Sri Lanka’s emergency laws
Sri Lanka’s post-independence electoral system offers few mechanisms through which the country’s minorities can protect their rights against the Sinhalese majority, thereby ensuring that Sinhalese dominated governments remain in power. The system of territorial representation gives Sinhalese political parties two-thirds of the government seats even as 900,000 upcountry Tamils were disenfranchised way back in 1948.1
State sponsored tyranny and large scale violations of human rights, a result of a state of emergency in Sri Lanka, can be attributed to the country’s draconian anti-terrorist legislations – the Public Security Ordinance, the Prevention of Terrorism Act, and the Emergency Regulations (collectively, the ‘Emergency Laws’). These laws enable political and security officials at all levels to participate in a visceral and illogical counter campaign of terror, oftentimes more brutal and inhumane than the war waged by their opponents.
The current set of emergency regulations were framed under the Public Security Ordinance of 1947, which enables the President to bypass the normal legislative process and restrict basic rights granted under the Constitution for national security purposes. The Prevention of Terrorism Act of 1979, enacted to deal more specifically with the state of civil unrest caused by terrorist organisations, places further limitations on the rights of an already politically subordinate ethnic group.
The Public Security Ordinance (PSO) 1947 provides for ‘measures in the interests of the public security and the preservation of public order.’ Part I empowers the President to declare a state of emergency, thereby making Part II of the ordinance, which governs the nature of emergency regulations, effective. Rule 1(2A)(b) gives supreme authority to the President to issue any emergency regulation under Part II.
Section 5 grants the power of authority to make emergency regulations (ERs) as they ‘appear to [the President] to be necessary or expedient.’ The criteria by which the President is authorised to enact an ER are discretionary. Rule 5(2) lists the authoritative options available to a President during a self-declared state of emergency: detention of persons; acquisition of private property, including land, on behalf of the government; search and seizure of any property; amendment, suspension and/or application of ‘any law’, granting supreme legal authority to emergency regulations issued by the President over all other laws of the land (including those defined in the Constitution); compensation accorded to any persons affected by an emergency regulation (yet not entitled to such remuneration); apprehension and punishment of offenders of any emergency regulation (permission for, not guarantee of court, denial at authoritative body’s discretion).
Section 6 enables the President to bestow upon any person of authority, military or not, the power to make any rules or orders pursuant to any ER.
Section 7 reiterates the legal supremacy granted to ERs, or any orders pursuant to Section 6, as stated in Rule 5(2)(d) and allows for regulation to be inconsistent with existing or future law. Section 8 prevents any ER from being challenged in a court of law. Section 9 protects any person acting in accordance with any ER from criminal or civil prosecution, subject to revocation by the Attorney General.
Section 10 provides that any document submitted as evidence in a court of law and purporting to be an order issued by the President shall be deemed valid, unless the contrary is proved. Section 11 grants the absolute legality of all ERs upon order of the President. A public announcement or print in an official document, such as the government gazette, is not necessary for ERs to become effective.
Part III of the PSO refers to the special powers granted to the President when Part II of the ordinance becomes effective as per his or her order. Section 12 enables the President to call out ‘all or any of the members of all or any of the armed forces’ to maintain public order when the police appears inadequate to deal with a situation. Policing powers are granted to all military personnel.
Sections 13 and 14 provide that military or security officers, restricted by rank, may seize offensive weapons and substances from armed persons. Sections 16, 17, and 18 make provisions for curfew restrictions on residents and related penalties. ‘Essential services’ deemed necessary during states of emergency can be demanded. Any attempts to obstruct or hinder the progress of such service, physically, verbally, or via publication, is subject to punishment; arrest may proceed without warrant.
The Prevention of Terrorism Act (PTA) 1979 addresses the threat to public security posed by the insurgence of the LTTE by outlining the ways in which the government may issue ERs of oppression without sufficient justification.
