Reconciliation

The terror of counter-terror laws

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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The Struggle for Justice

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

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

Dear friends,

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

Rights violations and struggles for justice

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

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

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

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

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

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

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

Human Rights Education and certificates

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

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

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

No Peace in Rest

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

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

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

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

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

Conflating Remembrance Day With Maaveerar Naal

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

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

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

The destruction

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

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

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

The Right to Remember and Mourn

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

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

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

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

Political prisoners and counter terror laws

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

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

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

Examples of prolonged detention

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

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

* Up to 13 years detention without completion of trials

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

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

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

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

Re-arrests and transfers

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

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

Past protests and promises by politicians

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

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

Negative impacts of the PTA

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sri Lanka’s Stalled Reforms

First published at https://intpolicydigest.org/2018/09/12/sri-lanka-s-stalled-reforms/ on 12th September 2018

Ruki Fernando is a human rights activist based in Colombo, Sri Lanka. This interview has been edited lightly.

Three years on, what’s your broad take on the coalition government’s performance? Where does the reform agenda currently stand?

Some reforms have happened since 2015 to varying degrees, but many of the promised reforms have come to a standstill and seem unlikely to happen by next year.

The release of some lands occupied by the military after months of protests, the release and indictments of some political prisoners, more space for free expression and assembly compared to years under the previous regime, arrests of some Navy and Army personnel in relation to a couple of disappearance cases, convictions of Police and Army personnel (for torture, killing of civilians and rape), are also some positive things seen since 2015. The passing of the 19th amendment to the constitution reducing the powers of the executive president and strengthening independent institutions and checks and balances, the ratification of the International Convention Against Enforced Disappearances and making this a crime in Sri Lanka, the passing of the Right to Information Act were some progressive legislative changes – while the proactiveness and independence displayed by the leadership of the Human Rights Commission and the Right to Information Commission were also positive features.

But the reluctance of the government and lack of leadership by President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe to carry forward the reform agenda overshadows these gains. Much of the land occupied by the military during and after the war still remains in their hands. Releases were often due to long drawn out overnight protests and direct action by affected communities. The possibilities of reconciliation through land releases was negatively affected by the arrogance and viciousness of the military – who after benefitting from decades of occupation, called the return of lands “gifts,” organized ceremonies for themselves where military leaders were glorified and had destroyed and damaged some properties just before handing them over.

Political prisoners acquitted by courts after up to 15 years in detention have received no apology or reparations and many still languish in prison, including based on confessions made during detention, which are likely to have been under duress. The Prevention of Terrorism Act (PTA) has not been withdrawn despite the commitment to do so three years ago. Alternatives to the PTA were drafted in utmost secrecy from the citizenry and leaked versions contained draconian provisions. Abduction, assaults, death threats, intimidation, discrediting and surveillance of activists continues. An attempt to bring in a draconian amendment to the Voluntary Social Services Organizations Act was only withdrawn in the face of stiff opposition from civil activists and organizations. Violence against Muslims and Christians continued, including on a mass scale, such as in March this year around Kandy. Debt has reached life-threatening proportions.

Three years after ambitious promises to set up institutions to deal with wartime abuses, only one, the Office on Missing Persons (OMP) has been set up, and that too is limping forward. A draft bill was rushed through the cabinet to establish an Office for Reparations. There is not even draft legislation for the two other institutions promised – a truth commission and judicial mechanism with a special counsel. The president, prime minister and other politicians have backtracked on the promise to include foreign judges, prosecutors, defense lawyers and investigators in the judicial mechanism. 

More specifically, what do you expect to happen in terms of constitution-building?

There has been some progress, with some public consultations, six subcommittee reports and a steering committee report from the Constitutional Assembly, consisting of all the parliamentarians. However, there is a lot of uncertainty about whether a new constitution will see the light of day. Even if it does, there are serious concerns about whether it will bring substantial changes – such as the inclusion of economic, social and cultural rights as justiciable rights, doing away with ancient laws that facilitate the applicability of discriminatory laws against women and children, providing the foremost place to the majority religion and a lesser place to other religions, abolition of the executive presidency and power-sharing arrangements, which is also crucial for resolving the ethnic conflict that led to war.

How effective will the Office on Missing Persons be?

The OMP has been functioning for just over six months, but it’s too early to tell how effective it will be. OMP members tried make up for a lack of consultations before it was set up, by having a series of consultations about how it should function. It has stronger enabling legislation than previous Commissions of Inquiry and the chairperson and members have shown sensitivities in acknowledging the frustration, disappointment and anger of many families of the disappeared and missing who have approached multiple commissions, police, courts, et cetera and not received the answers they are seeking. But other than passionate appeals to give the OMP a chance and stating that they will try to do better than previous government initiatives, and publishing an interim report, I have seen nothing to indicate the OMP will be more effective than the large number of previous Commissions of Inquiry. The inclusion of a senior retired Army officer as a member of the OMP, in a context where many families believe their relatives were taken away by the Army (and where Army personnel have been convicted by courts and both Army and Navy personnel have been arrested on suspicion in relation to disappearances), has also contributed to making many families of the disappeared lose confidence in the OMP and be skeptical. It is this anger, suspicion and frustration that have led to protests against the OMP by some families of disappeared, leading to even the unacceptable situation of them blocking other families of the disappeared from engaging with the OMP. 

