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Home > Tamilnation Library > Eelam Section > Sri Lanka :A Mounting Tragedy Of Errors - Paul Sieghart
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TAMIL NATION LIBRARY: Eelam
Contents 1. Introduction
5. Summary Appendix: Holders of Public Office interviewed during the Mission |
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In 1981 the International Commission of Jurists (ICJ) published a report by Professor Virginia Leary on Ethnic Violence in Sri Lanka, which Mr. Paul Sieghart describes as 'essential reading' for a full understanding of recent events in Sri Lanka. A second edition of that report was published in August 1983, updated by the ICJ staff with a summary of subsequent developments, including the tragic outburst of communal violence in July, 1983. Shortly before this outburst occurred the ICJ, aware of the increasing tensions, approached the Sri Lanka Government with a view to sending another mission to the country. A few days before the events of July 24, the Government replied that it could not entertain such a mission. However, some months later President Jayewardene, in response to an inquiry, renewed an invitation he had previously made to Mr. Sieghart, the Chairman of the Executive Committee of Justice, the British Section of the ICJ, to visit Sri Lanka as a guest of the Government. Like the ICJ, Mr. Sieghart has over the years taken a keen interest in Sri Lanka, a country which, in spite of all difficulties, has persistently maintained since Independence a parliamentary democracy dedicated to upholding freedom under the Rule of Law. During his brief visit in January 1984, Mr. Sieghart had unparalleled opportunities to discuss the present situation concerning the Rule of Law and the legal protection of human rights in meetings with President Jayewardene, the Ministers of Foreign Affairs and Internal Security, the Chief Justice, the Secretaries of the Ministries of Defence and Justice, the Additional Solicitor-General and others. In consequence, he has been able to set out authoritatively the Government's standpoint on many important issues. The section of his report dealing with the law and institutions contains a clear analysis and critique of the constitutional provisions for the protection of human rights, the emergency legislation in force, the powers and role of the armed forces and police, and the independence of the judiciary. In particular, certain police powers under the Prevention of Terrorism Act, which has now been made permanent, are shown to be a serious violation of the Rule of Law and of Sri Lanka's obligations under the International Covenant on Civil and Political Rights. The same conclusion is reached in relation to the recent amendment of the Constitution which penalises anyone peacefully advocating separatism by depriving him of the right to be a member of parliament, to hold public office, or to engage in any trade or profession which requires a licence, registration or other authorisation. Equally interesting and persuasive are Mr. Sieghart's reflections upon the wisdom and efficacy of the draconian measures the Government has introduced to deal, as it claims, with the terrorist activities of the minute organisation of Tamil extremists, the self-styled Tamil Tigers, which the Government itself estimates at only 25 to 30 hard-core members and no more than 100 or 150 on the periphery. He finds some of these measures to be counter-productive as well as being contrary to international law. Although being at all times outspoken, Mr. Sieghart has confined his report and his conclusions to strictly legal matters, and when he has made judgments they are made strictly in relation to the principles of the Rule of Law and Sri Lanka's legal obligations. Like all questions of human rights they do, of course, deal with issues which are highly sensitive politically, but we trust that the Government and citizens of Sri Lanka will understand and accept that he writes as a friend of Sri Lanka over many years, seeking to remain objective and impartial insofar as that is humanly possible. Two days before Mr. Sieghart's visit there began an extremely important series of all-party talks, which offer the best hope for a resolution of the long-standing conflicts which have plagued Sri Lanka with increasing frequency and severity since Independence. The International Commission of Jurists, like Mr. Sieghart, hopes that these talks, which are likely to be prolonged, may succeed in ushering in a new era for Sri Lanka. His report is published as a modest contribution to the process of understanding and reconciliation. Niall MacDermott Geneva, March 1984 |
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The interest of the International Commission of Jurists in the observance of the Rule of Law and the legal protection of human rights in Sri Lanka (previously Ceylon) goes back over many years. As long ago as 1962, the ICJ expressed its concern over the enactment there of a Criminal Law (Special Provisions) Act, a statute which the very Court appointed under its own provisions courageously held to be unconstitutional later in the same year. On several occasions since then, the ICJ has expressed both praise and criticism of the actions of Sri Lankan governments, of all political complexions, in the field of its special concern. My personal interest in Sri Lankan affairs began more recently. I first visited the country in 1976, and again in 1981, and met politicians, Ministers, Judges, officials, and practising lawyers. In May 1981, I wrote on behalf of Justice (the British Section of the ICJ) to the President of the Republic, His Excellency Mr. J.R. Jayewardene, to express concern about reports that a number of people had been arrested, that they were being held incommunicado without access to lawyers and without their families knowing where they were, and that there were grave misgivings about their safety. In reply, the President invited me to visit Sri Lanka as a guest of the Government. At the time, I was unable to take up this invitation. However, in the following month Professor Virginia A. Leary, of the Faculty of Law and Jurisprudence in the State University of New York at Buffalo, USA, carried out a mission to Sri Lanka on behalf of the ICJ, which published her very comprehensive report under the title "Ethnic Conflict and Violence in Sri Lanka" in December 1981, and reissued it with a supplement by its staff in August 1983. In January and February 1982, an Amnesty International mission visited Sri Lanka; its report was submitted to the President on 7 February 1983 and published on 6 July of that year. In June 1983, Mr. Timothy J. Moore, Ll.B., a Member of the Parliament of New South Wales, Australia, visited Sri Lanka on behalf of the Australian Section of the ICJ, which published his report in the following month. At the end of that month, there was another tragic outbreak of communal violence in Sri Lanka. Houses and shops were burned and looted, and there was much loss of life - some at the hands of members of the security forces. At its height, 53 Tamil political prisoners were murdered in two separate massacres in Colombo's Welikada prison. In November 1983, I wrote to ask whether President Jayewardene's invitation was still open. I was assured that it was, and accordingly I visited Sri Lanka for a further short stay of four days from 12 to 15 January 1984, on behalf of both the ICJ and Justice. Notwithstanding the brevity of my visit, I was able to see many people at the centre of Sri Lankan affairs. The Protocol Division of the Ministry of Foreign Affairs was unfailingly helpful, and with very few exceptions I was able to interview everyone I asked to see: the President himself on two separate occasions, Ministers, Judges, and high officials. A list of these appears in the Appendix. All of them were most courteous, and answered my questions with as much candour as their official positions allowed, and sometimes more - even though I had made it clear that I did not wish to receive any confidences, and considered myself free to publish anything I was told. I was also able to meet many people outside Government; some in Colombo, some in Jaffna (where the Government transported me in an Air Force plane), and others outside the Island - none of whom had participated in, or would support, the use of violence for political ends. I should like to express my thanks to all of them for their help and co-operation in my mission. Clearly, in four crowded days and as a foreigner, I was not able to investigate a wide variety of allegations and counter-allegations which have been made in various quarters about recent events in Sri Lanka. In any case, these ought to be investigated in the first instance by the competent institutions and individuals in the country itself, and later in this report I shall make certain recommendations to that effect. There are countries where such institutions no longer exist, or where there is no one left whose findings could be sufficiently trusted. But Sri Lanka is not - or at least not yet - in that category. It may be that what I have to say here will disappoint various interest groups, and perhaps also some individuals, in or out of Government, who have taken trouble to help me on this mission. If that is so, I shall naturally regret it. But in the last analysis I can only report my own observations and conclusions which, like the perceptions of any other individual, will necessarily be both selective and incomplete. For a full understanding of the background to recent events in Sri Lanka, Professor Leary's report is essential reading, and Mr. Moore's report two years later also contains much useful information. Where possible, I have tried not to cover the same ground, but rather to bring their work up to date and to add my own findings, conclusions and recommendations. However, for anyone who does not have ready access to their reports, here is a summary of the salient facts. Tourist brochures rightly describe Sri Lanka as an island paradise. It is blessed with a benign tropical climate, and much fertile land. Apart from the fabled palm-fringed beaches, it has cool hills, great areas of forest, much wild life, a profusion of ancient monuments, many towns and villages of great charm, as well as a modern airport and an increasing number of well-situated and comfortable hotels. Sri Lanka is blessed in other respects too. Its civilisation is at least as old as Europe's. Buddhism arrived there around the third century BC, and founded a lasting tradition of courtesy, friendliness and tolerance. Statistically, the country is still very poor: according to the World Bank,1 the gross annual per capita product in 1981 was a derisory US$ 300. But such figures can be misleading, as they can only count goods and services that are commercially traded, and leave out all private consumption such as of that of the subsistence farmer, and all local barter, which account for much of the real production and exchange in such a country. Though far from rich by Western standards, Sri Lanka displays none of the grinding poverty, or the massive urban or rural slums, which are such a conspicuous feature of many other developing countries. Instead, what the tourist will see is a land of friendly, healthy and well-fed people, and the bustling social life of the streets and markets. Though smiling children may ask him for "school pens" with some persistence, it will be rare for him to see a beggar or a cripple. In Sri Lanka, legend and history are often difficult to disentangle. Before either the Sinhalese or the Tamils arrived there, there must have been some aboriginal inhabitants, whose modern descendants may be the few primitive Veddha tribesmen still to be found in the forests of the South-East. The Sinhalese believe that their own ancestors arrived in the first millenium BC. Their language belongs to the Indo-European (or "Aryan") group, and they are therefore apt to think of themselves as belonging to the Aryan "race" - though in fact, outside the Nazi imagination of half a century ago, there is no such thing. Successive waves of Dravidian Tamils also arrived over the centuries, conquering parts of the Island, settling there, and establishing independent kingdoms. In the early 16th century AD, the Portuguese came and set up trading posts, expanding from these to colonise