Part I lists the offences that are considered violations of the PTA: torture, detention or murder of persons are considered violations of the act when the victims are ‘specified’ or ‘special persons’ as designated by the corresponding emergency regulation(s). Government security forces are thus absolved from these violations when victims are members of proscribed organisations. Convicted offenders of the act are subject to the forfeit of all property to the government or imprisonment for up to seven years (Section 5). The Sri Lankan security forces are known to apply the category of ‘LTTE terrorist’ to anyone who is regarded as supporting the LTTE, even if having been forced to do so under threat to life.2
Part II deals with the investigation of offences. Section 6 empowers police officers of certain rank, with written permission under the ER, to circumvent normal criminal procedure to pursue offenders under this act with any assistance deemed necessary. Notwithstanding anything in any other law to the contrary, officers are entitled to do the following without warrant in the apprehension of PTA offenders: arrest any person, enter and search any premises, stop and search any vehicle, seize any document suspected of violating any law.
Section 7 allows for a person arrested pursuant to Section 6 to be held in custody for a maximum period of 72 hours. However, this time period may be extended under detention orders granted under Section 9. Under Rule 7(3), a police officer conducting an investigation under the PTA may take such arrested person ‘to any place for the purpose of interrogation’ and may obtain a handwriting or fingerprint specimen for the purpose of identification.
Part III stipulates that persons suspected of unlawful activity may be detained on unspecified grounds for a period of three months, extendable by three months, up to a total period of detainment not exceeding 18 months. Under Section 10, an order for detention is final and may not be called into question in court. Other forms of restriction may be ordered as per Section 11, including house arrest, limitation of travel within or outside of Sri Lanka, and prohibition of involvement with specified persons or organisations. Section 12 states that any person who contravenes or acts in breach of any restriction or detention order placed on him is liable to imprisonment for five years.
Part IV entitles all offenders to make representations to an advisory board which is comprised of persons nominated by ministers or the President. Furthermore, the minister may, at his discretion, make or amend any rules pertaining to any hearing or dispose of the representations altogether.
Part V bans the print media from publishing any writings commissioning an act violating the PTA or the investigation of any such offence and any language which may incite violence or promote racial or communal disharmony. Convicted offenders may be sentenced to imprisonment for five years; and convicted publishers may be asked to shut down operations.
Part VI, the trial section, holds that all suspected offenders are subject to trial without jury or preliminary hearing. Any statements made by any suspected persons, or witnesses thereof (not excluding coerced confessions) at any time and under any circumstances may be used as admissible evidence in a court of law. If the relevance of any such statement is challenged, the burden of proof is placed on the person questioning its relevance.
During states of emergency, the President may institute ERs to secure the public order of the state (see above, Public Security Ordinance, Section 5). While the PSO and PTA legislate the criteria of powers bestowed on the President, ERs must be instituted and renewed on a monthly basis to further clarify and specify the tactics to be used by the government to maintain order. Sri Lanka has been in a constant state of emergency since 1983, with broad powers accorded to military and security personnel. Among the most recent ERs, issued in May 2000,3 some are notably and excessively oppressive:
Limitations on freedom of speech: Censorship of the press has deprived Sri Lankans and the international community information regarding the unfolding violence. Regulation 144 seeks to limit the voice of a people who have no other means of rallying national and international support than through public awareness.
Regulation 14(2) prohibits an editor of a publication or broadcasting station manager from reporting on any material pertaining to the operations of the Sri Lankan army or police forces. Anyone in violation of this regulation may have his or her publication or broadcasting programme suspended, by order of the President. The Supreme Court decision in Wickramasinghe v. Jayasinghe upheld the constitutionality of this widely used regulation.5 The news media has been denied access to war zones in the north and the northeast where most human rights violations in Sri Lanka take place. Local newspapers operating from within those areas have also been censored, even in southern Sri Lanka, outside the war zone.6
Orders of restriction: The new ERs provide for two types of preventive detention. ER16 deals with detention within one’s home, which is also granted in Section 11 of the Prevention of Terrorism Act. Under this regulation, the Defence Secretary may order various restrictions on a person’s activities as a preventive measure, including restrictions on employment or business, on association or communication with others and on movement.
The grounds on which orders can be issued under ER16 are broadly formulated, and extend beyond legitimate security concerns.7 The regulation sets no time limit for the period that such an order can remain in effect; no form of judicial or administrative scrutiny of an order under ER16 is provided for, denying legal remedy to persons wrongfully implied, apart from petitioning the Supreme Court for violation of fundamental rights, within one month of the alleged infringement.8
Detention of persons: Outlining powers of preventive detention under custody, ER 17 places the limitation of this form of detention under custody to one year,9 the authoritative jurisdiction given to the Defence Secretary has been broadened due to the rewording of the regulation. In the past, ER17 required that the Defence Secretary had to be ‘satisfied upon the material presented to him, or upon such further additional material as may be called for by him,’ that it was necessary to detain a person to prevent them from committing certain kinds of acts.
