Locked Up Without Evidence-Abuses under Sri Lanka’s Prevention of Terrorism Act

Summary

January 29, 2018

In August 2008, Sri Lankan police were searching for Malathi’s son, Kanna, whom they accused of aiding and abetting the insurgent Liberation Tigers of Tamil Eelam (LTTE). Malathi, who asked that her real name not be used, believes Kanna escaped abroad, as she has not heard from him since. However, when the police could not find Kanna, they arrested his 37-year-old wife, Durga (also a pseudonym). Malathi says that Durga was detained for nearly a year before being produced before a magistrate. It was a further six years before any charges were filed against her. Durga was eventually acquitted of all charges in 2015.

Durga has received no apologies, compensation, or answers for her seven years in detention. She remains psychologically and physically impaired because of her long incarceration. Her three young children were raised during those years by her mother-in-law. Malathi says it has been difficult:
My youngest grandchild was 18 months old at the time of Durga’s arrest. I am old but I had no choice but to raise the children, so I took menial jobs cleaning people’s homes to support them, to have some money for them. Even now that Durga is out, I don’t know what happened to her in there, but she’s not strong enough to work on the tea estates. So I have to keep working.
* * *
Hundreds of people like Durga have been arbitrarily detained in Sri Lanka under the Prevention of Terrorism Act (PTA), which was enacted in 1979 to counter separatist insurgencies, notably the LTTE. The law allows arrests for unspecified “unlawful activities” without warrant, and permits detention for up to 18 months without the authorities producing the suspect before a court pre-trial.
While other insurgent groups proved short-lived, the LTTE sustained a 26-year-long civil war in Sri Lanka that involved horrific abuses by both LTTE and government forces. The LTTE carried out targeted killings, suicide bombings, and torture, among other abuses. Military abuses included arbitrary arrests, summary executions, and forced disappearances, as well as indiscriminate attacks in the war’s final months. Government forces defeated the LTTE in May 2009.

Nearly nine years since the end of the fighting, the PTA has remained in effect, and has been used to arrest and hold people without charge or trial for months, even years. Many PTA detainees have been tortured in custody, and others have been among those forcibly disappeared. Those released have suffered psychologically as well as physically.

 

The Sri Lankan government has failed to fulfill its pledges to abolish the abusive Prevention of Terrorism Act (PTA). For decades, the PTA has been used to arbitrarily detain suspects for months and often years without charge or trial, facilitating torture, and other abuse.

In October 2015, following elections in August, the Sri Lankan government under President Maithripala Sirisena agreed to a consensus resolution at the United Nations Human Rights Council under increasing diplomatic pressure. The resolution committed the government to ensure accountability for conflict-related abuses by enacting several transitional justice mechanisms. Along with other human rights related reforms, the government also pledged to repeal the PTA, but has not yet done so.

This report, based on interviews with 34 former detainees or their relatives, documents serious human rights violations under the PTA including severe torture and sexual abuse, as well as systematic denials of due process. While the cases detailed here address the experiences of only a tiny fraction of the hundreds of people who suffered under the PTA, the accounts underscore the need to ensure that any new counterterrorism legislation is rights-respecting and does not replicate past abuses.

Protests calling for the release of PTA detainees have increased in recent years. In October 2017, students at Jaffna University began a protest against the PTA that led to a brief shutdown of the campus. A hunger strike by PTA detainees has reportedly led to one prisoner being released and a second hospitalized.

The PTA has been used to arbitrarily detain an unknown number of people without access to legal recourse. One former detainee, held without trial from 2007 to 2010 at the Welikada prison in the capital, Colombo, told Human Rights Watch that there were at least 800 PTA prisoners detained with him, many of them held without any credible basis.

“A few years after the war ended, some were charged, some were sent for rehabilitation, some signed confessions and were given short sentences,” he said. “In my experience, they just use the PTA to keep you locked up with no evidence.”

The PTA has also been used for politically motivated arrests of peaceful activists. In March 2014, prominent human rights campaigners Ruki Fernando and Father Praveen Mahesan were arrested while attempting to assist a 12-year-old girl whose mother, Jeyakumari Balendran, had been arrested under the PTA. An international outcry quickly led to Fernando and Father Praveen’s release on bail. The charges have yet to be dropped, and they continue to occasionally face harassment by immigration authorities when they are leaving the country for travels abroad.

