By Lionel Bopage –

Dr Lionel Bopage

The jail system in Sri Lanka and the fate of prisoners who are being held therein have been discussed on several occasions, when major violence occurred within the system. However, the most recent discussion was based on a hunger strike a group of detained political prisoners had launched. According to the information we have received, these detainees have been held without charges for a period much longer than the time they would have been spent, even if they had been convicted for any charges possibly brought against them. Some of them would have been taken into custody much before the end of the armed conflict in 2009. Even under the Prevention of Terrorism Act (PTA), pre-trial detention of individuals is limited to a maximum of 18 months. Thus, the authorities have violated this provision by holding these prisoners in detention indefinitely.

Violation of the rights of prisoners is nothing new in Sri Lanka. Political prisoners who are Tamil, have been subjected to severe abuse. The armed conflict ended in May 2009 and it has been more than six years since then. High Court of Sri Lanka recently found a Tamil woman who had been detained for more than 15 years in prison not guilty. It is not wrong to believe that there could be many more prisoners, who are being held in detention like this, as there are no bail provisions made available under the Prevention of Terrorism Act (PTA). According to the state, these prisoners are held for aiding or abetting acts of terror, while some others consider them as being held for political reasons.

My personal experience as a detainee in 1985 under the PTA, for having a discussion with a leader of Peoples’ Liberation Organisation of Tamil Eelam (PLOTE), in which I emphatically refused to form an organisation similar to theirs in the south, was not different. Until my detention was politically and legally challenged, I was held without charges. Since the enacting of the PTA in the 1970s, many civil society organisations, political parties and groups both local and overseas have demanded for its repeal. The PTA provides the state and its security apparatus wide-ranging powers to search and arrest people and hold them in detention. Evidence appears to be available that the PTA has been used inappropriately as the vague definition of an act of terror is used to disadvantage people and communities. The impunity the state has provided to its security personnel and its paramilitaries has made the situation worse and intractable. This impunity and lack of accountability of the part of the state has led to the plague of family bandyism, nepotism, authoritarianism, corruption and murder.

The election campaigns conducted by the President in January 2015, and by the Prime Minister led coalition in August 2015 discussed the issue of releasing all political prisoners. Later on the new regime also agreed to release them. However, recently the Cabinet spokesperson and the Minister for Justice of the Sri Lankan government have reiterated that there are no political prisoners in Sri Lanka’s jails. This is strange when the very same persons have recognised the fact that the 30 year armed conflict occurred due to political causes that have been affecting the Tamil people of Sri Lanka. There are about 300 suspects held in detention for allegedly aiding or abetting acts of terrorism during this period. According to the government sources, the detainees against whom there is direct evidence of involvement in acts of terror, would be prosecuted as early as possible. The recent hunger strike ended after about a week, and President appears to have pledged to deal with this issue soon.

During the armed conflict, tens of thousands of Tamils had been detained in prisons, camps and police stations. Some Sinhalese, who had been arrested for the same reasons also faced similar abusive treatment. The Sri Lankan government has always contested the use of the term political prisoners for those whom it had detained. However, all those arrested under the PTA and the Emergency Regulations have been described as such. The detainees currently held have been suspected of aiding or abetting the activities of the Liberation Tigers of Tamil Eelam (LTTE). Obviously, the LTTE had its political goals, despite it having carried out acts of terror against many civilians and combatants. They had taken up arms for the broader cause of establishing a separate state, which they believed to be the only way to achieve fairness and justice for Tamils in Sri Lanka. Obviously, this has been a political cause. Despite the government’s rejection, the detainees, their families, opposition political parties, human rights organizations such as Amnesty International and the media have continued to identify them as political prisoners.

This is not the first time, Sri Lanka has gone through situations of this kind. Sri Lanka held close to 50,000 suspects during the JVP uprising in 1971. There have been many others, who had been held in the 1988-89 period, despite the alleged procedures some security personnel had followed, of “not taking any prisoners”. The civil society, organisations and prominent individuals, particularly individuals such as late Ven Madihe Pannasiha Mahanayaka Thero and late Oblate Father Tissa Balasuriya, OMI had appealed to stop following the process of “not taking any prisoners” in non-combat situations. During the 30 year armed conflict, the alleged dictum of some security personnel was again, “not taking any prisoners”. With many in the south justifying this process of elimination, the voices for sparing the lives of those taken into custody was minimal during this time. Despite this “not taking any prisoners” process, many other security personnel had taken thousands into custody and they had been held in detention in locations all over the island.

As the history has witnessed, the actions being taken by civil society, the state and the detainees themselves contributed to resolving the complex situation and issues that had arisen as a result of the uprising in April 1971. There was domestic and international pressure to release political prisoners held in detention. Many local organisations based in the south of Sri Lanka, including the Civil Rights Movement led by Ms Suriya Wickremasingha and PC Desmond Fernando and the Ceylon Mercantile Union led by comrade Bala Tampoe were behind this campaign. Internationally, many human rights organisations led by Amnesty International, campaigned for the release of political prisoners.