The first major specific public promise made by the OMP was to release an interim report on the 30th of August – the International Day of the Victims of Enforced Disappearances. But instead of fulfilling this promise, the OMP postponed the release of the report – in order to hand over the report first to the president, though they have no legal obligation to do so. Though this may be a strategic decision by the OMP, it has led to concerns that the OMP is prioritizing presidential appeasement and not giving primacy to the families of the disappeared and missing. The report dated the 30th of August was presented to the president on the 5th of September and released to the public on the 6th.

Despite the history of reports and recommendations by previous Commissions of Inquiry, much of which have been ignored by successive governments, the OMP too has opted to prioritize another report with observations and recommendations. This is despite the OMP being legally empowered to provide welfare services, trace the disappeared and inform the families.

The recommendations in the report include amendments to existing laws to strengthen the legal framework in criminalizing and prosecuting enforced disappearances, that state officials including members of the armed forces and police who are named as suspects or accused in relation to abductions and enforced disappearances should be suspended and not transferred, promoted or offered any other office, publishing a list of detention centers and detainees, designating a national day for the disappeared, preserving sites of mass graves as memorial spaces and restoring a monument for Sinhalese youth that disappeared in late 1980s that was destroyed by the previous government.

Disappointingly, the OMP has not called on the government to release a list of those who surrendered to the Army at the end of the war, many of whom disappeared afterwards. The release of this list has been a central demand made to the president and also to the OMP by Tamil families who have been at continuous roadside protests for more than 550 days. The OMP has also opted to call for reform of some provisions of the draconian PTA instead of total repeal, without questioning the need for counterterrorism legislation, which has a history of abuse in Sri Lanka and across the world. 

The report also has some constructive and practical recommendations on “interim relief,” including a monthly cash payment and other facilities related to debt relief, housing, education, employment and livelihood development.

Observations and recommendations in the interim report are significant and important, but unlikely to impress families of the disappeared. What would have made a difference is if the OMP had done in the first six months or will do in the next few months what many families of disappeared have asked them to do and that they have a legal mandate to do: Establish the fate and whereabouts of a few of the disappeared and inform their families. Or at least start providing information relating to the status of investigations, on individual cases, to respective families. The interim report says the OMP started to carry out inquiries with relevant authorities on specific cases. However, even statistical and general information about progress made is not mentioned in the report.

Would you talk about some of the criticisms surrounding the creation of the Office for Reparations?

As is the usual custom of this government, the draft bill had been drafted in secret, without adequate consultations before it was approved by the cabinet. On the draft bill, there are concerns about unnecessary powers being granted to the cabinet and parliament, making the awarding of reparations a long drawn, politicized process and the office not being an independent one with decision-making powers.

What about President Sirisena’s plan to reinstate the death penalty?

This was a shock, as for more than 40 years, through civil war and insurrections, Sri Lanka was one of 29 countries that had maintained a moratorium on the death penalty. Another 106 countries had abolished it fully by 2017, and only 23 countries were known to have carried out executions in 2017. There is no evidence in Sri Lanka, or in other countries, that the death penalty has reduced crime by having a deterrent effect. In Sri Lanka, there are serious deficiencies in the criminal justice system, including a lack of easily accessible, quality legal aid. 

The death penalty is an irreversible form of punishment which grants no space to consider new evidence that may emerge after a conviction is made, for example through new technology, indicating a wrongful conviction. It has been pointed out that in countries such as America, Canada and the United Kingdom, people wrongly convicted have been released from death row decades after they were put there as new evidence has shown they were wrongfully imprisoned.

If some detainees are engaged in drug-related offences from within prison grounds, cited as a reason to reintroduce the death penalty, security in prisons must be strengthened, including by using new technology, without infringing on the rights of detainees. Prison officials responsible for such crimes from within prisons must be held accountable.

What Sri Lanka must do is ratify the 2nd Optional Protocol to the International Covenant on Civil and Political Rights that calls for the abolition of the death penalty and abolish the death penalty from our books, as about 85 countries had done by the end of 2017.

How concerned are you about reports of abduction and torture since Sirisena became president?

Abductions have continued since President Sirisena took office – in the war-affected North, and even in Colombo in 2017, such as the abduction of the trade union leader and attempted abduction of a student activist. However, many abducted appear to have been released, though I’m also aware of those who have disappeared under this government and not been found.

Attacks, threats, intimidation and surveillance of families of the disappeared campaigning for truth and justice have also continued under President Sirisena. Their supporters, including activists and journalists have also been attacked, threatened, obstructed and interrogated. Several such incidents were reported in July this year; I had mentioned two in an article I wrote last month.

The continuation of torture too has been a major concern under the Sirisena presidency.

Will provincial council elections be held this year?

There is no certainty when provincial elections will be held.

