By Jehan Perera –
Excerpts of the UN Human Rights Commissioner Michelle Bachelet’s latest report on Sri Lanka have been highlighted in the media. They indicate that the report is not favorable to the government. This was to be expected. Her 17 page report has found the government to be deficient in several areas. The most significant is the Prevention of Terrorism Act which became a central issue due to the EU’s warning that it expects the government to meet its international human rights commitments as a condition for continuing with the GSP Plus tax privilege. Both international human rights organisations and their local counterparts have been critical about the government’s efforts to amend the PTA. The worst feature of the PTA is that it permits the government to detain any person on suspicion of terrorism, which is vaguely and broadly defined, for an indefinite period of time.
Among the government’s amendments is provision for bail after one year of detention without charge. The question is whether this is adequate. One year is a long time to deprive a person of liberty without the presentation of charges, and on mere suspicion of an ill -defined activity. There are a few hundred languishing under the PTA at present. These include young persons who had a WhatsApp messages they were circulating and even the 76 year old doctor in poor health who is claimed to be the mastermind of several abortive bomb attacks. The PTA is being amended today in circumstances very different from when it was first introduced. The Prevention of Terrorism Act was introduced to the Sri Lankan legal system as a temporary law to deal with a growing armed insurrection in 1979. This point was brought out very forcefully in the Court of Appeal decision to release Hejaaz Hizbullah after he was detained for nearly two years.
In her judgement, Justice Menaka Wijesundera noted “… four decades have passed, and the PTA has strayed far away from its historical context. The PTA, if in its application and implementation, creates a vicious cycle of abuse, the very purpose of the statute will be defeated. The Preamble of the Act refers to the affirmation that “… men and institutions remain free only when freedom is founded upon respect for the Rule of Law and that grievances should be redressed by constitutional methods…”. She added, “Ultimately, it is up to the Legislature to ensure that the draconian elements of the law combating terrorism are dispensed with per modern day contexts. Until such time, it is the judiciary’s duty to employ existing legal provisions and constitutional powers to interpret the same elements in the interests of justice.”
In another powerful statement, Justice Rohini Marasinghe, Chairperson of the Human Rights Commission and former judge of the Supreme Court said “Notwithstanding the amendments already suggested by the government, the HRCSL advocates the complete abolition of the PTA.” She added that the Commission believes that the offence of terrorism should be included in the Penal Code with a new definition for terrorism. In the face of the widespread rejection of the PTA, it will be imperative for the government to either repeal the PTA or amend it extensively with the aim of protecting the human rights of citizens, meeting the expectations of the international community and securing the GSP Plus tariff concession.
In a step in the right direction President Gotabaya Rajapaksa has directed the police not to use the PTA as a shortcut to dispense with investigations under the criminal procedures code but only if there was a clear link to terrorism. The addition of the president’s directive to the preamble to the PTA and to any legislation that will replace it will serve to further strengthen the power of the judiciary to scrutinise police arrests under such laws and prevent abuses.
Apart from working on the PTA and bringing it into conformity with international standards the government needs to show progress on many other fronts. The High Commissioner’s report includes the use of former and present military persons to run civilian affairs and the threats to civil society to operate free from government control. More significantly it notes that for the past two years the government has not formulated a formal, credible new road map for transitional justice and accountability. In addition there are observations about lack of progress on a proper investigation into the Easter Sunday bombings. The terminology of “transitional justice” has been used sparingly during the present period as it includes the concept of accountability for past human rights violations that the government denies more than it is prepared to accept.
The concept of transitional justice essentially means dealing with the human rights violations that occurred during the war and finding solutions to them. This necessitates revisiting the past and ensuring that the truth about what happened is ascertained. But this leads to two further consequences. One is that those who did wrong and violated human rights or committed war time crimes are held accountable, which implies punishment, and that those who suffered and were victimized are provided with compensation to rebuild their lives to the extent possible and also to ensure that such violations do not recur in the future.
There are two state mechanisms that have been established for the purpose of transitional justice. They are the Office on Missing Persons (OMP) and the Office for Reparations (OR). There are also two that are missing. They are the Truth Commission and Special Court. The legislation for a Truth Commission is reportedly in waiting but not announced. The Special Court is not yet on the drawing board. In the meantime the two that have been set up have yet to live up their promise. There are two important measures that the government needs to take for which these two mechanisms can be useful. The first is to meet the needs of the families of those who went missing in the war. Some of those who are missing are those who surrendered to the security forces in the last phase of the war so the government must know what happened to them. Their family members who still are living want to know if they are living or dead.
There is a similarity in the government’s failure to address this issue and its failure to address the issue of the Easter bombing. In the case of the Easter victims, at least their families know the fate of their loved ones. In the case of the war victims they cannot be sure. Even though 12 years have passed since the war ended, they cannot be sure their loved ones are no more. They still hope and believe that the children, husband or relative may be somewhere. Those who lost their family members wish to know what happened and by whom. Cardinal Malcolm Ranjith and the Catholic Church are not giving up on the need to know how the bombing was permitted to happen. The Cardinal said they will wait to know the truth and they will wait for justice. His statement is applicable to the families of the war missing. The government has to address these problems in a meaningful way in the interests of peace and reconciliation in the country as they will not just go away.