By Jehan Perera –

Jehan Perera

In appointing the new Right to Information commissioners to five year terms, the government has chosen persons with credibility within human rights organisations. Two in particular are worthy of mention. Kishali Pinto-Jayawardena who was part of the previous commission has been a foremost and fearless critic of corrupt and undemocratic governance that spans many governments as a newspaper columnist and lawyer. Jagath Liyana Arachchi, also a lawyer, has been a source of strength to civil society as a political commentator and resource person at training programmes on issues of human rights, reconciliation and good governance. Their appointment to the Right to Information Commission will ensure that the positive role of the RTI Commission will continue.

In another less publicised development, the release on bail of ten persons who had been arrested and kept in detention for over seven months, was also an indication of a positive shift of approach. They had been arrested under the Prevention of Terrorism Act (PTA) for having commemorate their loved ones who had died in the war on May 18, the anniversary of the end of the war. May 18 is the date that the Tamil people of the Northern and Eastern provinces consider a day of remembrance while May 19 is the day that the government celebrates as the day the war was won. The action for which they had been arrested was to have gathered on the beach by themselves, light a lamp and remember their loved ones in a context in which the police had obtained court orders against public commemoration under public nuisance and Covid related crowding ban.

One of the ten posted the video of their commemoration on their Facebook page which came to the attention of the security forces. The PTA permits the security forces to arrest persons and detain them if there is any suspicion. Human rights advocates have pointed out that the PTA does not contain a definition of terrorism and is a human rights deficient law that does not adhere to basic human rights standards enshrined in international conventions. Instead, the offences stipulated are those found in other laws, such as the Penal Code, to which the PTA makes reference. Hence, the decision as to whether the PTA would apply in a certain instance is a subjective decision that can be shaped by personal prejudice and bias, rather than objective standards.

Judicial Decision

Bringing the PTA into line with international standards is one of the EU Parliament’s requirements for a continuation of the GSP Plus tariff concession. The GSP Plus was withdrawn once before in 2010 on the grounds that Sri Lanka failed to meet its human rights commitments and this cost the country tremendously in terms of job losses, factory shutdowns and diminished foreign currency earnings. The GSP Plus was restored in 2017 following government pledges to meet its human rights obligations in terms of 26 international covenants that the country has signed, and with the reform of the PTA as one major promise. These pledges were incorporated into the UN Human Rights Council resolution of 2015 that the then Sri Lankan government also co-sponsored.

The government appears to be taking the possible loss of GSP Plus seriously and is in the process of revising the PTA. Failure to do so expeditiously could not only threaten the retention of GSP Plus but weaken the respect for human rights norms essential for good governance. Last month a committee of senior government officials drawn from different ministries and the security forces and headed by Defense Secretary General Kamal Gunaratne handed over a confidential report on the PTA and the options for amending it to President Gotabaya Rajapaksa. This report is being considered by a committee of government ministers headed by Foreign Minister Prof G L Peiris. On November 27, this ministerial committee invited a group of civil society members to discuss the revisions to the PTA that the government hopes to bring. They made the point that arbitrary arrests need to be ended and that all actions with regard to detention needed to be taken by the judiciary rather than by executive or administrative authorities. The example of the seven month long detention of the Batticaloa ten was brought to the discussion as one of the civil society members present on the occasion was a lawyer who had appeared in their case.

The problem with laws that do not give to the judiciary the power to detain or not to detain (as decided by Justice Mark Fernando in the Supreme Court case of Pathmanathan) is that these laws can be abused by those who operate under political or administrative direction. Those who work on PTA cases have noted that there is a pattern to the arrests. If a person shows ability as a community leader, and can become a political rival to the ruling politicians or aspirants to political power, they are liable to be arrested under a shallow pretext and put into remand prison. This is especially the case in the North and East where the military is present in large numbers on the grounds that they need to be eternally vigilant to prevent another terrorist uprising. In some cases the detention order is served for clicking the “like” button on Facebook for a site that is seen as subversive.

Unpredictable Element

Following the decision of the Attorney General’s Department to permit the bailing out of the Batticaloa detainees, there is optimism that other PTA detainees, who are incarcerated on suspicion but against whom there are no charges, will also be able to obtain bail and go back to their homes and loved ones. The lawyer who had appeared in the case said that relatives of other prisoners were calling him asking if they could expect their loved ones to be bailed out. During the meeting with the government ministers, the civil society members were assured that the changes to the PTA that had been proposed were a result of consensus between the Ministries of Foreign Affairs, Justice and Defence and the Attorney General’s Department, and that these changes are not conceived as one-off ones, but as a part of a continuum, there being other changes contemplated that will be agreed on later.

Not only those who are detained under the PTA, but civil society organisations and their members continue to complain that they live under tension as they are being constantly questioned by the security forces and asked to provide them with their reports. While the problem of surveillance is severe in the North and East, there is also an unpredictable element in civil society activities in other parts of the country. Sometimes there is a crackdown which is inexplicable and shows the potential for the use of arbitrary power. On December 10, which is International Human Rights Day, the Human Rights Organisation of Kandy, headed by Fr Nandana Manatunga was issued a court order obtained by the police to prevent him from conducting an event to celebrate International Human Rights Day. Fr Manatunga has won international awards for the work he has done, especially for prisoners over many decades. On this occasion the theme of the event his organisation was planning was “Ensure the Prisoners their Dignity and Rights to Human Conditions.”

One part of the programme was to give tokens of appreciation to family members of prisoners, from different ethnic and religious groups and from different parts of the country, who had seen their loved ones incarcerated for long periods and having to fend for themselves. However, due to the court order, this event could not be held. The order obtained by the police prohibited the event on the grounds it may cause disunity amongst different ethnic groups. This is an indication of how even the regular law can be used to stifle the freedom of association and freedom of expression, which are basic human rights. As an example, commemoration was defined by different courts differently in the North this year some allowing with conditions and others with refusal. The Human Rights Organisation of Kandy reports that surveillance and harassment became more intense in 2021, when two staff members were summoned for questioning in Colombo by the Counter Terrorist Investigation Department (CTID) on two separate occasions. The government’s efforts to show commitment towards human rights needs to become more institutionalised and less ad hoc or dependent on personal goodwill. This will improve the prospects of retaining GSP Plus.