Peace for the World World ! Your War Our Lives
The Dalai Lama
A Brief Colonial History Of Ceylon(SriLanka)
Sri Lanka: One Island Two Nations
A Brief Colonial History Of Ceylon(SriLanka)
Sri Lanka: One Island Two Nations
(Full Story)
Back to 500BC.
Thursday, August 9, 2018
Deep Impact: Emmerson’s Report Reveals Lasting Legacy of PTA
RAISA WICKREMATUNGE-
On July 23, former UN Special Rapporteur on Counter-Terrorism and Human Rights, Ben Emmerson released a report following on from his visit to Sri Lanka in 2017.
Emmerson pulled no punches in his report – saying that the need for
repealing the Prevention of Terrorism Act (PTA) was “unequivocal” while
urging that any replacement legislation be aligned with international
standards.
“The case for repealing and replacing the #PTA is unequivocal” @BenEmmerson1 recommends an immediate moratorium on PTA, take urgent steps to repeal it - ohchr.org/Documents/Coun… #lka #SriLanka
Emmerson met with representatives of Government, several High Court
Judges, and a number of detainees during his visit. His findings
highlight the deep and lasting impact that legislation such as the PTA
have had in perpetuating police brutality and torture, even post-war – a
fact already highlighted by several bodies including through the Human Rights Commission, which noted that the practice of torture was ‘routine’ in 2016.
Often, detainees were made to sign statements or confessions in a language they did not understand.
The PTA allows for broad admissibility of confessions, acknowledged as a contributory factorallowing for torture of detainees, but it is sobering to see just how widespread this is in practice.
A Colombo High Court Judge told Emmerson during his visit that he had been able to acceptonly
1 out of 11 confessions as evidence, while a Judge in Anuradapura noted
that 12 out of 14 cases before him were based solely on unreliable
confessions.
The solution put forward by the State has not helped to inspire confidence.
.@BenEmmerson1 comments on lack of reaction to #hatespeech, racism - “It is not diversity within society, but marginalization, discrimination + alienation of groups that increases a country’s vulnerability to terrorism and violent extremism” ohchr.org/Documents/Coun… #lka #SriLanka pic.twitter.com/3JZ3fc71sE
.@BenEmmerson1 says draft #CTA maintains admissibility of confessions to police officers, adds definition of terrorism too broad ohchr.org/Documents/Coun… #lka #SriLanka pic.twitter.com/L1vkuHYJuv
These concerns echo those long raised by members of civil society.
Legislation like the PTA must be placed in the context of ongoing
stigmatisation against the Tamil community, including
underrepresentation at an institutional level, Emmerson noted in his
report.
These charges were denied by Government representatives – during the
visit, the State highlighted several projects for economic development
benefiting the Tamil community as proof of lack of discrimination. It
was suspicion of Government institutions that prevented members of the
Tamil community from participating in State institutions, the Government
contended.
Emmerson’s statement at
the conclusion of his visit in July 2017 was not received kindly in
some quarters – to put it mildly. Former Ambassador and Permanent
Representative to the United Nations in Geneva Tamara Kunanayakam and
former Ambassador and Permanent Representative to the United Nations, Dr
Palitha Kohona termed it
“ arbitrary, judgmental, arrogant, accusatory, threatening,
interventionist,and insulting” and charged that the Special Rapporteur
had exceeded his mandate. The then Minister of Justice, Wijeyadasa
Rajapakshe charged that
Emmerson lacked ‘calibre and diplomacy’. These statements were given
coverage by mainstream media, shifting the focus away from any
examination of the substance of the statement, even though, as Groundviews noted in 2017, members of civil society felt Emmerson’s statement accurately represented the current situation on the ground.
In contrast, Emmerson’s final report made barely a ripple in mainstream media coverage locally (although a report in the Guardian noted Emmerson’s scathing review of the reforms process, which he said had ground to “a virtual halt.”)
Groundviews spoke to a
cross-section of civil society on the findings of the report, including
activists, lawyers and members of civil society. (The Minister of
Justice was unavailable for comment at the time this story was published
– Groundviews made repeated attempts to contact her for a comment on the report.)