Human Rights Watch and other organizations have long documented widespread torture of individuals in custody, particularly of ethnic Tamils detained under the PTA for suspected involvement with the LTTE. Ben Emmerson, then the UN special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, said after his July 2017 visit to the country: “The use of torture has been, and remains today, endemic and routine, for those arrested and detained on national security grounds.” He noted that the PTA was used “disproportionately against members of the Tamil community,” and that the community “has borne the brunt of the state’s well-oiled torture apparatus.”

After a two-week country visit in December 2017, the UN Working Group on Arbitrary Detention called for the immediate repeal of the PTA, referring to it as “one of the key enablers of arbitrary detention for over four decades.”

In a positive step, the Sri Lankan government announced it would adopt the UN Optional Protocol to the Convention against Torture during its Universal Periodic Review in November 2017.

Many of those detained under the PTA said that they were tortured to extract confessions or intelligence. Of the 17 individuals whose cases are detailed in this report, 11 reported beatings and torture. A senior judge responsible for handling PTA cases said in July 2017 that he was forced to exclude confession evidence in over 90 percent of the cases he had heard in 2017 because it had been obtained through the use or threat of force.

Sahan Kirthi, then 21, was arrested under the PTA in February 2007. He remained in detention without charge for five years. He ultimately confessed to a criminal offense, he said, because security forces threatened to rape his sister. In 2012, he was finally charged with conspiring against the government. Security forces did not have evidence to convict him, and the courts acquitted him two years later, in 2014. Kirthi had by then spent nearly a decade in prison, and still has injuries, including loss of hearing, from the torture that he endured.

As noted above, other former PTA detainees who spoke to Human Rights Watch described severe torture including sexual abuse. Several, including those interviewed for the 2013 Human Rights Watch report “We Will Teach You a Lesson,” said that security forces raped them, burned their genitals or breasts with cigarettes, and caused other injuries through beatings and electric shocks. Noting an “open door policy” for routine use of torture by security forces, Juan Méndez, then the UN special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, described the use of sexual abuse after his 2016 visit to Sri Lanka:

Torture and ill-treatment, including of a sexual nature, still occur, in particular in the early stages of arrest and interrogation, often for the purpose of eliciting confessions. The gravity of the mistreatment inflicted increases for those who are perceived to be involved in terrorism or offences against national security. The police resort to forceful extraction of information or coerced confessions rather than carrying out thorough investigations using scientific methods.

Former detainees and their family members said that despite coerced confessions, they agreed to plead guilty simply to end the indefinite detention.

Vivodhani Givoshan described the case of his brother, Soriyamoorthy Givoshan, who became trapped in the war zone and eventually surrendered to the army in Mullaitivu in 2009, during the final days of the war. Soriyamoorthy was initially detained in a military-run displacement camp in Vavuniya with others who had fled or surrendered to the government. In August 2009, members of the Sri Lankan police’s Terrorist Investigation Division (TID)—notorious for torture in custody—arrested him and took him from the camp. He was secretly detained for a year until he was finally produced before the Kandy Magistrate Court in August 2010. Vivodhani said his brother faced a range of charges and decided to plead guilty to end the indefinite detention:

We decided that it would be easier for him to plead guilty, so there was actually no trial. Although we know the prosecution had no evidence, or at least none that my brother’s lawyers could see.… My brother was young when he was arrested. So many of those arrested were young, many of them arrested on flimsy evidence of buying a SIM card, renting a bike.

Proposed Counterterrorism Legislation

After the end of the armed conflict with the LTTE in May 2009, the government relaxed some of its emergency regulations, which had given the security forces wide-ranging search, detention, and arrest powers, and in 2011 it allowed most of the measures to expire. Government directives issued in June 2016 require security forces to ensure that the fundamental rights of persons arrested or detained are respected, but the PTA remains in force, although it has not been used in 2017.

There is still no clarity on the number of people held under the PTA. In August 2017, the government released a list of 84 people in custody under the PTA and facing trial, and 12 others who had not been charged. A month earlier, the government had told Special Rapporteur Ben Emmerson that of the prisoners “currently in the judicial phase of their pre-trial detention, 70 had been in detention without trial for over five years and 12 had been in detention without trial for over 10 years.”

While the government has taken some steps to charge or release PTA detainees, lawyers working on these cases believe that the numbers are not accurate given the discrepancies in official numbers. This is not the first time the government’s information on the number of PTA detainees has shown discrepancies. In a meeting with Human Rights Watch in October 2015, Prime Minister Ranil Wickremesinghe admitted that getting an accurate count of PTA detainees was difficult because the various security agencies all had different numbers.

