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The findings of the National Study of Prisons undertaken by the Human Rights Commission of Sri Lanka have been discussed in numerous articles since its publication in December 2020. The study was conducted over nearly two years with a team of 33 persons. Data was gathered through inspections of 20 prisons within the purview of the Department of Prisons and by administering questionnaires to nearly 3,000 prisoners and conducting over 300 interviews with prisoners and prison officers. Senior officers of the Prison Department and key public officials, including the then Minister of Justice and Prison Reforms and the Attorney General, were also interviewed.
Given the government’s announcement on January 25 that it would review and amend provisions of the Prevention of Terrorism Act (PTA) to bring the law in line with international human rights standards, it would be useful to recall the findings of the National Study of Prisons on the plight of PTA prisoners. The findings are based on 87 questionnaires administered to and 52 interviews conducted with PTA prisoners in different prisons in Sri Lanka.
Persons remanded or convicted under the PTA stated they are at constant risk of ill-treatment and discrimination by other prisoners as well as prison officers depending on changes in the political climate. Due to this, all PTA prisoners said they prefer to be housed with fellow PTA prisoners rather than with other prisoners. Many PTA prisoners have spent many years in remand. For instance, the study found that 11 PTA prisoners have spent 10 to 15 years in remand, while 29 prisoners have spent 5 to 10 years in remand.
Pretrial detention and torture
According to the pattern of arrests, many prisoners reported being abducted from their homes, workplaces or while travelling and said their families were not provided an arrest receipt or information on their place of detention. A prisoner described the experience thus: “They kidnapped me in a white van on suspicion of helping a black tiger. The police in civil kidnapped me from XX in XX and took me to a secret location and tortured me for a week. They were going to kill me but they told me if I sign a confessional statement they will spare my life.”
Their contact with family and lawyers was prohibited for days, weeks and in some cases even months after the arrest. Some families were not informed of the arrest even months after the arrest as illustrated by a prisoner who said: “I was abducted. When news broke out about my abduction in XX, my family started to search for me. They found me only three months after I was detained at CID. ICRC had to fight to see me, because [CID] was keeping me hidden from them. [CID] denied that I was there but Mr. XXX fought with the CID to see me. That’s how my family got to know about me.”
PTA prisoners reported they were subjected to torture during the period they were held on Detention Orders following their arrest. Of the study sample, 84 per cent of male PTA inmates stated they suffered torture following arrest. A prisoner described it as follows: “They hung me up and assaulted me. They put a cloth into my mouth and tied a bag around my head. They beat me and slapped me. Then I started to bleed. I have difficulties breathing [due to an illness] so when they hanged me, I could not breathe properly. They started beating my heels”.
The study shows that the overwhelming majority of those who were subjected to torture after their arrest (83 per cent men, 100 per cent women) were made to sign confessions (90 per cent men, 100 per cent women). Ninety Five per cent of male respondents and 100 per cent of female respondents stated that the content of the document which they were made to sign, which was written in a language (Sinhala) a language they did not know, was not explained to them. A prisoner described it as follows: “I signed around 40 to 50 documents written in Sinhala. They would ask me to sign Sinhala documents, but every time I refused to sign, I was beaten with the baton. They would stop beating me only if I signed. That’s what I said in court. I don’t know Sinhala and they made me sign, so I did. Then the judge asked is this your signature? I said yes, not just on this document, I have signed many other documents without full consent but the court accepted the statements that I was forced to sign and the judge gave his verdict.”
Many prisoners informed the Commission that medical treatment for the injuries they sustained during torture was withheld until they signed the confession.
Where PTA detainees are concerned, the role of a Judicial Medical Officer (JMO) is crucial to ensure that detainees who are subjected to torture are able to prove they were forced to sign confessions under conditions of physical duress. Forty four per cent of PTA respondents stated they were produced before a JMO, while only 38 per cent of men said they were provided medical treatment after they were subjected to torture. The Commission also received numerous complaints of collusion between police officers and JMOs and the inability of JMOs to communicate with PTA prisoners due to language barriers.
Interrogation while in remand custody
According to the qualitative data gathered during the study, some PTA prisoners were taken out of the prison while in remand custody and held at other places of detention, both authorized and unauthorized. This was reportedly done by the arresting authorities, such as the TID and CID, for purposes of interrogation, using section 7(3) of the PTA. It should be noted that section 7(3) does not mention the period for which a person can be detained for interrogations, once s/he is taken out of remand custody. Nor does it provide the maximum period a person can be held. Furthermore, the section gives wide discretionary powers to the interrogating authority to take “any person” “on remand” “to any place for the purposes of interrogation”.
PTA inmates informed the Commission they were subject to physical ill treatment when they were taken out of remand custody for further interrogation. A male convicted prisoner, who was taken out of prison four times, said that after the fourth round of interrogations by the CID he informed the prison officers that he was unable to bear the torture anymore. He said: “After that, unable to bear the torture, I made a complaint to the XXXX prison authorities saying that I do not want to be tortured by CID again. The officers then forwarded my complaint to the court, and the judge ordered that CID should not torture me and that the prison officers should give me protection.”
