BY Ruki Fernando and Lucille Abeykoon
Nadesu Kuganathan had surrendered to the Army in the last phase of the war (2009) and was released after rehabilitation in 2013, after about four years. But after about three months, he had been rearrested in 2013, under the Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979 as amended (PTA). Last week, he had been released again, after about eight years in detention without any charges.
Malcolm Tiron was arrested under the PTA in 2008 and he was released a few months ago due to the lack of evidence, after about 13 years in detention. He was charged in 2012 along with another accused, but due to the death of the other accused, the trial was subjected to long delays. The submission of a death certificate of the accused who died had taken more than two years and the amendment of the charges had taken about two more years. Delays were also caused by the absence of the Police and witnesses on some days when the court hearings were scheduled. The trial has been presided over by nine High Court judges as of December 2020.
Chandrabose Selvachandran was charged and acquitted as not guilty in 2019, about 13-14 years after his arrest. He was single and about 27 years old when he was arrested. A second indictment against him was for an incident that had taken place when he was in detention. He had been a cancer patient and died one-and-a-half years after his release.
Vasanthi Ragupathy Sharma had been arrested in December 1999, charged and acquitted as not guilty in 2015, after more than 15 years in detention.
Anthony Chandra was arrested in 2008, charged and acquitted as not guilty in 2015 after about seven years in detention.
Ramesh was arrested in December 2008, when he was just 18 years old and released in October 2011. In April 2012, he was rearrested and charges were brought against him 17 months after his arrest. In February 2015, he was released unconditionally due to the lack of evidence. In total, he has been in detention for about five years and eight months.
Angela Croos was 25 years old when she was arrested in August 2009 and was released after about one-and-a-half years in March 2011. No charges have been filed against her. She was denied healthcare in detention and was only given healthcare after her father obtained a Supreme Court directive. Her health had deteriorated rapidly while in detention and she passed away in October 2012.
Solomon Caspers Paul and Muralitharan Raja were arrested in May 2008. Charges were filed against both and both were acquitted as not guilty in February and December 2011, respectively.
Nandakumar and Chitrakumar were arrested in April 2008 and released in August 2010 without any charges being filed.
Sharma and Chandra, detained for about 15 and seven years, respectively, had three children. Nadesu and Tiron, who had been detained for 12 to 13 years, also had three and two children, respectively. The social, economic, and emotional difficulties young children would have faced, including the stigma of being children of “terrorist suspects” is unimaginable. The release as not guilty would have come far too late to mitigate all these. Paul’s child was born while he was in detention and had not recognised him as the father after his release.
Many of the above have reported having being subjected to torture. Confessions obtained with torture or threats of torture had been used as primary evidence against most of those who had charges filed against them, and different courts have refused to accept such confessions.
There have been persons in detention for as long as 18 to 19 years under the PTA without having their cases concluded and, in some cases, charges were not filed for 15 years. According to the Human Rights Commission of Sri Lanka (HRCSL), as of 31 January 2018, about 15% of PTA suspects had been in detention for 10 to 15 years, about 41% had been in detention for five to 10 years, and about 32% had been in detention for one to five years, without having their cases concluded.
Successive governments have done very little to prevent or even do damage control to address the agony and pain of innocents detained under the PTA, their children, parents, brothers, and sisters. We have not heard of any formal acknowledgement by any government or of survivors and their families being offered formal apologies, compensation, livelihood support, counselling, medical care, etc. No one is also held accountable for these grave injustices. With some exceptions, the media, religious leaders, professionals, and the society in general have been complicit in these tragedies, sometimes by justifying, sometimes by covering up, and sometimes by silence.
Article 13 (5) of our Constitution guarantees that every person is innocent until proven guilty, but all the above named and their families have been severely punished with up to 15 years in detention without being proven guilty by a court. There must be many others like the 11 we have mentioned above.
Most alarmingly, this tragedy is likely to continue. A list of persons shared with us in July this year indicates 29 persons who have been in detention for periods ranging from eight to 15 years under the PTA without having their trials concluded. This excludes Nadesu and Tiron who are mentioned above. Like the 11 we have mentioned above, some of the 29 could well be judged not guilty by courts.
The Bail Act No. 30 of 1997 states that bail must be granted as the rule and not the exception, but the PTA takes away judicial discretion to give bail. However, the PTA provides that detainees can be released on bail if the Attorney General (AG) consents, and therefore, this process must be used more regularly if we are to prevent ruining the lives of many others. The AG can also expedite the filing of indictments and the conclusion of trials.
September is a busy month for President Gotabaya Rajapaksa, Prime Minister Mahinda Rajapaksa, Foreign Minister Prof. G.L. Peiris, and the others concerned with engaging with the UN and the EU. The UN Human Rights Council session is taking place in Geneva, Switzerland, and the UN General Assembly in New York, USA. The EU-Sri Lanka Human Rights Dialogue and a Monitoring Mission from the EU related to the extension or withdrawal of the Generalised Scheme of Preferences Plus (GSP+) trade concessions benefits that is based on adherence to 27 international covenants including the International Covenant on Civil and Political Rights (ICCPR) and advancements on human rights, will commence next week. It is likely that recent pronouncements by the Government to reform the PTA and release some PTA detainees are to appease international concerns. We hope that UN and EU officials will challenge empty rhetorics and demand time-bound commitments to repeal, not reform, the PTA and the fast release of those subjected to prolonged and unjust detention under this draconian law. They must also insist on the human rights of all persons, especially ethnic, religious, and sexual minorities; vulnerable groups like prisoners and workers and dissenters including student activists, trade unionists, journalists, and human rights defenders; and the families of the disappeared. The EU must insist on trade benefits alongside human rights, without trading one off for the other.
But it is a sad indictment on a government if steps to protect the rights of persons in the country are driven by international concerns. Ultimately, the Government must repeal the PTA and release detainees held for prolonged periods, at least on bail, and expedite trials, not to appease international bodies, but because it is Sri Lankan citizens like those we have described above, who have suffered immensely from the PTA, and it is Sri Lankans who will continue to suffer.
(Fernando is a human rights activist and an Executive Committee Member of the Free Media Movement. Abeykoon is a human rights activist)