What’s your assessment of a possible Gotabaya Rajapaksa presidential campaign? Who do you see as viable candidates for the presidency?

Rajapaksa political forces have always been strong, even in 2015, and appear to be gaining ground in the face of failures by the present coalition government. Despite much hype beforehand, the “Jana Balaya” (People’s Power) rally in Colombo on the 5th didn’t indicate mass public support for Rajapaksa-led political forces and there didn’t even appear to be a clear and strong political message from the rally. Though Gotabaya was seen participating in the rally, he didn’t play a leading role and there is also uncertainty about whether he will be a presidential candidate for the Joint Opposition, representing Rajapaksa political forces. There is also no clear indication whether Sirisena – Wickremesinghe and their allies will contest together or separately, and if together, who might be a “common candidate.” But the rather unexpected emergence of Sirisena as a successful presidential candidate, with a broad alliance of political and civil forces’ support, makes me wonder whether there could be another person who could gain widespread support, across political and civil forces – but I only hope it would be one that will not let us down like Sirisena has done.

MULLIKULAM: A STEP CLOSER TO REGAIN NAVY OCCUPIED LANDS AND HOUSES

First published in the Sunday Observer of 5th August 2018 http://www.sundayobserver.lk/2018/08/05/news-features/mullikulam-step-closer-regain-navy-occupied-lands-and-houses

On 17th July 2018 about 80 families, including children and elderly left behind the brick houses they have been living in, with water, toilets, furniture, kitchen and other household goods, and moved to live in tents in a forest like area. The move was to resettle in their beloved, traditional village, Mullikulam, after nearly 11 years of displacement due to Navy occupation of the village.

Throughout this period, while struggling to survive without the resources Mullikulam provided, the villagers also battled to regain their lands, with many negotiations, meetings, petitions, letters and protests. The responses were mostly betrayals and broken promises, by the present and previous governments.

In 2012, their struggles led to limited access to the school, the church, and some agricultural lands. On April 29, 2017, after a sit-in overnight protest for more than a month outside the entrance to the Navy occupied village, the Navy Commander promised to release 100 acres of land “immediately” and release by end of the year, 27 houses, These were houses in good condition and had been occupied by the Navy. Promises of the Navy were still available on the official website when I was in Mullikulam last week. (http://news.navy.lk/eventnews/2017/04/29/201704291945/)

The 27 houses are yet to be released. This is why people had been compelled to live in tents, in forested and bushy areas of the 77 acres that has been released.

They face dangers from snakes and elephants, as well as dust, sun and rainfall that may come soon. There are electricity lines to the Navy buildings, near to where they live, but they have no electricity and this exacerbates night time dangers. They have to go a couple of kilometres to have a bath and are dependent on minimal toilet facilities at the nearby church and school.

Most painful for some villagers is to see their own houses occupied by the Navy, just a few metres away from their tents. An elderly villager showed me his brick house now occupied by the Navy, just across the gravel road from the tent he is now compelled to live in.

His two sons and a nine month old grandson are among those living in tents. Another grandson born last Sunday and his mother, are unable to come and live in the village in their house, due to Naval occupation of the house.

A rich land broken apart

Mullikulam has been a prosperous and picturesque village in the Mannar District, with a population that’s entirely Roman Catholic and of Tamil origin. It is a traditional fisher and farming village, with forests, tanks, irrigation schemes and open access to the sea enabling food security and steady income. The war resulted in the displacement of villagers in 1990, but many returned after the 2002 Ceasefire Agreement and started to rebuild their lives, livelihoods and restore their destroyed houses and property.

In September 2007, the people of Mullikulam were forcibly removed from their village and the entire village was taken over by the Army. The villagers were assured that they could return within three days. Nearly 11 years after, the people of Mullikulam have yet to be allowed to return home and the status of return remains indefinite and uncertain, due to the Navy having established their Northwestern Command Headquarters and Naval Institute (SLNS Barana) at Mullikulam.

During these 11 years, the approximately 300 families (besides about 100 in South India), have been living on rent, in temporary shelters/camps, or with host families/relatives, in and around Mannar. Some have accepted alternate land and housing. Most want to return to live in Mullikulam.

The future

Despite the nearly 11 year old wait, immense sufferings and broken promises, villagers have still not given up hope of having their village restored to them, which led to the latest move last month.

Civil authorities in the area must step into to provide the most urgent needs for those who moved to Mullikulam, such as electricity, toilets and bathing facilities.

The situation in Mullikulam has also been brought to the attention of the President, who is also the Commander in Chief. He must ensure that the Navy keeps its promise and immediately release the balance 23 acres of land and 27 houses, plus the 300 acres they had “earlier consented to release”.

Although what is needed is nothing less than the release of the Mullikulam village as soon as possible, it would be important to prioritise land that people judge to be most important for traditional livelihoods, public purposes and residencies.

It is also important to establish a regular consultative process about land releases with Mullikulam people, that’s led by civil authorities, respects people’s right to communicate and receive communications in Tamil, maintains transparency with written records of discussions and agreements, provides regular written updates on progress being made and responds to queries.

