By Kishali Pinto Jayawardene
Recently I listened in disbelief to a professional of Tamil ethnicity telling me that when people travel from Jaffna or Mullaitivu (etc) to Colombo, they avoid the out-of-town travellers like the plague. As the teller was an old friend of more than twenty years standing, I was able to remonstrate with her and ask her why this was the case. Her response was, ‘It is far too dangerous to be seen associating with them. They have all been living in the war torn areas and, of necessity, had to deal with the LTTE. Their phones are tapped, they are monitored by the army and police and if they even call us for some ordinary request, we will also be implicated. It is far better to keep out of contact entirely.’
Is arbitrariness under law no longer possible?
Is this a classical example of the washing of hands by Pilate, a callous betrayal of one’s own? But can we indeed find fault with such sentiments when the prevalent environment permits, nay encourages such a differentiation, even between a minority by itself? What would an ordinary person do in these circumstances? Remember the mid nineties, at the dying of the second insurrection of the Janatha Vimukthi Peramuna, when people in Sinhalese villages drew fastidiously away from even a minimal association with those whom they coyly referred to as the former troublemakers? These are similar situations, evoking similar emotions, never mind the majority-minority differentiations.
So when we are informed, (to the manifold delight of many undoubtedly), of the removal of checkpoints in Colombo, it is best to hold back our cheers and to keep this in context. More than this removal of checkpoints, what is worth interrogating is the stance of the government and its counsel that much of emergency law in Sri Lanka has also been removed in the post war period. By implication therefore, we are asked to believe that arbitrariness under law is no longer possible and that Sri Lankans of the majority and the minority communities have nothing very much to worry about. But is this assertion actually correct?
Have we brought about a situation where reconciliation is actually possible and where individuals of the same minority community need not avoid each other due to fear of being tainted? Irrespective of Lessons Learnt and Reconciliation Commissions and our most optimal expectations from their sittings, where is the law in all this? Let us examine the actual factual situation.
No actual change in the emergency regime
The legal position is unequivocally clear. The Emergency (Miscellaneous Provisions and Powers) Regulation No 1 of 2005 (Gazette No 1405/14) brought into effect by the Public Security Ordinance No 24 of 1947 (as amended) was further amended on May 2 2010 by Gazette No 1651/24, rolling back emergency regulations in certain respects.
While this column will not dwell on each and every aspect of these changes, so far as personal liberty rights are concerned, the obnoxious preventive detention clause whereby a person may be detained on the mere suspicion of the defence authorities that he or she is a threat to national security has been retained but the period in which a person may be so detained has been lessened from one year to three months.
Such a person who is arrested must be brought before a magistrate within thirty days and the magistrate must be informed of such arrest within seventy two hours. It is also much touted by the government that the even more obnoxious clause permitting the legal admissibility of confessions to police officers above the rank of an Assistant Superintendent of Police (ASP) has been removed.
But what is most conveniently forgotten in this enthusiastic defence is that even though emergency regulations have been rolled back to some extent, the emergency regime continues in full force under the Prevention of Terrorism Act No 48 of 1979 (as amended) (PTA). The PTA is as problematic as emergency regulations and perhaps even more so. For example, preventive detention orders under the PTA made by the Defence Secretary may be up to a period of eighteen months and magistrates are required to merely routinely approve the extensions given without actually scrutinizing the factual context to see if circumstances justify continued detention of the suspect.
Confessions under emergency law
Again, the PTA continues, most robustly, to allow confessions made to senior police officers (thus making the withdrawal of the parallel provision in the emergency regulations of mere academic interest) and puts the burden of proving that they were not voluntarily made on the accused.
This is effectively a burden impossible to prove in many instances. In a vast majority of cases that come before the High Courts, the only evidence against an accused is a confession but it becomes virtually impossible to prove that they have been induced by the law enforcement officers in whose custody the accused has been kept. In some cases, the fact that the accused had not complained of torture at the earliest point that he or she was brought before a magistrate is taken as indication that ill treatment had not taken place.
However, to expect a suspect to freely confess to torture by his or her custodial officers to whose custody, the suspect will be returned after the court hearing is to be optimistic in the extreme. In other cases, problems with language and understanding may be at the core of an alleged confession. Rizana Nafeek awaiting execution in a Saudi Arabian jail would understand this far too well.
Her conviction was primarily secured on the basis of a confession which she later retracted from saying that she had not understood what was said to her and that she had been coerced. Our sympathy for this unfortunate girl is freely given and efforts to secure some redress on her behalf by many both in this country and outside are untiring, whether by prayers or by intervention with the Saudi Arabian authorities. Why should we not extend this same sympathy to a Tamil man or woman languishing in a rat infested Sri Lankan cell?
Another defence justifying the admissibility of confessions is that the case will anyway be looked into by court which would be quick to spot coerced confessions. Such faith in judicial infallibility is however quite misplaced. In one particular instance in 2002 for example, we had the Supreme Court ruling out a confession which had been judged to have been perfectly proper by the Court of Appeal (Theivandran’s Case SC Appeal No 65/2000, SCM 16.10.2002). In this case, the Supreme Court Bench included Sri Lanka’s most formidable judicial minds but the outcome may well have been different before a different Bench.
Marking a different road for this country
While being aware of the need to deal strongly with the remnants of the LTTE, has the government made a strong enough case as to why the ordinary penal law is not sufficient for this purpose? We are, after all, not in a situation of active conflict. By continuing with this regime of emergency law and relaxing only some parts for largely cosmetic effect, the government stands accused of not being genuine in its protestations that the post war period is a time for reconciliation and of using emergency law to perpetuate its stranglehold on power. Importantly, this also alienates a segment of Sri Lanka’s population who ought to be recognized as part of this country’s people regardless of whatever travails that they may have been subjected to, during the conflict.
It is only on the day that we hear of emergency law being lifted, and not only in bits and pieces that it will indicate that we are on a different road to a different future for this country.