“The Special Rapporteur’s report is one of the most comprehensive in
recent times, highlighting some serious concerns related to
counter-terrorism and human rights in Sri Lanka,” activist Ruki Fernando
said. “His call for a moratorium on the use of the PTA until the
Government fulfils its promise to repeal it is significant. The PTA was
reportedly used to arrest Tamils even last month, despite the September
2015 promise to repeal it.”
However, Fernando did raise some concerns with the Rapporteur’s
suggestions on the CTA. “The Rapporteur supports [the introduction of a
CTA] on the condition that it adheres to international human rights law,
without addressing the fundamental question of whether there is, in
fact, a need for special counter terrorism laws.”
There was no reference to the trend, both in Sri Lanka and globally, on misusing such laws against particular communities in order to suppress dissent, Fernando pointed out.
Many of the trials for PTA detainees are not held in areas with a
significant Tamil population, despite the majority of these detainees
being Tamil.
Fernando added that the former Special Rapporteur had chosen to take a
legalistic approach to the CTA without commenting on the political
context – missing out important points such as the secrecy with which
laws in Sri Lanka are often drafted, and the lack of a consultation
process around them, including in this instance, from survivors and
families of PTA detainees. The Rapporteur had received access to the
draft law, but members of the general public did not have the same level
of access, Fernando pointed out.
Attorney-At-Law Ermiza Tegal echoed Fernando’s concerns on access and
the need for a replacement law. “I would disagree fundamentally with the
position that Sri Lanka needs a CTA…The damage caused to the fabric of
civil liberties under the PTA cannot be reversed by a CTA. By continuing
to give primacy to the security of State over individual security and
liberty, we continue to protect impunity entrenched in the legal and
policing systems,” Tegal said. In addition, the wide-ranging powers
available under the Public Security Ordinance, and the possibility of
enacting specific offences if needed pertaining to terrorism under the
ordinary law, and of taking executive measures to strengthen police
response in a crisis, all indicated that a special law such as the CTA
was not needed. “Legislation similar to the CTA continues to recognise
extraordinary powers and discretion for the executive. Sri Lanka needs
laws and measures to protect civil liberties and freedoms, not laws that
will contribute to eroding the rule of law.”
Tegal added that she had seen firsthand the deeply problematic effects
of the PTA – “There have been cases within my own experience of
complaints of police torture, mainly in the South of Sri Lanka, in which
purported ‘confessions’ or even statements said to be signed by the
victim surface, and the victim of torture denies giving such a
statement.”
One of the main reasons for torture in the cases Tegal had handled was
for the extraction of a confession – tallying with the accounts of the
High Court Judges Emmerson had spoken with during his visit. “I would
say forced confessions are a familiar practice associated with criminal
investigations,” she said.
Attorney-at-law Kishali Pinto Jayawardena said the Government should
take Emmerson’s warnings seriously, particularly those on the draft CTA.
“As at this date, Sri Lankan citizens have no idea as to the status of
this draft framework. This must be released for public scrutiny well
before it is presented as a Bill,” Jayawardena said.
Although the State has repeatedly made the case that examination of
detainees by a Judicial Medicial Officer was a sufficient safeguard to
prevent torture, Emmerson’s observations and numerous cases indicate
otherwise, Jayawardena said. The issue of uninhibited access to an
independent lawyer was also important.
“These are concerns that must be addressed substantively, not superficially,” Jayawardena said.
Jayawardena was not the only person to note the importance of political will.
Senior Researcher, Research and Advocacy from the Centre for Policy
Alternatives (CPA) Bhavani Fonseka noted that President Maithripala
Sirisena and the current government had promised to put in place a range
of reforms, including the repeal of the PTA and the introduction of new
legislation, in adherence to international standards.
“Despite these promises, the PTA continues to be used, with media
reports indicating that suspects are as recently as July 2018 being
indicted under the PTA Regulations. The custodial death in June this year and reports of torture are a grave indictment of a government that promised an ambitious set of reforms in 2015.”