The Government must also try to provide the displaced people with material and financial assistance to rebuild their lives, including the return of boats, nets and other resources they had left behind when the Army occupied the village, rebuilding or improving village infrastructure including schools, medical centres and other amenities and ensuring equal access to common property and resources.

Note: the writer has been visiting and working with Mullikulam community since their displacement in 2007. Below are two of his previous writings that provides more background information.

Renewed struggle to regain Navy occupied village http://groundviews.org/2017/04/06/mullikulam-renewed-struggle-to-regain-…

The struggle to go home in post war Sri Lanka: The story of Mullikulam

http://groundviews.org/2012/08/01/the-struggle-to-go-home-in-post-war-sr…

DISAPPEARANCES IN SRI LANKA: 500 DAYS OF PROTESTS

First published in the Sunday Observer of 29th July 2018 http://www.sundayobserver.lk/2018/07/29/opinion/disappearances-sri-lanka-500-days-protests

Earlier this month female activists in the North and the East were subject to assault and other intimidation, which allegedly appears to be in relation to their work on disappearances, in courts and at the UN.

The Office of Missing Persons consultation meetings in Jaffna and Kilinochchi also met with fierce resistance by some families of the disappeared. July also saw the first significant solidarity protest in Colombo to mark 500 days of roadside protests by families of the disappeared in the North and the East.

Two weeks ago, I went to Jaffna Hospital to visit an activist I have known for many years. Her head was bandaged, left eye and cheek swollen and bruised. She had been attacked with an iron rod close to the Vaddukottai Police Station in the Jaffna district. The activist had been assisting families of the disappeared and lawyers in habeas corpus cases in Jaffna courts. According to documents filed in court and based on the magisterial inquiry, the military is allegedly implicated in the disappearances.

These disappearances had happened in 1996, when Jaffna was under Army control, under the Presidency of Chandrika Kumaratunga, who is now Chairperson of the Office for National Unity and Reconciliation (ONUR). The activist was attacked three days after the last hearing of the case.

She had been warned by an unidentified person not to get involved in the case. Others involved in the case have also been subject to intimidation in the past few months.

Two days before, I had met a Tamil activist from the East, whose husband had been a victim of an enforced disappearance. Having had no response from Sri Lankan authorities, she had for the first time, gone to Geneva to seek help from the UN Human Rights Council.

There, an event she was speaking at was disrupted by group of persons she suspects to be linked to the military. After the disruption, she fainted while at the head-table, had to receive immediate medical treatment and was later hospitalised.

Her trauma continued when she returned. She told me that as she was looking for her baggage in the airport, she was questioned by some officials at the airport. After reaching home, she alleged that she was interrogated by people suspected to be from the Criminal Investigation Department (CID) about meetings she had at the UN in Geneva.

A few days later, an iron rod was thrown at her, when she was on a bicycle with her son in her hometown.

The brutal attack on the Jaffna disappearance activist happened while the Office of Missing Persons (OMP) was holding consultations in the town. The next day, OMP held a similar meeting in Kilinochchi. From the Jaffna hospital, I went to the OMP meeting in Kilinochchi, arriving earlier than the scheduled 9.30 a.m. I found the small access road crowded with protesters, mostly Tamil mothers and wives of those disappeared. Some of them had been protesting for more than 500 days continually, had met the Sri Lankan President several times, and complained to various state institutions and Commissions of Inquiries.

Frustrated and fed up, they had no faith in new institutions. They politely and patiently explained this to the equally polite and patient Chairman of the OMP, who had come out to the street to talk to them. The protest leaders agreed with OMP Chair’s appeal not to obstruct families who wanted to attend the OMP meeting, but insisted on their right to communicate their message to families going for the meeting. I observed that some such attempts bordered on physical obstruction, though the road and gate was cleared for anyone to go to the OMP building.

Some families who were keen to go to the OMP meeting, argued with protesters, with one elderly lady telling a protest leader “you deal with your son’s disappearance the way you want, I will deal with disappearance of my son the way I want”.

While I share the frustrations of protesting families, I hope their leaders will find more respectful ways of engaging with families of disappeared who want to engage with the OMP.

In the end, only about 10 families attended the meeting with OMP. During the meeting, one family of the disappeared asked the OMP to deliver justice instead of having meeting-after-meeting. Another shared the belief that a 15 year old child taken away by the LTTE was still alive and another stressed the importance of livelihood assistance. The question of those who had disappeared after surrendering to the Army was also raised.

500 days of day and night protests

From the Kilinochchi OMP meeting, I went to Vavuniya, to spend some time with families of the disappeared who have been protesting day and night at a roadside tent for more than 500 days. They shared difficulties of sustaining such a long protest. Anger and disappointment with the Government, Tamil politicians, media, activists and society in general was visible. I again felt weakening health conditions and resolve of some protesters and a few days after my visit, I heard about the death of the eighth protestor who had died during the 500 days. It was also sad to see escalating tensions between protesting families with activists, politicians and even non-protesting families of the disappeared, inevitable given their hostile, inhospitable, frustrating and traumatic experiences.

