• HRCSL Chair, retired Justice Rohini Marasinghe presents oral report on the protection and promotion of civil and political rights in Sri Lanka in opening statement on the review of SL’s 6th periodic report 

The Prevention of Terrorism (Temporary Provisions) Act as amended (PTA) can be interpreted to give effect to arbitrary arrest and detention. Thus, the Human Rights Commission of Sri Lanka (HRCSL) emphasises that the PTA must be repealed.

Directives were issued in May, 2016, by the Commission on arrest and detention under the PTA. Those directives included inter alia advice to the Police on the rights of detainees to be informed of the reason for the arrest and the right to have legal assistance. It also contained special measures related to the arrest of women and persons under 18 years of age.

The Government amended the PTA with the Prevention of Terrorism (Temporary Provisions) (Amendment) Act, No. 12 of 2022 which prescribed provisions for bail. After one year, if the trial has not commenced, the Court of Appeal may grant bail. The period of full detention was limited to 12 months from 18 months by the Amendment of Section 9 of the principal Act with Section 2 of the Amendment Act.

It is now proposed by the Government to repeal the PTA and introduce a “National Security Act” to deal with the offence of terrorism. The HRCSL proposes that the National Security Legislation which is to replace the PTA should adhere to international human rights standards, specifically concerning the definition of a “terrorist”.

At present, there are six persons in detention. But, several are in judicial custody. Some have been in custody for nearly 14 years to end the trial.

The HRCSL has written to the Attorney General (AG) conveying to him its grave concerns about the rights of detainees, and those remanded under the PTA in November, 2015. The HRCSL called for the immediate release of those who are being held in detention or have been remanded for extensive periods, without charges being framed against them, and where there is no credible evidence to support their lengthy detention. In the letter to the AG, the Commission expressed concern that prolonged administrative detention or the remanding of a person is a serious gross violation of the fundamental rights (FR) guaranteed to them under Articles 12 and 13 of the Constitution (on the right to equality and non-discrimination, and the freedom from arbitrary arrest, detention and punishment, respectively) as well as the country’s obligations under international law.

Per Section 28 of the HRCSL Act, No. 21 of 1996, all persons arrested or detained under the PTA must be informed to the Commission forthwith with particulars as to the place of detention and the relevant officer must inform the Commission of any release or transfer made of that person subsequently, with the name of the new location of detention. 

The HRCSL had issued directives to the Prisons authorities and the Police that at times, the FR of detainees and prisoners must be ensured. In June, 2016, the then Head of State and Commander-in-Chief of the Armed Forces and the Minister of Defence and incumbent Opposition Parliamentarian, Mathripala Sirisena issued directions to the security forces and the Police to ensure that the FR of persons arrested or detained under the PTA are respected and to assist and facilitate the HRCSL to exercise and perform its functions, powers, and duties.

Also of particular interest to the HRCSL is addressing the effects of the civil war, among which are internally displaced persons (IDPs), enforced disappearances, and land issues.

IDPs are in welfare centres because their lands have still not been released to them, especially in Jaffna. 

The current regime appears to be taking meaningful steps to release the lands to their rightful owners. The Government is in the process of preparing a plan with proper superimpositions to identify State and private land. It may however take a while to complete the process.

A major challenge faced by the IDPs was the loss of their land due to absence from their lands for more than 10 years as prescribed in the Prescription Ordinance. Therefore, the law was amended and the Prescription (Special Provisions) Act, No. 5 of 2016 came into force in April, 2016, which provided legal provisions to address the land issue in respect of persons who had abandoned their lands due to the armed conflict. According to the Amendment, any “displaced person” or “disadvantaged person” had the right to sue for the recovery of the land. Such a “displaced person” meant a person who was forced to flee the land as a result of or to avoid the effects of the armed conflict while a “disadvantaged person” included a person who was unable to pursue his/her rights as a result of the armed conflict.

The HRCSL adheres to a zero tolerance policy against torture and inhuman or degrading treatment.

The Government ratified the Optional Protocol of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment in December 2017. Upon a Cabinet decision taken in November 2017, the HRCSL was designated as the National Preventive Mechanism under the said Optional Protocol. It has carried out many investigations on cases of torture and made recommendations to the appropriate authorities, highlighting the gross violation.

The directives issued by the HRCSL to the security forces and the Police in May and June 2016, reinforced the political will to investigate and punish offenders under the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Act, No. 22 of 1994.

The Government formulated the National Human Rights Action Plan 2017–2021 and established thematic committees.

