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The fast by prisoners last month has given rise to fresh debate about justice for them. It is a sad reflection on Sri Lankan people and the new Government that the prisoners had to resort to such drastic action in order to even gain momentum for justice; for what is a categorical breach of these individuals’ fair trial rights and a failure of the criminal justice system. It has been reported that the fast was called off based on assurances by the President to offer a solution by 7 November 2015. However, what the President will offer as a solution is not clear.
Having been detained under the PTA last year and still remaining under investigation and facing restrictions on freedom of expression after 10 months of “good governance”, justice for PTA detainees is something very personal for me. I consider myself to be the luckiest of those who have come into contact with the PTA; my detention was relatively short, I was not harmed physically, and today I am relatively free physically. Ironically, despite being a “terrorist suspect”, this year I have been invited to meetings on various human rights issues, including reconciliation, accountability, and transitional justice, with the Prime Minister, other Government Ministers, and the Permanent Representative of Sri Lanka to the UN in Geneva. I attended a few of those meetings in good faith, but I still ask myself whether I should participate in such discussions when I am, by their own designation, still a terrorist suspect.
In my view, there are six distinct categories of PTA detainees, and a key issue is how these six different categories will be addressed. The six categories are:(1) those who have been arrested but are detained without charge, (2) those who have been charged but their cases have not been concluded, (3) those who have been convicted, (4) those whose convictions are being challenged in courts, (5) those who are in “rehabilitation”, and (6) those who are still under investigation without being in detention.
How long will it take to implement the President’s November 7th solution? Weeks, months, years? Which cases will be prioritised?Those awaiting justice have been waiting from a few months to upto two decades.
The lack of official information has also led to speculation about the actual numbers in each category, as well as preventing proper checks and balances about each category. In January 2015, a list of 182 persons in 11 remand prisons under the PTA was released (“the January List”). The January List excluded those who have been convicted under the PTA. The January List also excluded those detained in places such as the headquarters of the Terrorist Investigation Department (TID) in Colombo and Boossa. Further, during this year, I am aware of two persons in the January List who were acquitted, at least one person who was released on bail, and two persons that have been convicted. Between January and August 2015, there have also been at least 21 reported arrests under the PTA. Thus, the actual numbers of PTA detainees/suspects/those under investigation is likely to be higher than 182.
This article below is largely based on information contained in the January List of 182 names, complimented by personal interviews with detainees, those released, their families, lawyers, and activists assisting them.
According to the Minister of Justice, 99 persons have been convicted under the PTA and out of this, 45 have been sent for rehabilitation and 54 were serving their sentences. The Minister’s statement raises more questions than provides answers. Is this figure the total number persons convicted since the inception of the PTA? How many of the 54 serving their sentences are under appeal? To the best of my knowledge, convicted persons are not sent for rehabilitation, rather it relates to suspects (whether they are charged on not) who have agreed to subject themselves to rehabilitation and thus, who the 45 persons are not clear. Basically, to date, there is no official information relating to the numbers of convictions since the inception of the PTA, the nature of the convictions, the duration of sentences handed down, and how many are still serving sentences. Another key piece of information lacking is how many convictions are based solely (or primarily) on confessions.
Convicted, but on appeal
The number of those who have been convicted under the PTA but whose convictions (or sentences) are being challenged on appeal has also not been revealed. Some of the 54 quoted by the Minister could be on appeal, with their convictions or sentences or both being challenged.
Charged, but cases not concluded
This is a critical category. According to theMinister’s statement above, 134 have been charged and their cases are ongoing. We do not know how long these 134 individuals have been in detention for, awaiting trial.The January List indicated that there are people who are detained upto 18-19 years whose cases have still not been concluded.
Arrested, but not charged
This is also a critical category. The Ministers statement referred to above indicates 85 persons had not been charged. We do not know how long these 85 individuals have been in detention for, awaiting charges.