Another PTA remandee who was also taken four times from remand custody for interrogations, stated: “…at my last interrogation they [CID] beat me up. Therefore, once I arrived back at prison, I complained to the prison officers. I informed the SP XX. He sent a letter to the judge through the Welfare Office. Then the judge ordered the jailors at the prison to take a statement from me regarding the assault and that if necessary, they [CID] should come here [to prison] and interrogate me [in front of prison officers].”
These instances highlight the critical role played by prison officers in preventing torture of persons legally in their custody, and the importance of judicial oversight to prevent torture.
Section 15A is another provision that allows the Secretary of Defence to exercise power over a person even after the person is remanded to judicial custody. This provision gives discretion to the Secretary Defence to determine the place of detention even after a person has been remanded if the Secretary deems it “necessary or expedient…in the interests of national security”. The wide powers given to the Secretary allow him to order that the person “be kept in the custody of any authority, in such place and subject to such conditions as may be determined by him having regard to such interests”. This section does not set out any criteria for making this determination, and the decision is not subject to judicial review since the order is only required to be “communicated to the High Court and to the Commissioner of Prisons”.
There were three prisoners who informed the Commission that they had been detained at various places of detention, such as Boossa and the TID sixth floor, under this provision. All three stated that during their detention they were subjected to torture, and one said that he was held in such places for nearly seven years.
Navigating the legal process
Many PTA prisoners mentioned the difficulties, particularly financial difficulties they encountered retaining lawyers. Additionally, due to the stigma attached to appearing for a PTA accused, as well as the long duration taken to file an indictment and the commencement of the trial, many stated they had difficulty finding legal representation or couldn’t afford to retain lawyers. Due to this many inmates were reliant on legal aid. As an inmate stated: “I did not have any Tamil lawyers. I got a Tamil lawyer for one hearing. After that, he also said he is scared and did not come again.”
Another inmate said: “The trial in High Court went on for four years. The problem was the people who appeared for us didn’t know Tamil and we didn’t know Sinhala. We didn’t know what was happening in court. We didn’t have enough money to retain private lawyers as we were displaced due to the war, tortured…”
The Commission learnt that the longest period a person has been on remand without indictment is 15 years. The longest period a trial has been ongoing is since 2002, i.e. 16 years. Forty one persons were appealing their sentences under the PTA with the longest period a person has been awaiting a decision is 14 years, as of September 2018. The Commission was notified of individuals who have spent up to 13 to 15 years in remand, with one particular prisoner stating he received a three year sentence after serving 13 years in remand.
PTA prisoners overwhelmingly said they did not understand court proceedings, which were conducted primarily in Sinhala, and although they requested interpreters their requests were not heeded. An inmate described the extreme measures to which they resorted to have court proceedings in a language they understood as follows: “The judge speaks in Sinhala; the writer is Sinhala and the government lawyer advocates in Sinhala. Therefore, we don’t understand anything at all. Hence, we staged a hunger strike for seven days to change our court hearing to Vavuniya, but they refused to change our court hearing from Anuradhapura. It was a real disappointment for us.”
Impact of imprisonment
Eighty six per cent of male PTA convicted and 76 per cent of male PTA remandees stated that they were suffering from feelings of depression, anxiety and sadness to the point that it interferes with their ability to perform their daily functions. In addition, 21 per cent of PTA convicted and 19 per cent of PTA remandees stated they have attempted self-harm, while 21 per cent of male PTA convicted prisoners and 10 per cent of male PTA remandees stated they have attempted suicide while in prison.
Family contact for PTA prisoners continues to be difficult since most are held in prisons that are long distances from their families, who cannot afford to travel to visit them often. Further, many PTA prisoners expressed fear and that they would not be allowed to socially re-integrate and rebuild their lives even after release.
Meaningful reform or farce?
In the context of the government’s announcement on January 25 that it will review the PTA and amend provisions to ensure they are in line with international human rights standards, it is important to keep in mind that the call to adhere to human rights standards does not come solely from the United Nations or the international community. The Supreme Court of Sri Lanka too has stated that constitutional safeguards are applicable even when implementing the PTA. For instance, in Weerawansa v. Attorney-General and Others the Court pointed out that “it would be wrong to attribute to Parliament an intention to disregard those safeguards”, thereby giving precedence to the liberty of the citizen. Similarly, in Thavaneethan v. Dayananda Dissanayake, the Supreme Court interpreted the PTA strictly, finding that it did not impose any restrictions on the freedom of movement except in respect of specified persons, suspected of unlawful activity in terms of orders made by the minister.
Any meaningful reform should be founded on the principles set out in the recommendation of the UN Human Rights Committee, which calls for all security measures to be in compliance with the provisions of the International Covenant on Civil and Political Rights. The Committee states that security laws must “contain clear prohibitions against arbitrary arrest and detention as well as clear safeguards against torture and protections of the rights to freedom of expression and association”, and that the trials of those “arrested under emergency and/or counter-terrorism laws” should be conducted by “independent and regularly constituted courts with adequate safeguards”.
For a detailed discussion of the issues related to prisoners held under the Prevention of Terrorism Act please refer Chapters 20 and 26 of the report of the National Study of Prisons at https://www.hrcsl.lk/wp-content/uploads/2020/01/Prison-Report-Final-2.pdf