Law Victimises Tamils

by J. S. Tissainayagam, The Sunday Leader, Colombo, May 12, 2002

Its positions on the Prevention of Terrorism Act (PTA) and the status of Tamil political detainees, are fast becoming tests of the government's sincerity for an honourable settlement of Sri Lanka's ethnic problem.

Last week, Interior Minister John Amaratunge, answering questions in parliament reiterated PTA would not be removed. He however said that 138 Tamil political prisoners had been released after the Ceasefire Agreement, implying thereby the government was interested in securing the release of innocent Tamils who are under detention.

Though the matter was raised in parliament, the reason for PTA to take centre stage in the House had very little to do with parliament itself. Sri Lankans after waiting 22 long years for their parliamentarians to address PTA and the havoc it has wreaked, principally among the Tamils but also among other communities, have realised that only extra-parliamentary pressure will bring the required attention to bear on the matter.

Sections of civil society are preparing for a countrywide campaign for PTA's repeal and the release of all political prisoners held under its provisions. On Friday, May 3, the NGO Centre for Human Rights and Development (CHRD) and other organisations and individuals leant their signature to a memorandum putting forward these demands. It is predicated upon the fact that PTA is a violation of international human rights standards. It follows therefore that all political prisoners detained and convicted for offences under this law should be released.

The other source of extra-parliamentary agitation emanates from hunger strikes and death fasts undertaken by political prisoners to focus public opinion on their plight. The most recent of these was at Kalutara remand prison, where the protesting inmates demanded they either be indicted or released.

After much persuasion by a government delegation comprising Minister Jayalath Jayawardene, Additional Solicitor General Rienzie Arsakularatne and Dhara Wijetilake, Secretary, Ministry of Justice, the prisoners agreed to suspend their agitation for three months.

At discussions with the prisoners, Arsakularatne stated the Attorney General (AG) whom he represented was not in a position to intervene in the judicial process. Justice had to take its course, but a mutually acceptable solution could be negotiated. It was also decided the AG would appoint a three-member committee to examine individual cases and either recommend suspects for indictment or release.

Three weeks after discussions were concluded on April 17, it is reported that concrete steps are yet to be taken to expedite a solution to this problem. So much so that Eric Savundaranayagam, spokesperson for the prisoners has, in a private communication to a human rights activist, threatened to hold a token hunger strike in protest.

To the prisoners such delays are not new. They believe PTA was not framed to charge and punish offenders, but to detain as many people as possible for as long a time as permitted. It is a much more effective method of counter insurgency than the normal judicial process where the innocent cannot remain incarcerated.

When the police or military arrest a suspect under PTA and once the investigation is over, he or she is produced before a magistrate by the police. The magistrate detains the suspect under a remand order (Section 7.2) of the same act. The remand continues till the conclusion of the trial. Before producing a suspect before the magistrate however, the police should forward the evidence they have against him or her to the AG who decides whether the suspect is to be indicted or released.

The police invariably drag their feet over forwarding evidence to the AG. There are instances where the AG has been unaware of the existence of detainees up to two years because the police have failed to send the relevant documentation to him.

A female prisoner (name withheld) was arrested on April 7, 2001 by the Grandpass police. More than a year later she is yet to be indicted. The reason for the delay is that the police have not forwarded the documents for the AG's perusal and determination.

Human rights activists, while blaming the police for cussed behaviour, also question the role of the magistrate. Why does the magistrate fail to ask basic questions that will go a long way in expediting the release/indictment of the prisoner? A magistrate could demand from the police what evidence has been sent to the AG and proof of it - such as inward numbers and outward numbers of documents. This could stall the police, who delay forwarding the evidence, but tell the magistrate they are awaiting the AG's determination.

The next point where the logjam occurs is at the AG's department itself. There are usually two principal ways whereby delays are effected by the AG's department. One, delays occur because the prosecution is not ready for trial and two, productions are not available.

Thambirasa Pullenthiran and Sellathamby Bhaskaran (High Court Gampaha: Cases 6/2001 and 9/2001) were arrested on July 26, 1998. They were indicted on March 20 and 27, 2001. Their cases were fixed for trial on five dates between July 17, 2001 and January 15, 2002, but postponed for various reasons on the plea of the prosecution. On the last date, the prosecution asked for an amendment of the indictment to include fresh charges under the Offensive Weapons Act. The amendment was made one year and two months after the original amendment.