the coastal areas. In the following century, the Dutch ousted the Portuguese from these places. Neither the Portuguese nor the Dutch ever penetrated far inland. But at the end of the 18th century, the British in their turn ousted the Dutch, and by a treaty of 1815 made with the dissident nobles of an unpopular King of Kandy in the central hill country, they became the first Europeans to bring the whole of the Island under their control. It is noteworthy that this treaty contained one clause guaranteeing respect for "the religion of Boodoo", and another guaranteeing freedom from torture, of which the ousted King had evidently been guilty.2 These were precursors of guarantees for human rights in the Island, but they were by no means the first; for the notions of the dignity of the individual, respect for minorities and the rights of others, and the fair and impartial application of laws, are to be found deeply embedded in both Buddhism and Hinduism - which after all spring from the same roots. Before the British arrived in Sri Lanka, relations between the Sinhalese and the Tamils had alternated between peaceful coexistence and intermittent warfare. Feudal kings and lesser nobles in each group were apt to take up arms against each other, as well as against others of their own group, to advance their particular interests. But these skirmishes eventually came to an end under British rule: when the Tamil province of Jaffna in the North was merged in 1833 with the other British administrative units into a single Government of Ceylon, the whole Island came under a common administration for probably the first time in its history, and so remained until Independence in 1948.3 This independence was not the outcome of a bitter and bloody liberation struggle as in so many other colonial territories, but was achieved by peaceful negotiations. Elected members had served in the Legislative Council since 1911, and universal adult suffrage for elections to the State Council had been in effect since 1931. A report by the last British Governor, Lord Soulbury, led to the grant of Ceylon's first independent Constitution by an Order in Council taking effect on 4 February 1948, which has ever since been Sri Lanka's national day. For the next thirty years, Sri Lanka strove to follow the Westminster Parliamentary model, with more success than some other members of the "new" Commonwealth. Almost every general election has resulted in a change of government. A new Republican Constitution was introduced by a Constituent Assembly in 1972, but maintained the Parliamentary system. There have only been two attempts (in 1962 and 1971) to seize power by force, both mounted against the administration of Mrs. Sirimavo Bandaranaike's Sri Lanka Freedom Party (SLFP). Both proved unsuccessful - though the second induced her to rule for nearly another six years under emergency powers, holding some thousands in detention at a time. At the last general election in 1977, Mr. J.R. Jayewardene's United National Party (UNP) was returned with an overwhelming majority, taking 140 Parliamentary seats out of 168. These two parties have alternated in power in Sri Lanka ever since Independence. Very roughly, the SLFP favours state intervention, subsidies, and a high level of social services, especially in the fields of health and education; the UNP favours liberalisation, the dismantling of unnecessary State controls, and the encouragement of free enterprise. Neither of the parties is extreme in these respects, and each accepts the principle of a mixed economy, though in rather different proportions. The favourable effects of both these policies are visible throughout the Island: at 85% or more, adult literacy is one of the highest in the developing world, and rivals that of many much richer countries; so does an expectation of life at birth of 69 years, and an infant mortality of only 37.7 per thousand. At the same time plantations, farming, industry, trade and commerce all appear to flourish remarkably well. From that general survey, I must now turn to the matters with which my mission was more specifically concerned. After almost six years of emergency rule under Mrs. Bandaranaike, President Jayewardene evidently began his first term of office with a positive distaste for it. Soon after he came to power in 1977, he made the following speech in Parliament on the occasion of the repeal of one of the previous administration's more illiberal Acts:-
Those were fine words, and there is no reason to doubt that they were sincere. Unfortunately, however, the performance of President Jayewardene's administration has in the event not lived up to this promise. True, emergency rule has only been invoked on six occasions since it came to power, and on most of those there was a clear case for doing so: indeed, on one of them it was accused with some justification of waiting too long before using emergency powers to quell some very unpleasant communal violence. But since taking office in 1977, the President and his overwhelming majority in Parliament have introduced the following new measures:-
In this report, I am mainly concerned with the content and operation of laws which may put at risk the proper respect for the Rule of Law and the legal protection of human rights which Sri Lanka is bound under international law to observe and ensure to its inhabitants, and I shall therefore have little more to say about items (2), (4) and (5) in this list, which are predominantly matters of politics. But in order to understand why President Jayewardene and his Government have felt impelled to undertake the others, despite the good intentions announced on coming into office, it is necessary first to give an outline of the ethnic tensions which have been developing in Sri Lanka for some time, and which have evoked mounting violence in the period since the general election of 1977. Of Sri Lanka's total population of around 15 million, some 74% are Sinhalese, a little over 18% are Tamils, and about 7% are "Moors", who claim descent variously from Arab traders or Indian Muslims. There is also a small group of Malays, as well as a few "Burghers" who claim Portuguese or Dutch ancestry. Within these groups, there are important sub-groups. The Sinhalese divide themselves into a low-country and a slightly smaller Kandyan (hill-country) group, while around 70% of the are described as "Sri Lanka" Tamils, the rest being called "Indian" Tamils, or Tamils "of Indian origin". The for the latter distinction is the fact that the so-called are the descendants of indentured labourers brought to the Island by the British in the 19th and early 20th centuries to work in the new plantations, first of coffee and later of tea, in the central hill country, while the ancestors of the "Sri Lanka" (or previously "Ceylon") Tamils arrived in the Island many centuries earlier. The label "Indian" or "of Indian origin" for one of these groups is in fact profoundly misleading, since all Tamils are descended from people who originally came from India - as, come to that, are all Sinhalese. The Sinhalese are concerned to differentiate their origins from those of the Tamils by claiming that they came originally from North India, and not from the South, which may well be true; but how they arrived in the Island is a matter of legend rather than history. Their legend has it that they came by sea, but it is quite as likely that they in fact came overland, by way of South India. Likewise, the Tamils can hardly have sprung into spontaneous existence in South India. If one goes back far enough, just about everyone's ancestors must have come from somewhere else. Nor are there any true racial distinctions between these two communities - that is, genetic differences which are objectively ascertainable. They do not differ in size, shape or physiognomy; their hair is uniformly black, and either straight or wavy; their eyes are dark; and their skins range through many shades of brown. (I have myself heard one Sinhalese refer to another as "black as my hat".) A foreign visitor certainly cannot distinguish between Tamils and Sinhalese, and even Sri Lankans themselves are forced to admit under pressure that they cannot make reliable distinctions by physical appearance alone, but go largely by dress, speech, and other more subtle "acquired" indicators. But although there are no strictly racial differences between these two communities, there are others which give each of them a strong sense of collective identity. They have different cultures, and different tastes in food and clothing. The Sinhala language is quite different from the Tamil one, and so are their respective scripts. In Sri Lanka, Buddhism is to all intents and purposes unique to the Sinhalese, and Hinduism to the Tamils. But there are also over a million Christians in both communities, of whom about 80% are Catholics; and both Sinhalese and Tamils have a caste system, though Buddhists in other countries normally do not. Geographically, the Tamils in 1981 constituted around 86% of the population of the Northern province, centered on the Jaffna peninsula, and around 41% of that of the Eastern province, which includes the ports of Trincomalee and Batticaloa. In those two provinces, the Sinhalese population was only 3% and 25% respectively - outnumbered in the Eastern province not only by Tamils, but also by a 32% proportion of Moors. But many Tamils are to be found outside those two provinces: in 1981, for example, their proportion in the Colombo administrative district was over 11%, and at that time most of the "Indian" Tamil community was concentrated in the central highlands. One of the most striking features of ethnic relations in Sri Lanka is that members of each of these communities are apt to see themselves as an oppressed minority. That seems at first sight startling in the case of the Sinhalese, who after all constitute nearly three quarters of the population. But to many of them, "the Tamils" are not confined to the 2.7 million in the Island: these are seen as forming only an advance guard of the 50 million or so Tamils in the Indian State of Tamil Nadu, just a few miles across the Palk Strait, at the other end of the chain of shoals and reefs known as Adam's Bridge. Both Tamils and Sinhalese are apt to invoke Northern Ireland or Cyprus as parallels of their circumstances, but in each case the parallel is false: to make the situation truly comparable, one would have to imagine (if one could) Northern Ireland without Great Britain, or Cyprus without Greece. The Tamils see themselves as persecuted by the Sinhalese, and oppressed by a Government dominated by Sinhalese, dependent for its survival on the Sinhalese vote, and therefore concerned only for Sinhalese interests; even well-educated Tamils will speak seriously of a concerted plan of "genocide" against them. In their turn, some Sinhalese are possessed by an atavistic nightmare of being driven into the sea, with no other homeland to go to, by a massive horde of 50-odd million Tamils: and even well-educated Sinhalese will construct fanciful scenarios of the State of Tamil Nadu forcing the Union of India, by threats of secession, to invade Sri Lanka in defence of the Tamil interest. Such fears are plainly irrational and lack any real foundation, but they deeply pervade some sections of the population, and an appreciation of them is essential for any understanding of the roots of ethnic conflicts in Sri Lanka today, which lie deeply buried in emotional anxieties, and the misperceptions of fact which necessarily flow from these. Among those misperceptions is a widespread belief, held by Sinhalese and Tamils in equal measure, that the other group enjoys some special and inequitable privileges. For this too there is, with one exception, no foundation in fact. A recent discussion paper by the respected and independent Marga Institute6 shows that there are no statistically significant differences between the two communities in any of the critical social and economic indicators - infant mortality, nutritional status, life expectancy, literacy rate, educational index, average income of households, ownership of consumer durables, or unemployment rate. In none of these respects is either of the two communities collectively disadvantaged in relation to the other, and the grievances voiced about them are in fact quite illusory. The single exception is in the provision of tertiary education.
