In August 2005, after the assassination of Foreign Minister Lakshman Kadirgamar, the government of then-President Chandrika Kumaratunga imposed Emergency Regulations drawn from the Emergency Regulations of 2000.133 Long a controversial measure in Sri Lanka, the regulations granted the security forces sweeping powers of arrest and detention, allowing the authorities to hold a person without charge based on vaguely defined accusations for up to 12 months.
Since then, subsequent Sri Lankan governments have detained an undetermined number of people reaching into the hundreds under the regulations, mostly young Tamil men suspected of being LTTE members or supporters. The vast majority have been arrested over the past 18 months. On June 18 Human Rights Watch asked the government how many people it had arrested under the Emergency Regulations, the charges against them, and the locations of their detention. The government did not provide the requested information, saying the figures were being tabulated by the police. As in other cases noted above, it should have been possible for the government to provide at least some information.
Sri Lanka has a longstanding experience with emergency rule: some form of emergency regulations has been in place almost continuously since 1971.
Under Sri Lankas Public Security Ordinance (PSO) of 1947,134 the president can declare a state of emergency. The law offers no possibility to challenge the existence or the grounds for such a declaration. A 1987 constitutional amendment grants legal immunity to the president for declaring a state of emergency in good faith.135
Numerous governmental and nongovernmental organizations have criticized abuses related to Emergency Regulations. In 2001, a report by human rights lawyer N. Kandasamy indicated that some 18,000 people may have been arrested under Emergency Regulations and the Prevention of Terrorism Act136 from January to November 2000. The vast majority of those arrested were Tamil, some of whom were ordered detained without trial for more than two years. Often the only evidence against them was a confession extracted under torture.137
In its most recent review of Sri Lanka on December 15, 2005, the UN Committee Against Torture expressed concern about allegations that fundamental legal safeguards for persons detained by the police, including habeas corpus rights, are not being observed. The committee said that the lack of an effective systematic review of all places of detention, including regular and unannounced visits to such places (art. 11), by the Human Rights Commission of Sri Lanka and other monitoring mechanisms, was a serious concern.138
More recently, in December 2006, the Colombo-based Centre for Policy Alternatives commented on the recent reimposition of the full Emergency Regulations:
With respect to the treatment of detainees, the Emergency Regulations enacted by the Sri Lankan government are contrary to international human rights standards on their face and in practice. The International Covenant on Civil and Political Rights, to which Sri Lanka is a state party, permits limitations on some rights during periods of national emergency. However, such measures are limited to the extent strictly required by the exigencies of the situation. States must provide careful justification for any specific measures based on a proclamation of a national emergency. Certain basic rights, such as the right to life and to be free from torture and other cruel, inhuman or degrading treatment, may never be restricted. The principles of legality and the rule of law require that the fundamental requirements of a fair trial be respected even under Emergency Regulations.140
The government enacted the Emergency Regulations on August 14, 2005. The new measures were justified by referring to the terrorist challenge which claimed the life of Minister Kadirgamar and which requires adequate security measures to ensure that terror cannot act with impunity.141
Under these regulations, the authorities may search, detain for the purpose of a search, and arrest without a warrant any person suspected of an offense under the regulations.
A fundamental problem is the vague definition of an offense, which opens the door for arbitrary arrests. The regulations, for example, allow for the detention of any person acting in any manner prejudicial to the national security or to the maintenance of public order, or to the maintenance of essential services. The term prejudicial to the national security is not further defined and could be interpreted to include peaceful or nonviolent acts protected under the rights to free expression or association.
The regulations also provide for house arrest, prohibitions on an individual from leaving the country, restrictions on the movement of certain persons or groups, and limitations on an individuals business or employment. They empower the police to require people to register at the local police station where they live. They allow for the censorship of articles related broadly to sensitive issues, and the disruption and banning of public meetings.
Arbitrary arrests and detention
Under the Emergency Regulations currently in place, persons arrested must be turned over to the police within 24 hours and their family provided with an arrest receipt acknowledging custody. In practice, according to Sri Lankan lawyers, the authorities have frequently failed to respect these requirements.