The HRCSL receives quite a number of complaints relating to torture, and inhuman and degrading treatment. Torture is a crime of opportunity. The first step in this regard was taken in 2019 when the walls around Police stations were pulled down. The Police stations are now not in cover. The HRCSL has spoken with the President to have closed-circuit-television cameras (CCTV) at Police stations to minimise torture at Police stations, and to minimise the opportunity for torture at Police stations. In 2015, the complaints of torture were 415. In 2016 and 2017 there were 400 cases. Deaths in custody were also reported.

As you may observe, torture case numbers are high. The Commission is equipped with a mandate to go to any court having jurisdiction to hear and determine as the case may be. Most of the cases that come before the Commission are not cases where the victims have suffered severe physical or mental pain as the said Act dictates. Most assaults have been by Police officers using their hands and pushing and shoving the alleged victims. More severe cases of torture victims are being filed directly in the Supreme Court (SC) by the victims. The Commission, in the 2015-2017 period, awarded financial relief in the form of compensation to the victims.

Deaths in custody cases are inquired into by the Commission. The report is sent to the AG to institute criminal action.

Since May, 2017, there have been five fundamental cases in which the State was found to have violated the petitioners’ rights under Article 11 of the Constitution (freedom from torture, cruel, inhuman or degrading treatment or punishment).

In May, 2017, the High Court of Jaffna convicted six Police officers in charge of the Chunnakam Police Station and sentenced them to 10 years of imprisonment.

Currently, for many severe allegations of torture by the Police and deaths in custody, the AG declines to appear for the Police to defend. Then, the Police will inevitably have to find private counsel. Due to this trend, the Police are careful not to cause serious injuries. And, after conviction, the damages are recovered from the private funds of the individual Police officer.

The HRCSL has a fast track complaint handling system to conduct inquiries relating to torture, round-the-clock hotline facilities, and routine and unannounced night visits to Police stations and detention centres. The HRCSL also introduced the “Stop torture” campaign islandwide, and provided training to Police officers.

The HRCSL has a “rapid response team” to make unscheduled visits to places of involuntary detention and call for reports from the State authorities. And currently, the HRCSL has a list of the names and the date of arrest of the detainees.

The HRCSL also adheres to a zero-tolerance policy of corporal punishment.

The HRCSL emphasised the need to ensure discipline within schools while protecting the wellbeing of the children. The HRCSL urged the authorities to find alternate means of disciplining students without resorting to corporal punishment. To ensure alternative means of discipline, the Commission invited principals of national schools to the Ministry of Education, doctors, and psychiatrists. The discussion and the statement were issued in 2016. The circular (12/2016) was issued by the Ministry in 2016 to all schools preventing corporal punishment and stating that such is an offence under the penal law. The punishment is now within the Penal Code (Amendment) Act, No. 22 of 1995.

This year, the Commission summoned the principal of a leading school and stated that any corporal punishment would be a violation of the Penal Code.

The HRCSL ensures and monitors the safety of detainees.

The HRCSL has also found that numerous shortcomings in the functioning of the criminal justice process contributed to the extended incarceration of persons, particularly pre-trial detention, which in turn contributed to the creation of adverse living conditions and harsh treatment in prisons. This became apparent upon the HRCSL’s survey of 20 prisons situated throughout the nation.

The freedoms of expression, assembly, and association are critical parts of the democratic process and the HRCSL has taken efforts to safeguard them.

The HRCSL noted in the 2015 Presidential Election period when reserving public places for holding meetings within the purview of Local Government (LG) authorities that certain political parties were given favourable treatment while others were deprived of these rights on the basis that these places in question were reserved for other activities not related to the election process. The HRCSL has taken up this issue and conducted a seminar for representatives of LG bodies. The HRCSL also formulated guidelines to ensure fair play, devoid of favouritism, to ensure a first come, first served basis. Those guidelines are enumerated in the Commission’s 2017 annual report.

A set of guidelines for the Police in the control of civilian protests has been formulated by the Commission.

The HRCSL is fully committed to ensuring that the rights of minorities in Sri Lanka are given adequate protection.

Lesbian, gay, bisexual, transgender, intersex, queer, and questioning persons face severe harassment by the Police through the operation of Sections 365 and 365A of the Penal Code and the Vagrants Ordinance. The HRCSL also supports the repeal of Sections 365 and 365A of the Penal Code, and the amendment of the Vagrants Ordinance.

(Justice Marasinghe is the Chairperson of the HRCSL and retired Judge of the SC.)

The views and opinions expressed in this column are those of the author, and do not necessarily reflect those of this publication.