For climatic reasons, the traditional Tamil lands of the North and
East are less fertile than those of the rest of the Island; farming
and fishing alone have therefore never sufficed to maintain the Sri
Lanka Tamil community; and as a consequence there has been greater
pressure among them than among the Sinhalese to train for
white-collar jobs. That pressure, combined with the activity of some
Christian missionaries during the British colonial period, led to
much greater provision for higher education in the predominantly
Tamil Jaffna peninsula, both in universities and in vocational
institutions. As a consequence, Tamils obtained a disproportionate
share of administrative, professional and However, far worse than this was the institution, in 1956, of Sinhala as Sri Lanka's only "official" language - that is, the language in which the official administration was to be conducted. Since 1972, this provision has even enjoyed constitutional status, as has the "foremost place" accorded to Buddhism among religions (see section 3.1 below). Though English continues to be one of the media of education, and many Sri Lankans of all communities are therefore bilingual in Sinhala and English, or in Tamil and English, very few are bilingual in Sinhala and Tamil. If you are a Tamil, you will be educated in the Tamil language and probably also learn some English; if you are Sinhalese, you will be educated in Sinhala and may learn some English too. But no one will be formally educated in both Sinhala and Tamil: if one of these is your native tongue (as it is in fact for every Sri Lankan), it will require an exceptional motivation, and a substantial effort, to learn the other. One consequence is a chronic shortage of Sinhala/Tamil translators, which adds to the difficulties experienced by Tamils in dealing with the administration. However, there is one community in Sri Lanka that has every justification for seeing itself as a grossly underprivileged minority, and that is the so-called "Indian" Tamils. The bulk of these continue to work on the tea estates, and by their labour make a vast contribution to the national income. Yet they continue to be miserably paid, miserably housed, and Miserably deprived in the provision of food, health and education For none of these deprivations do they have any remedy, since most of them cannot now even be represented in Parliament, or in local government: although virtually all of them today were born in Sri Lanka, the great majority do not now even have Sri Lankan citizenship. That extraordinary state of affairs came about as follows. Immediately before Independence, these estate workers - like everyone else born either in India or in Ceylon - were British subjects, and therefore full citizens with a vote. The Soulbury Constitution of 1948 said nothing about citizenship, but shortly after it came into effect the newly-independent legislature enacted two laws, of which the first conferred citizenship of Ceylon only on those whose fathers, as well as themselves, were born in the Island. (If they were not themselves born there, their fathers and grandfathers had to be.) The second law made Ceylon citizenship also available, in limited circumstances, by registration; but not many of the "Indian" Tamils took advantage of this provision - partly for lack of knowledge, literacy or initiative, and partly because their own leaders (by hindsight, probably foolishly) discouraged them from doing so. In the result, out of approximately 825,000 "Indian" Tamils today, only around 150,000 are citizens of Sri Lanka, and so entitled to vote at elections. The rest are effectively stateless. If one takes the view that all residents of Ceylon who were British subjects immediately before Independence became citizens of Ceylon on Independence, then these people were deprived of that citizenship through the enactment of the new law; if the status of citizen of Ceylon did not come into existence until that law was passed, then they were deliberately excluded from its automatic acquisition at that time. Whichever view one takes, the result today is a wholly arbitrary deprivation of the fundamental right to the citizenship of one's country for a group of people almost all of whom were born there, who have lived there all their lives, who have never been anywhere else and have no other allegiance, and who have made an immense contribution to that country's wealth while being themselves allotted only a derisory share of it. One might have expected the Sri Lanka Tamil community to espouse the cause of their "Indian" colleagues. Sadly, they have not, for reasons which are obscure but can scarcely be creditable. The blame for this particular injustice therefore rests originally on the British Government of 1948, and has today passed equally to all communities and political parties in Sri Lanka: neither the SLFP nor the UNP, and neither the Sinhalese nor the "Sri Lanka" Tamils, have taken any effective Steps to redress it in the 36 years since Independence. [note by by tamilnation.org But see Ceylon (Parliamentary Elections) Amendment Bill Speech delivered by Senator.S.Nadesan during the course of the debate in the first Senate on 17 November 1949 and Senator Nadesan in the Sri Lanka Senate, 27 November 1947 and generally The Plantation Tamils of Eelam] Whatever the reasons, and regardless of whether the perceived grievances have been real or imagined, it is undoubtedly and sadly the case that relations between the Sinhalese and Tamil communities have progressively deteriorated since Independence. The first serious communal violence erupted in May 1958 (while an SLFP Government was in office); the next Came in August 1977, soon after the present UNP Government was elected; then again in August 1981; and most recently in July/August 1983. The intervals between these episodes have become shorter; their extent over the Island has become wider; and the violence has become more intense. All these are characteristics of a situation that is getting worse rather than better.
