Arbitrary Detention in Sri Lanka[1]
In 1983, at the outbreak of the civil war in Sri
Lanka, the International Commission of Jurists concluded that Sri Lanka's
abuses of prisoners constituted a “systematic” and "almost universal”
practice;[2] that year, for example, 53 Tamil inmates were killed
by Sinhalese guards at the Welikada high security prison.[3] Thirty
years later, the system remains unchanged and the systematic abuse of prisoners
continues to be the norm; in November 2012 it was reported that 27 inmates were
killed at Welikada prison.[4] Continuing abuses highlight the unchanging nature of
Sri Lanka's detention policy and the associated violations of human rights that
have resulted in over 11,000 internments since the end of the civil war in
2009.[5]
While States have acknowledged the on-going violations
committed by the Government of Sri Lanka, the Government has failed to address
these concerns. This intransigence with respect to human rights and the rule of
law is evidenced by the recent Universal Periodic Review (UPR), wherein the Sri
Lankan government rejected 100 of 210 recommendations, the largest number of
outright rejections in the UPR’s history.[6]
The systematic practice of arbitrary detention
utilised by the Government of Sri Lanka in the repression of civilians requires
immediate and sustained attention from the Human Rights Council and the Working
Group on Arbitrary Detention.
Sri Lanka’s International
Obligations
Sri Lanka is a party to the International Covenant on
Civil and Political Rights, which contains stringent regulations intended to
safeguard against abuse in detention. Article 9 prohibits arbitrary detention –
including in the context of a legitimate derogation under a state of emergency[7] –
while establishing further protections with respect to an individual’s right to
a fair trial within a reasonable timeframe, and the right to be informed of any
charges.[8]
The Civil War: Emergency
Regulations & Prevention of Terrorism Act (PTA)
During the civil war, tens of thousands of individuals
were detained under the Prevention of Terrorism Act and the Emergency
Regulations.[9] While the majority of these individuals were ethnic
Tamils suspected of association with the Liberation Tigers of Tamil Eelam
(LTTE), Sinhalese and Muslim civilians were also arrested and subject to ill
treatment.[10] For example, Amnesty International reports that two
Sinhalese political activists detained on suspicion of assisting the LTTE were
subject to particularly severe treatment, coupled with intense media coverage
intended to vilify the individuals.[11] As of December 2011, one of these Sinhalese
activists, arrested in 2006, is still awaiting trial at Bogambara prison.[12]
While detention-related abuses disproportionately affect the Tamil community,
Sri Lanka’s detention policies and practices have serious consequences for the
entire population.
Post-Civil War: The
‘Emergency’ is lifted, but the PTA continues
In August 2011, Sri Lanka lifted the declared state of
emergency.[13] However, the Government of Sri Lanka has continued to
keep the Prevention of Terrorism Act in force, elements of which violate
international obligations under Article 9 of the International Covenant on
Civil and Political Rights, as discussed below. The Government has also
introduced supplementary provisions in order to detain LTTE suspects without
charge or trial, some of which have been deemed unconstitutional by leading Sri
Lankan constitutional lawyers.[14]
Detention Without Charge
Under Section 9(1) of the Prevention of Terrorism Act,
individuals may be arrested without charge and detained for up to 18 months by
a detention order. While detainees must be brought before a magistrate within
72 hours of their arrest, the magistrate “shall order the remand of [the
individual] until the conclusion of the trial”.[15]
This order cannot be challenged in court.[16]
As an example of this practice, it is reported that as of December 2011, 42 of
the 65 Tamil detainees held in Anuradhapura prison have yet to be charged,
after two to six years in prison.[17] Evidence also indicates that where
protections are afforded, such as an individual’s right to be informed of the
reasons for their arrest, such protections have been consistently violated in
practice.[18]
Arbitrary Detention
The Working Group on Arbitrary Detention considers a
deprivation of liberty to be arbitrary when “the total or partial
non-observance of the international norms relating to the right to a fair
trial… is of such gravity as to give the deprivation of liberty an arbitrary
character”.[19] The length of detention
in waiting for a trial can last years, often without charges ever being
brought; these policies suggest that the Government of Sri Lanka is
systematically carrying out arbitrary detention. Individuals being held without
these protections amounts to a violation of the right to be informed of charges
against an individual as well as the right to trial within a reasonable
timeframe, guaranteed under Articles 9(2) and 9(3) of the International
Covenant on Civil and Political Rights.
