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"To us
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Home > Tamilnation Library > Eelam Section > Ethnic Conflict and Violence in Sri Lanka - Professor Virginia A. Leary
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TAMIL NATION LIBRARY: Eelam
Sri Lanka (formerly known as Ceylon) is a large island (65,609 square kilometers) situated 29 miles off the southern tip of India. The ethnic composition of its population of 14 million is 72% Sinhalese, 20.5% Tamil, (Ceylon and Indian), 7% Moors (Muslims), 0.5% Burghers (descendents of the Dutch and Portuguese) and others. The official language of Sri Lanka is Sinhala with Sinhala and Tamil having equal status as national languages. English is widely spoken. The official religion is Buddhism, the religion of the majority of the Sinhalese population. The Tamils are predominantly Hindu, although a substantial minority of the Tamil speaking population are Muslims and Christians. Sri Lanka obtained its independence from Great Britain in 1948. Prior to British occupation in 1796 it had been colonized by the Portuguese and Dutch. It is a unitary democratic republic with a mixed presidential--parliamentary political system. Universal adult franchise was introduced in Sri Lanka as early as 1931 and since independence the country has held elections every six or seven years. Two major political parties, the United National Party (UNP) and the Sri Lankan Freedom Party (SLFP) have governed the country alternately since independence. Both these parties are predominantly Sinhalese. The SLFP, in coalition during part of the time with two Marxist parties, was in power from 1970 to 1977. The country was governed under a state of emergency for much of this period, following a major insurrection in 1971. Many civil liberties were severely curtailed. The coalition government adopted a policy of land redistribution and economic self-sufficiency. The defeat of the SLFP in 1977 has been widely attributed to economic difficulties, inefficiency and corruption. The UNP came into power in 1977 with a strong market economy orientation, an open door for foreign investment and imports and strong encouragement of tourism. It also pledged to restore civil liberties neglected by the preceding regime. J.R. Jayewardene, the UNP leader, is President of the country. At the present writing, the UNP has more than a 2/3 parliamentary majority. The Tamil United Liberation Front (TULF) has become the opposition party in parliament with only 17 seats. The UNP has 139 seats. The next election is scheduled for 1983. Although Sri Lanka has a very low per capita income it has a high level of literacy and education, low infant mortality rates and relatively high average life expectancy. Like many other developing countries, however, it has major problems of poverty and unemployment. Many skilled laborers and professional persons have emigrated. Its economy has traditionally been agricultural with an emphasis on tea, rice, rubber and coconuts. An attractive country with beautiful beaches, diversified scenery, ruins of ancient cities, and friendly people, it has become a popular tourist area for Europeans. Recent Events: Background to the ICJ Mission On August 17, 1981, the government of Sri Lanka declared a state of emergency in order to control an outbreak of violence directed against the minority Tamil community. This state of emergency was the second declared within three months; the communal violence was the third major attack against Tamils since independence in 1948 and the second since the election of the present government in 1977. The August violence followed several months of increasing tension between the two major ethnic groups. In April 1981, a number of Tamil youths were apprehended and detained by security forces under the Prevention of Terrorism Act. At least 27 youths were held incommunicado without access to lawyers or family members. The arrests followed a bank robbery in which two policemen were killed, attributed to an extremist group called the Tamil Liberation Tigers. In early June, local elections for District Development Council members took place throughout the country. In the north of the country in the overwhelmingly Tamil area the elections were held during a state of emergency and in an atmosphere of violence. During the campaign, a candidate and two police officers were killed. Police and security forces, apparently in reaction to the killing of the policemen, went on a rampage in the Tamil City of Jaffna burning the market area, the home of a member of Parliament, the TULF party headquarters and the Public Library containing 95,000 volumes. In July, a police station in Anaicottai in the Tamil area was attacked, two policemen were killed and many firearms stolen. The attack was again attributed by government sources to a terrorist group of Tamil youths. Also in July, in an unusual, nearly unheard of, parliamentary procedure, members of the UNP, the parliamentary majority party (composed predominantly of Sinhalese), approved a motion of no confidence in the leader of the opposition political party, Mr. A. Amirthalingam of the Tamil United Liberation Front. The vote was preceded by verbal attacks by majority party members against the Tamil leader for criticizing the government abroad for its handling of the Tamil question. At the end of July, the Court of Appeal in Colombo in a widely publicized and emotionally charged proceeding, began hearing petitions for writs of habeas corpus for four of the 27 Tamil youth detained incommunicado by the Army since April under the Prevention of Terrorism Act. The immediate occasion for undertaking the International Commission of Jurists' mission was the continued incommunicado detention of Tamil youths, but the events described above formed the backdrop of ICJ concern about the state of human rights in Sri Lanka and are intimately related to the application of the Terrorism Act. Purpose and Scope of Mission; Sources of Information In July, 1981, the ICJ requested the author of the present report, then on a private visit in Sri Lanka, to undertake a study of the human rights aspects of the Terrorism Act and events related to its adoption and application. The ICJ observer was in Sri Lanka from July 12 to August 2 and from August 18 to 23, a total period of four weeks, and was thus present during the attack on the police station in Anaicottai, the vote of no-confidence against the opposition Tamil leader, the habeas corpus hearing in the Court of Appeal and the period of the state of emergency immediately following the communal violence. During the mission in Sri Lanka, the undersigned interviewed government officials, opposition party members, lawyers, professors, sociologists, trade union officials, journalists, and members of human rights organizations. The Ministries of Justice and Foreign Affairs were informed of the ICJ study and were helpful in making known the government's point of view concerning the current crisis in Sri Lanka. The observer attended several sessions of the habeas corpus proceedings, met the President of the Court of Appeal, the attorneys for the petitioners and the Deputy Solicitor General representing the government. She also interviewed families of detainees held under the Terrorism Act, visited areas of Jaffna which had been burned in June and interviewed residents of Jaffna. Sri Lanka is a country in which citizens--even those in opposition to the government--appeared to feel free to express their opinions. Individuals interviewed did not request anonymity or lack of attribution and government officials were uniformly courteous. In addition to information obtained through interviews, the observer was also able to obtain extensive written material on historical aspects of the racial situation,1 recent racial incidents and the situation of human rights in general. There appears to be no systematic censorship of the press or the mails; however, all of the major English language newspapers except one and radio and television are government controlled.2 The privately owned English language newspaper carried in full the Amnesty International report concerning the recent incommunicado detention of Tamil youths. A number of allegations were heard, however, of selective reporting which exacerbated racial tension, including by the privately owned English language paper. Concern was also expressed over a proposed bill which would provide that every newspaper make a deposit with the Insurance Corporation in order to meet any claim for damages that might result from being found guilty in a libel action, the amount of deposit to he determined by the Cabinet. Concern was expressed that the deposit might he so large as to put small newspapers with limited financial resources out of circulation.3 Other recent human rights issues in Sri Lanka which have caused concern are the deprivation by Parliament in 1980 of the civic rights for a period of seven years of Mrs. Sirimavo Bandaranaike, leader of the Sri Lankan Freedom Party and twice Prime Minister of Sri Lanka, and the adoption of the Essential Public Services Act in 1979 which enables the government to declare any of a wide variety of services as essential services, thereby outlawing strikes or temporary cessation of work in such services. While the International Commission of Jurists is concerned about these issues, the present report is limited to the most serious human rights problem in Sri Lanka at the moment, namely, the racial problem, violence resulting from racial conflict and the draconian provisions of the Terrorism Act as a means of coping with the violence. The report is based on observations and interviews of the undersigned while in Sri Lanka, on written material obtained in Sri Lanka and on press and other reports of events occurring since the visit of the undersigned. Historical Background to Present Ethnic Conflict The present racial tension between the Sinhalese and Tamil populations in Sri Lanka has deep historical roots, dating back to the first century A.D. It is claimed that the Sinhala race was founded in Sri Lanka in the fifth century B.C. by an exiled prince from northern India and that the Sinhalese are of Aryan origin. The Tamils are Dravidians and came from southern India. There are two separate Tamil communities in Sri Lanka: the "Jaffna" or "Ceylon Tamils" and the "Indian" or "Estate Tamils". They are both of the same ethnic origin and speak the same language. The "Ceylon Tamils" came at a date disputed by historians, but there were Tamil incursions from South India at least by the first century, A.D. Major Tamil invasions took place from 700 A.D. to 1300 A.D. culminating in the establishment of a Tamil kingdom in the North. Buddhist historical chronicles report frequent wars between Sinhalese and Tamil kings. At the time of the Portuguese conquest in 1621 an independent Tamil kingdom existed in the North.4 The "Indian Tamils" were brought to Ceylon as indentured laborers by the British to work on the tea and rubber plantations in the 19th and early 20th centuries. At present, Ceylon Tamils constitute 11% of the population of Sri Lanka and Indian Tamils 9%. The two Tamil communities have remained largely separate with the Ceylon Tamils concentrated in the northern part of the Island, particularly in the area known as the Jaffna peninsula. A substantial number of Ceylon Tamils, however, are resident in Colombo and some southern areas. The Indian Tamils are primarily resident in the hill country in the central part of Sri Lanka. The Ceylon Tamils are, in general, a prosperous and well educated group; the Indian Tamils live and work in conditions of misery and poverty. At independence in 1948 the Indian Tamils were deprived of citizenship and disenfranchised. Under an agreement with India in 1964, Sri Lanka agreed to repatriate 60% of the Indian Tamils and to grant citizenship to the remaining 40%. The agreement has been only partially carried out. The ethnic conflict, until recently, has been largely between the Ceylon Tamils and the Sinhalese. In August 1981, however, and to an extent in 1977 the Indian Tamils were attacked when communal violence broke out. The Sinhalese population of Sri Lanka has historically considered the Tamils as invaders, infringing on Sinhalese territory. Sinhalese myths and legends often refer to the triumph of Sinhalese kings over rival Tamil rulers. One scholar has written,