In many respects, the Tamils' response to these events, and to the more chronic discrimination to which they feel subjected, has been remarkably restrained. One of the most striking features of the episodes of communal violence, for instance, has been the lack of retaliation by Tamils against the Sinhalese in their midst, with the result that virtually all the victims on each of these occasions have been Tamils. But there have been other kinds of response, and two of these have proved exceptionally important because they have led to an increase in the polarisation not only between the two communities, but between the Tamil community on the one hand and the Sri Lanka Government on the other. The first was a resolution, at the first national conference in
1976 of a political party called the Tamil United Liberation Front (TULF),
proposing the establishment of a separate Tamil State in the Island,
to be called "Tamil Eelam". The TULF's support for that objective has been consistently expressed as
advocating its achievement only by legitimate, open, democratic and
peaceful means, within the framework of Sri Lanka's established
institutions, and none of its leaders has ever publicly advocated
any form of violence in support of that aim. This is also the
position of the overwhelming majority of TULF supporters within the
Tamil community - but unfortunately not quite all of them. After
some sporadic violence in the mid-1970s, including some on the part
of police officers, certain disaffected Tamil youths banded together
in 1978 in a group which they called the "Liberation Tigers of Tamil
Eelam", explicitly committed to the pursuit of that objective by
armed violence. Other similar small groups have since then been It is these two specific Tamil responses, reflecting in very different ways the collective desire of the Tamil community to resist what they perceive as their oppression by the established authorities, which have in their turn led to the counter-measures adopted by the Government: a massive deployment of its security forces in the predominantly Tamil areas of the Island, and especially at the Elephant Pass army camp straddling the isthmus of the Jaffna peninsula: the Prevention of Terrorism Act of 1979; and the effective proscribing, through the Sixth Amendment to the Constitution enacted in 1983, of even peaceful and previously legitimate advocacy or support for the establishment of a separate Tamil State within the Island. I deal with these in more detail in Chapter 3 of this report, but it is important to understand from the beginning how a sequence of discriminatory measures at comparatively low level, with only very occasional outbreaks of violence, eventually evoked two forms of response which the Government of Sri Lanka has found intolerable - the first because it challenges the very concept of the Unitary State of the Republic, and the second because it challenges the State's fundamental monopoly of force. These challenges have then provoked counter-measures from the Government which, in Tamil eyes, can only appear as a major escalation of the discrimination and oppression practised against their community by the official authorities of the State. Taken together with the increasing frequency, extent and level of the outbreaks of communal violence, this escalation of response and counter-response has led to divisions and perceptions of hostility which are now so deep that it is becoming increasingly difficult to bridge the widening gaps peacefully. Undoubtedly, an independent Tamil State (the expression Tamil Eelam is increasingly going out of fashion among moderates) symbolises the aspirations of some Tamils. Professor Leary and Mr. Moore have dealt adequately in their reports with the legal arguments which have been advanced for it, based respectively on the right of self-determination and on the proposition that Tamil sovereignty has never in fact been abandoned, and I express no view of my own on either of those questions. Whether an independent Tamil State would be a feasible and workable proposition at a level of reality below the realms of aspiration and legal theory is quite another question, on which I have no particular competence to expressany views. But the views of others to whom I have spoken seem to range between two extremes which may be caricatured as follows:- For: Tamils work hard, have well-developed commercial skills, and are apt to become enterprising and successful traders. Jaffna, Batticaloa and Trincomalee are good deep-water ports. A Tamil State could therefore ultimately rival Singapore and Hong Kong as a free trade area, commercial centre, and entrepot. It might even develop profitable industries. Against: The North and East of Sri Lanka are many hundreds of miles off the beaten track, and no one would have any commercial incentive to use them. Partition would entail large-scale communal violence, ending in a mutual expulsion of the remaining minorities, as in the case of India and Pakistan. A land frontier between two different ethnic States on the same island would be a frontier of chronic hostility, permanently or at least frequently shut; at worst exchanging sporadic gunfire, and at best exacting retributory tolls, and restricting trade and other beneficial exchanges. Tamil Eelam's only supporter would be Tamil Nadu, and its position would therefore more closely resemble that of Israel than that of Hong Kong or Singapore: surrounded by enemies on all landward sides, and depending for its survival on a single overseas ally. Between those extreme positions, there are of course others. It is difficult to predict which of them would most closely reflect reality, if such a reality ever came to be enacted. But whether the dream of an independent Tamil State in Sri Lanka could in fact be realised in social or economic terms seems questionable. Meanwhile, the increasing divisiveness between the two major Sri Lankan communities is reflected in a variety of symbolic products. There is, for example, a species of mutually hostile propaganda as pointless as it is unedifying. It may be exemplified by two apparently matching pamphlets: one entitled "Sinhala People - Awake, Arise, and Safeguard Buddhism", and the other "Sri Lanka: where the State is at war with Tamils". The parallels between these publications are at the same time frightening and pathetic. Each displays a pictorial stereotype of the opposition: "Sinhala People Awake" has a cartoon of a Sinhala farmer in a loincloth spearing a Tiger (the animal, as a symbol for the human one); the Tamil confection has a photograph of a helmeted soldier about to bayonet a defenceless half-naked youth. But one crucial feature distinguishes these two The Tamil confection was produced in India, evidently in order to enlist international support for the Tamil cause; but the Sinhalese one was concocted at home, for home consumption, by a senior Minister of the Republic who is also the leader of the principal UNP trade union. The attitudes of successive Sri Lanka Governments since Independence to what they sometimes call "the Tamil question" have displayed some curious ambivalences. There have, for example, been several negotiated "Pacts",7 each welcomed as heralding the final resolution of all ethnic problems, but for one reason or another they never seem to have been fully carried out. Sri Lankan Governments are always careful to include Tamils in their administration: the present one has three Cabinet Ministers, the Attorney-General (who also served in the previous one), the Inspector-General of Police, and several other high officials. But even that does not seem to be enough to reassure the Tamil community of the benevolence of their Island's elected government. There is of course one recent event that was scarcely calculated to instil such confidence. The last outbreak of communal violence began on 24 July 1983. For day after day, Tamils (of both the "Sri Lankan" and "Indian" varieties) were beaten, hacked or burned to death in the streets, on buses, and on trains, not only in Colombo but in many other parts of the Island - sometimes in the sight of horrified foreign tourists. Their houses and shops were burned and looted. Yet the security forces seemed either unwilling or unable to stop it - indeed, in Jaffna and Trincomalee, some members of the armed forces themselves joined in the fray, claiming an admitted 51 lives. Seen from the Tamil point of view, either the Government had lost control of the situation, or it was deliberately standing by while they were being taught a lesson. The first massacre in Welikada jail took place on 25 July, and claimed another 35lives. The second - allegedly foreseen by the prison staff - came two days later, and claimed another 18. Not until the very end of that second episode was a special army unit sent in, to save the lives of the few remaining Tamil political prisoners.8 And not until the fifth day, on 28 July, did President Jayewardene finally appear on national television. In a brief address, he blamed the violence and destruction exclusively on the reaction of "the Sinhala people" to the movement for the establishment of a separate Tamil State, and announced a Cabinet decision to bring in what in the event became the Sixth Amendment, designed to ensure that even peaceful supporters of separatism could not sit in Parliament, and that "those who advocate the separation of the country lose their civic rights and cannot hold office, cannot practise professions, cannot join movements or organisations in this country." In the course of that address, the President did not see fit to utter one single word of sympathy for the victims of the violence and destruction which he lamented. If his concern was to re-establish communal harmony in the Island whose national unity he was so anxious to preserve by law, that was a misjudgment of monumental proportions. I have yet to meet a single Tamil at any level in Sri Lanka or out of it who does not remind me of this glaring omission at the first opportunity. Nor are they reassured by the programmes for relief and rehabilitation of the victims which the Government has in fact since installed: at the time of my visit, six months later, around 10,000 homeless Tamils were still in refugee camps. For months after the violence, the President consistently refused to hold any discussions with the TULF leaders, in or out of Parliament, unless they first formally abjured a separate Tamil State - something they clearly could not do, whether they privately believed in it or not, since they were bound by their party's explicit resolution of 1976 on which they had been elected. Not until after the Commonwealth Heads of Government Meeting in Delhi later that year, and some delicate diplomacy on the part of India, did the President finally agree to a round-table conference of all the political parties in Sri Lanka (including the TULF), as well as some other interest groups. Those talks in fact began, after some last-minute brinkmanship by Mrs. Bandaranaike, on 10 January 1984 - two days before my arrival - and they are still continuing, now in two Committees with complementary terms of reference, as this report goes to press. One can only hope that they will at long last produce a truly comprehensive "Pact" - and this time one that is carried out in full. There is one more political and social - albeit wholly unofficial - feature of Sri Lankan life which must be mentioned here, and that is the so-called "goondas". These are, essentially, organised gangs of hooligans available for hire by anyone whom it happens to suit to foment trouble in the streets. It is freely admitted that every major political party has its own rented or rentable goonda contingent: there are SLFP goondas, UNP goondas, and doubtless goondas serving other political interests. In private