what’s right and principled, instead of bowing down to populist slogans. Tamil political and civil society leaders too must not get carried away with populist slogans and work towards solutions for affected people, considering the existing domestic and international political realities.

This interview has been edited for clarity.

Sri Lanka’s new Missing Persons Office and the Catholic Church

First published at http://www.ucanews.com/news/sri-lankas-new-missing-persons-office-and-the-catholic-church/76381 on 28th June 2016

Catholic priests are among the over 65,000 people who have been reported as disappeared in Sri Lanka. Included among that number are also many journalists, human rights activists, and the Vice Chancellor of Eastern University of Sri Lanka.

Father Jim Brown, a Tamil Catholic priest, disappeared on Aug. 20, 2006. He was last seen going into the navy controlled Allaipiddy area in the northern city of Jaffna. Wenceslaus Vimalathas, a lay associate who was with him, also disappeared.

Father Brown had tried to protect civilians during heavy fighting between the Sri Lankan army and Tamil rebels by offering them shelter in a church. It didn’t work. Many civilians were killed and injured when the church was eventually attacked. Father Brown had pleaded with the navy to take the injured out of the fighting zone but was reportedly rebuffed.

Father Francis Joseph, another Tamil Catholic priest, also disappeared. He was last seen being taken away by the Sri Lankan Army in Mullaitivu on May 18, 2009, the last day of war.

He had brokered the surrender of some rebel Tamil leaders in return for assurances of their safety. But those leaders too disappeared and their Habeas Corpus cases have dragged on for several years in the courts.

Till the late 1980s, most of those disappeared were Sinhalese. Since then, the majority have been Tamils. Muslims also have disappeared, including Pattani Razeek, a good friend of mine. Razeek was one of the few whose body was found.

Groups led by Catholic priests and nuns in the predominantly Tamil-Hindu areas in the North and East have been documenting disappearances, supporting families, and raising their voices against the crimes and the culture of impunity. But these are exceptions. Most church leaders have stayed silent. Why?

Those that have campaigned against the disappearances have faced intimidation, threats and arrest. A Catholic priest and myself were arrested in 2014 for investigating the disappearances. A few months later, a private discussion between affected families, activists and diplomats at a church-run center was disrupted by a mob led by Buddhist monks. The police refused to assist us.

Successive governments have set up numerous bodies to address the disappearances. Affected families and activists have engaged with them more out of desperation than good faith. But truth, justice, and reparations have been elusive.

The latest government effort has been to establish an Office of Missing Persons (OMP). It was one of the significant commitments the government made when they co-sponsored the U.N. Human Rights Council resolution on Sri Lanka last October. But the development of the O.M.P has been shrouded in secrecy with very little consultation, despite promises made to the contrary.

Father Brown’s distraught mother passed away without knowing what happened to her son, and his lonely father has told me that his only hope is to hear news of his son before he dies. Families whose breadwinners have disappeared need financial and material support, while others continue to demand justice.

To fulfill such expectations, the OMP will have to be more victim centered, transparent, independent and a well-resourced office, which will also facilitate the rights of families to reparations and justice, along with the right to truth. There are still opportunities to do this by influencing the draft legislation to establish the OMP, which awaits parliamentary approval.

But this may only happen if families, activists and U.N. officials make strong demands. Church leaders should also join such efforts, demanding truth and justice for those like Fathers Brown and Joseph.

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.

Continuing abuse under PTA: Abductions, Arbitrary Arrests, Unlawful Detentions and Torture

First published at http://groundviews.org/2016/06/28/continuing-abuse-under-pta-abductions-arbitrary-arrests-unlawful-detentions-and-torture/ on 28th June 2016

On 30th March, 2016, a suicide jacket, explosives and other ammunition was found in Chavakachcheri, Jaffna. Since then, as at 28th June, the arrest of at least 28 persons have been reported. All of them have been Tamils from the north and east of Sri Lanka. All were men, except one woman whose husband was been arrested. A further 2 persons, (also Tamil men) were given “chits” (pieces of paper) at the international airport summoning them to the Terrorism Investigation Division (TID) of the Police for inquiry. They were questioned and released on the same day.