Since the 2015 Human Rights Council resolution, the government has made little progress on security sector reform, and in 2016 continued to use the PTA to arrest and detain supposed counterterrorism suspects. One significant act of compliance with its security sector reform pledge was the government’s establishment of a separate Ministry of Law and Order, removing the police and related agencies from the purview of the Ministry of Defence. However, other reforms within the security sector have yet to be enacted or implemented.

In June 2016, the government adopted directives recommended by the Human Rights Commission of Sri Lanka to protect detainees from abuses, particularly at the time of arrest and ensuing detention. These include guarantees of medical and legal assistance, registration of arrest, the right to be addressed in the language of the detainee’s choice, security from torture and other ill-treatment, and special protection for women and children. The directives also reassert the commission’s mandate to be promptly informed of all PTA arrests, to access any person arrested or detained under the PTA, and to access any place of detention at any time. These directives are meant to be an interim measure until the PTA is repealed and replaced with rights-respecting legislation.

Although several drafts of a new counterterrorism law have been floated, none have complied with international human rights standards. The government has not discussed these draft laws with human rights or affected victim groups. In March 2017, Ravinatha Aryasinha, Sri Lanka’s permanent representative in Geneva, told the Human Rights Council that the government was drafting a law that “seeks to effectively and comprehensively respond to contemporary manifestations and threats of terrorism, consistent with principles of democracy, good governance and the rule of law.”

In May 2017, the cabinet approved with little public consultation a draft Counter Terrorism Act (CTA), intended to replace the PTA. In the face of severe public criticism, the government has not, as it was expected to do, moved forward with outlining its plans for the new law. The bill falls far short of the government’s pledges to the Human Rights Council to end abusive detention without charge, and it remains unclear whether the government has taken on board recommendations from the UN Counter-Terrorism Committee Executive Directorate and other UN agencies.

The bill would in some ways improve upon the previous law, but it would still allow arbitrary and abusive detention. Some provisions provide potential safeguards against abuses, but as long as prolonged detention without charge is permitted, the likelihood of abuse remains high. Ultimately, the proposed law does not comply with security sector reforms sought by the Human Rights Council and required by Sri Lanka’s international obligations, and suggests that the government does not intend to fully relinquish the broad and too easily abused powers available to it under the PTA.

Among his concerns with the draft law, Special Rapporteur Emmerson noted that the broad definition of torture in the law “poses a real risk that the legislation could be used in circumstances very far removed from acts of real terrorism, or against minorities or human rights defenders in a discriminatory and sectarian manner.”

The Sri Lankan government should not enact any law that will perpetuate the wrongs committed for decades under the PTA or provide room for other abuses. The government should consult with Sri Lankan victim groups, human rights organizations, the Human Rights Commission of Sri Lanka, and international experts to draft a law that protects both national security and human rights. It should also seek technical assistance from the UN Counter-Terrorism Committee Executive Directorate and the Office of the United Nations High Commissioner for Human Rights.

Key Recommendations

• Repeal the Prevention of Terrorism Act (PTA) and replace it with rights-respecting counterterrorism legislation that meets international standards for due process.
• Undertake a consultative process with victim rights groups, civil society, human rights lawyers, and relevant experts to assist in drafting the new legislation.
• Implement the recommendations of the UN special rapporteur on counter-terrorism and human rights following his July 2017 country visit, including a prohibition on the use of confessions made to the police, unfettered access for the Human Rights Commission of Sri Lanka to all places of detention, and abolishing the attorney general’s right of veto over the granting of bail.
• Implement the recommendations of the UN special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment following his 2016 country visit, including ensuring that any new counterterrorism law provides protections against arbitrary arrests and detentions, strong judicial overview of law enforcement and security agencies, and safeguards to ensure legal counsel from the moment of arrest.
• Accept and implement the recommendations of the Office of the United Nations High Commissioner for Human Rights investigation on Sri Lanka, including reviewing all cases of detainees held under the PTA, and investigating and prosecuting all allegations of torture committed by law enforcement and security agencies.
• Implement all recommendations made by the UN Working Group on Arbitrary Detention in its December 2017 preliminary findings report.
• Fully comply with the Human Rights Commission’s guidelines on arrest and detention procedures in all cases, especially PTA cases.