By Lankathilaka
With the 49th sessions of the United Nations Human Rights Council (UNHRC) just weeks away in the last week in February, the government has been cleaning out the skeletons in its human rights cupboard.
Last week it took steps to release attorney at law Hejaaz Hizbullah whose detention under the Prevention of Terrorism Act (PTA) for nearly two years was seen by many as an arbitrary one. Since his detention the allegations against him have changed several times and his incarceration kept getting extended, giving reason to believe that it can’t be supported with any credible evidence. Hizbullah, a minority and civic rights activist, was a vocal critic of the government and was one of the lawyers who challenged the dissolution of the parliament in 2018 in the Sri Lankan Supreme Court. His case turned out to become one of Sri Lanka’s celebrated cases of human rights violations. Local and international activists and human rights organisations who have been lobbying for the release of Hizbullah as well as others for months, have succeeded in bringing their cases into the spotlight. When Foreign Minister G.L Peiris briefed diplomats who are based in the country at the end of January, he told them that the Attorney General had informed the Court of Appeal that he will not object to Hizbullahgetting bail.
Hizbullah was arrested under the notorious PTAand accused by the police of aiding and abetting Inshaf Ahamed who was involved in the Easter Sunday bombings in 2019. But this accusation was withdrawn and subsequently an indictment was filed against him in the High Court on February 2021 for the speech-related offence of causing communal disharmony. It was based on a statement made by a child to the Criminal Investigation Department about a speech that Hizbullah allegedly made in Puttalam.
Last week on the 9th, Chilaw High Court Judge Kumari Abeyratne, sitting in the Puttalam High Court released Hizbullah on cash bail of Rs 100,000 and two sureties of Rs.500,000 each.Hizbullah had reporting restrictions imposed, requiring him to report to the Puttalam police on the second and fourth Sunday of every month. He also had to surrender his passport to the High Court of Colombo.
Another detainee whose release last week made the news was Keerthi Ratnayake, a defence and political analyst attached to Lanka e-News. The Colombo Fort Magistrate ordered his release on surety bail of 50, 000 rupees. Ratnayake, previously a flying officer in the Sri Lanka air force was arrested under the PTA in August 2021 for allegedly giving information to the Indian Embassy in Colombo about a possible terrorist attack. In his case too, his counsel made a request to Court to discharge the suspect from all allegations because the charges against hisclient could not be substantiated due to insufficient evidence.
The PTA, enacted in 1979 in one day, has come in for severe criticism because it allows the prolonged and arbitrary detention of a suspect for up to 18 months without production in court. It also sets the stage for arrests without a warrant for unspecified unlawful activities, the extraction of false confessions through tortureand the targeting of minority communities and civil society groups. The previous coalition government of Maithripala Sirisena and Ranil Wickremesignhe pledged to repeal the PTA and introduce a Counterterrorism Act. The subsequent and current Rajapaksa government has rejected pledges made by the previous administration to repeal the PTA.
This state of affairs has led to the international community adopting a carrot and stick approach to bring Sri Lanka to heel with her human rights commitments. Human Rights Watch (HRW), in a critical assessment of the Act in ‘In a legal blackhole – Sri Lanka’s failure to reform the Prevention of Terrorism Act’ which was released earlier this month said that ‘in January 2021 the Rajapaksa government pledged to review abusive provisions of the PTA which is a key condition of Sri Lanka’s tariff-free trading access to the European Union. What HRW is referring to is the GSP Plus trade concession, a gateway for Sri Lankan exports to the EU markets in return for complying with international conventions on human rights,labour, environment and good governance.
‘The EU should insist that Sri Lanka meet its human rights commitments, in exchange for which it receives tariff-free access to European markets, by requiring immediate and genuine action to revoke the PTA and ensure any new counterterrorism legislation meets international human rights standards’, said HRW in its assessment.
