Photo courtesy of InfoLanka

Kanagasabai Thevathasan is a 64-year-old prisoner I met while I was at the Human Rights Commission of Sri Lanka. Twelve years have passed since he was arrested, more than ten of which he has spent in prison.  Thevathasan began fasting unto death on 6 January 2021, which he called off on 16 January for three weeks  after promises were made by the prison authorities to speak with the relevant authorities to expedite his cases. Thevathasan is currently appealing his conviction under the Prevention of Terrorism Act (PTA), and is requesting his hearings be expedited and that he be granted bail.  His story is like that of hundreds arrested under the PTA since its enactment in 1979. According to him, he was abducted by men in civilian clothing, held at an unauthorized place of detention for a week, tortured, forced to sign a confession and thereafter transferred to the custody of a police station. He was held on a detention order for fifteen months during which period he said he continued to be tortured. He does not have a lawyer and is representing himself.

The nature and seriousness of the offence for which a person is arrested do not justify abducting them, holding at an unauthorized placed of detention, torturing and forcing them to sign a confession. These are basic due process rights to which every person regardless of the seriousness of the crime they commit is entitled. Yet, not only successive governments, the public and law enforcement authorities, but also disturbingly even legal practitioners seem to disregard these basic principles where terror offences are concerned.

How terrorists are created

Generally, the state portrays those arrested for allegedly committing terror offences, to date mainly Tamils, and after the Easter attacks also Muslims, as guilty from the point of arrest. Innocent until proven guilty, the legal maxim upon which the criminal justice system is founded, is a luxury, and not a basic right, afforded to those arrested for terror offences. As Amal de Chickera says, a person arrested for terror offences is pre-judged as guilty “by virtue of his arrest and identity alone”. The manner in which those arrested for terror offences are treated serves to curb challenges to such an arrest due to concern amongst the public and even human rights defenders of possible state backlash or being labelled terrorists themselves.

Historically, Tamils, dissenters, those critical of the government of the time, and anyone calling for accountability for human rights violations have been labelled LTTE or portrayed as threats to national security. I too have been a target of such labelling. Such labelling is done to create an environment the enables the state to justify any punitive action taken against them. At present, even the Minister of Justice Ali Sabry is being labelled a threat to national security because he spoke in support of burial rights of Muslims and pointed out that discrimination by the state would radicalize youth. Instead of learning lessons from history that discrimination causes and fuels conflict, there are demands for the Minister’s resignation. If even a government minister is not immune to being labelled a threat to national security, what then is the plight of a citizen with no such power or privilege? In a context in which the Secretary, Ministry of Foreign Affairs Admiral Jayanath Colombage states, “Once you are a terrorist, you are always a terrorist. That is what we believe in”, being labelled a terrorist would be a metaphorical, if not literal, death sentence.

Class: in plain sight but never acknowledged

Due to the aforementioned context, it is not uncommon for lawyers to show reluctance to represent PTA detainees. In these circumstances, the continued activism demanding Hejaaz Hizbullah’s due process rights to be respected is commendable and heartening. Yet, Hejaaz’s case is also one that is illustrative of the way in which privilege and class impact the manner in which those arrested for terror offences are perceived, not only by the state and the public, but also by human rights defenders and civic activists.

Often, activism around the PTA and the treatment of those arrested for terror offences focuses on the general shortcomings of the law and process. I can recall vociferous activism in support of the rights of specific individuals detained under the PTA only in a few instances. Other than Hejaaz, a case that immediately comes to mind is that of journalist Tissanayagam. The focus on these individuals is based largely on their extraordinary achievements and social contribution, which while valid, also unwittingly creates a hierarchy of who is deserving of our voice and activism. Evidence of the existence of such a hierarchy is the fact there was barely a whisper when in April 2016 more than fifty Tamils were arrested following the discovery of a suicide jacket in a house in Chavakachcheri in the Northern Province.

Most persons arrested in April 2016 were released after several months with no charges filed as it was found they had committed no offence. Many were arrested because they had some contact with the person in possession of the suicide jacket as part of the normal course of their work, i.e. a man who worked as a teller at a money exchange, a man who owned a motorbike shop. I visited most arrested persons who were held on detention orders, dealt with their complaints and followed their cases, and hence know that by the time these persons were released, their lives, livelihoods and businesses had fallen apart. This illustrates that with regard to terror offences, arrests are not made based on evidence gathered after an investigation or reasonable suspicion. Instead, normally, the investigation begins after the arrest.

The second example of the existence of a hierarchy of detainees deserving of our voice and activism is the near silence during the arrest of scores of Muslim men after the Easter attacks, seemingly without evidence or reasonable suspicion. For example, there were cases of men being arrested for possessing items such as small amounts of chlorine in their homes for cleaning purposes, which was suspected to be an explosive material, the Quran and documents in Arabic, having a song (Qaseeda) on the hundred names of Allah on their phone, and a dagger. I have listened to members of the Muslim community say with anguish that they burnt Qurans and magazines and other documents that were in Arabic for fear of being arrested.

I visited the Muslim detainees, most of whom were from working class backgrounds, and met with their families. I therefore know that  those that were arrested were most often the primary and even sole income earners of their families. Hence, their arrest caused untold hardship and emotional trauma for the families, who also had little or no knowledge of how or where to seek legal assistance. In most instances, they could not afford to retain legal counsel. Even those who could afford to retain lawyers faced numerous obstacles as lawyers refused to appear for detainees for fear of being seen as representing terrorists and the possible resultant public backlash.

In certain Bars, it was reported that lawyers not only refused to represent the detainees but also attempted to intimidate other lawyers appearing for detainees in an attempt to prevent them from representing detainees, such as at the Marawila Bar. Although the Human Rights Commission of Sri Lanka wrote to the Bar Association of Sri Lanka (BASL) based on credible and verified reports it had received from the families of detainees and lawyers who appeared for the detainees, the BASL responded that there have been ‘no formal resolutions by any identified regional branch resolving to refrain from representing suspects arrested in relation to the terror attacks on 21st April’ and did not initiate a formal inquiry into the matter. The BASL’s response illustrates a lack of understanding of anti-Muslim sentiments prevailing at the time, as well as of the manner in which informal social practices impact legal rights and the ability of detainees to enjoy their due process rights, especially to a fair trial.

The case of poet Ahnaf Jazeem from Mannar who was arrested in May 2020 due to a book of poetry, which supposedly promotes extremism, but actually calls for an end to extremism and anti-violence, is another example of a PTA arrest that has gone unnoticed. Even after the arrest was revealed during proceedings in Hejaaz’s case and was made public by reporters in December 2020, there has been little advocacy on Ahnaf’s behalf.

Detainees are strangers to us but legal principles aren’t

I empathize with and support my colleague Gehan Gunatilleke who urges people not to “uncritically accept the picture that is painted of him in the media” when they think of “Hejaaz Hizbullah, Attorney-at-Law”. Gehan appeals to everyone to ‘Ask yourself if this picture bears any resemblance to what we know of him’. However, we often know nothing about the detainees and therefore cannot base our advocacy on what we know of them.

As Amal says, ‘The less that is known about someone, the easier it is to caricature them, by piecing together fragments of information, colouring them with stereotypes and moulding them to validate preordained narratives”. But when we might never learn anything about the personalities and personal histories of detainees, how do we advocate for the protection of their rights? Our only option therefore is to base our campaigns mainly on legal principles and human rights standards.

This means we should not call for due process based only on what we know of the person, or only because we know the person or are part of the same social circles. We should do so because every person, whether innocent or guilty is entitled to enjoy due process and to be deemed innocent until proven guilty. It means we should not call for the PTA to be repealed only because we believe the person is innocent or because we think the person could not have committed such an offence. We should do so because the PTA violates fundamental human rights standards. The kind of advocacy being employed for Hejaaz should be the standard of advocacy we employ in relation to all those arrested under the PTA. It should be the standard we should use to advocate for the due process rights of Kanagasabai Thevathasan and all those detained under the PTA.