According to Sri Lankan lawyers and human rights activists, the typical profile of a detainee under the Emergency Regulations is an ethnic Tamil man between the ages of 18 and 40. But since late 2005, arrests under the regulations have expanded beyond the Tamil community. By February 2007, at least 11 Sinhalese civilians had been arrested and detained under the Emergency Regulations charged with being LTTE supporters from areas such as Matale, Ratnapura, and Galle.142
Large-scale arrests of Tamil youth under the Emergency Regulations are particularly common after attacks attributed to the LTTE. After the suicide bomb attack against Army Commander Lt. Gen. Sarath Fonseka in April 2006, for example, the authorities arrested 97 Tamils in Colombo.143 The status of their cases remains unclear. Similarly, security forces arrested a large number of Tamils in connection with the August 2005 Kadirgamar assassination. Between midnight of December 30 and noon on December 31, 2005, the Sri Lankan army and police arrested 920 people, mostly Tamils, in a joint cordon and search operation named Strangers Night III. The pro-LTTE website Tamilnet said the police arrested only Tamils, including 105 women,144 but the police said the 920 suspects comprised 118 Sinhalese, 96 Muslims, and 706 Tamils.145 It remains unclear how many of these people remain in detention at this writing. Human Rights Watch asked the Sri Lankan government how many of those arrested in Strangers Night III are still under detention, how many have been charged, and how many have been brought to trial, but the government did not reply.
Sri Lankan lawyers dealing with arrests under the Emergency Regulations told Human Rights Watch that the security forces frequently detain individuals on spurious charges, such as if found speaking softly on a mobile phone in Tamil in a public place. The police take advantage of the powers granted them under the regulations to arrest all those suspected in any way of supporting the LTTE.
In some cases, deliberate misrepresentation of a suspects identity has led to innocents being detained. On October 2, 2006, for example, the police arrested Rasurajah, a 32-year-old Tamil from Talgampola in Galle district. According to the Asian Human Rights Commission, Rasurajah remained in custody for three days because the police misrepresented his identity in court as M. Selliah, an individual wanted by the police for investigation. A second magistrate, informed of the facts of the case, did not release Rasurajah but kept him on remand until the next hearing on October 6, after which he was released.146
In February 2007 Human Rights Watch interviewed the family members of 17 people whom the families believe were detained by the police, although they did not know whether they were specifically arrested under the Emergency Regulations. All said they had been unable to obtain any information about the location of their relative or the charges against them.
Also problematic is that the 2005 Emergency Regulations allow joint operations between the army and the police, with no clarity on responsibility. Lawyers working on cases of arrests under the regulations say that the police often round up alleged suspects in cordon and search operations in conjunction with the military and then tell lawyers and family members that they must speak to the military because the police have no information about the arrest.147
According to Sri Lankan lawyers and human rights activists, detainees under the Emergency Regulations are kept in regular prisons as well as police stations and other detention facilities, including those run by the Terrorism Investigation Division. The total number of people detained under Emergency Regulations since 2005 is unknown. The government has failed to provide complete lists of those detained, the charges they face, and the locations where they are being held.
On March 8, 2006, government defense spokesman Keheliya Rambukwella said that 452 persons were in detention under the Emergency Regulations, among them 15 soldiers, five policemen, one former policeman, and three military deserters. The ethnic breakdown of the detainees, he said, was 372 Tamils, 61 Sinhalese, and 19 Muslims.148 The number of detainees is certainly significantly higher now, as these figures predate the resumption of major hostilities.
On June 18, 2007, Human Rights Watch asked the government how many people it had arrested under the Emergency (Miscellaneous Provisions and Powers) Regulations (EMPPR) since its enactment in August 2005, where they were being held, how many had been charged with offenses, how many had been brought to trial, and how many of these people had been released. The government replied that these figures were being tabulated by the police.149 Again, it should have been possible for the government to provide at least some information.