The identification of the Buddhist religion with Sinhalese nationalism is also an important element in understanding the roots of ethnic conflict in Sri Lanka. Sri Lanka is regarded as one of the major world centers of Buddhism. It is widely believed that Buddha himself consecrated Sri Lanka; a relic of the Buddha's tooth is enshrined in Kandy in central Sri Lanka. Buddhist temples abound. The Sinhalese population is overwhelmingly Buddhist. The Tamil speaking population is predominantly Hindu although there is a substantial minority of Muslims and Christians. The Constitution provides that the Republic of Sri Lanka "shall give to Buddhism the foremost place" and that it is the duty of the state to protect and foster the Buddhist faith. Freedom of religion is guaranteed in the Constitution but other religions are not mentioned. It is frequently pointed out that, although a majority group within Sri Lanka, the Sinhalese have a minority complex since they are a minority ethnic group within Asia. Tamils in Asia outnumber the Sinhalese by five to one. There are more than 50,000,000 Tamils in South Asia, primarily in the South of India only a few miles across the sea from Sri Lanka. This insecurity of the Sinhalese may have contributed to the racial tension in the Island.
To combat the advantages of Tamils the Sinhalese majority population after independence adopted two policies that have been the source of much of the subsequent discontent of the Tamil population: a "Sinhala only" language policy and a quota system on the basis of race, referred to as "standardization" for entrance to university faculties. In the eyes of the Sinhalese, these were "affirmative action" provisions designed to compensate for the former disadvantage of Sinhalese. In the eyes of the Tamils, they were discriminatory provisions adopted by the majority population which placed their language in an inferior position, required them to learn the majority language and blocked their access to education which constituted their most important route to economic advancement. It also became more difficult for Tamils to enter government service, apparently because of the adoption of Sinhala as the official language.
The first Constitution of Ceylon was drafted by an Englishman, Lord Soulbury and adopted by an Order in Council rather than by a constitutive assembly. It remained in force until 1972. Section 29 of the Soulbury Constitution protected the rights of minorities. It read
Despite this constitutional provision the Official Languages Act was adopted in 1956 providing that "Sinhala only" should be the official language, the Indian Tamil plantation workers were deprived of citizenship and disenfranchised, and a quota and standardization system was adopted which drastically curtailed the access of Tamils to higher education. At the time of the adoption of the "Sinhala only" Act a proposal to include a clause on the use of Tamil was dropped because of pressure from extremist Buddhist groups. The threat of the Tamils to engage in island-wide peaceful protest in 1956 resulted in a compromise between the government and the leader of the Tamils called the Bandaranaike-Chelvanayakam Pact. It made provisions for the use of Tamil in the Tamil areas and provided for regional councils with powers in agriculture, education, and in colonization schemes6 and included a promise by the government to reconsider the disenfranchisement of the Indian Tamils. Certain elements of the Buddhist population reacted strongly against the Pact and it became a dead letter. In 1958 the first major outbreak of communal violence occurred with deaths in the hundreds, particularly among Tamils. In the 1950s and 1960s there was increasing dissatisfaction with the foreign drafted constitution. This dissatisfaction, culminated in a demand for a new Constitution following an obiter dictum in a 1966 decision of the Judicial Committee of the Privy Council in London that Section 29 was an entrenched provision of the Constitution. During this same period, the Tamil Federal Party became predominant in the Tamil community. It urged that Ceylon change from a unitary state to a federal structure. The proposal was strongly rejected by the Sinhalese majority who considered it a divisive proposal. In 1970, the SLFP, strong advocates of Sinhala-Buddhist predominance, came into power in coalition with two Marxist parties. In 1972 legal links with the United Kingdom were severed with the adoption of a new Constitution by a Constituent Assembly (composed of the sitting Parliament) acting outside the framework of the Soulbury Constitution. The Constitution set up Sri Lanka as a republic, continuing the parliamentary system of government. The Tamil Party boycotted the Constituent Assembly because it had rejected a proposal that both Sinhala and Tamil be declared official languages. The Tamils had previously accepted Sinhala as the official language, but only on the basis that Section 29 of the Soulbury Constitution protected certain of their rights. Section 29 was now dropped from the new Constitution and the "Sinhala only" policy, which had previously been of statutory origin was now enshrined as a constitutional provision. The UNP had voted against the adoption of the 1972 Constitution and on coming to power in 1977 drafted the third Constitution which remains in force today.7 It provided for a modified Presidential-parliamentary system similar to the French system of government. During the tenure of the SLFP from 1970 to 1977 the negative effects of the standardization and quota system of education on the Tamils became increasingly evident resulting in tension in the Tamil community.8 It also became increasingly difficult for Tamils to obtain government employment. The disaffection of the Tamil youth over these policies can only be understood in the light of their traditional emphasis on education and government service. The most common complaints of the Tamils relate to discrimination in education and employment. Beginning in the 1970s the Tamils increasingly supported the concept of a separate state of Tamil Eelam comprising much of the northern and eastern area of Sri Lanka. In 1976 the Tamil United Liberation Front (TULF) which had replaced the Federal Party as the dominant Tamil political party, declared itself in favor of a separate state of Tamil Eelam. In the 1977 elections the TULF received a strong majority in the North and a simple majority in the East, signifying the support of the Tamil population of these areas for the concept of separation. Tamil Demand for a Separate State The Tamil demand for a separate state is predicated on the conviction that as an identifiable people with a defined territory, they are entitled to self-determination under international law. They claim that the sovereignty of the Tamil nation which existed in 1621 at the time of the Portuguese conquest reverted to the Tamil community when the legal ties with Great Britain were severed in 1972 and that they are thus asking for restoration of sovereignty. Until 1833 the successive colonial powers administered the Tamil territory separately from the rest of the country. In that year, the British, for administrative purposes, began administering the island as a common unit. The Tamils maintain that sovereignty passed from the Tamil kingdom to the Portuguese, Dutch and British and that sovereignty continued to reside in the British crown until 1972 when legal ties with Britain were broken. The Tamils maintain that, in view of the boycott by their members of the Constituent Assembly which drafted the 1972 Constitution, they have never given up their sovereignty and the Sinhala nation has not obtained sovereignty over them either by conquest or consent. A resolution adopted by the TULF at their first national conference in 1976 was the first clear commitment of a Tamil party to a separate state of Eelam. It listed a variety of actions taken by the Sinhalese majority to the detriment of the Tamils including
-- imposing an unacceptable Constitution on the Tamils The resolution also referred to the failure of the efforts of various Tamil political parties to win rights through negotiations with successive governments or through entering into pacts with successive Prime Ministers. The resolution ended with the statement that
The TULF represents primarily the Ceylon Tamils resident in the northern and eastern provinces. The Indian Tamils are not members of the TULF. They are represented in Parliament by the Ceylon Workers Congress, their labor union and political party. Mr. S. Thondaman, CWC member of Parliament, is the Minister of Rural Industrial Development in the present government. The Indian Tamils, through the Ceylon Workers Congress, have not supported the demand of the Ceylon Tamils for a separate state. The TULF leaders have said, however, that their proposed state of Eelam would welcome any Indian Tamils who wish to live there. The TULF manifesto of 1976 states that
