OPINION No. 21/2001 (SRI LANKA)

Communication addressed to the Government on 24 June 2001

Concerning: Chinniah Atputharajah and 12 other citizens of Sri Lanka

The State has ratified the International Covenant on Civil and Political Rights

1. The Working Group on Arbitrary Detention was established by resolution 1991/42 of the Commission on Human Rights. The mandate of the Working Group was clarified and extended by resolution 1997/50, and reconfirmed by resolution 2000/36. Acting in accordance with its methods of work, the Working Group forwarded to the Government the above-mentioned communication.

2. The Working Group conveys its appreciation to the Government for having provided the requisite information.

3. The Working Group regards deprivation of liberty as arbitrary in the following cases:
(i) When it manifestly cannot be justified on any legal basis (such as continued detention after the sentence has been served or despite an applicable amnesty act)
(category I);
(ii) When the deprivation of liberty is the result of a judgement or sentence for the exercise of the rights and freedoms proclaimed in articles 7, 13, 14, 18, 19, 20
and 21 of the Universal Declaration of Human Rights and also, in respect of States parties, in articles 12, 18, 19, 21, 22, 25, 26 and 27 of the International
Covenant on Civil and Political Rights (category II);
(iii) When the complete or partial non-observance of the international standards relating to a fair trial set forth in the Universal Declaration of Human Rights and
in the relevant international instruments accepted by the States concerned is of such gravity as to confer on the deprivation of liberty, of whatever kind, an
arbitrary character (category III).

4. In the light of the allegations made, the Working Group welcomes the cooperation of the Government. The reply of the Government was forwarded to the source on 8 October 2001. However, in a letter dated 25 October 2001, the source reiterated, in general terms, its allegation concerning the deplorable situation of detainees of Tamil origin in various prisons in the South of Sri Lanka; it made no comment on the merits of the reply of the Government. The Working Group believes that it is in a position to render an opinion on the facts and circumstances of the case.

5. According to the information submitted by the source to the Working Group, the Government of Sri Lanka has given wide powers to the police and the Minister of Defence, under the Prevention of Terrorism Act (PTA) and the Emergency Regulations (ERs) linked to PTA, to arrest and detain Sri Lankan citizens of Tamil origin for a period of up to 18 months without a warrant. Under the Act, a magistrate can remand a person indefinitely until his or her trial is completed in the High Court. Section 6 of PTA is said to enable a police officer (not below the rank of a superintendent, or a sub-inspector with written authorization of a superintendent) to arrest a citizen of Tamil origin.

6. Normally, the police would arrest a person under the ERs and at the end of the 21 days, the 60 days, or the three months of permissible detention under the ERs, change the legal basis for detention and file charges under PTA, so as to allow for the possibility of indefinite remand of the detainee.

7. The Emergency Regulations provide that an individual can be detained without a warrant for a period of up to 60 days in the Northern or Eastern Province, or up to 21 days outside the Northern and Eastern Provinces. However, if the arrest order is issued by the Ministry of Defence, the individual can be held for another period of three months. When there is a confession from a detainee, the security forces produce the detainee before a magistrate and try to obtain authorization for indefinite remand.

8. The 13 Sri Lankan citizens of Tamil origin whose cases are mentioned below are all said to have been arrested without reasons being given for their arrest. However, the source explains that these cases have been chosen from a list of 280 Sri Lankan citizens of Tamil origin arrested and detained at Kalutara Prison under similar conditions. The criteria for selecting these 13 detainees from the list were the time of arrest and the age of the persons concerned.

1. Chinniah Atputharajah, arrested on 13 June 1999 during a joint operation by members of the Sri Lankan army and the police.
2. Krishnaswamy Ramachandran, arrested on 3 February 1998 by members of the army during a search operation at Udatheniya.
3. Rasaratnam Punchalingam, arrested on 13 June 1999 during a joint operation by the army and the police.
4. Kanapthy Subramaniam, arrested on 13 October 1998 by members of the army.
5. Thuraiswamy Muthuswamy, arrested on 26 February 1999 in Eerravur by members of the Special Task Force (STF) of the Sri Lankan army.
6. Thambiah Kandaswamy, arrested on 25 March 1998 by police agents.
7. Ramiah Subramaniam, arrested on 25 March 1998 by police agents.
8. Sinnapu Kaniud, arrested on 19 March 1999 in Guruganer during a search operation by the Sri Lankan army.
9. Kathirgamu Shanmuganathan, arrested on 7 January 1998 in Karaveddy by members of the army.
10. Namasivayam Aathimulam, arrested on 27 March 1999 during a search operation conducted by the army at Vavuniya.
11. Arumugam Kanagaratnam, arrested on 14 January 1999 by members of the Sri Lankan army.
12. Ramiyah Gopalaswamy, arrested on 5 July 1999 at Chenkaladdy during a search operation conducted by members of STF.
13. Karthigesu Sivalingam, arrested on 4 February 1999 by members of STF during a search operation at Kalmunai.

9. In its replies dated 1 October and 12 November 2001, the Government made the following statement on the applicable legislation.

10. The Prevention of Terrorism Act enacted by the Parliament and the Emergency Regulations promulgated by the President of the Republic under the Public Security Ordinance (which has also been enacted by the Parliament of the Republic) have been so enacted and promulgated in order to deal with an extraordinary security situation perpetrated by a terrorist organization that seeks to illegally establish a mono-ethnic separate sovereign State primarily in the Northern and Eastern Provinces of the Republic. This situation has resulted in attempts to threaten the territorial integrity and sovereignty of the Republic and has had adverse effects on public security and public order. It has affected the maintenance of essential services and has caused the loss of the lives of several thousand legally elected representatives of the people, public officials, citizens and even foreign nationals. The damage caused to public property and to the national economy is immense and cannot even be calculated. Separatist violence continues to affect the country and its people.

11. The aforementioned legislation has been respectively enacted and promulgated in accordance with the provisions of the Constitution, which, inter alia, recognizes a series of fundamental rights that have been formulated in accordance with the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and several other international human rights instruments. The provisions of the Constitution seek to prevent the enactment or the promulgation of legislation and regulations that, inter alia, contravene the provisions of the Constitution, including those relating to fundamental rights. The Prevention of Terrorism Act and the Emergency Regulations do not violate any provisions of the Constitution and, in particular, do not contravene fundamental rights guaranteed by the Constitution. It is also submitted that the Supreme Court enjoys jurisdiction to, inter alia, review the constitutionality of proposed legislation as well as proposed or promulgated regulations.

12. It is further submitted that, consequent to the promulgation of the Emergency Regulations, the said Regulations continue to be periodically reviewed by the Parliament and the said Regulations continue to be in force only upon the passing of a motion, by a majority of the members of Parliament, in favour of the state of emergency declared by the President of the Republic.

13. It is submitted that the arrest of suspects and their detention under these two laws are subject to judicial review by the Supreme Court. Suspects can be arrested only if there is reasonable evidence based on which it may be inferred that they are implicated in the commission of an offence under the relevant laws. A decision to arrest a suspect can be reviewed by the Supreme Court by an application petitioning the Court in case of a violation of a fundamental right. A decision to detain a suspect under a detention order can be made only in order to facilitate an investigation. Such a decision can also be challenged in the Supreme Court
in the aforesaid manner.

14. A decision to prosecute (institute legal proceedings against) a suspect can be made only by the Attorney-General, who is legally required to take such a decision after an objective consideration of the evidence. His decision to institute criminal proceedings (by forwarding an indictment to the High Court) is also subject to judicial review.

15. Upon the institution of criminal proceedings against a suspect, any self-incriminatory material (such as a purported confession made voluntarily by the accused to a senior police officer) is subjected to scrutiny prior to its admission as evidence. In order to do so, a “voir dire” inquiry is conducted in order to test the admissibility of such evidence. In the context of a “confession”, it is determined (after consideration of oral and documentary evidence) whether such a confession was in fact made by the accused to the relevant senior police officer, and whether such statement was made “voluntarily”. In the course of the trial, the trial judge is also required to consider the “truthfulness” of the confession.

16. It is also important to note that the Government invited a two-member delegation from the Committee against Torture to visit Sri Lanka in August 2000. After this visit, the delegation made concrete recommendations for further improvement of the situation. The Government has already decided to implement some of these recommendations.

17. The Committee against Torture recommended that the relevant provisions of the Emergency Regulations be amended. Accordingly, an amendment was announced in the gazette on 6 April 2001. It read as follows: “Where any person has been arrested and detained under the provisions of regulation 18 of these regulations, such person shall be produced before a Magistrate within a reasonable time, having regard to the circumstances of each case and, in any event, not later than 14 days from the date of such arrest.”

18. The Government also agreed to implement the Committee’s recommendation enabling the judge of a Magistrate’s Court to undertake regular visits to places of detention. This has also been announced in the gazette on 6 April 2001. The relevant section is reproduced and reads as follows: “The officer-in-charge of any place authorized by the Inspector General of Police as a place authorized for detention for the purpose of regulation 17 or 18 shall furnish to the magistrate within the local limits of whose jurisdiction such place of detention is located, once in every 14 days, a list containing the names of all persons detained at such place. The magistrate shall cause such list to be displayed on the notice board of the Court. The magistrate within whose jurisdiction any such authorized place of detention is situated shall visit such place of detention at least once in every month. It shall be the duty of the officer-in-charge of the place to secure that every person detained therein, otherwise than by an order of a magistrate, be produced before such visiting magistrate.”

19. Pursuant to the Committee’s recommendation, action is now under way to establish a central register of detainees in all parts of the country. The necessary administrative procedures are now being followed to purchase equipment, including computers. The Government has also accepted the Committee’s recommendation to introduce video recording of confessionary statements made by suspects to assistant superintendents of police under the Prevention of the
Terrorism Act.

20. The information on the establishment of a central register has been complemented in that a central police registry of detainees under PTA and the Errs was created with effect from 1 November 2001.

21. Concerning the allegations of the source concerning the unlawful detention of 13 Sri Lankan citizens, the Government made the following statement: Chinniah Atputharajah was released on 27 February 2001; Rasaratnam Punchalingam was released on 27 February 2001; Thuraiswamy Muthuswamy was discharged, owing to insufficient evidence against him, on 20 November 2000. The case of Thambiah Kandaswamy is pending before the Colombo High Court, the last hearing being held on 4 September 2001. Ramiah Subramaniam was discharged, owing to insufficient evidence against him, on 16 November 2000; Sinnapu Kaniud was released on 13 November 2000; Kathirgamu Shanmuganathan was found guilty and sentenced to three years of rigorous imprisonment for aiding and abetting the Tamil liberation movement. Ramiyah Gopalaswamy, who is said to have been in possession of a time bomb when arrested, is on trial before the Anuradhapura High Court (his case was heard on 19 September 2001). Karthigesu Sivalingam was released by the Magistrate’s Court in Colombo on 19 September 2001.

22. This statement by the Government has not been contested by the source. In the absence of any comment by the source, the Working Group concludes that out of the 13 persons one was found guilty and sentenced, two are currently on trial and six have been released from detention.

23. As to the allegation of the source concerning the arbitrary detention of Krishnaswamy Ramachandran, Kanapthy Subramaniam, Namasivayam Aathimulam and
Arumugam Kanagaratnam, the Permanent Mission of Sri Lanka to the United Nations noted in its reply of 1 October 2001 that observations concerning their cases would be transmitted as soon as further information was obtained from the Government. To date, no information has been provided to the Working Group concerning these four persons.

24. Bearing in mind the time available to the Government to clarify the situation of these four persons - more than five months instead of the 90 days provided for in article 15 of its methods of work - and the fact that it did not request an extension of the time limit provided under article 16 of its methods of work for responding, the Working Group, on the basis of the information available to it, renders the following opinion:
(a) The Working Group takes note of the release from detention of Chinniah Atputharajah, Rasaratnam Punchalingam, Thuraiswamy Muthuswamy, Ramiah Subramaniam, Sinnapu Kaniud and Karthigesu Sivalingam; in accordance with paragraph 17 (a) of its methods of work, the Working Group is of the view that their case should be filed, without expressing an opinion on the arbitrary nature of their detention;
(b) The Working Group finds that Kathirgamu Shanmuganathan was found guilty and sentenced; the cases of Thambiah Kandaswamy and Ramiyah Gopalaswamy are pending before the courts; the source made no allegation concerning the lack of fairness of the procedure conducted against them. Therefore, the Working Group concludes that their deprivation of liberty is not arbitrary;
(c) The Working Group is of the view that the deprivation of liberty of Krishnaswamy Ramachandran, Kanapthy Subramaniam, Namasivayam Aathimulam and
Arumugam Kanagaratnam, who were arrested on 3 February 1998, 13 October 1998, 27 March 1999 and 14 January 1999, respectively, without being charged or tried since, is arbitrary, being in contravention of article 9 of the Universal Declaration of Human Rights and article 9 of the International Covenant on Civil and Political Rights, and falls within category III of the categories applicable to the consideration of cases submitted to the Working Group.

25. Consequent upon the opinion rendered, the Working Group requests the Government to take the necessary steps to remedy the situation of the persons enumerated in paragraph 24 (c) of the present Opinion and to bring it into conformity with the standards and principles set forth in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

Adopted on 28 November 2001
E/CN.4/2003/8/Add.1