On April 12, 2007, in response to public concerns and international pressure about spiraling arrests and disappearances, the government recirculated presidential directives on how security forces should protect human rights during arrests and detentions.150 The Presidential Directives on Protecting Fundamental Rights of Persons Arrested and/or Detained, distributed to the commanders of the army, navy, air force and police, instruct the security forces to respect basic human rights, as well as to cooperate with the Sri Lankan Human Rights Commission. The main points include:
These are important principles and the government presented the reissued directives as a sign of its commitment to human rights.151 But the directives, originally issued on July 7, 2006, merely instruct the security forces to respect fundamental due process rights already enshrined in Sri Lankan and international law. The fact the president had to issue them twice suggests that members of the military and police were frequently violating the law and that the government lacked the will to hold those responsible for abuses accountable. Without concrete action, including prosecutions of those arbitrarily arrested by the security forces, the directives appear aimed more at assuaging international opinion than holding accountable police and soldiers who commit crimes.
Unauthorized places of detention
The use of unauthorized places of detention has become a source of enormous anxiety for the families of detainees. Often families dont know where a relative is being held and the authorities are reluctant to give information. Under the Emergency Regulations, there is no requirement to publish the places where people are held.
In 2007, around 100 people were reported held in detention at the Boosa detention centre in Galle on Sri Lankas southern tip.152 Lawyers and human rights activists told Human Rights Watch that they believed the government was also holding individuals under the Emergency Regulations in other places, including in Kandy and the Pollunaruwa district, but Human Rights Watch did not confirm these claims.153
Human Rights Watch asked the Sri Lankan government where it was holding those arrested under the Emergency Regulations. The government did not provide this requested information, saying it was being tabulated by the police.154
Various United Nations principles including the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (principle 12) and the UN Standard Minimum Rules for the Treatment of Prisoners (rule 55), lay down that [A]ll detainees should only be kept in recognized places of detention. Such places of detention should be visited regularly by qualified and experienced persons appointed by, and responsible to, a competent authority distinct from the authority directly in charge of the administration of the place of detention.
Disposal of bodies without public notification
Under the current Emergency Regulations, the authorities may dispose of bodies without public notification.155 The deputy inspector general of the police has the authority to cremate bodies and thereby destroy potential evidence prior to inquest proceedings. This is particularly problematic in cases of alleged torture of a detainee who then dies while in custody. It is not known in how many cases the authorities have disposed of a body.
Emergency Regulation (Prevention and Prohibition of Terrorism and Specified Terrorist Activities) No. 7 of 2006
On December 6, 2006, President Rajapaksa promulgated an additional set of emergency regulations called the Prevention and Prohibition of Terrorism and Specified Terrorist Activities, No. 7 of 2006. The broad, sweeping language of several of these provisions has also given rise to serious concerns.
The range of activities prohibited by Regulations 6, 7 and 8,156 and the definition of terrorism in Regulation 20,157 allow for the criminalization of a range of peaceful activities that are protected under Sri Lankan and international law.
Some of the regulations could be used to justify a crackdown on the media and civil society organizations, including those working on human rights, inter-ethnic relations, or peace-building. The vague terminology in regulations 7 and 8, for example, opens the door for a range of peaceful activities to be brought under the ambit of terrorism. A peace-building organization, for instance, in contact with the LTTE or corresponding with the LTTE could be accused of collaboration with a terrorist group. Humanitarian relief offered to persons known to be LTTE supporters could be similarly construed. Journalists meeting with the LTTE or organizing a function with LTTE attendees could be similarly accused.
In addition, the regulations established an Appeals Tribunal to hear appeals but its composition did not guarantee that the body would review cases in an impartial or transparent way. The tribunal is composed of the secretaries to the ministries of defense, finance, nation building and justice.
