PTA detainees in Sri Lanka: Prospects

for justice

by Ruki Fernando - on 11/06/2015

The fast by prisoners last month has given rise to fresh debate about justice
for them. It is a sad reflection on Sri Lankan people and the new
Government that the prisoners had to resort to such drastic action in order
to even gain momentum for justice; for what is a categorical breach of
these individuals fair trial rights and a failure of the criminal justice system.
It has been reported that the fast was called off based on assurances by the
President to offer a solution by 7 November 2015. However, what the
President will offer as a solution is not clear.
Having been detained under the PTA[1] last year and still remaining under
investigation and facing restrictions on freedom of expression after 10
months of good governance, justice for PTA detainees is something very
personal for me. I consider myself to be the luckiest of those who have

come into contact with the PTA; my detention was relatively short, I was not
harmed physically, and today I am relatively free physically. Ironically,
despite being a terrorist suspect, this year I have been invited to
meetings on various human rights issues, including reconciliation,
accountability, and transitional justice, with the Prime Minister, other
Government Ministers, and the Permanent Representative of Sri Lanka to
the UN in Geneva. I attended a few of those meetings in good faith, but I
still ask myself whether I should participate in such discussions when I am,
by their own designation, still a terrorist suspect.
In my view, there are six distinct categories of PTA detainees, and a key
issue is how these six different categories will be addressed. The six
categories are:(1) those who have been arrested but are detained without
charge, (2) those who have been charged but their cases have not been
concluded, (3) those who have been convicted, (4) those whose convictions
are being challenged in courts, (5) those who are in rehabilitation, and (6)
those who are still under investigation without being in detention.
How long will it take to implement the Presidents November 7th solution?
Weeks, months, years? Which cases will be prioritised?Those awaiting
justice have been waiting from a few months to upto two decades.
The lack of official information has also led to speculation about the actual
numbers in each category, as well as preventing proper checks and
balances about each category. In January 2015, a list of 182 persons in
11[2] remand prisons under the PTA was released (the January List). The
January List excluded those who have been convicted under the PTA. The
January List also excluded those detained in places such as the
headquarters of the Terrorist Investigation Department (TID) in Colombo
and Boossa. Further, during this year, I am aware of two persons in the

January List who were acquitted, at least one person who was released on
bail, and two persons that have been convicted. Between January and
August 2015, there have also been at least 21 reported arrests under the
PTA. Thus, the actual numbers of PTA detainees/suspects/those under
investigation is likely to be higher than 182.
This article below is largely based on information contained in the January
List of 182 names, complimented by personal interviews with detainees,
those released, their families, lawyers, and activists assisting them.
Categories
Convicted
According to the Minister of Justice, 99 persons have been convicted under
the PTA and out of this, 45 have been sent for rehabilitation and 54 were
serving their sentences[3]. The Ministers statement raises more questions
than provides answers. Is this figure the total number persons
convictedsince the inception of the PTA? How many of the 54 serving their
sentences are under appeal? To the best of my knowledge, convicted
persons are not sent for rehabilitation, rather it relates to suspects (whether
they are charged on not) who have agreed to subject themselves to
rehabilitation and thus, who the 45 persons are not clear. Basically, to date,
there is no official information relating to the numbers of convictions since
the inception of the PTA, the nature of the convictions, the duration of
sentences handed down, and how many are still serving sentences. Another
key piece of information lacking is how many convictions are based solely
(or primarily) on confessions.
Convicted, but on appeal
The number of those who have been convicted under the PTA but whose
convictions (or sentences) are being challenged on appeal has also not
been revealed. Some of the 54 quoted by the Minister could be on appeal,

with their convictions or sentences or both being challenged.

