Counter-terrorism and human rights: Striking a balance

Following is the statement by Ambika Satkunanathan at the Tom Lantos Human Rights Commission Hearing on 26 October:

Good morning, Co-Chair McGovern, Co-Chair Smith and honourable members of the Commission. Thank you for inviting me to testify at this hearing. In my testimony I will illustrate the devastating impact the Prevention of Terrorism Act (PTA) has had on human rights in Sri Lanka. 

Historically, the PTA has been disproportionately used against Tamils, and following the Easter terror attacks in April 2019, against Muslims as well. The PTA allows for arbitrary arrest and detention for up to 18 months without being produced before a judge. 

I use the term ‘arbitrary’ because arrests are not based on evidence unearthed during an investigation or even reasonable suspicion. Persons who have come into contact with a person accused of an offence under the PTA, during the course of their employment, such as a person who processed the accused’s money transfer at a Western Union and a salesperson at a dealership who sold the accused a motorbike have been arrested under the law. Following the Easter terror attacks, persons who had books in Arabic, or Arabic songs praising Allah were arrested. 

Due process is almost always violated during arrests under the PTA. As recently as 28 September 2021 when a person was arrested in Trincomalee in the Eastern Province, officers didn’t identify themselves, did not inform him of the reason for the arrest, did not inform the family of the place of detention nor issue an arrest receipt as proof of arrest. 

The PTA allows the admission of a confession made to a police officer above the rank of an Assistant Superintendent of Police as evidence during the trial. As a result, persons are tortured to obtain confessions. The burden of proving the confession was obtained under duress in upon the accused person. 

According to the Human Rights Commission’s study of prisons, in the study sample, 84% of men detained under the PTA stated they suffered torture following arrest. 90% of those who were subjected to torture said they were made to sign confessions after torture. 95% of male respondents stated that although the document which they were made to sign was written in Sinhala, a language they did not know, it was not explained to them. 

The Commission noted a pattern of arrested persons being held at unauthorised places of detention and tortured, and being moved to authorised places of detention only after the confession was extracted. Hence, many indictments are based solely on such confessions with no other evidence presented. 

The PTA allows the Minister of Defence to issue Restriction Orders for up to 18 months. Restriction Orders can be used to prevent people from engaging in political activities, speaking at events, or advising an organisation. Such orders allow civic rights to be curtailed arbitrarily by the Minister with no due process, transparency or accountability.

The PTA also states that persons in judicial custody can be taken out of judicial custody by law enforcement officers to be interrogated at any other place. Further, it permits the Secretary to the Ministry of Defence to determine a person’s place of detention even after the person is sent to judicial custody. This removes a person from the protection of judicial custody and empowers the Secretary to override a judicial order. The Human Rights Commission has recorded testimonies of persons who were subjected to severe torture when removed from judicial custody for interrogation. 

In March 2021, new Regulations titled ‘Deradicalisation from Holding Violent Extremist Religious Ideology’ were issued under the PTA. These regulations are similar to Regulations issued in 2011 that allowed for the rehabilitation of alleged former LTTE members, and resulted in gross human rights violations. In this instance they appear to target the Muslim community. 

The Regulations create a new predictive offence with a broad and vague definition that enables arrest and detention contrary to the procedure set out by law and permit investigations to commence after the arrest, which deprives a person of being informed of the reason for the arrest.  They violate a person’s right to a fair trial because they deem a person guilty and require the person to be subject to rehabilitation for up to two years without a trial, solely on the basis of the recommendation of the Attorney-General. Moreover, the regulations can prevent a person from accessing legal representation, perpetuate ethno-religious stereotypes and encourage racial profiling. 

The PTA is also used as a weapon to intimidate, threaten and stifle dissent, media freedom and civil society activities, especially in the Tamil majority north as well as the east of the country, including in the guise of countering terrorism financing. Victims, dissenters, human rights defenders, and particularly those who call for accountability or international intervention are labelled as traitors and terrorists. 

In February 2021 those protesting in Jaffna in the Northern Province demanding the release of persons detained under the PTA were threatened with arrest by intelligence officers, while an activist in the Eastern province received phone calls from security officials instructing him to cancel a similar campaign. 

Two Tamil journalists, one from the north and one from the east were instructed to appear at the Terrorism Investigation Department on 26 October and 8 November respectively for inquiries. Even families of the disappeared campaigning to find out the truth about their disappeared loved ones have been summoned for such inquiries. 

There are two critical interventions that can be made. Firstly, we urge the international community and the United States to adopt a principled approach in their engagement with Sri Lanka based on the principle of “do no harm”. This would require, in particular, ensuring that their financial support, such as grants, do not enable the repressive policies of the government, even inadvertently. This applies to the United Nations, and to agencies such as UNODC in particular.

The second critical intervention is to support civil society and human rights defenders, with particular attention to those in the north and east, who are subject to surveillance, intimidation and threats. This would entail not only supporting their work through grant but also speaking out when they are being persecuted or action is being taken to undermine civic space, such as through repressive legislation. 

It is also important that donors and the United Nations, especially UNODC, listen not only to the Government but also to civil society and human rights defenders when crafting programmes, such as on violent extremism, a nebulous concept that has no legal definition and is abused by governments, to ensure they do not undermine human rights or enable government targeting of minority communities. Thank you.