discussion, their employers seem to regard them as regrettable necessities on the political scene, and to play down the importance of the harm they can do; by contrast, those against whom their hooliganism is from time to time directed are apt to play up their importance, and to describe them as "private armies", in the pay and at the service of named politicians. That they exist is not disputed: what is less clear is the extent of the damage they can inflict, and how it comes about that their paymasters seem to enjoy a surprising degree of immunity from prosecution. For example, the disturbances outside the private houses of Some Supreme Court Judges referred to in section 3.4 below were undoubtedly mounted by goondas in somebody's pay. In the event, no one was killed or even hurt, but even so the episode was clearly intended and seen as an overt threat to the independence of the judiciary, and so a criminal offence under the Constitution, yet to this day no one has been able to establish who was behind it. Likewise, the communal violence which began in Colombo on 24 July 1983 bears every appearance of having been done by hired groups of goondas, and that led to much loss of suffering, and destruction of property. Yet here again, despite long-drawn-out police enquiries, no one has yet been able to establish the hand behind that initial episode, a matter to which I shall return in section 4.1 below. After the 1977 General Election, Mr. Jayewardene's incoming UNP administration enjoyed an unprecedented majority of five sixths of all the Members of Parliament. That enabled it to amend the Constitution without a new Constituent Assembly, and by the following year to enact a completely new one, under which Mr. Jayewardene became President with very wide powers (see section 3.3 below). Like its predecessor of 1972, this Constitution accords "the foremost place" to Buddhism and declares Sinhala to be the only Official Language, though it adds that both Sinhala and Tamil are National Languages. It also includes a detailed catalogue of fundamental and protected individual rights. On the same date, Sri Lanka also acceded (without reservation) to the International Covenant on Economic, Social and Cultural Rights. Many of the provisions of that Covenant are reflected in Article 27 of Chapter VI of the Constitution, under the heading "Directive Principles of State Policy and Fundamental Duties". However, unlike the civil and political rights set out in Chapter III, these rights are not justiciable: Article 29 provides that -
Questions on the legal protection of human rights in Sri Lanka may therefore arise on three levels:-
3.1 Legal Protection of Human Rights By Article 4(d) of that Constitution,
Those fundamental rights are set out in Articles 10 to 14 in Chapter III of the Constitution, subject to specific and defined restrictions in Article 15. These Articles closely follow some - but not all - of the language of Part III of the International Covenant on Civil and Political Rights, to which Sri Lanka in fact acceded (without any reservations) on 11 June 1980. 3.1.1 Compliance with International Law Sri Lanka has a wholly dualist legal system, in which international law has no domestic effect unless and until the Legislature expressly "transforms" or "incorporates" it into domestic law. There is therefore no procedure by which a Sri Lankan court could test the conformity of any Sri Lankan law, constitutional or ordinary, or of its executive or administrative actions, with the international human rights treaties (and in particular the International Covenants) by which the Republic is bound:9 that can only be done by a competent organ at the international level. For civil and political rights, this function falls to the competence of the Human Rights Committee established under Part IV of the relevant Covenant. Sri Lanka submitted its first Report to that Committee under Article 40 of that Covenant on 23 March 1983,10 followed by an Addendum submitted on 27 September 1983.11 In the light of the events of July/August 1983, the Committee accelerated its consideration of these reports, and held public hearings about them in Geneva on 31 October and 1 and 3 November 1983, when representatives of the Republic attended and were closely questioned by members of the Committee - who, for the reasons which will appear below, found much to ask about. That is one valuable international procedure for testing compliance, but a far more effective one is available under the Optional Protocol to this Covenant, which enables individuals who claim to be victims of violations of their protected rights to submit written communications to the Committee, which the Committee may then examine and on which it may express its views. So far, Sri Lanka has not adhered to that Protocol - not, so I was told during my visit, because it had anything to fear from such communications but because, being a poor country, it could not afford the resources of having to answer ill-founded complaints which might be made under this procedure, and defending itself against them before the Committee. Sri Lanka would prefer to wait until there was a justiciable regional Convention - like the European or American ones, or the new African Charter - and then join that system. I confess I find that argument unconvincing. Among the 30-odd nations which have now ratified the Optional Protocol or acceded to it, there are several that are even poorer than Sri Lanka, as for example the Central African Republic or Madagascar. Under its procedure, the Committee filters all the communications it receives, and only passes on to the Government concerned those which disclose a clear prima facie case of violation. Accordingly, a State which genuinely has nothing to fear from such complaints has every interest in adhering to the Protocol, and so demonstrating its sincere concern to fulfil its obligations under international law. Even for a country at Sri Lanka's stage of economic development, the resources needed to answer communications which the Committee declares admissible are minimal - provided, that is, that the rights guaranteed under the Covenant are not in fact being violated on a substantial scale. Besides, those resources would anyway be needed for a regional system, if and when it comes into existence. But that may yet be many years hence. I therefore strongly recommend that Sri Lanka should meanwhile accede to the Optional Protocol. 3.1.2 The Constitutionality of Laws At the highest domestic level in any country, there needs to be a procedure for scrutinising domestic legislation for its conformity with the Constitution. By Article 120 of the Sri Lankan one,
Unfortunately, sole and exclusive though it may be, this jurisdiction is in fact so restricted as to be largely illusory, at all events while a Government enjoys a Parliamentary majority greater than two thirds of all Members, which is the special majority needed for Constitutional amendments. By reason of four provisos to this Article, and the two following Articles, once a Bill describes itself in its long title as being for the amendment, repeal or replacement of any part of the Constitution, or the Cabinet of Ministers certifies that any of its provisions is intended to be passed by the special majority, the only question which it is open to the Supreme Court to decide is whether the Bill or provision needs additional approval by a referendum - which it does if it seeks to extend the term of office of the President or the duration of Parliament beyond six years; or affects the Republic's status, name, unity, national flag, national anthem, national day, or the sovereignty of its people, or the "foremost place" accorded in it to Buddhism; or affects two only out of the fundamental rights guaranteed in Chapter III: the freedom of thought, conscience and religion; and the freedom from torture and from cruel, inhuman or degrading treatment or punishment. Where the Court's jurisdiction does arise, it may be invoked by the President or by any citizen, but only within one week of the Bill being placed on the Order Paper of Parliament (Article 121). And even that short time limit can be further abbreviated if the Cabinet regards the Bill as "urgent in the national interest", in which case it need not even be published in the Gazette; only the President can refer it to the Supreme Court; and the Court must make its determination within 24 hours, unless the President extends that period, up to a maximum of three days (Article 122). Once these brief opportunities have passed, the jurisdiction of all Courts is exhausted for all time (Article 124). If, for example, Parliament were in fact to enact a Bill which was inconsistent with the Constitution, and either the Bill's long title did not say so, or the Cabinet failed to certify it, or if no one referred it to the Supreme Court within the appropriate brief time limit, no one could thereafter ever challenge it. One can understand that the draftsmen of the Constitution were concerned to avoid uncertainty about the constitutionality of laws, and the risk that some law might be struck down as unconstitutional months, or even years, after its enactment - by which time many people might have arranged their affairs, or altered their positions, on the assumption that the enactment was constitutionally valid. But time limits as short as these cannot give any adequate opportunity for the consideration of such important matters, either to potential objectors or to the Court itself, and can very easily be abused. I therefore recommend that the principal time limit should be extended to at least three months, reducible to an absolute minimum of one month only in circumstances of quite exceptional urgency, to be certified by the Speaker rather than the Cabinet. 3.1.3 Domestic Remedies for Violations The fundamental individual rights guaranteed in Chapter III are made justiciable by a special procedure laid down by Article 126 of the Constitution. Under this, anyone who alleges that any of his fundamental rights under Chapter III has been infringed, or is about to be infringed, by executive or administrative action may "within one month thereof" petition the Supreme Court (which has sole and exclusive jurisdiction in such a matter) for relief or redress. If such a question arises in certain proceedings in the Court of Appeal, that Court must refer it to the Supreme Court. The Supreme Court must hear and finally dispose of such matters within two months of the filing of the petition or the making of the reference. A full Bench of the Supreme Court has held that Constitutional time limits of two months for the final disposal of proceedings before it are directive and not mandatory,12 on the ground that a petitioner should not be deprived of his rights if, without any fault of his, the Court fails to give its judgment within the time prescribed. But the time limit of one month for the presentation of the petition is even more important. It seems likely that the Supreme Court would not treat that period as beginning to run until the petitioner is in fact at liberty to present his petition, on the general ground that time cannot be held to run against anyone while it is impossible for him to perform the act to which the time limit applies. Accordingly, someone who wishes to complain of an infringement of a fundamental right which took place while he was in detention would probably not be held to be time-barred until, at the earliest, one month after his release from detention. However, it appears to be a moot point whether, once a petitioner is free to launch his proceedings, the one month's time limit is mandatory or directory. Some believe that there is Supreme Court authority for the proposition that it is mandatory, others that there is authority for the proposition that it is