Of the 28 arrested, 24 had been arrested under the Prevention of Terrorism Act (PTA). The other 4 appear to have been arrested and detained on matters not related to the incident above, although they are ex-LTTE cadres. One of those arrested under the PTA was arrested inside the Human Right Commission office in Trincomalee, whilst he was lodging a complaint.

The people in Chavakachcheri that we spoke to said that around 10-12 youth, both male and female, have been continuously called for questioning at various places in the Jaffna District between April and June 2016, in addition to those who had been arrested. A sense of fear prevails in this village, and amidst families of those arrested. People who used to move around quite freely now look at each other with suspicion and doubt.

A human rights lawyer claims that many of the arrests are related to 5-6 motorbikes reportedly found around the house where the explosives were found. There also seems to be a trend of the TID tracking phone numbers that have been in contact with those already arrested, and calling them in for further inquiries, whilst also arresting some of them. This had led to people refraining from lending their phones to anyone else.

As of 23rd June, 2016,

  • At least 23 of the 28 persons who have been arrested have not been charged with any crime.
  • No arrest receipts were issued at the time of arrest in at least 10 cases.
  • In most of the cases, the arresting officers claimed to be TID officers and were dressed in civilian clothes. They hadn’t provided any form of identification, but had given a land phone number and told families to call it and clarify if they wanted to.
  • Suspects were not produced before a Magistrate (as specified in the PTA) within 72 hours in at least 23 cases. In most cases, Detention Orders are issued directly to the detainee whilst in detention, so families and lawyers are not always aware of its issuance.
  • Families were not notified of place of detention for more than 48 hours in at least 5 cases.
  • At least 15 of those arrested are former LTTE cadres, with at least 7 having gone through rehabilitation and been released.
  • Detainees were not offered opportunity to contact lawyers for more than 48 hours in at least 23 cases, with lawyers having restricted access even thereafter. It’s mostly families that are in contact with the lawyers.
  • Of the 28 arrested, we have come to know that 4 have been released unconditionally, 2 have been released on surety bail and 1 has been sent for 1 year in rehabilitation.
  • After visiting their detained family members, several have reported that detainees appear to have been tortured.
  • Private property of detainees and family members were confiscated and held without receipts being issued in at least 5 cases. Property includes, mobile phones, vehicles and at least Rs. 100,000 in cash.
  • Although, in accordance with Section 28 of the Human Rights Commission of Sri Lanka (HRCSL) Act[1], most arrests and detentions are being communicated by the TID to the HRCSL now, the HRCSL is still not being kept notified of detainee transfers and changes in detention facilities.[2]
  • Family members and lawyers reported that they had restricted access to the detainees.
  • Family members have also been reported as being detained, subjected to intensive interrogation, harassment and/or intimidation.

Below are the names and brief details of the 28 reported as arrested and 2 reported as having been summoned to TID, questioned and released. Information is valid as of 23rd June, unless otherwise stated.