Although the families must finally decide about how to protest, it would be insensitive to encourage continued protests in the context of authorities, media and society at large that are not sympathetic to their plight. Elderly and physically and emotionally frail mothers and fathers who are protesting are vulnerable to harsh conditions. I had always hoped protesters will consider forms of continuing protests less harmful to themselves, so, I was relieved to hear last week that some of the protesters had decided to change strategy.

Challenges facing families and the OMP

In my conversations with families of disappeared, food, education, healthcare, housing and livelihoods have emerged as major challenges to families of the disappeared – and especially to those protesting for 500 days. Once, when I arrived at a protest site late morning, the protesters had not had any breakfast. Families at one protest site told me that they get five lunch packets from a local trader and share them.

The latest attacks on Tamil women disappearance activists in North and East comes after the vicious hate campaign including death threats against the brave and determined Sandya Ekneligoda, a Sinhalese from a Colombo suburb and wife of a disappeared journalist. Such attacks may deter activism and increase anger, frustration and suspicion against the judiciary or institutions such as the OMP, and radicalise families and others.

Families of the disappeared confront the OMP with the legacy of broken promises by successive Governments and the failures of past Commissions to provide redress. To their mind, there is no compelling reason to trust that the OMP will deliver. Families who have been deceived and dismissed repeatedly even by the current ruling administration will not be convinced by technical answers about how the OMP is different to other mechanisms.

Discussions between protestors and the OMP Chair and Members in Kilinochchi and their memo to the Office indicate they were open to engage conditionally with the mechanism and should be taken seriously. After five months of operation, the OMP does not appear to have started tracing the disappeared and missing. The challenge for the OMP is to deliver on actions and in months, rather than years.

Solidarity

This note would not be complete without mention of the 30-hour overnight protest vigil in Colombo to show support and solidarity towards the 500 days continuing protests by Tamil families of the disappeared in the North and the East. It was a first such solidarity action in Colombo and a personal initiative of a small group of committed young activists. It was heartening to have few Sinhalese and Muslim families of the disappeared from around Colombo such as Sandya Ekneligoda, Mauri Jayasena and Sithi join us. Some people walking by and the occasional trishaw and motorcycle stopped and asked for details. Both drivers of the two trishaws I got in chatted with me about it. Others in vehicles, including Army officers, opened their windows and accepted our information leaflet.

As they wait for answers from the Government and institutions such as the OMP and judiciary about their loved ones, families of the disappeared deserve more coverage by mainstream Sinhalese and English media. And they need continued solidarity from Sri Lankan society and internationally. The struggle of the families must become a struggle of all Sri Lankans.

(The writer is a human rights activist)

AMPARA: 100 DAYS AFTER THE VIOLENCE AGAINST MUSLIMS

First published at http://www.sundayobserver.lk/2018/06/10/opinion/ampara-100-days-after-violence-against-muslims on 17th June 2018

On the night of February 26 and early hours of February 27, the Jumma Masjid Mosque in Ampara and a few nearby eateries run by Muslims were attacked by Sinhalese mobs. The mobs started by attacking the eatery ‘New Cassim Hotel’ based on a wild allegation that the Muslim owner was putting wanda pethi or sterilisation pills into the food served to customers, in order to wipe out the Sinhalese population in the area. The local mosque was accused of playing the lead role in distributing the pills. However, it appears the violence was premeditated and systematically planned, and the wanda Pethi story was just used as an emotive trigger.

100 days after

One hundred days after the violence, the fear and disappointment felt by the Muslim community in the area is palpable in their voices and in their body language. Fear that sparks off hatred smouldering beneath ashes may be ignited into fires again. Fear when some of those who attacked the Mosque still walk right in front of it, and others who hooted while going past it, despite the presence of policemen and a member of the Civil Defence Force providing 24 hour security at the mosque. Fear of reprisals, if they identify local youth they know were part of the attacks. Fear that prosecution of perpetrators may lead to further reprisals against them. Disappointment that the violence was not prevented despite ample opportunities and early warnings and disappointment that no compensation has been paid yet and no information about how much and when it would be given. And disappointment that the Government is not countering the continuing ideological warfare against Muslims, that violence against Muslims have continued for many years and they are compelled to live as second class citizens, in fear.

The physical damage caused by the attackers is still visible, especially, in the Mosque. The windows remain broken, the ashes from the burnt vehicles and motorcycles are still lying there. The remains of a brand new generator that was burnt is also still there, along with burnt and half burnt documents and furniture. Engineers have warned that the floor of the Mosque, which is an elevated structure, is not safe for worshippers to gather in numbers, due to damage caused by the fire. The broken boundary wall of the premises and gate remain the same, as they were after the night of violence and rioting in February.

New Cassim Hotel is still under construction following the damage. We had breakfast and lunch at the other two eateries which had resumed business, after some repairs and the purchasing of new furniture and fittings. But, both owners said, business was not what it used to be. The events that took place seemed to weigh heavily on their hearts and minds, even as they were trying to work hard and focus on rebuilding.