After month’s of inaction on the PTA, the government is now hurrying to revamp it’sprovisions. During his briefing to the diplomatic corps GL Periris spoke about the substantive amendments which were being made to the PTA. They include amendments to the sections on detention orders, restriction orders, expressly recognizing judicial review of orders, expeditious disposal of cases of those charged to avoid long term detention, repealing sections impinging on freedom of expression and introduction of provisions on access by magistrates and judicial medical officers, prevention of maltreatment and torture during the detention period, right to communicate with the family, grant of bail to long term detainees and day to day hearing of cases. The government presented the Amendment Bill in Parliament last week.
But the government’s proposed amendments to the PTA will do little to bring it in line with international human rights obligations because they replicate or do not change the status of existing provisions.
Crucial provisions which have not changed are the sweeping powers the law gives to authorities to charge people with speech-related offenses and the status of confessions to the police which are admissible under the PTA even though they are inadmissible under other Sri Lankan law. The admissibility of such confessions is seen as having led the police to routinely use torture and other ill-treatment to extract confessions from PTA prisoners especially since it does not remove the authority from officials to move and keep a suspect in “any place for the purpose of interrogation,” which has repeatedly been used to facilitate torture and increases the risk of enforced disappearance.
HRW in its assessments points out that the Amendment Bill does not provide a definition of terrorism, as called for by United Nations experts to help prevent the PTA’s widespread misuse. ‘The Bill does not alter the sweeping powers the law gives to authorities to charge people with speech-related offenses andauthorities can still arrest anyone deemed to be causing or intending to cause “racial or communal disharmony or feelings of ill will or hostility between different communities or racial or religious groups. This is the provision used to detain the poet Ahnaf Jazeem and a prominent lawyer called Hejaaz Hizbullah’.
Commenting on how some of the proposed amendments either replicate or do not change the status of existing provisions HRW gives the example of the mandate which magistrates have to make monthly visits to places of detention to check whether prisoners are being tortured. TheHuman Rights Commission of Sri Lanka hadtold HRW that it had informed the Supreme Court chief justice that magistrates had made no visits to the Criminal Investigation Department and Terrorism Investigation Division detention centres. ‘The Amendment Bill would also add a requirement to notify the Human Rights Commission of PTA arrests – a requirement that already exists but that the police often ignore’, said HRW.
The HRW assessment also says that President Rajapaksa in 2021 introduced regulations that would make the PTA even more abusive of rights, by enabling up to two years detention without trial for “rehabilitation.” Additionally, proposed changes to the Code of Criminal Procedure weaken requirements for in-person court attendance by defendants, a key safeguard against mistreatment in custody including torture and denying adequate access to legal counsel, mirroring provisions of the PTA that enable rights violations.
Meanwhile last week, Sri Lanka Podujana Party (SLPP) MP Janaka Tissa Kutti Araachchi called on the public to attack with poles those who are involved in the protests of the health sector trade unions. Kutti Arachchi’s statement, made in the context of protests by health sector workers, is a clear incitement and call for violence. It is also an incitement to violence against a particular group, namely trade unionists. Kutti Arachchi’scall also amounts to a violation of the country’s Covid regulations as it will result in large numbers of people taking to the streets, which will be a breach of these regulations.
At a time when even a social media post critical of the government has become an irritant warranting a visit to the CID, the onus now is on the IGP to arrest Kutti Arachchi for further investigations and pursue the matter with the tenacity the police would an ordinary citizen.
The police, which is fast gaining a reputation for being an institution that panders to the whims of politicians despite being paid by the public purse, must uphold the ruling SLPP motto of ‘one country one law’ for the disciplined society it has expressed the need for but failed to live up to. Take the case of Lohan Ratwatte for instance. Ratwatte’s jail break into the Anuradhapura prison last year when he terrorized prisoners held under the PTA is now in the wilderness.
This is also not the first time that Kutti Arachchistepped out of line with his speech. In November last year, he was censured by the parliament speaker and women parliamentarians for sexist and derogatory comments he made to a female parliamentary colleague. (SW)