  1. Kebriel Edward Julian (alias Ramesh) – According to Julian’s lawyers, at about 7.30pm, on 29th March, approximately 20 Police, Special Task Force, army and TID personnel, had arrived in 4 army vehicles, and surrounded Julian’s house in Chavakachcheri. As Julian had not been at home, the personnel had eventually left at about 9pm after having arrested Julian’s wife, Kebriel Thusyanthi, accompanied by her 6 year old step-daughter. The cache of explosives and suicide vest were discovered at Julian’s house the following morning (30).[3]Julian was arrested on the 30th of March, 2016. According to his lawyers, on the 31st of April, police, army and TID personnel had brought Julian back to his house in a van, but his family had not been allowed to meet him. They had notified his family that Julian had been arrested on the 30th. Julian was a former LTTE cadre.As far as his lawyers are aware, no Detention Order has been served, and Julian was not produced before the Magistrate or JMO as at 23rd of June. Mobile phones belonging to Julian, his father and wife, Julian’s motorcycle and TATA Batta van, their vehicle documents, and account books were all confiscated by the TID. No receipt was issued following the confiscation of these possessions and none of them have been returned as yet.[4]
  1. Rasathurai Jeyanthan, a former LTTE cadre, was abducted from his home in Nunavil, Chavakachcheri on the 10th of April, 2016, by men in civilian clothing, who claimed they were from the Police.[5][6]They interrogated and handcuffed him, refused to identify themselves, refused to tell his family members the cause of arrest and where they were taking him to, took him away in an unmarked white van, detained him for two days at locations unknown to the family, and confiscated two motorcycles registered under Jeyanthan’s brother’s name and 3 mobile phones belonging to him, his wife and mother. More than 2 months since his arrest, none of their personal property has been returned to the family. Neither have they received a receipt for the confiscated property. The notice of arrest was sent to his family only about a week following his actual arrest. The HRCSL, however, had received a routine fax notifying the Commission of his arrest, as mandated in Section 28(1) of the Human Rights Commission Act of 1996. Having been detained at the TID office in Colombo for 2 days, he was transferred to Boossa on the 12th of April, 2016 and is still detained there as of 23rd.
  2. Ganeshapillai Arivalahan (alias Kalaiarasan), a former LTTE Intelligence chief, was arrested on the 26th of April, 2016, whilst lodging a complaint at the HRCSL, Trincomalee.[7] On the 25th of April, 3 men dressed in civil had visited Arivalahan’s home whilst he was at work, and asked his wife where he was, where he worked, which route he took back home etc., As there had been a spate of arrests of former LTTE cadres at the time, they had gone the very next morning (26th) to a legal aid organization in Trincomalee. They were then advised to lodge a complaint at the HRCSL in Trincomalee.When getting into the three-wheeler from the legal aid office, Arivalahan’s wife had noticed 3 policemen in uniform standing on the opposite side of the office (sea-side), but hadn’t taken too much notice of them. However, as soon as they left the office, they saw a white and grey van with tinted windows following them. At one point, it had even tried to overtake their three-wheeler. The van too arrived at the same time as the three-wheeler at the HRCSL office, so Arivalahan had run into the HRCSL out of fear. One man in civil had gotten out of the van and followed Arivalahan inside and apprehended him. At which point a lady working at the HRCSL had asked the man from the van, who he was. He had responded that he was from the TID in Colombo. Meanwhile, 4 other men in civil too had gotten out of the van and walked into the HRCSL. Also, a police jeep with 3 police officers in uniform had arrived at the Commission and walked inside. When asked by the lady who they were, they had said they were from the Trincomalee Police.The lady at the HRCSL had got the first TID officer who had apprehended Arivalahan, to record his (the officer’s) details in a book at the Commission. By this point, the police had issued a receipt of arrest to Arivalahan’s wife, citing that he’s being arrested under the suspicion of reviving terrorist activity. As at 23rd June, he was being detained at the TID office in Colombo. His wife visits him weekly, but says that they are not able to speak freely as TID officers are always in the vicinity. They had even told the wife during one of her visits, that her husband would be released in two months.
  1. Muththulingam Vijeyakumar Ketheeswaran, was arrested in Kilinochchi town in the Kilinochchi district on 10th He had previously been detained in May 2014, while sitting for his A/L examinations as an 18 year old and released in November 2015 on bail. As he could not go back to school, he had requested his father to try and raise funds to buy him a three wheeler. His father had reportedly sold his cattle and transferred funds to his son’s bank account. Ketheeswaran has now been detained on the suspicion that he had received funds in relation to the explosives found in Chavakachcheri.When the father had visited his son in Boossa, it had appeared that the son had been severely beaten whilst in detention in Vavuniya and Boossa. The family has lodged a complaint (HRC/KI/056/2016) at the HRCSL in Kilinochchi, on the 11th April.Ketheeswaran’s sister, a student at the Eastern University, had received numerous abusive calls from persons claiming to be from the TID, from this phone number 021-2283707, following her brother’s arrest. The University has arranged some security measures for her, and she has lodged a complaint (HRC/BCO/99/2016) at the HRCSL in Batticaloa.
    Ketheeswaran’s father and another brother, a school boy, have also been repeatedly summoned to an unmarked TID office in Kilinochchi after his detention.[8] He was being detained as at 23rd June.[9]