directory, and yet others maintain that the point has still to be decided. The resolution of this difference of opinion is not assisted by the fact that, for some time past, the judgments of the Supreme Court have not been published in any printed series, and can only be studied by obtaining copies of the typed transcript, which are not very freely available. One can only hope that this important point will be decided at the first available opportunity, and that the decision will be widely publicised. The Supreme Court has found in favour of petitioners in several cases which have come before it under this Article. In one case, it unanimously held that an act carried out by a public official "under colour of [his] office" constitutes an "executive or administrative action", notwithstanding that it was not expressly or impliedly authorised, or adopted or condoned or acquiesced in, by the State - the State having argued to the contrary.13 By Article 141 of the Constitution, jurisdiction in matters of habeas corpus is vested in the Court of Appeal. This jurisdiction cannot, it seems, be abridged or avoided by any ordinary law - so that, for example, the Prevention of Terrorism Act (see section 3.2.1below) cannot preclude a detainee from bringing an application for habeas corpus - provided he is allowed access to a lawyer. On such an application, of course, the court can only test the legality of the detention, so that it would have to find as a fact that the Minister had acted mala fide, or that some specific requirement of the Act had not been complied with, before it could order the release of the detainee. In the course of such proceedings, the Court of Appeal has in fact found that some applicants were assaulted while in detention.14 Individuals who complain of the abuse of State power also have two other remedies: a petition to the Attorney-General, and a complaint to the Ombudsman (formally called the Parliamentary Commissioner for Administration). Sri Lankan governments, of both the main parties, have been repeatedly criticised over the years for enacting two different kinds of legislation: emergency laws properly so called, which are only brought into force when a formal emergency is declared and become spent when it is revoked; and laws which remain on the statute book whether or not there is a formally declared emergency, and which may be called de facto emergency laws. It will be convenient here first to describe the contents and application of the two Sri Lankan laws - one in each of these categories - which have attracted the greatest recent criticism both in and out of the country, and then to consider whether these laws are justified, either in international law or in fact. 3.2.1 The Prevention of Terrorism Act The full title of this statute is the Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979. It was certified by the Speaker of the Sri Lanka Parliament, and published in the Gazette, on 20 July 1979, while an emergency was in force in the Republic. For the sake of brevity - and because its original Section 29, which confined its duration to three years, has since been repealed - I shall refer to it hereafter simply as the Prevention of Terrorism Act, or PTA for short. The statute's main provisions fall into two categories:- (1) It defines certain offences, and provides for their trial and penalties; and (2) It confers certain powers on the Executive. Many of the offences created by the PTA would already have been offences under the ordinary law - causing death, kidnapping, abduction, robbery, intimidation, offences in relation to firearms and explosives, etc. But some less serious ones are also included in the list, ranging from the speaking or writing of words intended to cause religious, racial or communal disharmony, or feelings of or hostility between different communities or racial or religious groups;15 down to mischief to public property, and the erasure, mutilation, defacing or other interference with public notices.16 To these, the Act adds at least one new offence (Section 2(1)(j)) of harbouring, concealing or in any other manner preventing, hindering or interfering with the apprehension of someone proclaimed in the Gazette to be a person wanted in connection with the commission of an offence under the Act, knowing or having reason to believe that he is such a person. For all these offences (including abetting, conspiring, attempting, exhorting or inciting their commission, or doing any act preparatory thereto), the Act imposes a penalty of life imprisonment for the most serious ones, and imprisonment for not less than 5 years and not more than 20 years for the rest -together with the forfeiture of all moveable and immoveable property (Section 4). By Section 5, it is a separate offence, punishable with imprisonment for up to 7 years, not to report to a police officer any knowledge about the preparation, attempt or commission of such an offence, or of the movements or whereabouts of such an offender. All offences under the Act may be tried without preliminary inquiry, on an indictment before a Judge of the High Court sitting alone without a jury, and - contrary to the provisions of the Evidence Ordinance dating back to the British colonial period, under which no confession made in police custody was admissible in evidence unless it was made in the presence of a Magistrate - at any such trial oral or written statements made to a police officer are admissible whether or not they were made in custody, unless the accused proves that they are "irrelevant" under the Evidence Ordinance, e.g. that they were obtained by violence or under duress (Section 16). Likewise, any document found in the custody, control or possession of anyone accused of an offence under the Act, or of his agent or representative, may be used in evidence against him at his trial without calling its maker, and the contents of any such document are evidence of the facts stated therein (Section 18(1)). If any witness at such a trial contradicts a statement he made earlier, the Judge may still act on the earlier statement, and then have the witness arraigned and tried for perjury, for which purpose it will not be necessary to prove which of the conflicting statements was false (Section 18(2) and (3)). The powers conferred by the PTA are all conditioned on the concept of "unlawful activity", defined in Section 31 as meaning
This definition therefore covers not only serious offences of violence, but also mischief to public property, interference with public signs and notices, and the speaking or writing of religious, racial or communally divisive language. Anyone "connected with or concerned in or reasonably suspected of being connected with or concerned in any unlawful activity" (whom it may be convenient henceforth to call "a PTA suspect") becomes subject, without more - and, most importantly, without the need for anyone to be satisfied that he is a danger to public security - to the exercise of all the following powers:-
By Section 14, a "competent authority" appointed by the Minister may prohibit the publication in any newspaper of any matter relating to offences under the Act, or their investigation; any incitement to violence; or any matter likely to be divisive as between different communities or racial or religious groups. Finally, by Section 26,
These provisions are quite extraordinarily wide. No legislation conferring even remotely comparable powers is in force in any other free democracy operating under the Rule of Law, however troubled it may be by politically-motivated violence. Indeed, there is only one known precedent for the power to impose restriction orders under Section 11 of the Sri Lankan PTA, and that - as Professor Leary rightly pointed out in her Report - is the comparable legislation currently in force in South Africa. To a developing country of the Commonwealth like Sri Lanka, which has happily now ratified (as Professor Leary recommended) the International Convention on the Elimination of All Forms of Racial Discrimination, and has played an important role in the condemnation of the South African regime and all its contemptible works, it must be deeply wounding to have that comparison made publicly by a foreign observer, however distinguished and impartial. I am naturally reluctant to re-open that wound, but I have no choice but to endorse Professor Leary's conclusion. Such a provision is an ugly blot on the statute book of any civilised country. The Sri Lankan authorities claim that, wide or not, these powers in fact go no further than similar ones conferred on Executives in other parliamentary democracies. Indeed, when it was first introduced into the Sri Lankan Parliament, the Prevention of Terrorism Bill contained a recital claiming that "other democratic countries such as the United Kingdom, Canada and Australia have enacted special legislation to deal with acts of terrorism". By the time the Bill reached the statute book, the words I have underlined were omitted. Nonetheless, the Sri Lanka Government has continued to cite the UK legislation as a precedent.17 In fact, under the UK Prevention of Terrorism (Temporary Provisions) Act, currently being re-enacted by the UK Parliament with some modifications,
When I put this to Sri Lanka's Additional Solicitor-General, he told me that the UK precedent he had in mind was not in fact the Prevention of Terrorism (Temporary Provisions) Act after which his own statute was named, but the Northern Ireland (Emergency Provisions) Act. However, despite the far higher level of political terrorism in Northern Ireland (see section 3.2.3 below), even that statute confers no powers to make restriction orders, or to prohibit publications; the powers of detention without trial which it does confer have not been exercised for ten years;18 and the entire Act is a measure which can remain in effect only during the currency of a proclaimed emergency: it is not a permanent feature of the UK statute book. There has been sustained criticism from many quarters about the manner in which the Sri Lankan PTA has been applied in practice. In the course of my mission, I had neither the facilities nor the time to conduct any substantial investigation into this, let alone to pursue individual cases. However, when I met General Sepala Attygala, the Secretary to the Ministry of Defence, on 12 January 1984 I asked him how many people were being held under the Act on that day. The answer was 83, together with two more who had actually been charged, and were being held on remand. These 85 had then been held for varying periods; the following Table gives their respective months of arrest:-