The differences in education and economic development between the Indian Tamils and the Ceylon Tamils is great, and, except for a shared sense of insecurity and discrimination on the basis of their common ethnicity, the two communities have little in common. In addition to the Ceylon Tamils resident in the North and East of Sri Lanka, there are a substantial number of Ceylon Tamils resident in Colombo and in other central and southern areas which are predominantly Sinhalese. These Tamils appear integrated into the social and business life of their communities. Since they do not constitute the main supporters for the TULF, it is unclear whether they support a separate state of Eelam. In view of their integration into communities outside the area claimed for the state of Eelam it is unlikely that they feel directly involved in the demand for independence. If communal violence against Tamils throughout the Island continues, however, this may change. A distinction should be drawn between the attitude of older Tamils who were educated in English, together with their Sinhalese contemporaries, and the younger group of Tamils who have been educated in the Tamil language schools totally separate from the Sinhalese. The older Tamils have Sinhalese friends from childhood and are less conscious of a separate identity than the younger Tamils. An article in the Ceylon Daily News on August 8, 1981 pointed out that there "is a strong demand within the government parliamentary group that the separatist cry be banned by law." Mr. Harinda Corea, the Deputy Minister of Public Administration, has argued that a constitutional amendment banning separatist demands is possible with a 2/3 majority in Parliament and that a referendum is unnecessary. It will be recalled that the UNP has a 2/3 majority in Parliament at present. While Tamils in the North are strongly in favor of self-determination, it is by no means certain that, in exercising that self-determination, they would choose independence rather than remaining part of Sri Lanka under a federal constitution. The Sinhalese majority, however, has rejected federalism in the past and seems no more likely to favor it at present. A step toward decentralization has been made recently, through the setting up of District Development Councils. The violence resulting from racial conflict in Sri Lanka has been of three types: communal, political or terrorist, and violence by security forces. In 1981, all three types have been present to a serious degree. The present section will discuss the three types of violence with emphasis on the events occurring recently. Communal violence first appeared in Sri Lanka in 1958, ten years after independence. [note by tamilnation.org - but see Tamil Parliamentarians attacked & 150 Tamils killed - 1956, two years before 1958] The early history of Ceylon was replete with a history of wars between Sinhalese and Tamil kingdoms, but the 1958 conflict was the first in which individuals of one ethnic group attacked members of the other group. As mentioned earlier, the "Official Languages" Act was adopted in 1956 and agitation by an extremist Buddhist group resulted in the failure to adopt a provision for the use of Tamil. The Tamils launched a "satyagraha" or peaceful protest which resulted in the Bandaranaike-Chelvanayakam Pact making certain concessions to the Tamils. The Pact was not carried out after another peaceful protest, this time by Buddhists. According to one commentator, the scheduled Tamil national convention and
Hundreds of persons, primarily Tamils, were killed in this first episode of communal violence. Over 25,000 Tamil refugees ere relocated from Sinhalese areas to Tamil areas in the North. The government was criticized for failing to declare a state of emergency early enough. The next major outbreak of communal violence occurred in August 1977, only a few months after the election of the present Overnment. The violence began as an aftermath to the 1977 elections and was first directed against the losing political party but quickly became communal violence. It appeared to be related to events occurring during the preceding administration but was also linked to the first evidence of political violence by Tamil youths. During the 1970-1977 government of Mrs.Bandaranaike there had been increasing tension between Tamils and Sinhalese, particularly between the primarily Sinhalese police force in the northern Tamil area and Tamil youths. According to the Sansoni Commission (a Commission of Inquiry appointed by the President of Sri Lanka to investigate the 1977 violence), the communal violence was immediately sparked by the shooting of two policemen in the North by Tamil youths, by the inflammatory speeches of Tamil leaders and by the desire of the Tamil population for separation.11 From the Tamil point of view, the violence of the youths and the demand for separation were a consequence of increasing discrimination against them during the previous administration. The allegation that the violence was a reaction to the Tamil demand for a separate state has been perceived as a threat that, if the Tamils persist in demanding separation, they can expect violence against them by the Sinhalese majority. The Sansoni report detailed widespread killings, assaults, rapes, and damage to Hindu temples in almost every area of the Island during the August-September 1977 events. In August 1981, the third major outbreak of communal violence occurred. Since March, increasing tension had developed between the two ethnic groups because of terrorist attacks against police in the north, incommunicado detention of Tamil youths, arson and looting by police in Jaffna. The first act of violence occurred in early August following a clash at a sports meet between Sinhalese and Tamil students in Amparai. It was reported that the Tamil school was surrounded, teachers and students attacked, Tamils in government offices assaulted and the Hindu temple set on fire in the first few days of August. Later, several Tamil colonies in nearby areas were attacked by Sinhalese colonists. Subsequent August incidents of violence centered on three specific areas: the gem mining area of Ratnapura, Negombo near the capital city of Colombo, and the plantation towns in central Sri Lanka. Before the violence was brought under control by the declaration of a state of emergency by President Jayewardene on August 17, at least 10 Indian Tamils had been killed, numerous Tamil shops and businesses burned, and more than 5,000 Indian Tamils had fled to refugee camps. Unlike the earlier events of violence in 1958 and 1977 the 1981 attacks of arson, looting and killing appear to have been, in part, the work of organized gangs. The International Herald Tribune reported that President Jayewardene, in an interview with a Reuters correspondent on August 14, stated that the attacks on Tamils in Ratnapura appeared to have been organized. The Guardian (London) reported on August 15 that "it seems to have been established that an unnamed group is organising the present violence for motives of its own." An editorial in The Hindu (India) of August 18, 1981 stated that "a close look into the riots would show that behind them is a planned and systematic effort to aggravate racial animosity." It was widely reported that attacks in Negombo as well as an attack against passengers on a Jaffna to Colombo train were made by organized gangs. Tamil sources stated that it could not be ruled out that people close to the government were behind the organized violence. They also claimed that police and army forces did not intervene to prevent attacks until the declaration of the state of emergency many days after the attacks began. Another new element in the recent incidents was the concentration of the violence against the Indian estate Tamils. Earlier communal violence had been directed primarily against the Ceylon Tamils. The attacks against the impoverished Indian Tamils had the effect of internationalizing the conflict since Indian passport holders were among those attacked. According to Indian sources, some 70,000 Indian passport holders in Sri Lanka are awaiting repatriation to India as a result of the 1964 agreement between the two countries. As mentioned earlier, thousands of these Indian Tamils fled to refugee ramps during the August violence. Some sought refuge with the office of the Indian High Commissioner in Sri Lanka. The August violence was widely reported in the Indian press and was the subject of editorials in major Indian newspapers. In Madras, India, hundreds of students demonstrated to protest the attacks against the Tamils. Prior to the declaration of the state of emergency, the Indian High Commissioner in Sri Lanka conveyed to the Sri Lankan government his government's concern over attacks against Indian Tamils. In Lok Sabha, the Indian parliament, a number of M.P.s expressed concern. In response, the Indian Minister for External Affairs, Narasimha Ran, stated that the incidents were an internal matter for Sri Lanka, that he had been assured that the violence was being brought under control and that he hoped that there would be no disruption of the traditional good relations between the two countries. The outbreak of violence in August 1981 has been attributed variously to organized gangs, to a "foreign hand", to a backlash of the Sinhalese population because of Tamil youth terrorism and demands for separation, and to animosity against Tamils stimulated by Sinhalese elements within the government. The Sri Lankan Minister of State for Information and Broadcasting, Anandatissa De Alwis, announced on August 16 that "a foreign hand" was behind the communal violence. He did not identify the foreign country allegedly involved. The accusations of involvement of the Sri Lankan government relate particularly to a no-confidence motion in Parliament in July against A.Amirthalingam, Tamil United Liberation Front opposition leader. The motion of no-confidence was passed with 121 Government members voting for it and two abstaining. (Mr. S. Thondaman, the Minister of Rural Industrial Development and the President of the Ceylon Workers Congress representing Indian estate Tamils, abstained). The M.P.s of the TULF and the SLFP did not participate in the vote. Such a parliamentary procedure is highly unusual since it is a vote by the Parliamentary majority party of no-confidence in the leader of the opposition party. It is clearly a deviation from normally accepted rules of parliamentary procedure. The vote was preceded by comments by majority party members strongly critical of Mr. Amirthalingam for speeches abroad on the situation of the Tamils. An article in The Hindu (India) of August 21, 1981 referred to these comments as "declamatory, Tamil-baiting rhetoric." The Sun (Colombo) of August 8 reported that as a follow-up to the no-confidence motion a group of government M.P.s led by Dr. Neville Fernando wanted Parliament to sit as a Judicial Committee to take action against Mr. Amirthalingam on the grounds that he violated his Oath of Allegiance and the Constitution by the requests to foreign governments to interfere in the internal affairs of Sri Lanka.12 On the 13th of August, during the violent outbreak against the Tamils, Mr. Amirthalingam wrote to President Jayewardene referring to the influence of the parliamentary moves on the then ongoing violent incidents:
The International Herald Tribune of August 31 reported "In July, posters began appearing on walls in Colombo saying: 'Alien Tamils, you have danced too much, your destruction is at hand. This is the country of us Sinhalese.' Tamil leaders claim the posters were inspired by radical elements within Mr.Jayewardene's government and party." The same article reported that the President had said the posters had been removed and action taken to prevent their publication under the state of emergency. On September 11, the New York Times quoted President Jayewardene as saying "I regret that some members of my party have spoken in Parliament and outside words that encourage violence and the murders, rapes and arson that have been committed." The article continued by stating that the President said he would resign as head of his party if some of its leaders continued to encourage ethnic hostilities. In July, it was announced that a planned visit of the Indian President to Sri Lanka had been postponed. Indian newspapers alleged that the reason was recent racial tension in Jaffna, although government sources denied this. With the declaration of the state of emergency on August 17th the situation in Sri Lanka stabilized and violence ceased.13 A large number of Tamils remained in refugee camps. Political Violence or Terrorism Terrorist acts by Tamil youth have exacerbated the already tense relations between Sinhalese and Tamils. The political violence or terrorism by Tamil youths, primarily against police in the Jaffna area, began substantially in 1977. The terrorist acts have been attributed to a group called the "Liberation Tigers," estimated to include fewer than 200 persons by government sources.14 A government pamphlet published in June 1981 stated that the group of terrorists had been involved in over 200 acts of violence in the previous three years including the killing of politicians, 18 police officials, acts of homicide and robberies of banks.15 The leadership of the Tamil United Liberation Front has condemned the violence and does not advocate violence to achieve the separate state of Eelam, although allegations have been made that individual members of the TULF have advocated violence as a means of achieving a separate state. The terrorist youth gangs are acting independently from the policy of the Tamil party and there is no evidence that they have substantial support from the Tamil population in the North. On March 25, a bank was robbed in the town of Neerveli in the Jaffna Peninsula area and two policemen were killed. The robbery was attributed to a terrorist gang and one month later, the army and police, without warrants, arrested 27 young Tamil men under the Prevention of Terrorism Act for implication in the robbery. This Act and its application will be discussed more fully in a later section of this report. At the end of May, further violence developed during the campaign for District Development Council elections. These elections were to be a significant step towards decentralization and were regarded as a positive act by the government in responding to the demands of the Tamil population for more control over their own affairs. Unfortunately, the election in Jaffna turned into a tragic event further exacerbating the racial conflict. On May Mr. A. Thiagarajah, a Tamil who headed the UNP list of candidates, was assassinated. Since the UNP is the governing majority party in the country and a predominantly Sinhalese party, the killing was perceived as a threat to Tamil politicians not to enter the UNP lists. On June 9, 1981 Mr. Gamini Dissanayake, Minister of Lands and Land Development, stated in Parliament that "those who take to politics opposed to the Tamil United Liberation Front run the risk of death."16 On May 31 two policemen were killed during a TULF rally, in disputed circumstances. According to some sources, the policemen shot each other during a dispute. According to others, the two were shot in the hack of the head by unknown assailants. The ICJ observer was unable to verify personally the veracity of either account of the deaths. This event precipitated a rampage by police in Jaffna (which is described in the next section under violence by security forces) and led to the imposition of a temporary state of emergency in Jaffna. On July 28, a terrorist gang of about 15 persons attacked a police station in Anaicottai, six miles out of Jaffna. One policeman was killed, another, who was seriously wounded, died later. The gang escaped with firearms including 17 rifles, two shotguns, a sub-machine gun and a thousand rounds of ammunition. The attack was the first attack against a police station in Sri Lanka since a Sinhalese youth insurrection in 1971. It was immediately condemned by the leadership of the TULF who described it as a senseless act of violence. The government reacted with a number of strong measures. Police personnel were pulled out of six stations in outlying areas and replaced by army officers. Army units were moved into Jaffna. Trucks and armored vehicles carrying army personnel on patrol in Jaffna were evident during the visit of the ICJ observer in early August. The Police Department requested the Defense Ministry to permit police to require national identity cards at all times in the Jaffna peninsula. The increased security measures took on the tone of an army of occupation in Jaffna. The government is clearly deeply concerned about the problem of terrorism in the north. They have applied the provisions of the Prevention of Terrorism Act to detain a number of youth. The government issued a regulation, under emergency legislation, on August 25 providing for the death penalty or life imprisonment for unlawful possession and transport of weapons and explosives in four Tamil areas. A consideration of whether such measures will prove effective depends on an understanding of the causes of violence among a segment of the Tamil youth. Tamil publications have explained the development of youth violence in the Jaffna peninsula.17 Although full scale violence did not erupt until 1977 the roots of it can be traced to events occurring during Mrs. Bandaranaike's reign from 1970 to 1977. In 1971 a major insurrection occurred in Sri Lanka. It was led by Sinhalese youth and there appeared to be no participation of Tamils. During the insurrection, 92 police stations were attacked by Sinhalese youth, 37 members of the police and 26 members of the armed forces were killed. The insurrection was eventually suppressed. Funds for the insurrection had been obtained through bank robberies and hold-ups. Tamil youth, who increasingly suffered the effects of discriminatory measures in language, education and employment, apparently learned some of the tactics of violence from the earlier insurrection. These discriminatory measures, and the unsuccessful efforts of the Tamil representatives to combat them, led a group of Tamil youth to abandon hope for a peaceful solution to the ethnic problem and to turn to violence. Police harassment and cruelty against young Tamils also appears to have played a part.18 Early instances of violence against police officers appeared to he directed against particular officers considered responsible for brutality against Tamils. Although much of the cruelty and harassment against Tamil youth occurred in the 1970-77 period of the previous government, particularly brutal attacks by police and armed forces occurred during a state of emergency declared in the Jaffna peninsula in 1979 by the present government. Thus far, no Tamil youths have been convicted of terrorist offences. The complaint is frequently heard that the Tamil population has not assisted the government in apprehending terrorists. In July, some 150 Tamil youths flew to East Germany and from there sought political asylum in West Berlin, claiming to be persecuted at home. The Sun (Colombo) reported on August 1 that "According to officials both in West Berlin and Colombo, the Tamil youth, who claim to be persecuted at home, are being lured to Berlin by unscrupulous agents promising them work or asylum." Officials in West Germany repatriated a number of the youth to Sri Lanka. The West German section of Amnesty International then began legal proceedings charging "persons unknown" with kidnapping in connection with the repatriation. Violence or state terrorism by police and armed forces is the third type of violence that has been prevalent in Sri Lanka. The most recent serious incident occurred in early June in Jaffna, but it has been a recurring fact since 1974. In that year, during a session of an international Tamil cultural Conference, the police waded into a large group of persons, ostensibly in order to prevent a particular person from speaking, and a stampede resulted causing nine deaths, the majority of them through electrocution by a fallen wire. The government refused to appoint a Commission of Inquiry and the Tamils set up their own Commission which reported the growing antagonism of police forces against Tamils in the north. Numerous incidents of detention of Tamil youths and maltreatment were reported during the 1970s. The Sri Lankan Movement for Inter-Racial Justice and Equality (MIRJE) reported that, following the adoption of the 1972 Constitution,
In 1979, under the present government, a state of emergency was declared in Jaffna as a result of terrorist attacks. On August 1, 1979, the Civil Rights Movement of Sri Lanka stated that
Allegations of the killing and torture of Tamil youth by police and armed forces during the 1979 emergency are widespread. Of more immediate concern is the action of police in the burning of Jaffna in June 1981. The situation in Jaffna between March and June has been explained previously. A bank robbery in March had been followed by the detention incommunicado of a number of Tamil youths, and on May 31, two policemen were killed, and two wounded during an election rally. According to both government and Tamil sources, a large group of police (estimated variously from 100-200) went on a rampage on the nights of May 31-June 1 and June 1-2 burning the market area of Jaffna, the office of the Tamil newspaper, the home of V. Yogeswaran, member of Parliament for Jaffna, and the Jaffna Public Library. The widespread damage in Jaffna as a result of the actions of the police were evident during the visit of the ICJ observer in Jaffna in August. According to government sources, the police, who had been brought to Jaffna from other parts of Sri Lanka, mutinied and were uncontrollable. They had allegedly been enraged at the attacks on police at the election rally and at earlier failures to bring police killers to justice. In the early days of June several killings of Tamils were reported, allegedly as a result of police action. Tamil leaders pointed out that it was the responsibility of the government to maintain law and order and that several Cabinet ministers and high security officials were present in Jaffna when some of the violent events occurred.19 The destruction of the Jaffna Public Library was the incident which appeared to cause the most distress to the people of Jaffna. The ICJ observer heard many comments from both Sinhalese and Tamils concerning the senseless destruction by arson of this most important cultural center in the Tamil area. The Movement for Inter-racial Justice and Equality sent a delegation to Jaffna to investigate the June occurrences. The Delegation's report, in referring to the arson of the Public Library, stated,