Lastly, the regulations contain in Regulation 19 an immunity clause for any government officials who may commit wrongful acts when they implement the regulations. Legal proceedings are prohibited if an official acted "in good faith and in the discharge of his official duties. Such immunity can further protect from prosecution government officials who violate the law: Sri Lankan human rights organizations have complained that the authorities could use the wide immunity clause in Regulation 19158 to exempt members of the police, armed forces and other persons deemed to be acting in good faith. The regulations also provide for exemptions to engage in approved transactions in certain circumstances such as the furtherance of peace and the termination of terrorism with the written permission of a competent authority appointed by the president.159
On June 18, 2007, Human Rights Watch asked the government how many people the security forces had arrested under the Emergency Regulation (Prevention and Prohibition of Terrorism and Specified Terrorist Activities) No. 7 since its enactment in December 2006, where they were being held, how many had been charged with offenses, how many had been brought to trial, and how many of these people had been released. The government replied that these figures were being tabulated by the police.160
133 Article 155 of the Sri Lankan constitution, on public security, empowers the president to declare a state of emergency. The parliament has 14 days to approve the measure and then must renew the state of emergency every 30 days thereafter.
134 Public Security Ordinance (PSO): an ordinance to provide for the enactment of emergency regulations or the adoption of other measures in the interests of the public security and the preservation of public order and for the maintenance of supplies essential to the life of the community, 16 June 1947.
135 See http://www.law.qub.ac.uk/schools/SchoolofLaw/Research/HumanRightsCentre/Resources/StatesofEmergencyDatabase/SriLanka/ (accessed July 25, 2007).
136 The government of President J.R. Jayewardene first introduced the Prevention of Terrorism Act (PTA) in 1979 amid widespread criticism from opposition parties and human rights groups. The PTA allows arrests without warrant and permits detention without the person being produced before a court, initially for 72 hours, and thereafter on an administrative order issued by the defense minister up to 18 months, which could be followed by detention until the conclusion of trial. The law allows for release during trial with the consent of the attorney general, but it does not provide any mechanism to secure such consent. The government may hold a person under the PTA on suspicion and need not charge the person with an offense. Currently the PTA is suspended. The 2002 Ceasefire Agreement (CFA), article 2.12, provided that the government would not conduct arrests or search operations under the PTA, but rather in accordance with the criminal procedure code. The act was never formally repealed but, according to the government, since the CFA no person has been arrested under the relevant provisions of the PTA. Sri Lankan government response to Human Rights Watch, July 12, 2007.
137 Human Rights Watch, World Report 2002, Sri Lanka chapter, http://www.hrw.org/wr2k2/asia10.html.
138 Committee Against Torture, Issues Concluding Observations on Reports of Bosnia and Herzegovina, Nepal, Sri Lanka, Ecuador, Austria, France, and the Democratic Republc of Congo, November 25, 2005, http://www.unhchr.ch/huricane/huricane.nsf/view01/A8C1CC94A9128EAFC12570C400502F1D?opendocument (accessed July 24, 2007).
139 Centre of Policy Alternatives, Statement on the Introduction of the Emergency (Prevention and Prohibition of Terrorism) Regulations 2006, December 2006.
140 See UN Human Rights Committee, General Comment 29, States of Emergency (article 4), U.N. Doc. CCPR/C/21/Rev.1/Add.11 (2001), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 186 (2003). Sri Lanka ratified the International Covenant on Civil and Political Rights in 1980.
141 President Chandrika Kumaratungas Address to the Nation, August 14, 2005, South Asia Terrorism Portal, http://www.satp.org/satporgtp/countries/shrilanka/document/papers/Kumaratunga_Address_to_the_Nation.htm (accessed July 2, 2007).
142 Human Rights Watch interview with Sri Lankan lawyer, Colombo, February 2007.
143 Centre for Policy Alternatives, War, Peace and Governance in Sri Lanka, December 2006.
144 920 Tamils arrested in major cordon, search operation in Colombo, TamilNet, December 31, 2005, http://www.tamilnet.com/art.html?catid=13&artid=16702 (accessed July 16, 2007).
145 Nirmala Kannangara, DIG says Tamils not targeted through search operations, Morning Leader (Colombo), January 11, 2006, http://www.themorningleader.lk/20060111/News.html (accessed July 16, 2007).
146 Sri Lanka: Innocent man victimised by illegal arrest and detention due to unlawful police malpractice of misrepresenting suspect's identity in court, Urgent Appeal, Asian Human Rights Commission, November 9, 2006.