  1. Muthulingam Jeyakanthan, a former LTTE cadre, from Mullaithivu, who had sought employment overseas after the war, was detained and interrogated for almost 7 hours by the TID, at the Katunayake international airport on his return to Sri Lanka on the 12th of April, 2016. He was then released and asked to report to the 2nd floor of the TID office in Colombo, on the 19th of April, for further interrogation.[10] According to his sister[11], they had taken Jeyakanthan into the office at about 11.15am, and at around 2.15pm, informed her that he had been arrested, but his family had not been given any document with regard to his arrest. The TID had refused to let his sister see Jeyakanthan that day, and had told her to come and visit him on Sunday (24th) April instead. Jeyakanthan is a father of two and had gone overseas to help support his family. He was last detained at the New Magazine Prison, and was ordered 1 year rehabilitation at the Poonthotam Rehabilitation Centre, Vavuniya, on the 22nd of June, 2016.
  2. Former LTTE commander Ithimalasangam Arichandran (alias Ram), was reported as abducted from his home in Thambuluvil, Ampara, on the 23rd of April, 2016. Two days later, on the 25th, the Police Spokesperson was quoted by media as having acknowledged[12] that Ram was in the custody of the TID, and was being detained at the TID office in Colombo for further questioning. Ram too had been rehabilitated after the war in 2009 and released in 2013, and has since then been reported as having been involved in agricultural activity.
  3. Another former LTTE colonel, Krishnapillai Kalainesan (alias Lt. Col. Prabha) was reported as arrested from his home in Batticaloa, on the 2nd of May, 2016, and taken to the TID office in Kalmunai for further questioning. A father of two, he was working with his wife at a canteen at the time of his arrest.[13][14] Initially registered to have been disappeared after the war, he was found to be in custody of the military and then underwent rehabilitation from 2009, till his release in 2013. He was being detained at the TID office in Colombo as at 23rd
  4. Kanapathipillai Sivamoorthy (alias Nakulan), a former LTTE commander, was abducted[15] in Jaffna on the 26th of April, and subsequently found to be in the custody of the TID in Colomb. Co-Cabinet Spokesperson, Rajitha Senaratne was reported in the media as having acknowledged[16] that Sivamoorthy, was one of many rehabilitated former LTTE cadres who had been arrested in April, in relation to a cache of weapons found in the North. He was reported as being detained by the TID as at 28th
  5. Thamotharampillai Jeyakanth, was reported as arrested under the PTA on the 20th April, 2016, from Murukandi, Kilinochchi, and being detained at the TID HQ in Colombo, as at 23rd[17]
  6. Mahadevan Prasanna and Jesuratnam Jegasamson, were arrested under the PTA on the 06th of April, 2016, from Puvarasamkulam (Vavuniya district), and are being detained at the New Magazine Remand Prison in Colombo, as at 23rd[18] A Mr. Nagulan too has been arrested in connection with this same case, and a human rights lawyer told us that his last known place of detention was at the Narahenpita Police station. However, his current whereabouts are unknown. All 3 of these suspects have been arrested and detained in relation to allegedly being in the possession of a military hat belonging to former intelligence head of the LTTE, Pottu Amman.[19]
  7. Sathyaseelan Jeyanthan Fernando, was reported arrested under the PTA on the 1st of April, 2016, from Kilinochchi, and is being detained at Boossa, as at 23rd[20]
  8. Seethagopal Arumugam, was arrested on the 29th of April, from Nedunkerny (Vavuniya district). A tractor and motorbike belonging to him, and Rs. 100,000 in cash, was confiscated by the TID, without a receipt, upon his arrest, and none of it has been returned to the family. He is being detained at the TID office in Colombo, as at 23rd[21]
  9. Sankaralingam Sasikaran, a father of two and local NGO worker, was reported as arrested[22][23] on the 30th of May, 2016, from Bharathipuram, Kilinochchi district. His current whereabouts are not known.
  1. Magalingam Vasantharasa, was arrested on the 31st of May, 2016, at the Katunayaka International Airport, and is being detained at the TID office in Colombo, as at 23rd[24]
  2. Kanagalingam Kamalakannan, who runs a money exchange centre in Jaffna, was reported as arrested from Jaffna, between April-May, in connection to the weapons discovery in Chavakachcheri. He is being detained at Boossa as at 23rd[25] 
  1. Suppramaniam Janakaraj and Suppramaniam Chandrakumar were two brothers who were arrested from their home in Akkaraipattu, Ampara district on the 6th of April, 2016. They were both released on bail on the 8th, and released unconditionally on the 12th of April, 2016. Their lawyers believe that the two brothers were arrested in order to get to their eldest brother, Suppramaniam Devathas, who was arrested on the 7th of April, and being detained at Boossa as at 23rd[26]
  1. Subramaniyam Sivakaran, Secretary of the Ilankai Thamil Arasu Kachchi (ITAK) Northern Province Youth Organisation, was arrested under the PTA, by the TID, in Mannar on the 27th of April, 2016. He was released,[27] on bail, with two personal sureties of Rs. 100,000, on the following day (28th). He was also barred from leaving the country for one year from the date of his release.[28]
  1. Pathmanathan Rameshkanthan and Subramaniam Kokilan, were arrested under the PTA, and having spent almost 2 months in detention without being charged, were released unconditionally on the 2nd of June.[29]
  1. Kireniyar Sebathasan, was returning to Sri Lanka from Qatar where he went on work, was given a chit at the Katunayaka International Airport summoning him to be present at the 2nd floor of the TID office in Colombo-01, on the 18th of April, 2016 at 10am. The chit was signed by the OIC of Unit III. He was questioned and released on the 18th[30]
  2. Gunasekaram Vijaykumar, was summoned for an inquiry by the TID, from Kilinochchi (where he resided,) on the 27th of April, to the TID HQ in Colombo. He was questioned and released later that day.[31]

