DOCUMENT - SRI LANKA: ASSAULT ON DISSENT THRIVES IN SRI LANKA’S CLIMATE OF IMPUNITY: AMNESTY INTERNATIONAL WRITTEN STATEMENT TO THE 23RD SESSION OF THE UN HUMAN RIGHTS COUNCIL (27 MAY – 14 JUNE 2013)

 Assault on dissent thrives in Sri Lanka’s climate of impunity:

Amnesty International written statement to the 23rd session of the UN Human Rights Council (27 May – 14 June 2013)

AI index: ASA 37/011/2013

10 May 2013

Four years have passed since the end of the armed conflict in Sri Lanka. Sri Lankan authorities continue to deny mounting evidence of crimes under international law committed by its forces during Sri Lanka’s protracted armed conflict. They also attempt to stop their own citizens from communicating with the UN and other international bodies about serious violations they have witnessed.

Amnesty International has documented dozens of attempts by Sri Lankan authorities to silence critical voices, particularly those calling for human rights accountability. State repression has been directed at prominent politicians and journalists, activists, lawyers, influential businessmen and academics. Many other victims are unknown outside their own local communities: they are university students, humanitarian workers, parents protesting the enforced disappearance of their children. Critics of the Sri Lankan government have been the victims of smear campaigns in the state-owned press, anonymous threats and acts of intimidation by police and unidentified assailants; they have been assaulted, jailed, forcibly disappeared and killed. None of the incidents known to Amnesty International have been effectively investigated or prosecuted.

During Sri Lanka’s Universal Periodic Reviews in 2008 and 2012, in reporting to the UN Committee against Torture and the UN Working Group on Enforced or Involuntary Disappearances, and in addressing the Human Rights Council (HRC), the Sri Lankan government has claimed to be protecting human rights. Its claims ring hollow. Serious human rights violations continue. Impunity persists. Sri Lankan authorities have responded to international and domestic calls for greater human rights accountability by establishing commissions to examine allegations of abuse, but have then largely ignored their recommendations. They have put forth action plans that promised to reform laws and procedures that do not meet international standards, but have then failed to make the necessary changes. They promise to ensure that people arbitrarily detained are guaranteed a fair trial or released, but continue to detain hundreds without trial. Torture remains endemic.

The Sri Lankan government says it respects the rights to freedom of expression, assembly and association, even while its security forces and supporters repress critics with impunity. It claims to seek reconciliation between communities, but tolerates increasing attacks on minorities while arresting persons who protest against such attacks.�

The Government of Sri Lanka continues to employ the Prevention of Terrorism Act (PTA) to detain critics. On 2 May 2013, Azad Sally, a prominent Muslim politician and the former Deputy Mayor of Colombo was arrested under the PTA after he spoke out against attacks on Muslim and Christian religious institutions and agitation against minority religious practices. Azad Sally was not charged with an offence; instead he was arbitrarily detained, reportedly under the PTA on suspicion of causing or intending to cause “…acts of violence or religious, racial or communal disharmony or feelings of ill-will or hostility between different communities or racial or religious groups…”� The PTA restricts freedom of expression and association, permits extended administrative detention, and reverses the burden of proof where torture or other ill-treatment of detainees is alleged. The PTA should be abolished.

HRC Resolution 19/2 of 2012 called on Sri Lanka to ensure accountability for alleged violations under international law; Resolution 22/1 of 2013 reiterated this call and expressed concern over reports of continuing violations of human rights. It noted the call of UN High Commissioner for Human Rights for an “independent and credible international investigation into alleged violations of international human rights law and international humanitarian law” in Sri Lanka, and sets the stage to call for such an investigation if the Government of Sri Lanka continues to fail to act. Amnesty International believes international action to secure accountability in Sri Lanka remains essential given the iron grip the government exerts on its domestic critics.

The Sri Lankan government has rejected concerns expressed in the HRC that a climate of impunity prevails in the country. Yet in almost all cases it has failed to ensure justice for victims of human rights violations and crimes under international law. Many alleged violations, including enforced disappearances and extrajudicial executions, occurred in the final months of the armed conflict that ended in May 2009 and some since then, but there are also many older cases that also remain unresolved. Two emblematic ones are the execution-style killings of the five students in Trincomalee in January 2006 and the 17 Action contre la Faim (ACF) aid workers in August of the same year. In both cases, eyewitness testimony implicated members of the Sri Lankan security forces, but witnesses were threatened, investigations faltered, reports of presidential inquiries were suppressed, and no one was brought to trial. Repeated official promises to revive investigations have produced no prosecutions, let alone convictions.