Suspects, but not in detention
Out of the six categories, this is the least urgent category, as these persons’ liberty has not been deprived or is no longer deprived. Nevertheless, it is still a category on which no information is available and should be dealt with within a specific time frame. This category includes Ms Balendran Jeyakumary, Father Praveen, me and several others. The number of persons in this category is unknown. It has been nearly 20 months since Father Praveen and I were arrested and released, and despite two written submissions by my lawyers to the Attorney-General in 2014 and 2015, there is still a refusal to close the case. I have also been subjected to restrictions on my freedom of expression and my confiscated equipment has not been returned. The overseas travel restrictions on me was removed only after 15 months.Others are still subjected to overseas travel restrictions. Ms Jeyakumary has to present herself to a Police station every month after being released on bail. In September 2015, she was re-arrested and detained for six days, even though she was only released on bail after 362 days in detention (without charge). She is assumed to be amongst the eight persons the Justice Minister has said is on bail.
Detained in “rehabilitation centres”
Some of those who are detained had “bargained” with authorities to “accept guilt” and serve time in a “rehabilitation centre”, instead of waiting unknown periods of time for a trial and risking long sentences if they were convicted. These can hardly be called “voluntarily” requesting for rehabilitation.
Most of the top leaders of the LTTE were killed or have disappeared after surrendering to the Army. Other top leaders are within the Government, including Karuna and KP, which is a blatant double standard. In particular, as Karuna and KP are accused of complicity in very serious crimes. KP has publicly admitted to being the leader of the LTTE. But the reasons for detention of some presently detained under the PTA have been given as “encouraging LTTE” or “supporting LTTE”. Some of those kept in detention have been declared not guilty by Courts and released after long years in detention – few months ago, a Tamil mother was acquitted as not guilty after 15 years in detention. How fair is it to refuse to detain and prosecute top leaders of the LTTE like Karuna and KP, who are “most responsible” and yet detain, prosecute, convict for decades those “less responsible”?
Use of confessions
Another key issue, which has not come to the limelight, is the use of confessions under the PTA. There is no official information relating to those who have been charged or convicted based on confessions. This is critical information in a context where confessions made to police or other public officers, which ordinarily are not admissible unless made in the presence of a Magistrate, are considered admissible evidence under the PTA. Confessions, in the PTA context, are routinely obtained under duress, including torture, in circumstances where individuals have very little or limited access to lawyers, families, and medical assistance.
Justice for those acquitted after numerous years in detention
In the last few months, two Tamil mothers were acquitted by Courts after more than 15 years and 6 years of detention. There maybe other such individuals who have been acquitted or released after numerous years in detention. As the Government attempts to conclude other PTA cases, more of those who have been detained, anywhere upto two decades, could be acquitted or released. The Government will have to think of ways of providing justice for such persons.At the very minimum, a public apology at a personal meeting with the President/Prime Minister, reimbursement of all costs in relation to the detention for the detainee and family, loss of income, compensation and other facilities and opportunities to recover from the mental and physical harm suffered could be considered. The Government ought to also launch investigations to determine why PTA cases have been so long and drawn out, including disciplinary action and criminal prosecutionsagainst those responsible.
For 10 months, why has the “good governance” Government failed to address the issue of PTA detainees?
Why has the Government failed to provide the country with comprehensive, clear, specific and official statistics relating to the PTA detainees? Will this information ever be provided and, if so, when?
Promptly dealing with PTA detainees who are in detention in limbo without charge, or are charged but are awaiting a trial, is a minimum first step to giving effect to fair trial rights and providing justice to these prisoners. Further, there must be the provision of comprehensive and clear information about numbers and timelines for dealing with such persons Without immediate and significant movement in ensuring justice for these prisoners, reconciliation and transitional justice will ring hollow.
Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979 (“PTA”).
Anuradhapura, Kandy, Badulla, Moneragela, Polonnaruwa, Trincomalee, Jaffna, Negombo and three in Colombo, namely the New Magazine Prison, Colombo Remand Prison, and Welikada.
Evidence Ordinance 1896, ss 25-26.
PTA, ss 16-17.