The use of emergency laws and the Prevention of
Terrorism Act in Sri Lanka has resulted in a culture of impunity wherein
arbitrary detentions and widespread torture and ill treatment has become the
norm.[20] Further, the UN Committee against Torture recently
stated that it was “seriously concerned” regarding the “widespread use of
torture… in police custody.”[21] Between
1998 and 2011, the Asian Human Rights Commission documented 1,500 cases of
police torture in Sri Lanka,[22]
which indicates a pattern of arbitrary detention resulting in an environment
whereby detainees are more susceptible to torture and other forms of ill
treatment.[23]
A number of individual issues will now be addressed.
Detention for Political
Beliefs
The Government of Sri Lanka claims that there are 318
political prisoners currently incarcerated.[24]
However, documentation by Sri Lankan activists indicates that up to 810
detainees are currently in detention for their political beliefs, many of whom
have been awaiting charge for at least five years.[25]
Transfers and Access to
Information regarding Detainees
Several prisoners’ families interviewed by the Sri
Lanka Campaign for Peace and Justice in late 2012 stated that their relatives
have been transferred between at least three prisons during their detention –
often to delay their release – without any prior information or reasons for
transfers given. According to Section 7(3) of the Prevention of Terrorism Act,
police have the power to transfer a detainee without judicial permission or
supervision.[26] With no central registry
in place, these unsupervised transfers can result in an individual effectively
becoming lost in the system, with a substantial risk for abuses of this policy,
such as torture and disappearances.[27]
Thousands of families have also had limited access to
their relatives, and are often denied all access.[28]
This issue is exacerbated because families typically received little to no
information from the authorities regarding the whereabouts or health of
detainees, implicating the right to respect for family life.[29]
The following case study is illustrative with respect
to a number of the human rights issues addressed above.
Case Study: Vavuniya Prison
According to a study by the Sri Lanka Campaign for
Peace and Justice, in June 2012, following a riot at Vavuniya prison, 205
prisoners were transferred to Anuradhapura prison. Twenty-eight of these
detainees were allegedly tortured with the involvement of up to 250 prison
guards, resulting in two deaths.[30]
One of the most critical cases involved Mariadas Delroxan. On a visit prior to
the riot, Delroxan’s father remembers Delroxan saying to him, “If they don’t
release us [from prison], we will die.” Delroxan’s father next saw his son in
the hospital, with a large bandage on his head and injuries indicating broken
bones. The guards would not allow him to see the lower half of Delroxan’s body.
After many hours in a coma, Delroxan died as a direct result of the injuries
sustained during his detention. The authorities did not inform Delroxan’s
family about his involvement in the riot or the injuries he sustained; his
father learned of the riot from neighbours.
Recommendations
Prisoners are being held in captivity for extended periods of time without charge or trial. We therefore call upon the Government of Sri Lanka:
Prisoners are being held in captivity for extended periods of time without charge or trial. We therefore call upon the Government of Sri Lanka:
·
To immediately
end all forms of arbitrary detention;
·
To immediately
release all political prisoners or to bring charges against them by a specified
date, while complying with the requirements of international human rights law;
·
To invite the
Working Group on Arbitrary Detention and the Special Rapporteur on Torture to
visit Sri Lanka on an official mission to ensure transparency and
accountability regarding detention policies;
·
To allow an
independent investigation into the Vavuniya prison riot of June 2012;
·
To provide clear
justification for the transfer of prisoners with adequate notification to
families;
·
To make public
the list of detainees as pledged by the Government of Sri Lanka during the UPR
2009 and 2012.
[1] The Human Rights Centre Clinic at the University of Essex
undertook research and analysis in preparation of this submission.
[2] International Commission of Jurists Review, “Ethnic
Violence in Sri Lanka, 1981-1983: Staff Report of the International Commission
of Jurists” (1997)
[3] BBC News: Asia, “Sri Lanka’s Welikada prison clash
leaves 27 dead” (10 November 2012) <www.bbc.co.uk/news/world-asia-20267735>
[5] Human Rights Watch, “World report 2012: Sri Lanka”
(2012) <http://www.hrw.org/world-report-2012/world-report-2012-sri-lanka>
[6] Sri Lanka Campaign, “Sri Lanka ‘least constructive
nation ever to appear before the UPR’ (12 November 2012) <http://blog.srilankacampaign.org/2012/11/sri-lanka-least-constructive-nation.html>
[7] Human Rights Committee, General Comment 29, ‘States
of Emergency (Article 4), UN Doc CCPR/C/21/Rev.1/Add.11, 31 August 2001, para.
