Guilt by Association
In the immediate aftermath of the Easter Sunday Attacks of 21stApril, 2019, hundreds of
Muslims were rounded up and arrested under the PTA and the International Covenant on Civil and Political Rights (ICCPR) Act of 2007. According to lawyers working on PTA cases,1 at least 500 Muslims, between the ages of 18 and 49, were arrested and detained under the PTA, following the attacks. Of those arrested, 98 were from Kattankudy, Batticaloa, the hometown of Zahran. To date, 92 of the 98 detainees from Kattankudy remain in remand custody, with 6 persons having been released on bail. In one particular instance, 65 Muslim youth and men were arrested under one charge. The arbitrary and sweeping use of the PTA follows the pattern of its over-use and abuse against the Tamil community during the three decades of ethnic conflict. It has contributed greatly to further polarizing communities and deepening the divides.
Whilst it is recognised that those involved in violent terrorist activities must be held accountable under the law, arresting and detaining a number of family members under the PTA, purely based on suspicion is deeply problematic. These blanket arrests deny the presumption of innocence, create an environment of guilt by association, further polarises society, intensifies the spread of Islamophobia and creates a deep resentment among the largely peaceful Muslim community. Arbitrary arrests under the PTA are often ‘witch hunts’ targeting a minority community or dissidents, or it is a means of collecting evidence. This is a rampant violation of fundamental human rights.
These cases exemplify the urgent need to repeal the PTA, a long-standing call by victim families and local and international activists and rights groups. Furthermore, the sweeping arrests under the PTA and the treatment of detainees expose the deeply ingrained prejudice towards ethnic/religious minorities, failures of the law enforcement and prison systems, and the need for urgent reform.
Historical Context
The PTA is a draconian law introduced in 1978 to legitimize the State’s use of brutal force and inhumane ‘counter terror’ tactics to quash the Tamil insurgency spearheaded by the Liberation Tigers of Tamil Eelam (LTTE).Since then the PTA has been used disproportionately against people of Tamil ethnicity, subjecting them to arbitrary arrest, prolonged detention without charges, inhumane detention conditions, torture, forced confessions, post-release harassment and restrictions, including re-arrests. Currently, at least 146 PTA detainees 2 (including 6 women and a 1½ year old infant with a heart ailment), continue to languish in prisons around the country.
As at 2015, the actual number detained under the PTA was unknown, but a list of 182 persons detained under the PTA, and remanded at 11 official remand prisons, was compiled and released by the Department of Prisons. However, the list did not include those being held at detention centres such as Boosa and the Terrorist Investigation Department (TID) in Colombo, and this indicated that the actual number of persons arrested and detained under the PTA at the time, would have been far higher.
Some of the types of cases flagged at that time by the Watchdog Collective included:
• Persons who had been in remand for 18-19 years without having their cases concluded;
• Persons in remand for 15 years prior to charges being filed;
• Persons in detention for 15 months prior to being produced before a Magistrate and being remanded;
• Persons who were brought for 400-500 court hearings whilst in detention, without seeing a conclusion to the case,
• An instance of 15 cases filed against one person at 6 courts across 4 districts; and
• Instances of persons who were released as innocent and discharged from all charges after 5-6 years in detention, only to be subjected to post release harassment, including re-arrest.
Islamophobia and Media Complicity
The Easter Sunday attacks triggered yet another wave of Islamophobia which has been on the rise since the end of the war in 2009. This general hostility towards the Muslims, fanned by irresponsible media houses further exacerbated the situation, resulting in the Muslim community being made more vulnerable.6 The cases of Dr. Shafi who was falsely accused of carrying out mass sterilisations on Sinhala women,7 and the Horowpothana Five (details of these case studies are given below), are clear examples of the media destroying the lives of 6 men and their families, by spewing lies, and peddling on innuendo and hate speech. To date, no media institution has been held accountable for their irresponsible actions.
“We want to take action against the media. They are the ones that destroyed our lives with their lies. They must be held accountable for their irresponsible reporting, somehow. We want a retraction and apology published on the Lankadeepa cover page, like when they published lies about my husband,” said J. Hairulhudha, wife of one of the five men arrested under false charges, in Horowpothana last year.