(Others had of course also been arrested during those months, but had either been murdered in Welikada prison at the end of July 1983, or been released again by the time of my visit.) I asked General Attygala for certain other statistics about the application of the PTA and he promised to send me these, but they had not reached me by the time this report had to go to press. A measure like the PTA could be used for two purposes: the preventive detention of terrorists and their accomplices, of whose guilt the security forces are convinced but which they do not have enough admissible evidence to prove; and the detention for questioning of potential informants who might be reluctant to make statements to the police while at liberty. During my visit, I was assured by the competent authorities that the Sri Lankan PTA is used only for the second of these purposes. Whenever a statute of this kind confers discretion on responsible members of the Executive to detain individuals, or to make other adverse decisions about them which will not be subject to review by the Courts, it is of paramount importance that the Ministers or officials concerned exercise their powers with great care, and scrutinise as critically as they can the applications for such an exercise which will be put before them by the security forces. According to the Sri Lankan PTA, detention orders under Section 9 and restrictions orders under Section 11 are all to be made by "the Minister", who is in fact the Minister of Defence, a portfolio held by the President. In practice, however, they are made by his Deputy, the Minister for Internal Security, who in turn acts on the advice of the Secretary to the Ministry of Defence, though I understand that he may also receive independent advice from the Inspector-General of Police and the Special Branch. I confess I did not gain the impression from either the Deputy Minister or the Secretary that they submitted the applications made to them by the security forces to any real degree of critical and independent scrutiny. For example, as appears from the above Table, one individual had been held in detention under the Act without charge since the previous June -that is, for the best part of seven months by the time of my visit - because, so I was told, the police had still not been able to complete their inquiries into the case in which he was believed to be concerned. Yet neither the Secretary nor the Deputy Minister appeared to have taken any great pains to enquire why, after so long a time, that investigation had still not been concluded. I am regretfully left with the impression that neither the Secretary nor the Minister in practice do much more than accede to the routine applications that are put before them, without either testing the case that is put, or laying down firm policy directives which will ensure that they do not receive requests based on unjustifiable delay. The Secretary was at pains to point out to me that the Sri Lankan police were still 3,000 men under strength, that their Criminal Investigation Department was poorly trained, and that there was a shortage of Sinhala typewriters for recording their reports and the statements made to them. All that may well be the case, and if it is then no effort must be spared to overcome these obstacles: I return to that point in section 3.8 below. But it is simply not good enough to seek to overcome these administrative problems by amassing detainees who are held on mere suspicion by some police officer of "unlawful activity" and have not been charged with any offence - still less when they are being detained merely in the hope that they will become informants. The Deputy Minister is himself a former police officer. His position, as conveyed to me when we met, is that he is sorry if anyone is inconvenienced as a result of such shortcomings, but that he cannot risk releasing people before police enquiries are fully completed. In my respectful view, that just will not do. A power to detain suspects for long periods without the opportunity for access by friends, family, or lawyers, or for regular judicial review, notoriously carries the danger that the detainees will be maltreated while in custody: it provides an open invitation for deprivation, assault, and worse - especially if the suspects may be detained by their interrogators in police stations or army camps, and more especially still if no real control is exercised over the periods for which they are detained. That point has been frequently and forcibly made about the Sri Lankan PTA by the ICJ, Amnesty International, and many others. Amnesty in particular has investigated and reported a number of well-documented allegations of the torture of detainees under the PTA, which the Sri Lankan Government has later denied in general terms. But so long as suspects can be held incommunicado for long periods by their interrogators, those allegations will continue to be made - and, the world being what it is, some of them will be well-founded, even if the use of violence in the course of interrogation is not official policy at the highest level. There were, for example, the cases in 1981 where the Sri Lankan Court of Appeal found as a fact that detainees had been assaulted.19 And there is the still unexplained death in army custody in April 1983 of K.T. Navaratnarajah, who was found by the investigating Magistrate to have died of numerous external and internal injuries inflicted by blows and weapons - though no one has to this day been charged with his murder, even though the Magistrate returned a verdict of homicide. General Attygala told me that he is very conscious of this risk. Since his appointment to his present office on 8 August 1983, he has therefore given the following instructions:-
Those instructions are of course welcome; indeed, they should have been incorporated in the PTA in the first place, for they reflect the bare minimum that is needed to limit the very real risks of the abuse of powers such as these. I am glad that the General has thought it right to give them, and I can only express the hope that he will be able to ensure that they are strictly obeyed. Since meeting him, I have been told that compliance with them is not always complete, but I have no means of verifying that information. I hope that he will also find it possible to add an instruction that all detainees should have access to relatives or lawyers at the earliest possible opportunity: that still remains the best safeguard against maltreatment in custody. In her report, Professor Leary expressed the view that the Sri Lankan PTA contained retroactive criminal legislation, and accordingly violated Article 15(1) of the International Covenant on Civil and Political Rights, which provides that -
That point was also taken up by members of the Human Rights
Committee at the Geneva hearings, but strongly resisted by the Sri
Lankan delegation at that time. When I met him during my visit, the
Additional Solicitor-General was, quite rightly, very concerned
about it, and went to some trouble to explain to me why Professor
Leary had been wrong. His argument is simple. He points out that new
offences under the Act are created only by Sections 2, 3, 5, 12,
14(3) and 24, and that none of these are retroactive. The only
provision that might be said to be retroactive is the definition of
"unlawful activity" in Section 31 (quoted above), but this does not
create any new criminal offences. Accordingly, nothing in the Act is
repugnant to If that argument is technically correct, it can only be because Article 15(1) of the Covenant speaks of a "criminal offence", rather than a penal sanction. It is perfectly true that Section 31 of the Sri Lankan PTA, which is obviously retroactive on its face, creates (indirectly) new penal sanctions, but no new criminal offences. What it does, and is intended to do, is to confer new and wide-ranging powers on the Executive to detain people for up to 18 months, and to impose severe restrictions on them while they are at liberty, even if they have not been charged with - let alone found guilty of - any new criminal offence, but merely because they are suspected of being "connected with or concerned in the commission of" activities carried out before the PTA was enacted and which may hove been perfectly lawful at that time, but which are retrospectively deemed to have been unlawful through the operation of Section 31. Putting it at its simplest, someone who has done something that was lawful before the PTA was enacted cannot now be charged or convicted of a criminal offence by virtue of the PTA, but he can now be imprisoned, or restricted while at liberty, for up to 18 months on the Minister's order, without charge, trial, conviction or judicial review. Technically, that is not being "held guilty of any criminal offence" and so, technically, there may be no conflict with the precise words of Article 15(1) of the Covenant. But the effect on a PTA suspect is exactly the same: indeed it is worse, since he need not even be charged and therefore has no right to defend himself at a "fair and public hearing by a competent, independent and impartial tribunal established by law", as Article 14(1) of the Covenant would require if he were. Legislation of this kind is normally designed for the preventive detention, in an emergency, of individuals who are suspected, on good grounds, of being a danger to public security - either because they are known to have taken part in acts of violence in the past, or because it is very probable that they will take part in acts of violence in the future. That secondinference may sometimes be drawn from the fact that the suspect belongs to an organisation which was once lawful, but has since been proscribed because it has adopted a policy of violence, or support for violence. There may therefore on occasion be some justification for a specific retroactive provision of that kind, provided that the measure clearly identifies the (retroactively) proscribed activity, and that it contains a clear requirement that the responsible Minister has to be satisfied that the suspect presents a danger to public security before he can order his detention. Neither of these conditions is satisfied in the Sri Lankan PTA. Accordingly, although the Additional Solicitor-General's argument may be technically correct, I cannot say that I am impressed by its merits. Nor would I have thought it well calculated to enhance the standing of the Republic in the international community. Emergency rule in Sri Lanka is carried on by Emergency (Miscellaneous Provisions and Powers) Regulations made under the Public Security Ordinance which dates back to the British colonial period, whenever that Ordinance is activated by an official Proclamation, which Parliament must approve from time to time in accordance with Article 155 of the Constitution. The regulations in force during the emergency proclaimed on 18
May 1983, which had not been lifted by the time of my visit, confer
power on the Executive to arrest and detain suspects without charge
or judicial review, to proscribe political parties, and to ban
publications. These powers were used to proscribe the left-wing
Janata Vimukti Peramuna party (JVP), the Lanka Sama Samaja Party (LSSP)
and, for a time, the Communist Party of Sri Lanka; to arrest and
detain a number of individuals, including the leaders of the
proscribed parties; and to ban two Tamil newspapers, Suthanthiran
and the Saturday Review. They had also been used during an earlier
emergency to But the Sri Lankan emergency regulation that has (rightly) come under the most intense attack is a new Regulation 15A, made on 3 June 1983. This provides as follows:-
It may of course be pure coincidence, but I feel bound to draw attention to the fact that this Regulation was made precisely three days after the Jaffna Magistrate had returned a verdict of homicide at the inquest into the death in army custody on 10 April 1983 of K.T. Navaratnarajah, who died from no fewer than 35 external and internal injuries inflicted by blows and weapons - an incident in respect of which no one has yet been charged. On the face of it, such a regulation is an open invitation for abuse. If the Executive can prevent impartial and public inquiries into deaths in custody, or deaths at the hands of the security forces in other circumstances, that could open the way to the worst kinds of extra-judicial execution. But it is also a hostage to fortune for the authorities themselves: so long as such a regulation is in force, it will always be open to their opponents to cite it as an unanswerable demonstration of scandal, whitewash, and cover-up. In fact, this regulation is not a new invention of the Jayewardene administration: its almost identical predecessor first saw the light of day in 1971 under the previous administration of Mrs. Bandaranaike. At that time, Mr. Jayewardene strongly opposed it. Why therefore has he now felt impelled to bring it back to life ? That question was put to the Sri Lankan delegation by members of the Human Rights Committee during the Geneva hearings in October/November 1983. On that occasion, Sri Lanka's Additional Solicitor-General is quoted in the Committee's Summary Records21 as having given the following reply:-