Other arrests of dubious nature

Three men, Ramachandran Kanesh, Navarathnarajah Ranjith and Mutthulingam Yogarasa,have been brought back to Sri Lanka from the Maldives after having finished serving a jail sentence, and are currently in detention in Welikada prison. Neither them, nor the prison officials one of the authors spoke to, had any idea of the reason for their continued detention, and under what laws they were being detained.

In May 2007, they were found by Maldivian Authorities in the territorial seas of Maldives and were arrested for possessing firearms. The detainees stated that they were kept in custody and were interrogated by Maldivian Authorities, Sri Lankan Authorities and Indian Authorities. The trial and sentence had been concluded in one day. The detainees stated that they did not know their charge or their sentence until after the Court proceedings had concluded as they had been provided with only one interpreter who was fluent in Malayalam and did not speak Tamil, which was the only language the detainees understood. When they were taken away from Courts an Officer had told them, that they were charged and convicted for possessing firearms. The appeal process for their release was on-going when the Sri Lankan Ambassador to Maldives visited them in prison and asked them if they were willing to be transferred to Sri Lanka. He also promised them that once in Sri Lanka they would be released in April 2016 with the Sri Lankan New Year. As the appeal process would have dragged up to September 2016, the three prisoners decided to abide by the Ambassador’s advice.

The prisoners were brought to Sri Lanka in April in a Navy ship. They said they travelled for two days. Once they landed in the Colombo port, they were sent directly to Welikada prison. Few days later they were transferred to the Magazine prison where they are now. No one apart from a few lawyers and their family has met them.

All three admitted to being part of the LTTE. However only one admitted to have joined them voluntarily. One of the detainees were recruited by the LTTE when he was 16. According to them they were sent on a mission to transport weaponry from a ship to Sri Lanka in 2007.This is when they were caught by the Maldivian Authorities. According to them they did not possess any weapons when they were caught. However they also said that three of them together with another boatman were on the boat when the Maldivian Authorities open fired. The boatman had died at sea.[32]

Velauthapillai Renukaruban’s family claims that on the 2nd of June, 2 men had arrived on motorbikes, at their home in Jaffna, assaulted Renukaruban in the presence of his mother and older sister, and then forcibly taken him away in a van. The family claims that they had only discovered his whereabouts several days following his arrest[33], when they found out that he was being held at the Jaffna Remand Prison. Following a motion for bail being filed on the 15thof June, he was produced at the Chavakachcheri Magistrates Court on the 16th of June, and released on surety bail. The courts issued a travel ban on him till the conclusion of his case, and he also had to surrender his passport to the Courts.

According to his lawyer, on the 22nd of June, Renukaruban was charged with trespassing and assault, he pleaded not guilty, and the Trial date was set for the 1st of July. In a previous trip to Sri Lanka in January 2016, Renukaruban, his uncle and 3 others had allegedly trespassed the premises of, and assaulted the complainant. Renukaruban had apparently not known of the case filed against him, and so had left the country. However, as there was a warrant out for his arrest, the Police had arrested him as soon as he returned to Jaffna. He is a British national.

Whilst being held at the Jaffna Remand Prison, there had been a clash between some of the prisoners, and Renukaruban had run outside his cell wearing only his sarong. Having seen the tiger tattooed on his chest, he claims that the Sinhala prison officials had then assaulted him, explained Mr. Punethanayagam. As there are CCTV cameras fixed inside the prison now, it shouldn’t be too difficult to find out what took place, the lawyer added. As Renukaruban had been injured due to the assault, he had been hospitalized for a few days.

His lawyer had lodged a complaint with the Jaffna Police regarding Renukaruban’s alleged assault by prison officials.

The Prevention of Terrorism Act (PTA) and Emergency Regulations (ER)

The PTA and ER gives wide authority to the Terrorist Investigation Division (TID), the Police and the Minister of Defense on arrest, detention, interrogation and extraction of confessions. A mere suspicion on the part of the Minister can warrant an arrest. Anything from taking a person from place to place for interrogation, seizing property can be done without the judicial oversight. The Minister can extend a detention order up to eighteen months. In practice, persons detained under the PTA have been kept in detention almost indefinitely till the case is concluded. Last year, two Tamil women were acquitted as not guilty, after being detained for more than 15 and 7 years respectively. Torture in custody is common practice and it’s rarely questioned in Courts. Even if it’s is brought to the notice of the Magistrate, the Magistrates have rarely taken proactive steps to safeguard the rights and welfare of the detainee. Under the PTA the Magistrate has no powers to intervene and hence. The PTA makes the judiciary is subordinate to the Minister of Defense under the Act. [34]

In May this year the Human Rights Commission has issued directives[35] to be followed by authorities when making arrests under the PTA. These include issuing the detention order in the language of the detainee upon arrest, identifying the person making the arrest to the arrestee and providing receipts for property seized. However it is yet to be seen whether these recommendations will be implemented. The President too has issued Directions to the Police and security forces, reiterating many of the directives issued by the HRCSL.

On the 13th of June, 2016, media reported that the government will introduce a new Act – the National Security Act – that will soon replace the PTA.[36] In addition, the government also hopes to enact two other counter-terror Acts – namely – the Prevention of Organized Crimes Act and the Intelligence Act.

On the other hand, there has been no mention of the review of the Public Security Ordinance (PSO) which the government committed to as part of the UN resolution it co-sponsored on 1st October 2015. It’s under the PSO that Emergency Regulations with provisions equally draconian as the PTA was in force for around 30 years.

It is the authors’ position that all crimes must be dealt with under ordinary law, with due checks and balances and judicial discretion and appeals. We strongly feel that the PTA should be repealed and fresh anti-terror laws should not be brought in, given that they tend to take away checks and balances, undermines judicial discretion and protection, severely undermines rights and liberties of persons and can be used to suppress peaceful and legitimate dissent. We also feel that the PSO should be reviewed and amended, to ensure that deceleration of emergency regulations are only in exceptional situations, are for specified short terms, subjected to strict parliamentary and judicial supervision with due checks and balances including eight of appeal, to ensure rights of persons are not infringed on.

Sri Lanka’s 65,000 Disappeared: Will the Latest Missing Persons’ Office Bring Answers?

First published at http://thewire.in/2016/06/14/sri-lankas-disappeared-will-the-latest-missing-persons-office-bring-answers-42687/ on 14th June 2016

There is still a possibility to make the Office of Missing Persons an institution that can provide some degree of truth, justice and reparations to families of disappeared.