In August 1997, the Supreme Court ruled in Sunil Kumar Rodrigo (on behalf of B. Sirisena Cooray) v. Secretary, Ministry of Defence, Inspector General of Police and Attorney General (SC (FR) Application No 478/97 as decided on 19 August 1997) that the Defence Secretary must have made a reasonable, objective and independent decision on the basis of the material relating to the case; without this, he could not be said to be ‘satisfied’ about the necessity of the order.10 According to paragraph 17(1) of the new ERs, the Defence Secretary now needs only to be ‘of the opinion’ that it is necessary to issue a preventive detention order; no justification by reference to any actual evidence is required, making arbitrary detention more likely.11
Paragraph (10) of Regulation 17 states that an order of preventative detention ‘shall not be called in question in any court whatsoever.’ Detainees are effectively denied legal recourse. Instead, cases are heard by an advisory committee, appointed by the President. Recourse to this procedure may be denied to persons ‘suspected by [the Defence Secretary] to be or have been a member of a [proscribed organisation].’ Those who are permitted to lodge objections with the advisory committee only receive information which, ‘in the opinion of the chairman [are] sufficient to enable him to present his case.’ Full details on the grounds of detention need not be provided to the detainee for the purposes of grievances.
Authorised places of detention need not be published in the government gazette, a legal requirement under the previous emergency regulations. Detainees may now be held in the custody of any member of the police or armed forces, and ‘shall be deemed to be in lawful custody’ (ER17(3)). The power to authorise unpublished detention centres has trickled down from the Defence Secretary to the Inspector General of Police under the new regulations. The likelihood of abuses associated with secret detention, such as torture and extra-judicial killing, has increased. The regulations provide no separation of detainees and their investigators. Prisoners held in the custody of their interrogators, however, are most at risk of abuse.12
Power of search, seizure, arrest and detention: These regulations dealing with arrest and investigation procedures give powers to authorised persons – any police officer, [any member of an armed forces division], or any other person authorised by the President – to search, detain, or arrest without warrant suspected violators of any emergency regulation. Arrests, searches and seizures may be made upon ‘reasonable ground for suspecting’ an offence (ER18(1)). Normal chains of command and accountability are put out of order. Under paragraph (3) of Regulation 18, such an ‘authorised person’, in the course of his investigation, may at any point question any person present on the premises being searched and break any door or window for the purposes of the search (ER18(6)). Any persons arrested under ER18 may be detained for 90 days or for an extended period of time (under Regulation 19).13
Rehabilitation centres: Rehabilitation programmes, under ER20, seemingly serve to extend detention periods for people who are not subject to further imprisonment, police custody, or other punitive measures. Under ER20A(1), the Defence Secretary may make a rehabilitation order for any person detained under ER 17 or 19 ‘in the interest of the welfare of such persons’, thereby revoking the detention order, under ER 17 or 19. The President is granted authority to appoint the Commissioner General of Rehabilitation for any area in Sri Lanka, who may, under ER20B(4), delegate any associated powers to his subordinates.
While ER20A(1) states that a time period must be provided in the rehabilitation order, no limitation is placed in the emergency regulation, thereby allowing for indefinite rehabilitative detention. Persons who surrender either through commission of an offence or through fear of harm by terrorist activities may be placed in ‘protective accommodation and rehabilitation centres’ and are subject to trial for their offences. Strangely, there is no distinction made between rehabilitative measures for persons who surrender for committing an offence or those who surrender for ‘fear of terrorist activities.’
Investigations and trials: Part 6 of the May 2000 regulations grants powers to investigative officers during investigation and trial periods. ER54 reaffirms that the powers conferred to police officers in the emergency regulations are not in derogation of any law and therefore effectively bypass normal criminal procedure. The seemingly limitless powers given to ‘any police officer investigating into an offence’14 provide little safeguard against abuse during a police investigation and provide little hope for proper execution of criminal procedure.