The 95,000 volumes of the Public Library destroyed by the fire included numerous culturally important and irreplaceable manuscripts. A state of emergency in the Jaffna area was declared on June 2. On June 4 the District Development Council elections were held. Results were announced after reports of many irregularities including lost ballot boxes. The TULF won every seat in the Jaffna District. On June 11, the government announced that it would appoint a Commission of Inquiry to investigate the events between April 20 and June 2, thus not including the events occurring after the declaration of a state of emergency and during the election. On June 24, Bishop Lakshman Wickremesinghe, Chairman of the Civil Rights Movement, wrote to President Jayewardene urging that the Commission's mandate be extended to include the election period,
It is apparent that relations between the population of Jaffna and the police and security forces seriously deteriorated following the burning of Jaffna by the police in early June. The problem has undoubtedly been accentuated by the heavy deployment of the army in Jaffna following the attack on the Anaicottai police station in July, the emergency regulation imposing the death penalty or life imprisonment for the illegal possession of arms in Tamil areas and the proposed requirement that identity cards be carried at all times, particularly in the north. The great majority of police and army personnel assigned to Jaffna are Sinhalese who understand neither the language nor the culture of the Tamils. In addition, in view of the attacks on them, they appear to have a feeling of fear and insecurity. It has also been alleged that when heavy reinforcements of police have been brought into the area inadequate provision has been made for their food and housing. In July, newspapers reported that 43 policemen assigned to Jaffna requested transfers from the area. Violence by the police has not, of course, been universal. The report of the MIRJE Delegation to Jaffna in June pointed out that
In 1975, Walter Schwarz wrote the following in a study prepared for the Minority Rights Group entitled The Tamils of Sri Lanka:
Unfortunately, the situation thus envisaged in 1975 has come to pass: there have been two serious outbreaks of communal violence since 1975 and political terrorism and security force counter-terror have become all too prevalent. The evocation of the situation in Sri Lanka evolving into that of a Northern Ireland or Cyprus no longer seems remote.
When the United National Party won the election in 1977 there were high hopes among Tamils that the racial problem would improve in comparison with the situation under the previous government. The UNP manifesto prior to the election stated,
A new Constitution was adopted in 1977 by a Select Committee of Parliament but the TULF refused to participate in the drafting and adoption on the grounds that the government had failed to summon the promised All-Party Congress to consider the Tamil problem. The All-Party Congress referred to in the UNP manifesto was never held. The government maintained that with the adoption of the new Constitution the Tamil problem had found a fair and just solution. The 1978 Constitution contains extensive provisions on the use of Sinhala and Tamil. It provides that Sinhala shall be the official language but that both Sinhala and Tamil shall be national languages. Both languages may be used in Parliament and local governments, official documents must he published in both Sinhala and Tamil, a person is entitled to be examined in either national language at any official examination and persons are entitled to education in the medium of either language. In the Northern and Eastern Provinces the Tamil language is to be used as the language of administration in addition to Sinhala. Although persons sitting for official examination may take them in either Sinhala or Tamil they may be required also to have a sufficient knowledge of the official language for admission to government service or to acquire such knowledge within a reasonable time. Government officials are not required to have a knowledge of Tamil. The failure to accord equal status to the Tamil language remains a bone of contention. The 1978 Constitution also contains provisions guaranteeing fundamental rights. The preceding administration had been widely criticized for continuing a state of emergency during most of its tenure and for severe curtailment of civil liberties. According to one scholar,
Others have pointed out that the Constitution permits extensive restrictions in certain circumstances on many of the rights guaranteed. (Article 15) In the area of education, the present government made some changes by dropping a controversial provision for standardization of examination marks, but left basically intact a racial quota system. At the present time only 30% of the places available in universities are to be filled according to merit on an all-island basis. Fifty-five percent are allocated to revenue districts in proportion to their population and filled according to order of merit within each district. Since the Tamil population is localized in certain districts, the effect of this percentage provision is to limit effectively the two populations to a proportionate share of university entrance, and to make it possible for students from one revenue district with lower marks to achieve university entrance while students with higher marks from another district are denied admission. The remaining 15% of places are allocated to revenue districts deemed to be educationally underprivileged. The conformity of these "affirmative action" provisions with international norms will be discussed in a later section, hut they have been criticized by Tamils as constituting a form of racial discrimination, since entrance is based on merit only to a limited extent. An area in which the present government has not made concessions is that of colonization. Tamils have objected to State colonization schemes which import large numbers of Sinhalese into traditional Tamil areas. The Tamil concern about colonization is related to insecurity about their physical safety and to fears that Tamils will become a minority in their traditional homelands. The government maintains that since Sri Lanka is a single country citizens may freely move into any part of the country and that it is necessary to transplant some populations to more productive areas. The Tamils answer that they are not opposed to individual migration hut only to large scale government colonization schemes which change the ethnic composition of an area. The present writer was not able to obtain statistics on the extent of colonization in Tamil areas and thus to determine the degree to which such schemes are a major problem. Ratification of International Human Rights Covenants One of the most positive steps the Jayewardene government has taken in the area of human rights is the ratification in 1980 of the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights. The government also made the declaration under Article 41 of the Civil and Political Covenant which permits the Human Rights Committee to entertain complaints of non-observance by another state which has made a similar declaration. Sri Lanka has not yet ratified the Optional Protocol to the Civil and Political Covenant which would permit individuals to bring complaints of violations before the Human Rights Committee, but the government's willingness to accept international norms and thus to have its own actions evaluated in accordance with such norms is a welcome step. Another positive step is the government support and development of the educational activities of the Human Rights Centre of the Sri Lanka Foundation. The Centre is a government controlled organization which does not entertain complaints concerning human rights, but carries on educational functions such as programs within schools to make the Human Rights Covenants better known. Racial antagonism has been such a pervasive element in Sri Lanka that it would appear appropriate for a government controlled Human Rights Centre to undertake an intensive educational campaign for the elimination of racial intolerance. It has been frequently pointed out that the separate educational systems for Tamils and Sinhalese in Sri Lanka since independence has had certain negative effects on racial understanding. In addition, the traditional teaching of history in Sri Lanka has contributed to racial animosity. Although immediate short-term actions are necessary to defuse racial tension, a long-range program of education in racial tolerance and understanding seems essential. The Tamils have consistently pressured for decentralization of government administration. This took the form of a demand for a federal structure of government prior the the TULF commitment to a separate state in 1976. But, while continuing to advocate separation, the TULF has simultaneously worked toward decentralization within the present structure. The present government has made some important concessions in this regard. It appointed a Presidential Commission to inquire into the idea of District Development Councils and, rather than opting for weak councils, adopted the system advocated in a Commission dissent by the TULF appointee, Dr. Neelan Tiruchelvam.24 One commentator has written