The lead up to the February violence

Trouble had been brewing for Muslims in the Ampara town long before the attacks. According to a Mosque leader, after the 2004 tsunami that badly affected many coastal towns close to Ampara, many Sinhalese construction workers had arrived in the area and some had remained in Ampara. These men had been hostile towards the Muslims. Muslim clerics who had come to teach religion in Ampara had faced harassment on the main roads. They had been hooted at and in one instance, the traditional cap worn by the moulavi was grabbed. Muslim leaders in the area said they had decided not to complain to the police about these incidents, to prevent the tensions from escalating. Instead, they had advised their clerics to reduce the amount of time spent walking on the roads and to take off their caps to prevent hostile persons from identifying them in public. When police complained that their traditional call to prayers were too loud, the Mosque responded by reducing the volume without arguing their case. Though native Tamil speakers, the Muslim community in the area have made an effort to learn Sinhalese and sent their children to study in the Sinhalese medium, the community leaders say.

In a separate incident, in Manikkamadu, in Irrakkamam, about 8 km south of Ampara town, a Buddhist statue had been placed on lands that the Muslims claim have been their lands, leading to protests and a court case. The statue is still there, but a policeman on duty prevented us from going up to the statue, citing a Prohibition Order from court.

The attack and damages

According to the several eyewitnesses and Mosque leaders we spoke to, the mobs which came to the Mosque had numbered several hundreds, with some estimates as high as 500-800. Two private buses had been used. Most were youth, and a few had been drunk. One eyewitness said he knew several local youth who were part of the mob. The mob had beaten and chased away the persons who were renting residential quarters owned by the Mosque, situated just behind the main Mosque building. A 65-year old Muslim cleric and a staffer in the mosque were also beaten and injured. Money, mobile phones and other valuables had been looted. The fire brigade had come to the Mosque while the fires were raging, but the mob had not allowed the them to douse the flames.

The community believes, only 11 persons had been arrested since the violence. At a subsequent meeting held in the nearby town of Oluvil with the Prime Minister and other high ranking politicians and government officials, the police had asked local Muslims to identify the persons responsible, but a senior Muslim leader had insisted that it was the duty of the police to investigate and identify the suspects. An eyewitness expressed concern about the effect it would have on the families of the mob, if the rioters were to be detained, several of whom they knew personally, who were part of the local Sinhalese community.

The damage to the Mosque is estimated by the Mosque leaders to be around Rs. 45 million. However, the District Secretariat assessment of the damage is around Rs. 24 million. Damage to the shops is estimated to be around Rs. 3.5 million while damage to a vehicle and motorcycles burnt is estimated to be around Rs. 3 million. Compensation is yet to be granted, while people are yet to learn the amounts which they would be entitled to.

Police and STF

One of the eateries attacked is opposite the District Secretariat and a few metres from several police offices in the vicinity, including those of senior officials. The other two eateries that were attacked and the Mosque were also within a five minutes drive from the police. But, it had taken the police a long time to get to the troubled spots and call in adequate reinforcements to deal with the mobs. Several residents said, that when the police had reached the Mosque, they had addressed the mob as “little brother” (Malli) and asked them to stop the destruction. But since no decisive action was taken, the mob had carried on.

Far worse was the fact that the police had not responded in advance, despite the calls to the emergency hotline (119) about 45 minutes before the mob’s arrival at the Mosque. One eyewitness used a landline to call 119 even as the mob was on the rampage, even then, there had been no clear response. Police had been present as tensions were brewing at New Cassim Hotel, well before the attack on the Mosque.

When an eyewitness at the Mosque – who was also beaten – was taken to a jeep parked just outside the boundary wall of the mosque, he had recognised the armed and uniformed men in the jeep as being from the Special Task Force (STF). He claims the STF had abused him in derogatory and obscene language. The STF appeared to have been observing the mobs and not intervened even with ‘minimum force’, the man claimed. There was proof that the STF stood by while the mob rioted, in the fact that the section of the Mosque wall where their jeep was parked had remained intact, while the rest of the wall was destroyed, the residents and religious leaders claimed.

An officer who was part of a team with weapons, that was deployed to an eatery which was being attacked, expressed frustration that he could not deploy minimum force, or even fire into the air to disperse the mobs, as there were as no orders from senior officers.

What’s next?

About a week after the violence in Ampara, more intensive violence was unleashed against Muslims in Digana and around Kandy, leading to the death of at least two people and massive destruction to Mosques, Muslim businesses, houses and properties. Since then, attention on the violence in Ampara appears to have faded away. But Muslims in Ampara await justice – which in the long term means opportunity to live without fear as equal citizens, co-existing with other communities. For this to happen, the Government will have to ensure those responsible are held accountable, without delay and start addressing deep-rooted and widespread anti-Muslim sentiments and canards about the Muslims.

