Predicaments of Peace Workers under the Anti-terrorism Laws - Sri Lanka

Background
Civil War in Sri Lanka
Since 1983, there has been an on-going civil war in Sri Lanka. The armed conflict between the Sri Lanka Tamil nationalists - the Liberations Tiger of Tamil Eelam (LTTE) and the Singhalese-majority Sri Lankan government forces, continues as they fail to reach a reasonable power-sharing agreement. Although a bilateral ceasefire agreement was signed in 2002, the conflicts have not subsided. In 2006, the LTTE declared to resume their struggle for independence, while the government was determined to drive the LTTE out of the north-east of Sri Lanka. The civil war has affected the whole country, but particularly destructive to the north-east regions controlled by the LTTE, such as Jaffna, Mannar, Vanni, Trincomalee districts.
Humanitarian Crisis in the War Zone.

Civilians living in the north have long been suffering from severe humanitarian crisis due to the armed conflict. As of early April 2009, the United Nations (UN) estimated that 150,000-200,000 people were still trapped in the war zone. The LTTE restricts the civilians to leave the area under their control and shot those who fled. On the other hand, the government army has indiscriminately shelled the war zone. UN Agencies have documented more than 3,000 civilians killed and over 8,000 wounded since mid-January 2009. Some 50,000 civilians have been able to escape the fighting and are now held in government-run camps.

People in the war zone are desperate for aid for their basic needs, such as food, water and medical supplies. In Vanni region, there are no functioning hospitals or other medical facilities, as they have been shelled and destroyed.

Hindrance to Humanitarian Assistance
Apart from the declaration of a no-fire zone, both the government and the LTTE did little to alleviate the civilians' suffering. Instead, humanitarian operations have even been hindered to strengthen their power of control over the areas.

In March 2008, the Madhu Shrine area in Mannar, which the Church has tried to maintain as purely a place of religious worship and refuge for displaced people, came under serious military threat as it was caught in the battle front. Priests and others who took refuge in the shrine were forced to flee from the area. Rev. Rappayu Joseph, Bishop of Mannar had to issue a statement to urge the LTTE and the government forces to refrain their activities from the area.

On 8 September 2008, the government ordered the UN and other international agencies to withdraw foreign and on-resident local staff and suspend their aid operations in the LTTE-controlled Vanni region. The withdrawal raised fears of shortages of food and essential items in the area, as well as inadequate shelter.

Both the government and the LTTE have engaged in the crackdown on dissenting voices, such as political opponents, journalists, and human rights activists. Thus they experience restrictions in their activities, including travel and communication to the area.

Moreover, the Emergency Regulations, which intend to “develop a peaceful political solution to the national problem”, have been ironically misused or abused to restrict the humanitarian operations and intimidate the peace workers. The plight of people in the war zone therefore tends to further deteriorate.

Anti-terrorism Laws in Sri Lanka
The main measures taken by the government in response to the conflict with LTTE are the Emergency Regulations (or collectively called anti-terrorism laws) made under the Public Security Ordinance 1947. The ordinance allows the President to declare a state of emergency and enforce necessary emergency regulations in the interest of public security. No emergency declaration nor its regulations can be challenged in court.

The two Emergency Regulations in force are the “Emergency (Miscellaneous Provisions and Powers) Regulations (EMPPR), August 2005” enacted in 2005 and the “Emergency Regualtions (Prevention and Prohibition of Terrorism and Specified Terrorist Activities) No. 7 of 2006” promulgated in December 2006.

According to the Human Rights Watch (HRW), these regulations grant security forces wide-ranging powers of arrest and detention, which unnecessarily restrict freedom of movement, allow for criminalization of a wide range of peaceful activities protected under Sri Lankan and international law, and introduce wide immunity clause for government officials and security forces, exempting them from prosecution. According to the country's recent past, granting powers to security forces led to a widespread of abuses, torture and disappearances. A history of lack of accountability also tends to promote impunity.

Arbitrary Detention
The 2005 regulations give wide range of powers for security forces to search, detain and arrest without warrant any person “acting in any manner prejudicial to the national security.” However, the terms “prejudicial to national security” is not further defined, thus opening the door to arbitrary arrest. Officials are also not required to publish a list of authorized places of detention, which facilitates secret detentions and contributes to the widespread “disappearances.” While suspects can be detained up to 90 days upon arrest, which may be extended to not more than one year, they may, in practise, be detained indefinitely.

Again in the 2006 regulations, a problem of terminology makes it easy to justify a crackdown on media, civil society organizations working on human rights or peace-building: a peace-buidling organization which is corresponding with the LTTE could be accused of collaboration with a terrorist group, and similarly, those offering humanitarian relief to persons known to be the LTTE. There is also a provision which gives impunity to government officials who commit wrongful acts while implementing the regulations.

More information and detailed analysis of these regulations can be found in Human Rights Watch's 2007 report on the conflict in Sri Lanka, “Return to War” <http://www.hrw.org/en/node/10799/section/8>, and “State Responsibility for 'Disappearances' and Abductions in Sri Lanka” < http://www.hrw.org/reports/2008/srilanka0308/3.htm > , published in March 2008.