The unfortunate circumstances connected with the June 1981 District Development Council elections in the Jaffna Peninsula, however, and the communal violence in August again seemed to dash hopes that the Tamil problem might be settled. The repeated reports that some members of the government were responsible for the irregularities in the local elections in Jaffna, as well as responsible for stirring up the racial animosity which led to violence has caused distrust of the UNP's sincerity in meeting reasonable Tamil demands. The present government has been unsuccessful in controlling the communal violence, security force violence and political violence that has escalated during its tenure. Two major outbreaks of communal violence have occurred since 1977. The first, which broke out immediately after the UNP election, did not, however, relate to events occurring under the present regime. The communal violence which occurred on August 1981 appeared to many observers to be the product of organised gangs and to have been stimulated by anti-Tamil propaganda, some of it allegedly emanating from the United National Party. During the August violence the government and Sinhala controlled English language newspapers reported, but did not play up, accounts of the killings, widespread arson and looting which occurred directed primarily against the Tamil population. On the other hand, the English language papers headlined the terrorist attack by Tamil youth against the police station in Anaicottai in July in which two policemen were killed. Censorship of news of violence would not be a wise solution, but government efforts might well be directed towards discouraging selective reporting which arouses racial animosity. Controlling elements within the government's own Party which contribute to anti-Tamil sentiment is clearly a necessity. As a minimum, the Tamils are entitled to protection of their physical security within Sri Lanka. This protection can no longer be taken for granted. Some Sinhalese have urged the Tamil leaders to refrain from advocating separation since it appears to he one of the causes of Sinhalese animosity and thus violence. Such urging hardly seems likely to be heard as long as Tamils feel discriminated against in education and employment and, as happened in Jaffna in June 1981, feel unprotected, even from police violence in their traditional homeland. A major step towards controlling the violence of the police in the Jaffna area would be vigorous investigation and prosecution of police and security officials responsible for the burning of Jaffna in June and allegedly responsible for several arbitrary killings. The government has stated that a Commission of Inquiry will be established to investigate the events occurring up to June 2, but not the irregularities which occurred during the election for the District Development Council. It is to be hoped that the government will respond to demands of civil rights groups and others to expand the scope of the inquiry and to name to the Commission respected persons acceptable to both the Sinhalese and Tamil communities. The problem of political violence or terrorism has proved an intractable one for many governments. Easy solutions are obviously not available. The Jayewardene government has chosen to attempt to control the terrorist activities of the relatively small group of Tamil youths by the application of the Prevention of Terrorism (Temporary Provisions) Act adopted in 1979. The human rights issues raised by this Act as well as questions concerning its effectiveness are such that they warrant discussion in a separate section of this report. Adoption and Provisions of the Act In 1979, Parliament adopted the Prevention of Terrorism (Temporary Provisions) Act in response to growing political violence in the northern Tamil area. The Act contains a number of disturbing provisions from the human rights point of view. Section 6 of the Act provides that
The Act provides that a person may be detained for periods up to 18 months (renewable by order every 3 months) if "the Minister has reason to believe or suspect that any person is connected with or concerned in any unlawful activity" (Section 9). The same Section also provides that such a person may he detained "in such place and subject to such conditions as may be determined by the Minister." Under recent application of the Act, 27 persons have been detained in an army camp without access to attorneys or to relatives for prolonged periods. The Act also provides that any confession made by a person orally or in writing at any time shall he admissible in evidence unless made to a police officer below the rank of an Assistant Superintendent (Section 16). Thus, confessions made to police, possibly under duress, are admissible. It provides that a statement recorded by a Magistrate or made at an identification parade shall be admissible in evidence even if the person is dead or cannot be found and thus cannot be cross-examined. (Section 18(1)(a)). Any document found in the custody of a person accused of an offence under the Act may be produced in court as evidence without the maker being called as a witness and the contents of the document will be evidence of the facts stated therein (Section 18(1)(b)). The Act is also retroactive since it defines "unlawful activity" as including action taken or committed before the date of coming into operation of the Act which would, if committed after the date of passing of the Act, be an offence under the Act. (Section 31(1)). The Act provides for prison terms for conviction of an offence, ranging from five to twenty years or life imprisonment depending upon the severity of the offense. The government has stated that many democratic countries such as Canada, Australia, the United Kingdom and India faced with similar situations have adopted similar legislation.26 The title given to the Sri Lankan Act, "Prevention of Terrorism (Temporary Provisions) Act" is the same as the title of a United Kingdom Act originally adopted in 1974 and repealed and re enacted with some amendments in 1976. The Sri Lankan Act, however, differs substantially from the U.K. Act in the extent to which it infringes human rights. In the latter, terrorism is given a narrow definition, namely, "the use of violence for political ends, and includes any use of violence for the purpose of putting the public or any section of the public in fear." The U.K. Act makes membership in a proscribed organization (the IRA) an offence, with some exceptions. The much broader definition of offences or unlawful activity under the Sri Lankan Act has been referred to above. While the U.K. Act permits arrest without warrant on suspicion that an offence under the Act has been committed and permits exclusion of persons from mainland Britain in certain circumstances, it does not permit prolonged incommunicado detention without trial as does the Sri Lankan Act. Persons arrested under the U.K. Act may not be detained more than seven days without being charged with an offence. Under the Sri Lankan Act they may be detained incommunicado up to 18 months. The application of the U.K. Act, which is less repressive than the Sri Lankan Act, has been criticized within the U.K. The Guardian (London) reported on Jan. 13, 1980 that
A number of the objectionable features of the Sri Lankan Act are similar to provisions of the widely criticized 1967 Terrorism Act of South Africa.28 The South African Act defines a "terrorist," inter alia, as a person who has committed or attempted to commit any act which could "cause, encourage or further feelings of hostility between the White and other inhabitants of the Republic." This provision has been criticized as unduly vague since speeches or writings which criticize the apartheid system, for example, could be considered terrorist activities under this definition.29 The same criticism may be directed against a similar section of the Sri Lankan Act (Section 2(1)(h)) which states that
Such a broad definition could be construed as encompassing the The South African Act, like the Sri Lankan Act, is retroactive. Similarly to the Sri Lankan Act, it permits prolonged detention without access to legal counsel on suspicion of commission of an offence. In language similar to the Sri Lanka Act it provides that the Commissioner of Police may detain terrorists or persons with information concerning offences under the Act "at such place . . . and subject to such conditions" as the Commissioner may determine, subject to the directions of the Minister of Justice. The South African Act permits indefinite detention; the Sri Lankan Act limits detention to 18 months. Section 11 of the Sri Lankan Act permits the Minister, if he has reason to believe or suspect that any person is connected with any "unlawful activity," to restrict the residence, employment, movement and activities of such person for periods up to 18 months. Any person who violates such restrictions shall be guilty of an offence and liable to imprisonment for a period of five years (Section 12). This provision, as yet not applied in Sri Lanka, is reminiscent of the notorious "banning orders" permitted under South African legislation. The South African Terrorism Act has been called "a piece of legislation which must shock the conscience of a lawyer."30 Many of the provisions of the Sri Lankan Act are equally contrary to accepted principles of the Rule of Law. While a substantial number of the provisions of the Terrorism Act are clearly contrary to internationally accepted minimum standards for criminal procedure,31 they also appear to be contrary to the provisions of the Sri Lankan Constitution which provide that every person held in custody or detained shall he brought before the judge of the nearest competent court and shall be held in custody or detained only on the order of the judge (Article 13(2)). The Constitution forbids retroactive criminal offenses and penalties (Article 13(6)). Article 15(7) of the Constitution, however, provides that the exercise and operation of the fundamental rights recognized in Article 13, inter alia,
There is no provision for judicial review of the constitutionality of laws in Sri Lanka after they have been enacted by Parliament. The ordinary procedure for testing the constitutionality of laws occurs before an Act is adopted. Article 121 of the Constitution provides that the President or any citizen may ask the Supreme Court for its judgment as to the constitutionality of a Bill within one week of the Bill being placed before Parliament. The Supreme Court is to make its decision known to the President and the Speaker within three weeks. Bills which are determined to be unconstitutional by the Supreme Court may not be passed. In the case of a Bill which is considered by the Cabinet to be an "urgent" Bill, however, the Supreme Court is to make its determination within 24 hours and there is no provision for reference to the Supreme Court by citizens. The Prevention of Terrorism Act was declared an urgent Bill and rushed through Parliament without the opportunity for public discussion or debate or for any challenge to its constitutional validity. Application of the Terrorism Act; Habeas Corpus Hearings Twenty-seven Tamils were detained as of the end of August 1981 under the Prevention of Terrorism Act. They had been held since April in Panagoda Army Camp as suspects in a bank robbery in Neerveli in March 1981. Nine persons were detained in previous years under the Act but were eventually released. No convictions have ever been made under the Act. Soon after the arrest of the Tamils currently in detention, petitions for writs of habeas corpus for four of the detainees were filed in the Court of Appeal by their relatives under Article 141 of the Constitution.33 This Article provides that the Court may issue writs of habeas corpus to bring before the Court . .