11.
[8] UN General
Assembly, International Covenant on Civil and Political Rights (16
December 1966) UNTS vol. 999, p. 171, Article 9
[9] Amnesty International, Locked away: Sri Lanka’s security detainees (1st edn,
Amnesty International, 2012) [6]
[10] At least 25 Sinhalese Sri Lankans were arrested due to
suspected links with the LTTE. Eleven of these individuals were released
without charge. BBCSinhala.com, “Court releases 'Sinhala Tigers'” (13 February
2009) <http://www.bbc.co.uk/sinhala/news/story/2009/02/090213_sinhala_tigers.shtml>; Amnesty
International, Locked away: Sri Lanka’s
security detainees (1st edn, Amnesty International, 2012), fn. 33
[11] See case studies in Amnesty International, Locked away: Sri Lanka’s security detainees
(1st edn, Amnesty International, 2012) at pp. 16-17, 33
[13] Human Rights Watch, “Sri Lanka: ‘Bait and switch’ on
emergency law” (2011) <http://www.hrw.org/news/2011/09/07/sri-lanka-bait-and-switch-emergency-law>
[14] Groundviews, “Lifting of Emergency: Exposing the sham
exercise” (16 September 2011) <http://groundviews.org/2011/09/16/lifting-of-emergency-exposing-the-sham-exercise/>
[15] Parliament of the Democratic Socialist Republic of
Sri Lanka, Prevention of Terrorism (Temporary
Provisions) Act No. 48 of 1979. <http://www.satp.org/satporgtp/countries/shrilanka/document/actsandordinance/prevention_of_terrorism.htm> Section 7(2)
[17] Ranga Jayasuriya, “Were detainees sadistically beaten
at A’pura?” (Ceylon, 4 December 2011) <http://ceylon-ananda.blogspot.co.uk/2011/12/were-detainees-sadistically-beaten-at.html>; Amnesty International, Locked away: Sri Lanka’s security detainees (1st edn,
Amnesty International, 2012) [14]
[19] Human Rights Council, Opinions adopted by the Working
Group on Arbitrary Detention at its sixty-fourth session, 27-31 August 2012,
No. 26/2012 (Sri Lanka), A/HRC/WGAD/2012/26
[20] International Commission of Jurists, Authority without accountability: The crisis
of impunity in Sri Lanka (1st edn, International Commission of
Jurists, 2012) [4]
[21] UN Committee Against
Torture, Consideration of reports submitted by States parties under
article 19 of the Convention - Sri Lanka (8 December
2011) CAT/C/LKA/CO/3-4, p. 2, Section C
[22] Asian Human Rights Commission, “Sri Lanka: Cases of
torture and ill treatment recorded from 2006-2010” (not dated)
<http://www.humanrights.asia/countries/sri-lanka/resources/special-reports/AHRC-SPR-001-2011/view>
[23] F.J. Hampson, “The relationship between international
humanitarian law and human rights law from the perspective of a human rights
treaty body” (2008) 90(871) IRRC 549 at 563; International Commission of
Jurists, Sri Lanka: Briefing paper –
Emergency laws and international standards (1st edn,
International Commission of Jurists, 2009) [13]
[24] ColomboPage, “Sri Lanka Tamil party calls for the
release of political prisoners in the country” (29 November 2012) <http://www.colombopage.com/archive_12B/Nov29_1354165165JR.php>
[26] Parliament of the Democratic Socialist Republic of
Sri Lanka, Prevention of Terrorism
(Temporary Provisions) Act No. 48 of 1979. <http://www.satp.org/satporgtp/countries/shrilanka/document/actsandordinance/prevention_of_terrorism.htm> Section 7(3)
[27] The International Commission of Jurists has recognised
the link between practices in Sri Lanka and the increased risk of torture and
ill treatment. See International Commission of Jurists, Sri Lanka: Briefing paper – Emergency laws
and international standards (1st edn, International Commission
of Jurists, 2009) [13]
[28] Freedom From Torture, "Out of the silence: New
evidence of ongoing torture on Sri Lanka" (2009-2010) <http://www.freedomfromtorture.org/sites/default/files/documents/Sri%20Lanka%20Ongoing%20Torture_Freedom%20from%20Torture_Final%20Nov_07_2011.pdf>
p. 4
[30] Tamil News Network, “Another Vavuniya prisoner dies”
(8 August 2012) <www.tamilnewsnetwork.com/2012/08/08/another-vavuniya-prisoner-dies/>