ER52, for instance, authorises investigating officers, ‘notwithstanding anything to the contrary in any other law’, to question suspects detained or held in off-site police custody, as well as moving such persons from place to place for the purposes of investigation. Furthermore, any statement made by a person during this form of investigation may be used as admissible evidence. Although such statements must be signed by both the investigating officer and the person being questioned, torture and extra-judicial killings are common occurrences in these detention sites and the lack of court proceedings and fear of further detainment may lead to a forced confession.
Despite condemnation from governments and international organisations regarding extra-judicial killings and torture in police custody, the ERs provide inadequate measures for ensuring proper investigation of death caused by security personnel. When a person dies under an investigation pursuant to the ERs, the investigating officer must file a report. A magistrate must be informed of the known facts of the death only if the whereabouts of the body are known (ER55C). After a post-mortem examination is conducted, the body is returned to the Deputy Inspector General of Police in charge, who shall determine, at his discretion, if the body is to be returned to relatives or, ‘in the interest of national security’, be disposed of by burial or cremation.
In its July 2000 report, Amnesty International made a startling and puzzling discovery regarding the provisions of ER55FF. Although, ER55FF is not listed in the Gazette Extraordinary of 3 May 2000, according to Amnesty, ‘On 6 May, three days after the new emergency regulations were promulgated, the government announced that ER55FF had been rescinded with immediate effect.’15 ER55FF allegedly empowered police officers of certain rank to dispose of bodies without post-mortem examination or inquest, thereby eliminating evidence of wrongful torture and extra-judicial killing.
The history of this provision dates back to the 1980s, when tens of thousands of disappearances occurred during the time this provision was last in effect.16 Since the gazetted, and presumably official, copy of the 3 May 2000 regulations does not show proof of the existence of this provision, it remains unclear why the government later announced that it had been rescinded.17
Trial procedures appear all too discretionary and do not represent the interests of an independent judiciary. The Attorney General, an appointee of the President, is given authority under ER55F, to determine the manner in which a case is tried, at his discretion.18 With respect of ERs 57 and 58, the Attorney General has the power to determine nearly all aspects of a case’s proceeding including, but not limited to, court jurisdiction, offences charged, and presence of a jury. Given the sensitive nature of emergency law violations and the wide opportunity for false arrest, the need for a systematic and uniform approach to investigating ER violations is paramount yet uniformity cannot be guaranteed under these ERs.
Whereas suspected terrorists’ constitutional rights are completely denied during prosecutions under the ERs, security officers are given complete indemnity and protection from criminal prosecution. ER71 states that no legal action may be taken with respect to ‘any matter or thing done or purported to be done in good faith, under any provisions of any emergency regulation.’
The Constitution of Sri Lanka (1978) makes provisions for fundamental human rights that are in line with international standards. Under the current state of emergency, however, the Constitution seems to have been replaced by PTA, PSO, and ERs. Given the present administration’s repeated claims to uphold the civil and political rights of its citizens,19 it is surprising that the emergency laws still exist. Their claim to constitutional status undermines the independence of the state judiciary.
Under Article 155 of the Constitution, the power to make ERs under the PSO may supersede all laws, except those provided in the Constitution. The Constitution’s fundamental rights provisions should therefore not be dismissed so readily in times of emergency. In many regards, the emergency laws of Sri Lanka are unconstitutional and should be repealed by the Supreme Court.