The hearing on the petitions for habeas corpus opened on July 27, three months after the arrests. The hearings concerned the legality of the arrests of the detainees, allegations that they were severely tortured and the validity of detention orders made by the Minister of Internal Security. The undersigned ICJ observer was present in court for part of the hearings. On the first day of the hearings, the three member Court consisting of the President, Justice Percy Colin-Thome, Justice Parinda Ranasinghe and Justice D. Athukorale, ordered the Army to bring the detainees into court and to permit them to consult lawyers. This was the first opportunity provided to the detainees to consult lawyers in the three months since their arrest. It was also the first opportunity for family members to see the detainees since the arrest. The detainees were brought to the Court by army officers who were ordered to withdraw from the courtroom after objections by one of the attorneys for petitioners. Numerous members of the armed forces remained in the courtyard during the trial. The petitioners were represented at the hearing by a team of respected lawyers led by a distinguished advocate, Dr. Colvin R. de Silva. The lawyers did not argue for the release of the detainees but asked that they be removed from the custody of the Army and placed in the custody of the Court, relying on the section of Article 141 of the Constitution which permits the Court to "otherwise deal with such person (detainee) according to law." Dr. de Silva contended that a detainee could be considered to have been "improperly detained" when he had been subjected to assaults and torture while in custody, had been arrested without a warrant and without being informed of the reasons for his arrest, or had been held without a valid order from the Minister. He also argued that the Minister must have an objective basis for his "reason to believe or suspect that any person is connected with or concerned in any unlawful activity" as required for detention under the Act. He argued that when two constructions may be placed on a statute, such as the Terrorism Act, the construction most in harmony with fundamental freedoms should be accepted. Hence, the Act should not he interpreted in such a way as to infringe on rights guaranteed in the Constitution. The Deputy Solicitor General, Tilak Marapane, arguing on behalf of the respondents, police and army officials, contended that the detainees were held under valid ministerial orders and that the Minister had an objective basis for his reason "to believe or suspect" that the detainees were connected with unlawful activities. The Deputy Solicitor General presented the information on which the Minister had relied to the Court. In the main, the evidence relied upon appeared to consist of allegations that the four detainees were close associates of persons known to have been connected with the bank robbery or allegations that they were members of an organization attempting to bring about the separate State of Eelam through violence. The petitioners were ably represented at the hearing and the trial was conducted with judicial propriety by Mr. Justice Colin Thome, President of the Court of Appeal. The hearings were reported extensively in the press. The judgment of the Court was rendered on September 10 when the undersigned was no longer in Sri Lanka.34 The Court of Appeal unanimously refused the application for writs of habeas corpus, but directed that lawyers should have access to the detainees at the Panagoda Army Camp and that the Judicial Medical officer or his Deputy should examine each of the detainees once a week. The Court stated that its refusal to remand the detainees to custody with other prisoners was in the detainees' own interest in view of "recent disturbances." The Court also found that the Minister had sufficient reasons for the making of the detention orders and that valid detention orders were ultimately made which remedied defective early orders. Hence, the detainees were validly held under the Terrorism Act. Concerning the allegations of torture and mistreatment, the Court found that violence had been used against C. Kulasegarajasingam at Elephant Pass Camp prior to his transfer to Panagoda. The judgment stated that the detainee had been examined by a doctor after the filing of the application for writs of habeas corpus and "The doctor ended his report with the euphemism--'There is no evidence of any unreasonable harsh force being used to amount to torture.' There is no doubt, however, that violence had been used on him at the Elephant Pass Camp and we reject the denials of his custodians that he was not assaulted." With regard to allegations that S. Arunagirinathan had been assaulted during detention the Court found that, on medical examination, he had "two non-grievous contusions on his buttocks and there is no doubt that these indicated that he had been beaten by a blunt weapon." The judgment also said that the allegation that V. Sivaselvam was severely assaulted "appears to us to be exaggerated. However, the use of violence of whatever degree on a prisoner is illegal and is not only an offence under the Penal Code, it contravenes Article 11 of the Constitution. 'No person shall be subjected to torture or to cruel, inhumane or degrading treatment or punishment.'" Physical assaults against detainees in order to elicit confessions are common occurrences in many countries during prolonged detention incommunicado under executive order. The Court has now confirmed that violence has been used against detainees held under the Terrorism Act in Sri Lanka. The Court's finding that assault occurred against three of the four detainees was presumably based on affidavits of Judicial Medical Officers who examined the detainees in May on orders of the Court and on the detainees' own statements. The medical examinations had been requested by attorneys for the petitioners. The Court held that the arrests without warrant were in accordance with the provisions of the Terrorism Act. As regards the allegations that the detainees were not informed of the reasons for their arrest, the Court held that it was unable to verify whether this had been done or not. Referring to Article 13(1) of the Constitution which states that a person arrested shall he informed of the reason for the arrest, the Judges said "these provisions are mandatory and any infraction of them is illegal and must be strongly condemned as a serious encroachment on the liberty of the subject guaranteed under the Constitution." They pointed out that failure to inform the arrested person will make a police officer liable to be convicted under the Penal Code for assault and wrongful confinement. The Judges stated "what is the mischief aimed at by this Act? Everybody knows that this Act is intended to rid this country of terrorism in all its recent sophisticated manifestations. To achieve this end, the legislature has invested extreme powers in the courts, the executive and the police which they do not have in normal times, in the interest of national security and public safety. Conscious that these powers are of an extreme nature the legislature has laid down that this Act certified on July 20, 1979, shall be in operation for a period of three years from the date of its commencement." By its frequent invocation of constitutional safeguards, its findings of violence during detention, and its references to the expiration date of the Act, the Court's judgment makes abundantly clear the exceptional danger to human rights implicit in the Terrorism Act. The petitioners for writs of habeas corpus in the case have appealed to the Supreme Court against the decision of the Court of Appeal denying the petitions. Effectiveness of the Terrorism Act The provisions of the Sri Lankan Terrorism Act are not only objectionable from a human rights point of view but it is doubtful that the Act is effective in controlling terrorism. The limitations on human rights, therefore, do not seem acceptable as a necessary means of maintaining public security. Since 1979, when the Act was adopted, terrorism has not declined but rather increased in the northern Tamil area. Increased police and army surveillance of the population have not curtailed the violence but seemingly stimulated it. This experience is similar to that of some other countries which have attempted to control terrorism by armed force rather than dealing with the fundamental factors contributing to the recourse to violence. The experience of the United Kingdom in dealing with terrorism in Northern Ireland is instructive. It demonstrates that provisions for prolonged incommunicado detention of suspected terrorists may be counterproductive. According to the judgment of the European Court of Human Rights in the case of Ireland against the United Kingdom extra-judicial powers were adopted to control violence in Northern Ireland in the 1970s because
These reasons are strikingly similar to those mentioned by the Sri Lankan government for adopting the Prevention of Terrorism Act. In a brochure entitled "Investigations into Acts of Terrorism" prepared by the Ministry of Foreign Affairs, June 25, 1981,36 it is stated that,
The extra-judicial methods adopted in Northern Ireland to combat terrorism included prolonged detention of suspected IRA members. Widespread detention of suspects was terminated in 1975 in Northern Ireland following recommendations of the Gardiner Committee, appointed by the United Kingdom government, whose terms of reference were "to consider what provisions and powers, consistent to the maximum extent practicable in the circumstances with the preservation of civil liberties and human rights, were required to deal with terrorism in Northern Ireland, including provisions for administration of justice."37 The report of the Gardiner Committee concluded,