Many families of detainees spoke of being ostracized in their communities and even their
children facing harassment from fellow classmates and teachers. “Everywhere we would go,
people would say ‘here comes the IS[SIS] crowd. Our children would be asked why their father was in jail? And if he was an IS[SIS] terrorist? We had never even heard of who Zahran was until the attacks. Why was this happening to us,” many wives and mothers of those arrested following the attacks, lamented.
Lack of Support and Indebtedness
Having lost the sole breadwinner, many of the families had to find alternate sources of income.
Whilst relatives did their best to support these families, they still had to take out loans or pawn their possessions, to be able to afford lawyer fees, transport costs for prison visits, and pay for food and school expenses for their children. Furthermore, due to the stigma attached to those who were arrested and the heavy surveillance on these families following the attacks, people were reluctant to loan money to these families or support them in any way.
It was particularly difficult for the families where the women were not accustomed to going out of the house on their own. Such women and their families had no means of fending for
themselves. One such case was a wife from Kattankudy, who used to be a seamstress and do piecework for a nearby garment factory.When her husband was around, he would collect the supplies she required and take the finished products to the factory. Now she is unable to do that work because she does not have support to get her the necessary material or collect the pieces from her. It is culturally not acceptable for an unrelated man to come to her house. So now, she is struggling to pay back her loans and make ends meet. None of these families have received any support from the government or any other groups, and in the absence of the sole income earner of their families they are in dire straits
The following are 10 interviews carried out with family members of 8 Muslim men, a boy and a woman who were arrested in the aftermath of the Easter Sunday Attacks last year. In addition, five men who were arrested in Horowpothana under false charges were released on bail last November. Interviews with two of them are also included below.
Read the full report as a PDF with footnotes:PTA_Terrorising-Sri-Lanka-for-42-years-English
Recommendations
To the Judiciary
• Fast-track and bring to a speedy close all cases of those persons who are:
– Under the age of 18 held at probation centres,
– Falsely charged under the PTA, ER or ICCPR, and currently released on bail,
– In prolonged detention without charge,
– Who have spent 5-10 years in prison prior to being sentenced.
• Order the proportionate payment of compensation (that also takes into consideration
reimbursement for the expenses already incurred by detainees,) by the State, to all
those who have been falsely charged, discharged of all charges after multiple years in
prison/detention, subject to torture/inhumane treatment, and forced confession
• Authorise/permit regular prison visits by family members, including probation and
detention centres, and
• Ensure as far as possible, that prisoners are held at prisons closest to their homes, so
as to minimise the time and funds that families must incur on travel.
• Enable all families to access court hearings, as it is their right to know and understand
the status of the case.
To the Media
• Empower media regulatory bodies to take strict legal action against media institutions
and hold them accountable for fueling ethnic violence through fake news and racist
propaganda and fabricating news and supporting disinformation.
• Media regulatory bodies must ensure that media institutions accused of defamation and
fabrication of false news, publish a prominently placed retraction and apology to the
victims and their families, and be made to pay punitive damages for the destruction of
lives and reputations.
To the Government
• Provide support to all families of PTA detainees similar to the support offered to families
of regular prisoners, including livelihood and educational support for children
• Support families by clearing their debt on their behalf, and offering a no-interest
Government issued loan repayment scheme that they are able to pay off gradually over
a long period of time.
• Ensure that all minors/students arrested and detained under the PTA, are entitled to
pursue an education, by way of access to text books, extra tuition classes) and
examinations.
• Provide special provisions for pregnant women and women arrested with
infants/children, such as house arrest or protective custody, particularly in instances
where the woman has no family support/guardian for the child, or is breastfeeding, so
that the child does not have to grow up inside prison.
• To carry out urgent reform and a reassessment of the effectiveness of the prison
system, and standardize resources and humanize regulations practiced by prisons,
including increasing the duration of visitation, removing all screens and enable physical
contact between inmates and their families during visitation, keep inmates at prisons,
ideally in their home district or at the closest possible prison, as families must incur huge
costs, and often travel for almost a full day, across districts, to visit their detained family
member/s for a mere 5-10 minutes.
To Non-Government Organisations
• Provide livelihood support and technical expertise, including a practical
business/marketing plan to women left with the burden of fending for their families, so
that livelihood initiatives are sustainable and lucrative.
• Provide free legal aid and adequate travel allowance for prison visits, so as to minimise
expenses incurred by detainee families.
© Law and Society Trust, 2020