Article 8 of the Constitution states: ‘Every person has an inherent right to life and no person shall be intentionally or arbitrarily deprived of his life.’ This is the most fundamental of rights, recognised by all communities, codified in international law, and indisputable under any circumstance. Under the anti-terrorist regime, however, extra-judicial, summary and arbitrary executions have flourished, as reports and records of political and extra-judicial killings by the UN organs, NGOs and foreign governments attest. However, the exact number of related killings is difficult to ascertain due to frequent censorship of news and lack of regular access to the north and east regions, where the war between the government and the LTTE is being waged.20
On 25 October 2000, approximately 26 people were chopped to death and 14 seriously injured while detained at a rehabilitation centre in Bindunuwewa, Badulla district, under the emergency regulations.21 At least two of the detainees were shot by the police while trying to escape their attackers. Members of the local farming community for the massacre were blamed for the incident by senior officials in a futile attempt to cover up the act. Armed police presence encouraged and enabled the attackers to engage in the massacre; they were assured that their crimes would have no legal consequences.22
Constitutional protection from arbitrary or preventative arrest and detention under Article 10 is left vague, stating merely that persons may only be imprisoned or physically restrained ‘in accordance with procedure prescribed by law.’ As a result of the lack of definitive criteria for preventative arrest under ER18(1), countless civilians have been arbitrarily arrested without reasonable grounds. The problem is specifically that determination of ‘reasonable grounds’ for suspecting offence is at the discretion of the arresting officer, not in accordance with any requisite standards (e.g. existence or evidence, witness accounts, etc.).23
Respect for the code of conduct for law enforcement officers is non-existent. Customary criminal procedure, as legislated by the Code of Criminal Procedure Act, No. 15 of 1979 (hereinafter, the ‘Criminal Procedure Code’), has collapsed during the state of emergency in Sri Lanka while the police system has suffered a paralysis, only to be substituted by a lawless and violent security regime. Emergency regulations do not incorporate checks and controls on the law enforcement system. The powers granted to police and military officers leave a void of supervision and accountability in administering investigations.
The current set of emergency regulations eliminates safeguards from abuse during investigations. Persons held under preventative detention orders must be produced before a magistrate within 30 days of the arrest in accordance with ER19(1), thus allowing security personnel to find evidence to substantiate the preventative arrest before a formal objection is lodged. ER16 furthermore reduces the likelihood that such investigation will be conducted in a manner that protects the rights of the accused. ER61 eliminates the applicability of Chapter XI of the Criminal Procedure Code which regulates the investigation of offences. Section 111, which protects the detainee from coerced confession, is removed as is Section 114, which demands the release of accused persons when evidence is insufficient to charge him.24
While under normal criminal procedure, police officers dispersing unlawful assemblies are limited to ‘such force as is reasonably necessary’, and military officers to use ‘as little force and do as little injury to a person [as is necessary]’ to disperse assemblies, the elimination of Sections 95 and 96 of the Criminal Procedure Code under ER6325 removes the requirement of minimal force and thus justifies the use of excessive and unnecessary force to deal with public demonstrations.
Article 4 of the International Covenant on Civil and Political Rights (ICCPR) states: ‘In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States/Parties to the present covenant may take measures derogating from their obligations under the present covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.’26
The Article further states that there may be no derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 of the ICCPR under this provision. In addition to several other articles of the Covenant, the provisions of Sri Lanka’s Emergency Laws violate two of these unquestionable rights.
Sri Lanka acceded to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment27 in January 1994. Article 2(2) of the Convention states, ‘No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.’
Torture is employed by the Sri Lankan armed forces with two principal aims: to obtain information on insurgent groups and to intimidate the population. Torture is often inflicted at unpublished places of detention, as permitted by ER17(3), and reportedly precedes the taking of a decision as to whether the detainee is released or put at the disposal of the competent judicial authority.28 Lawyers have indicated that there are repeated allegations of confessions extracted under torture.29 Many times Tamil suspects are forced to sign a statement of confession written in Sinhalese, a language that the victim may not understand.30
In addition to these treaty obligations, Sri Lanka’s emergency laws violate customary international law such as Code of Conduct for Law Enforcement Officials; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (hereinafter, ‘Principles for Detention’); and Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions.
In Sri Lanka’s 18-year civil war, 62,000 are estimated to have lost their lives, and 165,000 Tamils have been internally displaced.31 The social structure and moral fabric at all levels of society has experienced irreparable damage. Fear and insecurity pervade all segments of the population, as torture, rape and murder have become customary weapons of war in bouts of violence and retaliation.32 The expansion of violence to unarmed civilians has turned the war against the rebels genocidal on an ethnic basis.
The brutal tactics used by the LTTE have undoubtedly caused a great deal of resentment and tension between the Tamil people and the Sinhalese majority. The social response to the military insurgency has resulted in even greater discrimination and intolerance against the Tamil people. The government’s severe anti-terrorism legislation has effectively enabled a nationwide pogrom of Tamils in Sri Lanka.