With the amendment the cases were taken off the trial roll and placed on the calling date, further delaying the process, while all witnesses were discharged. Under the calling list the case was called and postponed twice. The trial has now been fixed for June 25, 2002 - after Bhaskaran and Pullenthiran have been in detention for 47 months. The majority of these delays were caused by the state counsel and the AG's department not being ready for trial.

Devendiram Susitha (High Court, Colombo: Case 195/2002/03) was arrested by the army on October 26, 1999. She was indicted on October 25, 2000, but the case is yet to be taken up for trial. Between December 1, 2000 and July 20, 2001 the case was postponed no less than six times.

On July 20, 2001, state counsel requested more time to bring the productions to court, which allegedly include Rs. 50,000, a National Savings Bank passbook and a diary. The case was postponed on four instances due to productions not being brought to court and is now fixed for tomorrow, May 13, 2002.

Ajanthini Wigneswaran and her husband Sinnathamby were arrested in Jaffna on October 4 and 5, 1999 respectively. She was indicted on July 13, 2000. She and her husband have remained in detention ever since. Despite a six-year-old daughter at the time of arrest and her husband also in prison, Ajanthini's case was postponed 10 times. The case was postponed on the last two occasions in April 2002 due to productions being unavailable because the person in charge of the production room is under arrest and the room is sealed.

Compounding these delays is the attitude of High Court judges. It is reported that judges do not push cases as much as they are empowered to, especially when the state is being lethargic or irresponsible. If for instance the state counsel do not produce witnesses, the judge can issue a warrant for their arrest. Human rights activists feel that though this is done, it is a provision that might be used more effectively.

A possible solution to this will be to transfer cases pending before High Courts in the south to courts in the northeast - Vavuniya, Jaffna or the Trincomalee-Batticaloa circuit. This will ameliorate the suffering and trauma of the prisoners to a certain extent. Since nearly all the suspects are Tamil, this would make them more accessible to family and relatives than if they are detained in the south. Second, since the trial is conducted in Tamil, the suspects will understand proceedings in court.

The Jaffna High Court, set up under the personal supervision of Chief Justice Sarath Silva, reportedly for political reasons - to show normalcy had returned to the area - faces a problem peculiar to itself. Witnesses express reluctance to go there even when summons are issued by the Jaffna High Court judge. This is compounded by prison officials accompanying the suspect refusing to go beyond Anurdhapura citing transport problems.

Traditionally, indictments are served and cases heard in the area where the offence is committed. But the practice in Sri Lanka has been for the AG to serve indictments in courts in the south on the plea that witnesses' security (many of whom are military personnel) might be in jeopardy if they have to go to the northeast. Since it is in the discretion of the AG to transfer cases, one way of helping detainees might be transfer them to High Courts in the northeast.

While these delays continue to bedevil the lives of political detainees, a 'relief measure' touted by the government has had little effect. It was announced earlier this year that the AG had ordered all indictments against prisoners under Section 5 of the PTA - failure to give information - to be withdrawn. Persons charged under Section 5 face minimal sentences, mostly for omission of crimes. Though the AG's orders are being followed, those charged for other offences remain in custody.

The 138 persons released, to which Amaratunge referred in parliament, comprise some from the above category and others who are released through the normal judicial process. Such releases are not due to special 'relief' afforded to prisoners either by the judiciary or the executive.

The three-member committee to review cases set up by the AG has not communicated its findings as yet to defence counsel who are acting in the interests of PTA suspects, which gives very little prospect of relief coming from those quarters either.

Rather than such measures, lawyers suggest that it might be better if bail is allowed to PTA suspects. As of now it is not. Despite the AG stating in court that he would not object to bail to PTA suspects, bail is not granted because the High Court judge has no jurisdiction to do so. Defence lawyers feel if a law is passed allowing bail, it could alleviate problems of political prisoners.

The law is a more effective and subtle way of dealing with 'insurgencies' than through the military. The ceasefire agreement has been able to achieve a degree of military control over the armed forces. But the agreement's silence on the PTA, and effective steps yet to be taken by the government regarding the repeal of the PTA and release of political prisoners, makes one wonder whether an agitation for both has become imperative.