[The writer is a Human Rights activist]

Access to land is a must for reconciliation in Sri Lanka

First published on 22nd May 2018 at https://www.ucanews.com/news/access-to-land-is-a-must-for-reconciliation-in-sri-lanka/82349

For rural communities, land is much more than a piece of property with a financial value

On April 23, I was with about 300 people from the Iranaitheevu twin islands off the north-western coast of Sri Lanka in the Kilinochchi district as they courageously reclaimed their Navy-occupied lands.

The islanders are all minority ethnic Tamils and Catholics.

In 1992, the islanders were compelled to leave due to the nation’s long-running civil war and the Navy subsequently occupied the islands. Some access was provided to the villagers until about 2007, but after the end of the war in 2009 they were totally barred.

Surrounding waters had provided fish and they had coconut trees, cattle and other sources of livelihood there. An historic church played a central role in village life, along with a school, cooperative, weaving center, hospital and village council.

Their hopes of returning rose after the election of a new national government in 2015. But, despite a series of meetings with officials in 2016 and 2017, and 359 days of continuous protest, they were not allowed to resettle.

Hence, on April 23 they sailed to their islands in about 40 boats accompanied by priests, nuns, activists and journalists. They stated firmly that they had come to stay, despite most of the infrastructure having been destroyed, and that the Navy could remain so long as their daily life was not obstructed.

Land releases and trail of destruction

Ten days earlier, the Army released 683 acres of land in northern Jaffna district to 964 legal owners after 28 years of occupation. But local activists, politicians and journalists reported that some access roads and a school were still held by the army. Buildings that were in good when they left were destroyed when they were allowed to resettle.

The people who were displaced were further insulted by the garlanding at a hand-back ceremony of those who took away their land. Ironically, the return of the land was referred to as “gift” by the military. There were no apologies and no compensation for displacement, losses and suffering the occupation caused.

While the government announced more than a billion rupees (approximately $US 6.4 million) to the army for them to release land, there has been minimal assistance offered to the people who were resettling. This arrogant approach inhibits scope for reconciliation through land releases.

Land issues faced by Muslims and Sinhalese

While Tamils in the north have suffered most due to military land occupation, Muslims and Sinhalese in this region have also suffered, with official complaints, negotiations, protests and court cases failing to resolve most land  grievances.  Also in the north, Muslims who were evicted by the Tamil Tigers in 1990 complain of insufficient government resettlement assistance and feel that most Tamils are not supportive of them returning.

Land issues beyond military occupation

In addition to the military, other government agencies such as those responsible for forests and wildlife have been accused of restricting people’s access to land. Tourism and other development projects are also affecting people’s access to land. And across the country, land entitlements are denied on the basis of caste and gender. Tamils who worked on British-initiated tea plantations in slave like conditions have remained landless for more than 150 years.

Land and reconciliation

In the North, new land grabbing continues. In Mullaitheevu district last year the government claimed 671 acres of land to build a Navy camp, citing this as a “public purpose.”

For rural communities, land is much more than a piece of property with a financial value. On it hinges livelihoods; especially through fishing and farming. Their ancestor’s remains are in these lands and there are historic places of worship such as Hindu temples and Christian churches. Community life has been tied to the land and merely relocating people or providing financial compensation will not help.

Court cases, petitions, discussions with authorities and protests will continue. In the absence of favorable responses from the government, it’s possible that more displaced people will attempt to re-occupy their lands as happened in Iranaitheevu. There cannot be reconciliation without access to land.

Ruki Fernando is a Sri Lankan human rights activist who was detained under the Prevention of Terrorism Act and is still under investigation with restrictions on free expression. He is a member of the Justice, Peace and Integrity of Creation Commission of the Conference of Major Religious Superiors and a member of the Watchdog Collective and an Advisor to INFORM Human Rights Documentation Center.

The May 18 Disconnect

First published on 20th May 2018 at http://www.sundayobserver.lk/2018/05/20/opinion/may-18-disconnect

Travelling back to the final theatre of battle nine years later, where tens of thousands of civilians were trapped in the fighting, an activist reflects on the horrors of the final days of the war in 2009 and the inability of Sri Lankans in the north and south to connect to each other’s suffering on the anniversary of the guns falling silent.

May 18, 2009 is the day Sri Lanka’s three decades long war came to an end.

Mullivaikkal, a narrow strip of beach in the Mullaitivu District is where the war ended, when the Sri Lanka Army militarily defeated the LTTE and its 26 year struggle for a separate Tamil state. Before 2009, Mullivaikkal was a beautiful, but practically unheard of village, between the now infamous Nandikadal Lagoon and the ocean on the island’s North Eastern coast.

The days, weeks and months preceding May 18, 2009, Mullivaikkal and nearby areas had been the epicenter of the final battles of the civil war, with a UN estimate of tens of thousands killed – combatants and civilians and hundreds disappeared – many of them after surrendering themselves to the authorities.

Yesterday’s emotional and moving journey to Mullivaikkal felt like a pilgrimage. It started when a good friend unexpectedly invited me to join him.

It became a journey that retraced his footsteps in 2008-2009, for twelve months, under very different circumstances. He had journeyed from Vellankulam on the North Western coast to Mullivaikkal with thousands of others, and was held for 100 days in the Vavuniya Menik Farm, the Government internment camp for civilians who had been trapped in the final battle zones.