Charged, but cases not concluded
This is a critical category. According to theMinisters statement above, 134
have been charged and their cases are ongoing. We do not know how long
these 134 individuals have been in detention for, awaiting trial.The January
List indicated that there are people who are detained upto 18-19 years
whose cases have still not been concluded.
Arrested, but not charged
This is also a critical category. The Ministers statement referred to above
indicates 85 persons had not been charged. We do not know how long
these 85 individuals have been in detention for, awaiting charges.
Suspects, but not in detention
Out of the six categories, this is the least urgent category, as these
persons liberty has not been deprived or is no longer deprived.
Nevertheless, it is still a category on which no information is available and
should be dealt with within a specific time frame. This category includes Ms
Balendran Jeyakumary, Father Praveen, me and several others. The number
of persons in this category is unknown. It has been nearly 20 months since
Father Praveen and I were arrested and released, and despite two written
submissions by my lawyers to the Attorney-General in 2014 and 2015,
there is still a refusal to close the case. I have also been subjected to
restrictions on my freedom of expression and my confiscated equipment
has not been returned. The overseas travel restrictions on me was removed
only after 15 months.Others are still subjected to overseas travel
restrictions. Ms Jeyakumary has to present herself to a Police station every
month after being released on bail. In September 2015, she was re-arrested
and detained for six days, even though she was only released on bail after

362 days in detention (without charge). She is assumed to be amongst the

eight persons the Justice Minister has said is on bail.
Detained in rehabilitation centres
Some of those who are detained had bargained with authorities to
accept guilt and serve time in a rehabilitation centre, instead of waiting
unknown periods of time for a trial and risking long sentences if they were
convicted. These can hardly be called voluntarily requesting for
rehabilitation.
Double standards
Most of the top leaders of the LTTE were killed or have disappeared after
surrendering to the Army. Other top leaders are within the Government,
including Karuna and KP, which is a blatant double standard. In particular,
as Karuna and KP are accused of complicity in very serious crimes. KP has
publicly admitted to being the leader of the LTTE. But the reasons for
detention of some presently detained under the PTA have been given as
encouraging LTTE or supporting LTTE. Some of those kept in detention
have been declared not guilty by Courts and released after long years in
detention few months ago, a Tamil mother was acquitted as not guilty
after 15 years in detention. How fair is it to refuse to detain and prosecute
top leaders of the LTTE like Karuna and KP, who are most responsible and
yet detain, prosecute, convict for decades those less responsible?
Use of confessions
Another key issue, which has not come to the limelight, is the use of
confessions under the PTA. There is no official information relating to those
who have been charged or convicted based on confessions. This is critical
information in a context where confessions made to police or other public
officers, which ordinarily are not admissible unless made in the presence of

a Magistrate,[4] are considered admissible evidence under the PTA.

[5]Confessions, in the PTA context, are routinely obtained under duress,
including torture, in circumstances where individuals have very little or
limited access to lawyers, families, and medical assistance.
Justice for those acquitted after numerous years in detention
In the last few months, two Tamil mothers were acquitted by Courts after
more than 15 years and 6 years of detention. There maybe other such
individuals who have been acquitted or released after numerous years in
detention. As the Government attempts to conclude other PTA cases, more
of those who have been detained, anywhere upto two decades, could be
acquitted or released. The Government will have to think of ways of
providing justice for such persons.At the very minimum, a public apology at
a personal meeting with the President/Prime Minister, reimbursement of all
costs in relation to the detention for the detainee and family, loss of
income, compensation and other facilities and opportunities to recover from
the mental and physical harm suffered could be considered. The
Government ought to also launch investigations to determine why PTA
cases have been so long and drawn out, including disciplinary action and
criminal prosecutionsagainst those responsible.
Concluding reflections
For 10 months, why has the good governance Government failed to
address the issue of PTA detainees?
Why has the Government failed to provide the country with comprehensive,
clear, specific and official statistics relating to the PTA detainees? Will this
information ever be provided and, if so, when?
Promptly dealing with PTA detainees who are in detention in limbo without

charge, or are charged but are awaiting a trial, is a minimum first step to
giving effect to fair trial rights and providing justice to these prisoners.
Further, there must be the provision of comprehensive and clear
information about numbers and timelines for dealing with such persons
Without immediate and significant movement in ensuring justice for these
prisoners, reconciliation and transitional justice will ring hollow.
###
[1]Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979
(PTA).
[2]Anuradhapura, Kandy, Badulla, Moneragela, Polonnaruwa, Trincomalee,
Jaffna, Negombo and three in Colombo, namely the New Magazine Prison,
Colombo Remand Prison, and Welikada.
[3]http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=126154

[4]Evidence Ordinance 1896, ss 25-26.

[5]PTA, ss 16-17.
Posted by Thavam