Under the emergency regulations, public security has not improved. Rather, the island, particularly in the wartorn areas of the North and Northeast, has witnessed a virtual collapse of the law enforcement system. The present situation is a byproduct of the loosening of all the hard knots that keep criminal investigations tied to the rule of law and the elementary norms of human decency. Law abiding law enforcement officers committed to observing an extremely high degree of caution, while also being highly skilful in the detection, prevention, and investigation of crimes, cannot be assumed.33 Consequently, extra-judicial killings, torture and rape are no longer phenomena that merely relate to insurgency investigations, but have subtly entered the area of criminal investigations as a whole.34
Effective reimposition of safeguards necessary to protect citizens under criminal investigation will not be easy. While emergency rules can be revoked, reintroducing an orderly system of criminal procedure with high moral standards is a much more daunting task after years of unbridled powers enjoyed by law enforcement officials.
Perhaps the biggest contributing factor to the rampant human rights abuse by the Sri Lankan security forces is the impunity granted by ER71 to officers who act outside their professional jurisdiction. Respect for the rule of law is essential to maintain order and stability and to protect human rights in any country. Effective impunity encourages political violence and has contributed to the uncontrollable spiralling of violence.35
The systematic absence of investigation, either civil or military, into violations of the right to life has left security officers unaccountable for their actions. Investigations are rarely conducted, and when they are, they do not lead to the appropriate convictions or penalties.36 While civilians who peacefully exercise their fundamental civil and political rights are charged and sentenced to years of imprisonment, soldiers and policemen who flagrantly violate the rights of innocent civilians suffer minimal consequences.37
For 18 years the Government of Sri Lanka has chosen to take no legislative measures to improve these conditions. Publicly, the government has demonstrated an eager willingness to cooperate with international standards and invited inquiries by United Nations special rapporteurs and commissions to assess and make recommendations on the occurrence of disappearances and extra-judicial executions within its borders. Little action was taken; little progress has been made in the most pressing areas of human rights violations and successive emergency legislation has effectively reduced safeguards against such violations.
1. S.D. Muni, Pangs of Proximity: India and Sri Lanka’s Ethnic Crisis, New Delhi, 1993, p. 42.
2. United Nations Economic and Social Council: ‘Extrajudicial, Summary or Arbitrary Executions: Report of the Special Rapporteur, Bacre Waly Ndiaye, submitted pursuant to Commission on Human Rights resolution 1997/61 – Visit to Sri Lanka.’ 12 March 1998, E/CN.4/1998/68/Add.2, para. 45.
3. Emergency (Miscellaneous Provisions and Powers) Regulations, No. 1 of 2000, published in Gazette Extraordinary of the Democratic Socialist Republic of Sri Lanka, ‘Gazette Extraordinary’ No. 130/8 of 3 May 2000. This rescinds the Emergency (Miscellaneous Provisions and Powers) Regulations, No. 4 of 1994 published in Gazette Extraordinary No. 813/12 of 4 November 1994, and replaces them with a fresh set of regulations.
4. Regulation 14 was amended in Gazette Extraordinary No. 1338/34 of 1 July 2000, which is the most recently updated version of this regulation at the time this report was written.
5. The Supreme Court, recognising the powers authorised to the President by Section 5(1) of the Public Security Ordinance, held that it ‘would not strike down the regulations, unless there are good reasons or doing so.’ In his opinion, Judge Kulantunga cited The Privy Council in The Zamora  AC77, which read, ‘Those who are responsible for national security must be the sole judges of what the national security requires. It would be obviously undesirable that such matters be made the object of evidence in a court of law or otherwise discussed in public.’ Wickramasinghe v. Jayasinghe. 30 Oct 1995 (Application for Leave to proceed refused).
6. ‘The Jaffna Civilian: Between the Devil and the Deep Blue Sea’, 12 June 2000, Human Rights Feature, HRF/21/00, Joint initiative of SAHRDC and HRDC.
7. Amnesty International. ‘Sri Lanka: New Emergency Regulations – erosion of human rights protection.’ AI Index: ASA 37/19/00. Distr: SC/CO, July 2000.
9. Under the previous set of emergency regulations, published in Gazette Extraordinary 813/12, and its amendments thereto, preventive detention under police custody could be extended ‘indefinitely’ at the discretion of a magistrate.