There are certain similarities of the current situation to what existed in April 1971, but at the same time there are certain differences. The arguments raised by the government then was not dissimilar to those raised by the previous and current regime regarding the prisoners held in detention. During the seventies, the government insisted that there were no political prisoners, and that only those who aided and abetted terrorist acts were being held in detention. Nonetheless, with the political opposition gaining ground in the country led to the triumph of the idea that those detainees and even those who had been convicted, had fought for an economic political cause; they were held for political reasons; and therefore they were political prisoners. If the same criteria are applied, the Tamil prisoners that are being held in detention for a long time, had also fought for a nationalist political cause, they have been held for political reasons and therefore, they are also political prisoners.

A major difference in the two situations is that most of the leaders of the April 1971 uprising had been held in detention; and that they had been able to lead the campaign for the release of political prisoners; while in the current situation, almost no leader of the LTTE is held in detention. Most of them had been killed during the armed conflict and the rest have become identified with the Sri Lankan state. One could question the ethical aspect of holding rank and file members in detention while their leaders have remained scot-free. Many domestic and international organisations have been asking the Sri Lankan government to release these Tamil political prisoners. Locally, the pressure to release these prisoners comes mainly from the Tamil leaders in Sri Lanka or in the diaspora. Recently, Tamil political party leaders and certain Sinhala activists held protests calling on the government to release those prisoners that are being kept detained. Certain Tamil civil society and political groups organised protest actions in the north and east and also in Colombo, with relatives and friends of the detainees playing a prominent role. Internationally, most of the human rights organisations has been demanding the release of these detainees.

I can recollect the judicial strategy the then government of Prime Minister Sirimavo Bandaranaike adopted in 1971. The Criminal Justice Commissions Act (CJC Act) the then government enacted, required the accused to prove that they were innocent, rather than the prosecution proving that they are guilty. This process allowed the creation of several expedited trials. Leaders of the insurrection were tried at a separate “Main CJC Trial”. Some were convicted; some were released, while many were subjected to lighter sentences for assisting the CJC in the trial. For those who had not been categorised as leaders of the uprising, the state encouraged them to plead guilty by pledging to limit convictions to suspended sentences. As happens after the failure of any insurrection, chaos prevailed at the time, and many held in detention agreed to plead guilty. They were either released or given suspended sentences.

Even those convicted by the CJC were either pardoned or released when the Parliament repealed the CJC Act. This was again due to the actions of civil society, political groups and many other individuals that opposed the violation of rule of law and the injustices committed under the imposition of state of emergency and the CJC provisions. One of the major campaign issues during the July 1977 parliamentary elections was that of the political prisoners that had been detained or convicted under the CJC Act. The traditional left parties supported Mrs Bandaranaike during the election campaign. However, the main opposition led by the United National Party won the elections gaining 140 of the 168 seats. The SLFP won only eight seats and the traditional left won none. Soon after the formation of the new government the CJC Act was repealed under the Criminal Justice Commissions (Repeal) Law (No. 12 of 1977).

In 1989, President Ranasinghe Premadasa lifted the state of emergency that was imposed in 1983 allegedly to counter the LTTE led armed struggle. He also arranged to release more than 200 political prisoners that were being held without trial under the emergency regulations. Later on many more political prisoners were also freed and included some of the Sinhala political prisoners that had been detained under the emergency laws.

Currently, about 300 Tamil political prisoners detained under the PTA are said to be held in jails across the island. The recent hunger strike by Tamil political prisoners was to demand their immediate release. They called upon the government to pardon them or to provide them with an acceptable solution. Apparently, President of Sri Lanka has instructed the relevant authorities to accelerate the judicial process dealing with these detainees. The Prime Minister is said to be awaiting a report from the Attorney General’s Department to take action on Tamil political prisoners.

As pledged during the election campaigns this year and later on as agreed by the new government, it is time to take practical action to show the Sri Lankan Government’s genuineness towards reconciliation. As many previous regimes have done before, the President has the power to make an executive decision to immediately release all political prisoners held in detention. In cases where this is not possible at all, the President can direct the Attorney General to prioritise and expedite the judiciary process so that these prisoners could be indicted and granted bail, or released immediately.

In spearheading this campaign to release political prisoners and to take steps to repeal the Prevention of Terrorism Act, civil society leaders and political organisations in the south that are genuinely committed to good governance should take charge, while collaborating with Tamil civil society organisations and political leaders. The President should consider granting amnesty to or pardon all political prisoners as a goodwill gesture towards reconciliation of all communities in Sri Lanka. As Sri Lanka’s Foreign Minister stated recently at the United Nations Human Rights Council, let us set an example of upholding the universal values of equality, justice, and freedom by fostering reconciliation between communities and securing a political settlement. Let us design, define and create our future by our hopes and aspirations, and not be held back by the fears and prejudices of the past.