A few days ago I was with Mauri Inoka, whose husband disappeared in September 2013. She was protesting on the pavement of a major road in Colombo, close to the presidential secretariat, sweltering in the heat, with her twin children, aged about two-and-half years, born just two months after their father disappeared. The children seemed tired, hungry and thirsty, and cried most of the time. Their mother tried to console them and spoke with determination to the media personnel interviewing her, while the policemen tried to make her give up the protest. But later, after being compelled to talk to the same officials who had made empty promises at the presidential secretariat one year ago, and after the journalists and police left, Inoka also broke down and cried.

Inoka claims that the police are complicit or have information about her husband’s disappearance. Her complaints to the police, Human Rights Commission of Sri Lanka, and the former and present president have not yielded any answers for 1,010 days. She almost lost her job. They were often scared, homeless, hungry, displaced by floods and dependent on the occasional support that a few family members, friends, and activists could offer. Inoka was threatened several times not to pursue the case of her husband’s disappearance and was also abducted and dumped on the roadside.

Disappearances

In the late 1980s, most of those disappeared were Sinhalese, like Inoka’s husband. Since then, the majority of those who disappeared have been Tamils. Muslims also have disappeared, such as my friend and colleague Pattani Razeek. Razeek was one of the few whose body was found after he disappeared. Some suspects have been arrested, but his family believes the master minds are free and no one has been charged. Razeek’s son regularly calls me seeking help to ensure justice for his father.

In August 2006, Father Jim Brown, a Tamil Catholic priest and his assistant, Vimalathas disappeared. They had gone into a navy held area, after signing in at a navy checkpoint in Allaipiddy, Jaffna. Brown had offered shelter to people in his church to save them from bombs and shells, during heavy fighting but many civilians were killed and injured inside the church. Brown survived and had later pleaded with the navy to take the injured out of the fighting zone. He was reportedly threatened by a navy officer, and there were reports that the navy had refused orders of the magistrate to hand over the log book at the checkpoint.

They are amongst the 65,000 Sri Lankans reported to have disappeared. In the 36 year old history of the UN’s working group on disappearances, it’s the second largest case from Sri Lanka.

Eyewitness testimonies and other available evidence indicate that the Sri Lankan state – particularly its army, navy and police may be responsible for most disappearances, in the context of counter-terrorism operations mainly. The evidence also indicates that the Liberation Tigers of Tamil Eelam (LTTE) is also responsible for many disappearances, especially during the last stages of the war.

Ironically, amongst the families of the disappeared that I have worked with, is a mother of an air force officer who had gone missing and a wife of a LTTE leader who had disappeared after surrendering to the army, along with hundreds of other LTTE leaders. About 5,000 soldiers from the Sri Lankan armed forces are also believed to be missing in action.

State role 

Families of the disappeared and the activists have faced numerous threats, intimidation, restrictions, surveillance, arrests and detention as they campaigned for truth and justice for the disappeared. In December 2011, Lalith and Kugan, campaigners against the disappearances, disappeared. In March 2014, Jeyakumary, a Tamil mother seeking truth and justice for her son, whose photo had been seen in a government-run rehabilitation facility, was arrested.  A colleague and I were also arrested when we went to investigate it. All three of us are still terrorist suspects with pending cases against us. In August 2014, when I was attending a private discussion between some families of the disappeared with lawyers, activists and diplomats, a mob led by Buddhist monks invaded the private church run building and disrupted the meeting. The police refused to intervene or provide protection. Families of the disappeared were stopped twice from coming to Colombo from the north to hand over petitions during the previous regime.

Successive government have set up many bodies to address disappearances, and families of the disappeared and activists have engaged with them, sometimes in good faith and sometimes in desperation. But truth, justice and reparations have been elusive.

