By Dr Vickramabahu Karunarathne
While President Sirisena was complaining about not filing or delays of cases for the suspected criminals in Armed forces; recently eight Tamil detainees in the Anuradhapura prison, detained under the Prevention of Terrorism Act (PTA) since 2009 commenced a fast. Their cases are yet to be concluded, with a major reason for delays being the non-attendance of officials from the Attorney General’s department who are prosecuting the cases.
One of the cases has not had a hearing for about 5 years. They are demanding to be released or be subjected to short term “rehabilitation” – a form of detention that doesn’t entail a judicial trial and sentence. Yahapalanaya came to power claiming that civil war was unfortunate and both warriors Tamil and Sinhala are Lankan citizens, with equal rights. However yahapalana equality is yet to come.
Apart from fascistic Mahinda clan, some section within yahapalana too, oppose to equality, autonomy to nationalities, leave apart the right of self determination. The delay of consideration of the constitution prepared by the Lal Wijenaike committee in the parliament is due to this conflict. PM Ranil has announced that constitution will be presented to parliament in Oct 25.
In the parliament the term ‘Political Prisoners’ is used in relation to those detained under the Prevention of Terrorism Act (PTA). The Government rejects the term ‘political prisoner’, insisting that cases need to be resolved through legal than political investigations. However the crimes these detainees are suspected to have committed, have a political context involving an armed liberation struggle with nationalist political objectives.
The Opposition leader, who is also the leader of the Tamil National Alliance (TNA) with unarmed tamil national liberation programme, has stated in Parliament that “these cases have a certain political dimension and cannot be addressed as purely as a legal issue” and that “circumstances of not addressing the national question reasonably makes it obligatory to address this issue politically”.
Prolonged detention of Tamils has been the general and common nature of detention. After the defeat of Tamil liberation tigers to Lankan armed forces, there was large number of Tamils detained by state institutes.
In the last few years, men and women have been acquitted as not guilty after being detained under the PTA for as long as 15, 10 and 6 years. A 2015 report indicated that as of early 2015, there were persons in detention for 18-19 years under the PTA without having their cases concluded. Also, it has taken up to 15 years to even file charges in some cases. Committee for Release of Political prisoners CRP has indicated there are 107 political prisoners as of now. A July 2018 document provides more details, such as;
- Up to 7 year’s detention without charge being filed
- Up to 13 years detention without completion of trials
- 46 against whom charges have been framed without their cases being concluded – with 16 of them being in detention for 10-13 years
- Another 13 have not even been charged – with 6 being in detention for 5-7 years;
They are being held in 10 prisons in Colombo, Negombo, Mahara, Anuradhapura, Kandy, Batticaloa, Polonnaruwa and Moneragala. There are also 37 who have been convicted and 17 who have appeal cases pending. Some have been detained for 15-17 years before being sentenced. The severest sentences range from death sentence, life sentence, 600 years, 200 years and lesser sentences ranging from 1.5 years to 6 years!
Even some, who had been released after going through the Government’s rehabilitation for those connected with the LTTE, have been re-arrested. In the case of two such detainees, they were re-arrested in 2010 and charges filed in 2013. After a few months, the Attorney General (AG) had withdrawn the indictment to change the charges. On Feb. 21, 2016, the three suspects had started a hunger strike. They had been brought before courts 36 times by this time.
They stopped the hunger strike based on a commitment by the AG to present the amended indictment before courts within 2 weeks. But the amended indictment was only presented to courts in June 2017. It has been brought to notice that it is also very difficult to obtain legal representation for Tamil political prisoners in a Sinhala majority area like Anuradhapura, and in some cases, the senior counsel for suspects had refused to appear in Anuradhapura.
There is a nationality bias in transfer of cases of Tamil suspects and accused from Tamil majority North and Eastern provinces to Sinhala majority areas. When the complainants / victims were Tamils and the accused have been Sinhala military personnel, cases were transferred on basis of security of accused. In the past, courts in Sinhala majority areas had accepted confessions made by suspects in detention, whereas Courts in Tamil majority north have rejected such confessions.
The present yahapalana Government promised to repeal this PTA more than three years ago. But it is still being used and there is no date announced for its repeal. Instead, the Government had engaged in alternate processes to draft laws that would replace the PTA. Media reports about a draft counter – terror law approved by Cabinet indicates that problematic clauses such as admission of confessions made to Police and enabling the Defense Ministry to be the authority to implement the provisions of this bill as a piece of legislation dealing with national security will be introduced at the Parliamentary Committee stage, eliminating possibilities of judicial review of such amendments. However, a more fundamental question is whether Lanka need any counter–terror laws.
There are wide-ranging powers available under the Public Security Ordinance, the possibility of including new offences under ordinary law, powers of Magistrates to deny bail in a variety of situations etc. Counter-terror laws provides the executive and security establishment extraordinary powers with minimal checks and balances as well as discretion usually vested with the judiciary, negatively affecting life and liberty, rights and dignity of persons, often serving as a license for enforced disappearances and torture.
Comparisons have also been made to the way detainees were treated in relation to the JVP insurrections, highlighting that Sinhala political prisoners connected to JVP insurrections were released faster or pardoned than political prisoners connected to the LTTE, the vast majority of who are Tamil. Protests, including fasts unto death, have been held regularly across the country, including by detainees themselves and their families, and discussions have been held with politicians, but with very little results. Until solutions are found for all political prisoners, both through legal and political processes, and unless state stop resorting to counter-terror laws, reconciliation and democracy will remain distant in Lanka. Most urgent, and immediate, is to respond constructively to the ongoing fast in Anuradhapura and other places.
The term ‘Political Prisoners’ is now commonly used in relation to those detained under the Prevention of Terrorism Act (PTA). The Government rejects the term ‘political prisoner’, insisting that cases need to be resolved through legal than political perspective, though the crimes these detainees are suspected to have committed have a political context involving an armed struggle with political objectives.
Dr Vickramabahu Karunarathne, BARRACKS LANE, COLOMBO 2
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