These are concerns long raised by civil society, which Emmerson’s report
has only underscored. (In fact, CPA was the only civil society
organisation to challenge the PTA Regulations in Supreme Court in 2011.)
The continued use of the PTA raised serious concerns towards the deprivation of civil liberties, Fonseka said.
While some space has opened up for civil society input post-2015,
Emmerson’s report demonstrates the urgent need to address the culture of
impunity and introduce urgent reform.
Executive Director of Adayaalam Research Kumaravadivel Guruparan said
that Emmerson’s report made it clear that there had been “zero security
sector reform” given the continued use of torture, adding that in his
view there was no real political willingness to repeal the PTA.
“The commitments in Geneva were mere rhetoric, part of the Government’s
‘soft diplomacy tools’ in their foreign policy management strategy,” he
said.
Unlike Fernando, Guruparan felt that Emmerson’s report did include some
important context on the PTA specifically, on continued discrimination
against the Tamil community.
“[Emmerson’s report] acknowledges that Tamils have borne the brunt of
the [PTA] legislation disproportionately and makes it clear that the law
remains in place as an instrument of oppression against the Tamil
community. “
Human rights reporting’ in and on Sri Lanka has artificially sought to
depoliticise the issues at hand, in turn leading to a de-Tamilised
narrative of the conflict. Ben Emmerson’s report is an outlier in this
sense,” Guruparan said.
Adding to this, the North East Coordinating Council (NECC) spoke of the
continuing practise of militarisation and surveillance in the North and
East, and the lasting impact this had on members of the community,
including civil society and activists.
NECC responded to sections looking at length of detention and the use of
torture, discrimination against Tamils, and recommendations made on the
CTA, habeas corpus trials, demilitarization and the UNHRC resolution.
Several rights activists had been attacked in the wake of Emmerson’s
visit, a representative of the NECC who requested anonymity said. A male
activist was physically attacked and sexually assaulted, and a female
rights activist was attacked and hospitalised.
Surveillance took many forms. The police and military would often use
local informants, the NECC said. Sometimes, this included local
government officials and administrative officers, who were pressurised
into providing information. Intelligence personnel would join community
meetings and surreptitiously video them, or follow and video members of
civil society. At times, the intimidation was subtle– members of the
Intelligence services would question neighbours, with the intention of
ostracising civil society among their local communities.
This surveillance often extended inside the court-room, particularly for
habeas corpus trials, highlighting the need for witness protection and
the need for protection for lawyers and detainees.
Though Emmerson had personally met PTA detainees held without charge had
for years (with some of the detained having been held for over a
decade) arbitrary arrests had in fact begun in the early 80s,
particularly when thousands of Tamil youth were detained and tortured in
the infamous Boosa detention camp a representative from NECC who requested anonymity said. In particular, women were subject to torture, and humiliating “punishment”, often sexual in nature, at detention centres.
This is not to say that there have not been incremental steps in the right direction. A directiveissued
by the Human Rights Commission in 2016 to police on arrest and
detention under the PTA made recommendations on the process during and
after arrest, including specific provisions for women and those under 18
years of age. Also in 2016, the Government adopteda zero tolerance policy on torture, while the police appointed a Committee to eradicate Torture. In 2017, the Supreme Court ordered Batticaloa
police to pay over Rs. 2 million each to the parents of two youth
tortured and killed in police custody, following the filing of a
Fundamental Rights case.
Despite these steps, the reports keep coming. In 2017, an Associated Press report quoted ‘dozens’ of men who described rape and torture under the current government. Groundviewshas repeatedly flagged the continued use of arbitrary detention and torture, during and after the war, including under the current government.
The people Groundviews interviewed
for this piece include members of civil society based in the North and
East, lawyers and activists. While there were disagreements on finer
points, what is striking is the almost universal agreement that
Emmerson’s report only underscores ongoing, pervasive issues on torture
and arbitrary detention.
Yet, the apathy with which Emmerson’s report was received does not bode well for Sri Lanka’s prospects of long-term reform.