A commitment the present government made through co-sponsoring the UN Human Rights Council resolution, was fulfilled last month with the ratification of the International convention against disappearances. The government, however, barred Sri Lankans from making complaints to the committee monitoring the implementation of the convention by not recognising article 31. Another commitment in the UN resolution was to establish an Office of Missing Persons (OMP). The commitment to enact a domestic law making disappearances a crime in Sri Lanka has not been fulfilled and there is no timeline for this, though it is crucial for disappearances to be criminalised before the OMP is established.

OMP as an institution

The OMP was one of the four focuses of the consultation task force appointed to conduct consultations on transitional justice. But instead of consulting people, the government relied on a secret process to come up with a draft bill to establish the OMP. After about eight months, almost at the end of the drafting process, the foreign ministry held a hastily convened de-briefing for few activists. Due to insistence of activists, another de-briefing for few families of the disappeared was held ten days later. Both were in Colombo. Four days later, the draft bill was approved by the cabinet. Technically, the bill can still be amended before it is passed into law by the parliament, but it seems unlikely that it will be changed substantially.

The draft bill is promising with concern to the right of the families to truth, with no restrictions on temporal or geographical restrictions, clauses guaranteeing anonymity for witnesses, opportunities for international expertise, powers to summon any person and obtain documents and other materials, make unannounced visits to relevant places, seek search warrants and court orders for exhumations. The office will also have branch offices.

The draft bill, however, doesn’t give the OMP prosecutorial authority and this may hamper the possibility to offer plea bargains, immunity in exceptional circumstances and other forms of incentives to elicit information.

The draft bill is vague. Gender and ethnic composition is not specified. There is no provision to include families of the disappeared in the most senior oversight body. There is no requirement for the appointing authorities to give time and opportunities to families of the disappeared and others to comment on nominees or make nominations. The regularity to provide information to families is not specified and it’s not obligatory to provide maximum information to families.

The right to pursue justice is compromised by the OMP not having prosecutorial authority and being given the discretion to share or not share information with the external prosecutorial and judicial bodies. There is no provision to ensure that tracing investigations will be done in tandem with criminal investigations or that the OMP will ensure information and evidence discovered will be treated with best international criminal investigation standards, to enable them to be admissible during any subsequent prosecutions.

Justice and aid 

At the moment, there are no initiatives to ensure economic justice for the families or offer any financial and material assistance in the form of interim reparations. The right of the families to reparations has been relegated to an Office for Reparations, a totally separate entity, which is likely to take a long time to establish. Some of the families, whose breadwinners have disappeared, may not even be able to engage with the OMP because of extreme poverty.

Procedures and obligations to deal with identified or unidentified human remains are weak in the present draft bill. At the only opportunity they had before the cabinet approval, some families of the disappeared appealed to change the name from “missing” to “disappear”. But despite promises to consider it, the name remains unchanged.

The distraught mother of Brown passed away without knowing what happened to her son. His lonely and ageing father’s only hope is to hear news of his son before he dies. Inoka desperately needs support for housing, education and food for her children, so that she can continue her struggle for truth and justice. Many families don’t have adequate financial, emotional and legal support and accompaniment to strengthen their struggles. I have often struggled and ended up frustrated trying to mobilise support for families of the disappeared, amongst politicians, journalists, artists, lawyers, activists and the general public.

At least one person was abducted by the dreaded “White Van”, a symbol of disappearances in Sri Lanka, last April. He was later found in police custody. The discovery of explosives and suicide jacket near Jaffna had led to new wave of arrests of some Tamils from the north and east since the end of March, under the draconian and much abused Prevention of Terrorism Act, which the government has promised to repeal. Torture and lack of due process has been reported in relation to some of these arrests.

The above context, and lack of consultations and sensitivity to ideas of families of disappeared in creating the OMP and the limits in the draft bill has created an environment of suspicion about it. There is still a possibility to make the OMP an institution that can provide at least some degree of truth, justice and reparations to families of disappeared, rather than giving more agony and trauma. But it will require principled commitment from politicians, sensitivity of the general public and lot of work from families themselves and those supporting them.

Ruki Fernando is a Sri Lankan human rights activist who worked with families of the disappeared, and was involved in documentation, campaigns and advocacy in relation to the disappearances. He is a member of Watchdog Collective, Advisor to INFORM Human Rights Documentation Centre in Colombo.