Those may have been his instructions, but in fact I was able to ascertain that the principal reason for the regulation was rather different. Among high office-holders in Sri Lanka -including the President, as Minister of Defence, and the Secretary to that Ministry - the impression prevails that they are fighting a "war against terrorism." In a war, a general's first duty is to support his men. So, if those men are engaged in battle and shoot their enemies (who would very likely shoot them first if they were given the chance), that duty requires that the men should not thereafter be dragged through a civilian legal enquiry, conducted by some civilian lawyer who understands nothing about warfare, and (particularly if he happens to be a Magistrate of Tamil origin) may well end by imposing public and legal blame on some perfectly blameless soldier for firing at a shadowy figure whom he had every reason to believe to be an armed terrorist, even if it did turn out after the event to have been an equally blameless unarmed civilian. According to that view, enquiries into such incidents are far better conducted by soldiers who understand these things, rather than by civilian lawyers who do not.22 This perception may be understandable, but it is profoundly mistaken. The notion of a "war against terrorism" carries some very serious dangers to which I must return later (see section 3.7 below). But in this context there is quite another danger, to the security forces themselves; for any use of Emergency Regulation 15A will necessarily be seen by almost everyone else as a deliberate device for covering up murder, whatever the true facts may have been, and so will erode precisely the public support for those forces on which they are ultimately dependent for all the tasks they have to perform. After all, a normal inquest is conducted in public; the deceased's family can view the body and give evidence; a forensic pathologist can conduct a post mortem and report his findings - as the District Judicial Medical Officer did in the case of Navaratnarajah; the Magistrate has power to summon all relevant witnesses; lawyers can make submissions; and everyone can see how the verdict is arrived at by an independent judicial officer. That is what ensures public confidence in public inquests, and that can never be the case for an enquiry that takes place in secret, and is conducted by the killers' own commander. In his submission to the Human Rights Committee, and in his conversations with me, the Additional Solicitor-General made another point: this regulation, he said, in fact did no more than to substitute the Secretary of Defence for the ordinary Coroner; the Secretary still had to conduct precisely the same enquiry and reach the appropriate conclusion; and the only effect was therefore simply to substitute a different person and a different place for those that would apply under the ordinary law. I put this point to General Attygala, who entirely agreed. Since his appointment on 8 August 1983, he told me, he had conducted only three such enquiries, apart from authorising the burial of 13 soldiers who were ambushed and killed by Tamil Tigers on 23 July 1983. (This is puzzling, as there were also no Magistrate's inquests into the deaths of most of the 51 civilians who were admittedly killed by the security forces within the following week.) The General said that he had conducted all his three enquiries with complete impartiality, on full reports and statements furnished to him; and he had, he was sure, reached precisely the same conclusions as a regular Magistrate would have reached in similar circumstances, if he had understood the army's problems and exhibited no pro-Tamil bias. I therefore asked the General whether, given his premise, he would in future be willing to publish the results of such inquiries, and the material on which they were based: after all, if he was right, the public would doubtless support him, and he would escape the censure which enemies of the Sri Lankan government could so easily direct against him so long as his inquiries were conducted in secret. He seemed open to this suggestion, and to the general proposition that anything that could attract ill-motivated criticism was better done openly, the more so if the person who was doing it had nothing to hide, and nothing to fear, even in his heart of hearts, from public disclosure of what he did. I share the view of every other international observer who has so far expressed one on this subject that Emergency Regulation 15A is a dangerous and obnoxious measure, and I strongly recommend that it be revoked forthwith. Until it is, I express the hope that, if the Secretary for Defence again feels impelled to exercise his powers under it to attempt the task of a Coroner ordinarily vested in a Magistrate, he will hear everyone with an interest in the matter and publish a full report of his findings, together with all the material that was before him when he reached them. In that way, he will avoid any risk of being accused of suppressing the truth. By the same token, if he does his job as a Coroner incompletely, ineptly or incompetently, he will expose himself to the risk of public criticism on that count; but that is a risk for every Coroner, whether his primary training is that of a soldier or of a lawyer. 3.2.3 Is this Legislation Justified ? On the face of it, the Sri Lankan PTA derogates from many of the rights which Sri Lanka is bound, as a State Party to the International Covenant on Civil and Political Rights since 11 June 1980, to respect and ensure for all its inhabitants: the right to liberty and security of person and the freedom from arbitrary arrest and detention (Article 9); freedom of movement and choice of residence (Article 12); the right to a fair trial and the rights of defence (Article 14); freedom of opinion and expression (Article 19); the rights of assembly (Article 21) and association (Article 22); and the right to take part in public affairs (Article 25). The Emergency Regulations also derogate from many of these rights. Whether such derogations are legitimate is a question that falls to be determined by applying the provisions of Article 4(1) of the Covenant, which will allow them only if three conditions are all satisfied:-
In order to justify derogations under that Article, there must therefore both be an emergency in fact, and it must be officially proclaimed: neither alone is enough; in addition, the measures taken must be strictly proportionate to the threat presented, and no more. The previous administration under Mrs. Bandaranaike, which had come into office in 1970, proclaimed an emergency in March1971 shortly before the armed insurrection of that year, and maintained it in force until 16 February 1977, so keeping the country under emergency rule for almost six years. During that time, thousands of people were detained without trial. Mr. Jayewardene, both in opposition and in office, has always insisted that he would not follow that example, and since his election to power in 1977 emergencies have in fact only been officially proclaimed for the following periods:-
Emergency Regulations in Sri Lanka only have effect so long as a Proclamation under the Public Security Ordinance remains in force: those regulations therefore satisfy the test of an "officially proclaimed" emergency under Article 4 of the Covenant. But that is not the case for the PTA. Parliament enacted this in July 1979 while an emergency was in force, but the Act did not lapse when this was lifted on 27 December 1979: its own Section 29 provided that it should remain in operation "for a period of three years from the date of its commencement." In fact, that Section 29 was repealed in 1982 by section 4 of the Prevention of Terrorism (Temporary Provisions) (Amendment) Act, and the principal Act - despite its title - therefore now remains in force indefinitely, unless and until Parliament chooses to repeal it, and regardless of whether or not an emergency either exists in fact, or has been "officially proclaimed". Accordingly, the Sri Lankan PTA does not appear to fall within Article 4 of the Covenant during periods when no emergency is officially proclaimed there; during those periods, to the extent that the Act derogates from the rights guaranteed under the Covenant, Sri Lanka seems on that ground alone to be in breach of its obligations under that treaty. (This is a matter quite separate from the fact that Sri Lanka apparently omitted to give the appropriate notice to the Secretary-General of the United Nations under Article 4(3) of the Covenant,23 an omission which I was told has since been rectified.) The view taken on this question by the Sri Lankan authorities is that, so long as the current level of terrorism perpetrated by the Tamil Tigers persists, there is in fact a "public emergency threatening the life of the nation"; in those circumstances, a government has two options for derogation: either to proclaim a formal emergency and enact temporary emergency regulations, or to keep permanent legislation (such as the PTA) on its statute book; the choice between these is a political question, and either is permissible under the Covenant. In my view, that argument cannot be sustained. The only "public emergency which threatens the life of the nation" contemplated by Article 4 of the Covenant is one "the existence of which is officially proclaimed." Before one needs to consider whether there is an emergency in fact, one must therefore look to see whether one has been officially proclaimed. If it has not, the State's right to derogate has not yet arisen, and if it nonetheless derogates it appears to be in prima facie breach of its obligations under the Covenant. Since there is no dispute that the provisions of the Sri Lankan PTA derogate gravely from the rights of individuals guaranteed under many of the Covenant's substantive Articles, it follows in my view that Sri Lanka is in breach of its international obligations so long as that Act remains on its statute book in its present form, and no emergency has been officially proclaimed in the country. There is indeed a political choice for President Jayewardene: either to follow Mrs. Bandaranaike's example and to rule under permanent emergency powers, or to refrain from that course. But in the latter case he does not then have the option of keeping what is in fact emergency legislation24 permanently on the statute book. In matters of this kind, one cannot have it both ways. Let me turn, nonetheless, to the second question, namely whether there is in Sri Lanka in fact an emergency sufficient to justify this legislation, quite apart from whether one has been proclaimed. For this, one must first ascertain what level of emergency the Covenant has in contemplation. The expression "public emergency threatening the life of the nation" appears not only in the Covenant, but also in Article 15 of the European Convention on Human Rights. Both the organs competent to interpret and apply these treaties have had occasion to construe it. In relation to the Covenant, the Human Rights Committee has said -
In relation to the European Convention, the European Court of Human Rights has said that the phrase means -
Doubtless both these conditions are satisfied when there is communal violence on the scale, and with the intensity, that Sri Lanka tragically witnessed in 1977, 1981 and 1983, and in such circumstances a government is clearly entitled to proclaim an emergency, and to take all measures strictly required by the exigencies of the situation in order to bring the violence to an end, and to restore peace, ord |