147 Human Rights Watch interviews with lawyers, Colombo, February 2007.
148 The figure is mentioned in a report by the International Crisis Group, Sri Lankas Human Rights Crisis, June 14, 2007, http://www.reliefweb.int/rw/RWFiles2007.nsf/FilesByRWDocUnidFilename/DBC51E0313E10AB5852572FA006892C6-Full_Report.pdf/$File/Full_Report.pdf (accessed July 18, 2007), which cites "Sri Lanka Human Rights Update," INFORM and Law and Society Trust, March 15, 2007.
149 Sri Lankan government response to Human Rights Watch, July 12, 2007.
150 Secretary Defense [sic] Re-circulates Presidential Directives on Protecting Fundamental Rights of Persons Arrested and/or Detained, Ministry of Defence, Public Security, Law and Order, April 25, 2007, http://www.defence.lk/new.asp?fname=20070425_02 (accessed May 16, 2007).
151 In a March 2007 statement about abductions and disappearances, for example, the government highlighted the Presidential Directives as evidence of its efforts to promote and uphold the rule of law. See SCOPP, Baseless Allegations of Abductions and Disappearances. In July 2006 a ministerial body had issued a statement calling for the implementation of the presidential directives. Government of Sri Lanka, Inter-Ministerial Committee on Human Rights, Implementation of Presidential Directives on the Arrest or Detention of Persons, July 19, 2006.
152 Fury at Detentions Under Sri Lanka Anti-terror Rules, Reuters, February 21, 2007.
153 Human Rights Watch interviews with human rights activists, Colombo, February 2007.
154 Sri Lankan government response to Human Rights Watch, July 12, 2007.
155 Regulation 56 of the Emergency (Miscellaneous Provisions and Powers) Regulations No.1 of 2005 published in Gazette Extraordinary 1405/14 of August 13, 2005, states, (1) The Magistrate shall, upon receipt of the report of the facts by the Inspector-General of Police, or the Deputy Inspector-General of Police as the case may be under regulation 55: (a) direct the Government Medical Officer to forthwith hold a post-mortem examination of such body and may direct that the dead body if it has already been buried, be disinterred; and (b) make an order that at the conclusion of the post-mortem examination that the dead body be handed over to the Deputy Inspector-General of Police for disposal. (2) The Deputy Inspector-General of Police to whom the body is handed over the dead body [sic] to any relations who may claim the dead body, subject to such conditions or restrictions as he may deem necessary in the interest of national security of [sic] for the maintenance or preservation of public order; Provided, however, that the Deputy Inspector-General of Police may in the interest of national security or for the maintenance or preservation of public order, authorize the taking possession of and effecting the burial or cremation of the dead body in accordance with such steps as he may deem necessary in the circumstances. These provisions had been removed from the previous set of regulations on May 3, 2000.
156 According to Regulation 6, no person or groups of persons either incorporated or unincorporated including an organization, shall either individually or as a group or groups or through other persons engage in :
According to Regulation 7, no person shall :
According to Regulation 8, no person shall engage in any transaction in any manner whatsoever, including contributing, providing, donating, selling, buying, hiring, leasing, receiving, making available, funding, distributing or lending materially or otherwise, to any person, group or groups of persons either incorporated or unincorporated, or with a member, cadre or associate of such a person, group or groups of persons, which acts in contravention of regulations 6 and 7 of these regulations.
157 According to regulation 20, terrorism means any unlawful conduct which:
158 According to Regulation 19, no action or suit shall lie against any Public Servant or any other person specifically authorized by the Government of Sri Lanka to take action in terms of these Regulations, provided that such person has acted in good faith and in the discharge of his official duties.
159 Statement on the introduction of the Emergency (Prevention and Prohibition of Terrorism) Regulations 2006, Centre for Policy Alternatives, December 2006, http://www.cpalanka.org/psg/STATEMENT_on_Emergency_Regulations2006.pdf (accessed July 24, 2007).
160 Sri Lankan government response to Human Rights Watch, July 12, 2007.