10. Amnesty International, op.cit., 2000.
13. In Gazette Extraordinary No. 1132/14 of 16 May 2000, an amendment was made to ER19. Prior to the amendment, a prisoner under ER18 could be detained for a maximum of three months before being either released or brought to a prison. The reworded clauses allow for extension of detention for six more months, given the arrest was made under ER17 or an application is made to the courts by a police officer not below the rank of Superintendent of Police. Given the broad discretion given to arrests under ER17 and the lack of court jurisdiction in the presence of a police application, suspected persons may be detained for a total period of nine months before being transferred to a prison.
14. While there are variations of this phrase used throughout Part 6 of the 3 May 2000 regulations, none of the regulations limit powers in this section to any officers of certain rank. In addition, according to ER55, the powers of police officers, regardless of their training in criminal procedure may be exercised by ‘any commissioned or non-commissioned [armed forces] officer’ or ‘any person authorised by the President in that behalf.’
15. Amnesty International, op.cit., 2000.
17. The Public Security Ordinance of 1947 does not stipulate that an Emergency Regulation must be published in the Government Gazette in order to become effective, although this has become common practice. Rather, the regulations are deemed in force ‘forthwith upon its being made by the Governor-General.’ (see above, Public Security Ordinance section)
18. According to ER55F, the Attorney General may, as he sees fit, lawfully direct a case to either a Magistrate (i.e., justice of the peace) or to High Court, under the provisions of Chapter XIV or XV of the Code of Criminal Procedure Act, No. 15 of 1979, respectively.
19. In her address at the opening of the first session of the 11th Parliament of Sri Lanka on 9 November 2000, President Chandrika Bandaranaike Kumaratunga stated: ‘It is necessary today for our society to have an acceptable code of ethics, which will ensure that respect for human rights is a matter of day-to-day practice by all.’ She then went on to say, ‘We have no reason whatever, Mr. Speaker, to deviate from that path [of] extending from the uppermost to the lowest layers in our own society the right to life, the freedom of speech and expression, the freedom of thought and the freedom from torture and harassment and such other freedoms accepted as fundamental rights by other civilised societies of the world.’ Source: Government of Sri Lanka Official Website, see http://www.priu.gov.lk/execpres/speeches/2000/20001109opening_of_ the_parliament.html.
20. ‘Sri Lanka: Country Reports on Human Rights Practices 2000’, U.S. State Department Bureau of Democracy, Human Rights and Labor. See http://www.state.gov/g/drl/rls/hrrpt/2000/sa/index,.cfm?docid=704& CFNoCache=TRUE&printfriendly=true
21. ‘The Bindunuwewa Massacre in Sri Lanka’, Human Rights Solidarity, March 2001, Vol. 11, No. 3, Publication of the Asian Human Rights Commission, pp. 1 9-20.s.
23. See Vingamoorthy v. Army Commander, SC Application No. 26/94 (25 Nov 1996).
24. Section 111 of Chapter XI of the Criminal Procedure Code, which is no longer applicable per ER61, states, ‘Any inquirer or police officer shall not offer or make or cause to be offered or made any inducement, threat, or promise to any person charged with an offence to induce such person to make any statement with reference to the charge against such person.’ There are no substitute provisions in the emergency regulations that protect this right.
25. Code of Criminal Procedure Act, No. 15 of 1979: Chapter VIII, Section 95.
26. International Covenant on Civil and Political Rights, adopted by U.N. General Assembly resolution 2200A (XXI) of 16 December 1966.
27. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by U.N. General Assembly resolution 39/46 of 10 December 1984.
28. United Nations Economic and Social Council, op. cit., para 48.
29. Ibid., para 38.
30. See Somawardena v. Superintendent of Prisons. SC Application No. 494/93, 22 March 1995.
32. National Peace Council (NPC) of Sri Lanka, ‘The Economic, Socio-political and Human Cost of the War in Sri Lanka.’ National Peace Council Press, Colombo, Jan 2001. Appendices IV and V chronicle major incidents of violence by the LTTE and Sri Lankan Armed Forces, respectively, from 1982 to 1999.
33. Basil Fernando, ‘Disappearances of Persons and the Disappearance of a System.’ See Tamil Canadian Feature, ‘Sri Lanka: Disappearances and the collapse of the police system’, http://www.tamilcanadian.com/eelam/massgraves/chemmani/disappearances/2.html
35. United Nations Economic and Social Council, op. cit., para 119.
36. Ibid., para 120.
37. Ibid. para 145.