Persuaded by these arguments, the United Kingdom government abandoned further use of administrative detention orders in December 1974 and released all existing detainees by 1976. The undersigned interviewed families of two detainees in Jaffna in August. The families detailed the frightening manner in which large groups of security officials, some in civilian clothing, came in early morning hours to arrest detainees without warrants and without identifying themselves. The families stated that they were not told where the detainees were being taken and were informed of their whereabouts only after more than a month. They have not been allowed to visit detainees. Now, they have learned that their family members who were detained have been assaulted. It is not difficult to imagine that such tactics may, in the long range, be counterproductive. The Northern Ireland case before the European Court of Human Rights may have further relevance to the application of the Sri Lankan Act. During the habeas corpus hearings before the Court of Appeal in Colombo in July 1981 it was alleged by attorneys for the petitioners that during periods of interrogation detainees had been required to stand for long periods against a wall in a stress position with their hands high above their head against the wall. In the Northern Ireland case the use of this technique by security forces against detainees, together with other techniques such as hooding, subjection to noise, deprivation of sleep and deprivation of food and drink, was determined by the European Court of Human Rights to constitute inhuman and degrading treatment and thus a violation of Article 3 of the European Convention on Human Rights. During the hearing before the court the United Kingdom agreed to discontinue the use of such techniques. The European Commission on Human Rights had earlier considered that such techniques constituted torture. The Court of Appeal decision in the habeas corpus proceeding in Colombo did not specifically find whether such techniques had been employed against detainees in Sri Lanka. The great concern of the Sri Lankan government over the growing violence in the Tamil areas is understandable. Nevertheless, it is to be hoped that the limitations on human rights present in the Terrorism Act and the possible counter-productiveness of the Act will lead the government to urge Parliament to permit the Act to expire in 1982 or to amend it to better protect the rights of detainees. The Sri Lankan government has evidenced its commitment to human rights by its ratification in 1980 of the two International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights. This commitment, subjecting the status of human rights in Sri Lanka to evaluation in accordance with international norms, is a positive step for which the present government should be commended. This section will briefly consider certain international standards which are relevant to some of the current human rights problems in Sri Lanka today. The rights of arrested and detained persons are referred to in Articles 7, 9, 10, 14 and 15 of the International Covenant on Civil and Political Rights. Provisions of the Prevention of Terrorism Act are contrary to the following articles of the Covenant: "Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or release." (Article 9(3)). The Terrorism Act permits detention on administrative order for a period up to eighteen months. "No one shall be guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law, at the time when it was committed." (Article 15(1)). The Terrorism Act contains provisions for retroactive application. In addition, it appears that in the application of the Terrorism Act, the following provisions have not been conformed with: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." (Article 7) "All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person." (Article 10(1)) "Anyone who is arrested shall be informed, at the time of his arrest, of the reasons for his arrest and shall be promptly informed of any charges against him." (Article 9(2)) In September 1981 the Court of Appeal found that three of the four detainees then before the Court in habeas corpus proceedings had been assaulted during detention. The Court said that it could not determine whether the detainees had been informed at the time of their arrest of the reasons for the arrest. At the present writing, a Draft Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment is being considered by the U.N. General Assembly. Although the Principles have not yet been formally adopted by the General Assembly, they have been approved by the Human Rights Commission and Sub-Commission and thus represent an appropriate standard against which to measure the Terrorism Act. The Draft Body develops in more detail the general provisions contained in the Civil and Political Rights Covenant. It provides that "A detained person shall be entitled to communicate with a lawyer of his own choice within the shortest possible period after arrest" (Principle 15(2)) Not only does the Terrorism Act make no provision for access to a lawyer soon after arrest but the government has stated that withholding access from lawyers and family members is one of the important and necessary aspects of the Act. A government pamphlet concerning the Terrorism Act states, "If the Police are to conduct and complete their investigations successfully, it is important that these detainees should not have access to their lawyers and relations for a certain minimum period."39 Principle 14 of the Draft Body of Principles states, "Immediately after arrest and after each transfer from one place of detention to another, a detained or imprisoned person shall be entitled to notify members of his family of his arrest or detention or of the transfer and of the place where he is kept in custody." The families of prisoners detained under the Terrorism Act have stated that they were uninformed of the whereabouts of their detained family members for more than a month after their arrest. Principle 23 of the Draft Body of Principles provides that "Any evidence obtained in contravention of these Principles shall not he admissible in any proceedings against a detained or imprisoned person." Thus, confessions obtained during prolonged detention without access to lawyers or obtained when there has been evidence of torture or inhuman or degrading treatment (Principle 5) should not he admissible in evidence. The Terrorism Act does not prohibit the admission of evidence obtained under such circumstances. (Section 16 et seq.) It has frequently been pointed out that incommunicado detention, such as permitted by the Terrorism Act, opens the door to abuse. The Inter-American Commission on Human Rights stated in a report on Chile: "Unlawful detention incommunicado is, moreover, an encouragement to other crimes, particularly that of torture. For if the officials in charge of detention facilities need not produce the detainee in a short time, they may with impunity employ brutal means, whether for purposes of interrogation or intimidation." The International Commission of Jurists has pointed out that "[s]everal decisions by the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Rights finding violations of the Covenant by Uruguay also demonstrate the relationship between torture and detention incommunicado, and in particular denial of access to a lawyer."41 The Bennett Report in the United Kingdom on Police Interrogation Practices in Northern Ireland reported that "the security forces regularly denied detainees access to a lawyer in order to create an atmosphere more favourable to extorting a confession."42 The Court of Appeal in Sri Lanka has wisely attempted to temper the application of the Terrorism Act by requiring access to lawyers, and regular medical examinations for the four detainees for whom habeas corpus writs were requested. The existence of the writ of habeas corpus is therefore an important procedural protection in Sri Lanka. Nevertheless, 23 persons remained in custody of the Army for whom relatives had not filed petitions for writs of habeas corpus. For these persons there has been no judicial control. Derogation From Human Rights During States of Emergency The government has pointed out that the Terrorism Act is needed to control the outbreak of terrorism, a situation which might be considered as an emergency situation, thus justifying certain derogations from human rights. Article 4 of the Covenant on Civil and Political Rights permits derogation from Articles 9, 10 and 14 which concern criminal procedure "in times of public emergency which threatens the life of the nation and the existence of which is officially proclaimed . . to the extent strictly required by the exigencies of the situation." The Terrorism Act has been in effect since 1979 and the government has officially proclaimed a state of emergency only for short periods during that time. In addition, although this is a matter of appreciation, its draconian provisions do not seem "strictly required by the exigencies of the situation," particularly in view of the fact they may be counterproductive in dealing with terrorism. Furthermore, Article 4 does not permit any derogations in emergency from the prohibition of torture or inhumane treatment and the pro |
About
the Author: "..One of
the best-loved scholars to have taught at University of Buffalo
Law School, Professor Leary ended her teaching career there as a
SUNY Distinguished Service Professor. After leaving Buffalo, she
held a chair in international and comparative law at the
University of California-Hastings, a post from which she retired
in 2001...Professor Leary earned a bachelor of arts from the
University of Utah, the J.D. from the University of Chicago, and
a doctoral degree from Geneva’s Graduate Institute of
International Studies. In 1971, she received the Diploma of the
Hague Academy of International Law. " Courtesy:
