Arbitrary arrest and detention under ICCPR and PTA

BY Rekha Nilukshi Herath

Testimony of a poet who was remanded for his writing
Legal provisions available for those jailed without trial

‘I was handcuffed for 14 days and placed on a chair. The officers all called me a terrorist. After those 14 days, I was put in a room with 11 people. We were all sitting in chairs, handcuffed. We slept in handcuffs. There was no way for anyone to urinate. We were taken away only if everyone in the room needed to urinate. That’s why I did not drink much water during that time.’ Ahnaf Jazeem, a young Muslim poet who was recently released on bail, after being in custody for 18 months without being charged1, shared with the Daily Mirror about his experience. He went on to say:

‘On 16 May 2020, several officials came to my house and asked me if I had written a book called ‘Navarasam’. I said ‘yes’. At that moment, the officers asked me for my phone and laptop. They asked me for the ‘Navarasam’ poem books in my possession. They took about 50 books from my bookshelf. All of them were books related to literature, but they said, ‘these are books with ideas promoting terrorism’. The officers told me that I had to be taken away for an investigation. Therefore, they asked me to get clothes ready for 3 days.

They kept questioning me about the book ‘Navarasam’. The officials told me that I had written things that would instigate racial hatred and promote terrorism in the book ‘Navarasam’. I tried to read the poems I wrote to them in the book ‘Navarasam’ and explain the meaning of the poems in Sinhala to the officials. But they did not listen to anything I was saying. I never even dreamt that something like this would happen to me. I had a great desire to complete my postgraduate degree and pursue my future as a teacher. I had hoped to get married in the future. None of the poems I wrote mentioned anything that promotes terrorism.

However, I was arrested under the Prevention of Terrorism Act and detained for 18 months without being charged. I was forced to admit to a crime that I had not committed.’

Ahnaf was detained under the Prevention of Terrorism Act. Ahnaf was also interrogated about a connection to Hijaz Hezbollah, a young lawyer who was recently released. Hezbollah was arrested and charged with several offences. But he was later indicted on charges other than those made public in the media. His baby was born while he was in prison under the Prevention of Terrorism Act (PTA). She missed the opportunity to spend time with her father for several months. Hijaz was recognised by international human rights organisations as well as all leading human rights activists in Sri Lanka as a ‘prisoner of conscience’ arrested under the (PTA).

Shakthika Sathkumara was arrested on 1 April 2019 for writing a short story called ‘Ardha’ and posting it on his Facebook account. He was remanded for more than four months without bail on the grounds that he had “degraded Buddhism”. He was released on bail on 05 August 2019 following a bail application filed in the Kurunegala High Court.

‘The ICCPR Act was introduced by the United Nations to protect the rights of minorities. Protect freedom of expression. But what is happening in Sri Lanka is the misuse of this bill,” said Shakthika. He further recalled that although the works of writers such as Tennyson Perera and Manjula Wediwardena had been subjected to unofficial censorship in the past, there had never been an arrest of a creative artist.

What we are trying to discuss is the use of the PTA to arrest and detain individuals in violation of their fundamental rights. We have mentioned above three prominent incidents that took place in recent times. But let’s look at history. On 16 March 2014 civil activists Ruki Fernando and Fr. Praveen Ganeshan were arrested, detained, and questioned by the Terrorism Investigation Division in Kilinochchi on that day. While they were detained for two days under the PTA, many Southern media organisations as well as human rights activists were working tirelessly to protect the rights of the arrested activists. Their mobile phones and SIM cards, iPads and other equipment including passports were confiscated. They also received a magistrate’s order silencing them with instruction not to speak to the media or to their families about their arrest even after their release on bail. It was an incident when the rights of expression of two peace activists were restricted by accusing them of ‘terrorism’.

The incident is six years old but was recalled since Ruki Fernando was one of the activists who immediately raised his voice against the arbitrary arrest of journalists and activists in violation of Sri Lankan law. He, on the other hand, is aware of one thing. Those with media coverage and connections to civil society receive more coverage in such arrests. If such a person is arrested, they have a safety net. ‘I immediately sent a message to several people. They acted immediately and made various interventions. We were arrested and released a few days later. This was due to the support we received from Sri Lanka and other countries. About five officials of the HRC came to see us at that time. Around five legal teams came to see us. But we were not given a chance to meet them, “said Ruki.

So many are arrested using the above-mentioned acts, who do not have the same protection or personal connections like Ruki. Many people who have not received media coverage as well as the attention of relevant people, have suffered immensely in recent history due to the PTA. ‘Sometimes a human rights officer will not visit those who are arrested for months. Some who are arrested do not get to meet their legal counsel for years. I think these factors may have

contributed to my immediate release, and detention of others for a long time.’ said Ruki who has spoken to most of those who have been arrested.

The Prevention of Terrorism Act (PTA) and the ICCPR are two completely contradictory Acts. The PTA was passed in 1979 as a temporary law. There have been domestic and international demands to revoke this draconian law. However, the International Covenant on Civil and Political Rights, or the ICCPR, is quite different. Its purpose is to uphold current internationally recognised ‘civil and political’ rights.

We have not mentioned the background of these two Acts here because that discourse is taking place at length. One act is a duck, the other is a goose. Even though they are used for the same purposes, the two are different. One act must continue to exist and be correctly implemented. The other should be completely abolished. One of the most popular measures used against prominent people who are arrested using these laws is to spread serious allegations against them in newspapers and television. In the case of Hijaz Hezbollah, which we mentioned earlier, Minister of Public Security Sarath Weerasekara levelled harsh accusations in Parliament that Hijaz was a ‘dangerous terrorist‘. How could he be released on bail months later if he had been so dangerous?

Many of the heinous allegations made by Minister Weerasekera in Parliament were not included in the indictment in the High Court case because many of those allegations were fabricated. But these allegations are not just spread by ministers or arresting officials. There are journalists in Sri Lanka who are dedicated to this purpose. In addition to the incidents we mentioned above, politicians Azad Sally and Rishad Bathiudeen were also detained under the above Acts during the period 2019-2022 amidst popular media reports.

Attorney- at- law Prabodha Ratnayake, a human rights activist and writer, currently represents a Muslim individual arrested under the ICCPR Act. On one hand, Prabodha is also the editor of a Magazine, and is careful about his own freedom of expression. On the other hand, he is a lawyer. He commented on his client: “Fazal Mohammad Niaz was arrested on 13 January 2021 under the ICCPR Act by a group of CID officers. He was arrested for allegedly insulting Buddhist monks by posting a video on his Facebook page. He is also an author and contributes articles for the Colombo telegraph website and other websites. They are still available on these sites. Along with that video, he had highlighted some notes he had posted on his Facebook page. Most of those posts were about the mass protest by Muslims against the cremation of Muslims who had contracted Covid19 and died. He had also shown his dissent on the above matter. The CID showed the posts where he had made various comments and stated them as the reasons for Fazal’s detention. At present the officers of the CID show the court from time to time that he is a person who wrote articles to create ethnic disharmony. In fact, if you look at those articles and analyse them, you will see that they have nothing to do with ethnic hatred. There are two letters that CID officials regularly submit to the courts. The headline of one article is ‘I Am A Sri Lankan Muslim Extremist2!’ When the headline was translated into Sinhala, it read ‘I am a Muslim extremist’. He started the article by saying that he was an extremist for the freedom of religion in this country, for the rights of all religions and for humanity. Any writer uses headlines in this way to attract readers to his article. Inside the article he talks about human rights issues just like what we are doing. But the CID always.

uses headlines in the articles he has written. There is another article titled ‘ISIS – Islamic State in Sri Lanka3’ written in 2012. In that article he has said that Muslim extremism is developing in Sri Lanka. In that article, Fazal gives 10 points and suggests solutions as to what we should do against this extremism.

Although the arrest was made because of the video, the allegations changed at various times. At one time they charged that there was money in Fazal’s bank accounts, and that money has been transferred. Later that allegation was dropped, and another allegation was brought that Fazal had used a secret telephone call exchange software. When we asked about it, we found out that Fazal had used a free downloadable app. The charge against him so far is that he had links with the people involved in the Easter attack. CID officials want to link Fazal to the Prevention of Terrorism Act. Fazal’s wife has died. He has a 10-year-old son. The son is with Fazal’s brother. The child has not been going to school for about a year now. The life of the child has become a tragedy.

It is true that Fazal’s incident was initially covered by the media. But Fazal did not get the coverage that someone like Hijaz did.

Fazal was granted bail in late January 2023. That was two years later.

Except for one or two news items about the incident, the coverage of the incident is low. So, he also belongs to the category of obscure incidents and people that Ruki first described. Ruki Fernando commented further on such incidents. ‘If the person is not famous, often the burden of freeing that person falls on the person’s family. Not every family has that strength and knowledge. I have met many families like that. They do not know what the Magistrate Court, the High Court and the Supreme Court are. Those families have no idea what a fundamental rights petition and a writ of certiorari and a bail application are. Justice should be equal to all. Unfortunately, justice in Sri Lanka is not equal to all.

Obtaining legal counsel or contacting a lawyer is a big challenge for those families. Lawyers often charge hundreds of thousands of rupees to represent these individuals. One lawyer had taken millions from one family. Most families cannot afford to pay this way. They sell their property and jewellery to pay for legal costs. But sometimes lawyers do not even communicate what is really happening to the family. There are times when some lawyers stand up for rights, without money.

The court itself sometimes decides that the people who are arrested and detained in this manner have not committed any crime after many years. In this way people must spend years in prison because of a loophole in the law. If the person is arrested under the PTA and ICCPR Acts, the person will lose the opportunity to obtain bail.’

Attorney-at-Law Sanjaya Wilson Jayasekara appeared pro bono for the poet Ahnaf Jazeem. Sanjay started appearing for Ahnaf before the incident became widely discussed in society. The last comment of this note belongs to him; he said “Terrorism or extremism arises out of the injustice and inequality in this society. This system was created by these rulers themselves. When the people raise their voices against the ruling class, they use the judiciary, police and prisons to crush dissent. These institutions are being used against the public. Whatever the Constitution says about rights, even the fundamental rights of the people are being suppressed, based on state security. These laws should be repealed.”’

Annual Human Rights Report – Centre for Policy Alternatives March 2022