As we travelled, he showed me the places he had camped out for several months and others in which he had only tarried a few days, in and out of bunkers, amid heavy shelling. He pointed to a playground on the roadside which he said had been inside the first No Fire Zone declared by the military. Here, he recalled people being killed and injured when shells rained down while a UN convoy was distributing food. At a nearby church, a mutual friend had lost his leg.

Retracing

In that year long journey to Mullivaikkal in 2009, he had seen people fall dead all around him and many injured. We heard stories about how he had picked up an injured and dying man on the roadside, and carried him to a makeshift hospital in Puthumathalan on his motorbike while shells fell all around him. When he reached the hospital, his clothes were soaked with blood, leading medical staff there to think my friend had been fatally injured.

He pointed out a place and an incident where he had narrowly escaped being hit by shelling, but 13 other people had been killed.

My friend is a Catholic Priest. In 2009, his Bishop, the Vatican, even the Sri Lankan President had requested him and other Priests to leave the war zone, even agreeing to facilitate their exit. My friend was among the small stubborn and exceptionally courageous group of clergymen and women who refused to leave the war-zone until the last person had left.

Between April-May 2009, around the Mullivaikkal region, one of these priests died, another disappeared, one lost his leg and yet another suffered injuries. But my friend and others survived. He showed me the last place where he sought shelter until May 18 and the place the military interrogated him before his 100 days at Menik Farm.

As we walked around Mullivaikkal, he introduced me to other survivors.

One was an elderly gentleman whose wife and other relations including young children died on May 14, 2009. Keen to keep using Tamil civilians as human shields, the LTTE was preventing people from leaving the war zone, so this family had tried to secretly cross over through bushes and water. They had all drowned in the Nandikadal lagoon.

Another friend who had also stayed till the end, showed me a school in Mullivaikkal where bodies of the dead had been piled up. Another told a story of parents who survived, whose children had been killed. The children’s remains had been found when they returned to resettle after the war.

There were too many such stories to narrate, and there aren’t enough words to describe the pain.

Commemorations in the North

My friend also showed me where another Priest who had stayed with the people right till the end had died on the last day of the war, on May 18, 2009. That was Fr. Sarathjeevan, or “Fr. Sara”.

I had not known Fr. Sara, but out of respect for him, I had been attending a commemorative event for Fr. Sara and others killed, for several years, in a small village near Kilinochchi. Some friends of Fr. Sara had decided to erect a small and simple monument for him at the last church he served. From this church, right up to Mullivaikkal, Fr. Sara accompanied civilians who were being pushed back as the military advanced against the LTTE frontlines, pushing the Tigers’ frontlines, fell further and further to the edge of Mullaitivu. A second monument was also erected to commemorate all those who had died in the war.

The two monuments, standing side by side, are the first ever monuments built by civilians for civilians in the Wanni. During this year’s commemoration there, prayers had been offered for all those killed, including civilians, LTTE cadres and members of the armed forces.

Yesterday, I saw elaborate arrangements being made in the Mullivaikkal chapel for a commemorative service. Symbolic sand tombs had been made for those without graves, and they were sprinkled with flowers. There was also a bigger event with thousands of affected families participating, along with clergy, university students, the Northern Chief Minister and Tamil politicians.

North and South; Sinhalese and Tamils

Since 2009, May 18 is the day I feel the strongest disconnect between the North and East and rest of the country, along ethnic lines. Since 2009, the mood of May 18 in the North has been one of mourning. These events have been misunderstood by sections of the South, to be similar to the November LTTE Martyrs’ Day commemorations. But the May 18 memorials have not been about the LTTE.

Most Tamils in the North, which bore the brunt of the war, mourn and grieve for the family members killed. It is similar in the East, which also was badly affected by the war. For years since 2009, the rest of the country was a contrast. From 2009-2015, the Rajapaksa Government celebrated May 19 as Victory Day. The current Government decided that it will be renamed as Remembrance Day, a quieter memorial day for fallen members of the armed forces. There has been little attempt to transform May 19 into a day of remembrance of all those who fell in Sri Lanka’s long drawn war – civilians and combatants alike.

Over the years, in the North, those organizing and participating in remembering the war dead have faced restrictions, harassments, intimidations from police and military. At the end of the war, the Government at the time decided to raze cemeteries where LTTE combatants were buried. Some have had camps built over them, and military personnel play cricket on the same ground. For families of those buried on these grounds – because LTTE cadres were also someone’s family – this is agonizing.

Clearly, remembering those who were killed during the war – whether civilians, journalist, priest, politicians, soldier or LTTE – is something that divides us ethnically and geographically, even as we close upon a decade since the end of the war. There have also been voices and acts of extraordinary courage.

Returning after an emotional day in Mullivaikkal, nine years after the end of the war, I struggle to keep faith that the few exceptional voices and initiatives will prevail and Sri Lanka will overcome the May 18 disconnect. Reconciliation will remain elusive till then.