Detentions are also authorized under the Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979 (PTA), which is effective nationwide even where emergency is not in force. The Minister of Defense may order detention of a person suspected of “unlawful activity” for at most 3 months initially, and alternatively make orders for house arrests, and restrictions of activities as a member of organization and on addressing public meetings. Such orders are also final and cannot be challenged in court.

Failure of Compliance
In principle, Emergency Regulations cannot override the Constitution which guarantees fundamental human rights such as right to security of person and freedom from torture. In times of “emergency,” however, other rights, such as the right to freedom from arbitrary arrest and detention, could be restricted in the interest of national security.

The HRW also reported some instances where security forces easily escaped from accountability:

• the Human Rights Commission Act required the Human Rights Commission be notified of every arrest and detention within 48 hours, and be allowed for free access to all detainees. However, this requirement has been routinely ignored by security forces who face no consequence for doing so.
• failure to provide “arrest reciepts” or to explain why it was impossible to provide one, is punishable by fine or imprisonment, but there is no indication that anyone has ever been charged with or prosecuted for this offense. According to a response to HRW's inquiry, the police claimed that no reports on failure to issue the reciept had been recieved.
• when asked in June 2007 about the number of people arrested under the 2005 regulations, government did not respond, claiming these were being tabulated by police. In November 2007, the HRW asked again the police to provide statistics on people detained under the 2 emergency regulations, charges brought against them, etc. but response was further delayed to January 2008, with a claim that the figures “will be submitted once statistics are compiled.

In its public document, AI Index: ASA 37/023/2008 “Review of Sri Lanka under the Universal Periodic Review,” < http://www.amnestyusa.org/document.php?id=ENGUSA20080612003 > the Amnesty International also raised the immediate need for the government to establish a central register of detainees arrested under these laws with details of the date of arrest, transfer and release information and provide public access to such registers.

Cases: Victims of the Misuse of Anti-terrorism Laws

While many countries enacted anti-terrorism laws in response to the threat of terrorism, there are worries that such laws may be used by the Sri Lankan government to target dissident voices of journalists, aid workers, and human rights activists, etc. The following are a few examples where the laws are arbitrarily invoked.

Munusamy Parameshawary
Ms Munusamy Parameshawary, journalist of a weekly newspaper Mawbima, was arrested in November 2006 under an anti-terrorism law. She was accused of having connection with an LTTE member who carried out a suicide attack in Colombo. Later, it was found that the anti-terrorism department fabricated accusation against her and passed it to the media. She was released in March 2007 after the Colombo Supreme Court ruled that there was insufficient evidence against her.

Jayaprakash Sittampalam Tissainayagam
Mr. Jayaprakash Sittampalam Tissainayagam, Tamil journalist for the Sri Lankan Sunday Times and the North Eastern Monthly, was arrested by the Terrorism Investigation Division (TID) on 7 March 2008. He has been detained for five months before being charged under the PTA and the Emergency Regulations of 2006 in August 2008. He was accused of intending to cause the commission of acts of violence through inciting communal disharmony. The accusation is attributed to the two articles he wrote in the North-Eastern Monthly in 2006 criticizing the impact of army operations to civilians. It was reported that he was tortured and was denied of medical treatment. Several international human rights organizations believe Mr. Tissainayagam is a prisoner of conscience and have been calling for his release.

Santha Fernando
Mr. Santha Fernando, Executive Secretary of the Commission for Justice and Peace - National Christian Council of Sri Lanka, and human rights campaigner, was recently arrested by the TID at the Colombo International Airport on 27 March 2009. Mr. Fernando was on his way to India to attend a seminar hosted by The Other Media on the situation in the north of Sri Lanka. He was arrested under the anti-terrorism laws after Security personnel of Katunayake found documents on the humanitarian crisis in Vanni, which he downloaded from internet, in his luggage. He was given a detention order for 30 days.

Recommendations at the UN
The suppression to journalists, aid workers and human rights activists rang the alarm of the international community. In 2008, when the human rights situation of Sri Lanka was reviewed in the UN Human Rights Council during the universal periodic review, various governements and UN bodies highlighted human rights abuses under and in relation to the Prevention of Terrorism Act and the Emergency Regulation, including torture in custody and long periods of detention without trial.

It was recommended that the Sri Lankan government:

“implement various recommendations made by treaty bodies and special procedures to ensure that security measures adopted in the context of armed violence including the state of emergency the 2005 emergency laws and measures to combat terrorism comply with international human rights law.” (para. 16, Response to Recommendations)

To justify derogation of rights when the life of the nation is threatened, the restrictions and limitations must only be strictly imposed when it is required for the exigencies of the situation. Also it must be consistent with other obligations under international law and must be non-discriminatory.

ACPP welcomes Sri Lankan government acceptance of the UN recommendation but deplores the lack of realization. ACPP sincerely urges the Sri Lankan government to amend the anti-terrorism laws and emergency act in accordance with international human rights standards.

Sources
Human Rights Watch
Amnesty International
Centre for the Independence of Judges and Lawyers report (September 1998)
Relief Web
Crisis Web
Reporters Without Borders
Response of the Government of Sri Lanka to the recommendations, Report of the Working Group on the Universal Periodic Review, United Nations (A/HRC/8/46/Add.1)
Wikipedia