Whether there is effective investigation by Sri Lankan authorities of these cases and initiation of legal proceedings against those responsible — including prosecution of anyone with command responsibility, who knew or should have known about them and did not take measures to prevent or punish them — serves as an indicator of the Sri Lankan government’s broader willingness and ability to seek and ensure accountability for human rights violations.

The HRC has a vital role to play in pressing Sri Lanka to meet its international obligations. Amnesty International and many other NGOs, as well as the UN Secretary-General’s Panel of Experts on Accountability in Sri Lanka, have made repeated calls on the UN to establish an independent international investigation into alleged serious human rights violations and abuses and crimes under international law by government forces and allied armed groups and the Liberation Tigers of Tamil Eelam (LTTE)..

The Sri Lankan government’s intolerance of criticism combined with an unwillingness to rein in its supporters who use violence against their political opponents, threatens to unravel what is left of the rule of law in Sri Lanka. As long as impunity reigns, and dissent is stifled, the Sri Lankan government’s promises of reconciliation following the conflict are empty.

Amnesty International urges UN member states to support the UN in:

Establishing a credible and independent international investigation into allegations of crimes under international law committed by Sri Lankan government forces and allied armed groups as well as the LTTE. The investigation should be conducted in accordance with international standards and, where sufficient admissible evidence is found, lead to the criminal prosecution of individuals found responsible in full conformity with international standards for fair trial;

Strengthening UN measures to prevent intimidation or reprisals by or tolerated by the Sri Lankan government against individuals who seek to cooperate or have cooperated with the UN, its representatives and mechanisms in the field of human rights;

Ongoing international monitoring of the human rights situation in Sri Lanka, including of the effectiveness of any domestic accountability processes;

Taking stronger action, including at the UN Human Rights Council’s 24th Session, if by 1 September 2013 the Government of Sri Lanka has still not taken substantial real measures for accountability and ended systematic attacks on freedom of expression, association and assembly.

Amnesty International urges the Government of Sri Lanka to:

Publicly acknowledge that human rights violations have been committed against individuals exercising their right to freedom of expression, and demonstrate unequivocally that such attacks and threats, harassment, and intimidation will not be tolerated, regardless of the opinions such individuals hold and express, and regardless of the rank or political affiliation of the suspected perpetrator;

Ensure that all suspected perpetrators of crimes under international law are prosecuted in proceedings which comply with international standards for fair trial.

Ensure that all attacks on individuals, irrespective of the identity of perpetrators or victims, are promptly, independently, impartially and effectively investigated. Those suspected of committing or complicity in attacks must be prosecuted in proceedings that meet international fair trial standards;

Make public the report of the 2006 Commission of Inquiry on 16 “serious violations of human rights,” that includes the findings of investigations into the killing of five students in Trincomalee and the 17 ACF aid workers, and, as recommended by the UN High Commissioner for Human Rights in February 2013, “accept international assistance to resolve outstanding cases” (A/HRC/22/38);

Implement the recommendations of the UN Committee against Torture to Sri Lanka in December 2011 to “ensure that all persons, including those monitoring human rights and combating torture and impunity are protected from intimidation or violence as a result of their activities; and take prompt and effective measures, including investigation and prosecution, to address concerns regarding the extremely hostile environment for human rights defenders, lawyers, journalists and other civil society actors in Sri Lanka”;

Repeal the PTA and repeal, reform, or end the abuse of, other legislation used to violate the right to freedom of expression, freedom of peaceful assembly, and freedom of association;

Cooperate fully with the UN special procedures mandate holders including by responding positively to outstanding their requests for invitations to visit Sri Lanka and by providing them with unfettered access.

�On 12 April police broke up a peaceful candle-light vigil against anti-Muslim hate speech by the Bodu Bala Sena (BBS), a Buddhist organization, and reportedly arrested several participants who were later released. A Muslim rights organization in Sri Lanka reported 22 anti-Muslim incidents in April alone.

� PTA, Section 2(1)(h). Azad Sally's detention was condemned both in Sri Lanka and internationally; he was released from police custody on 10 May after President Rajapaksa revoked the detention order against him 

Target Practice

By Kath Noble -May 22, 2013 

Kath Noble

Dealing with ‘inconvenient’ people is one of the Government’s main talents. Upset somebody important and you will be made to suffer. It is only the form of punishment that is to be decided, according to who you are and what the Government imagines you will do to save yourself.

Last week, it was the turn of Anuruddha Pradeep, a lecturer at the University of Sri Jayawardenapura.

Pradeep was sacked for not completing his Masters within the specified amount of time after his appointment. Except that the only thing standing between him and the completion of his Masters is the university, since he has submitted his thesis and is waiting for them to approve it. Indeed, he submitted it nearly three months ago.

Every other lecturer in this position – probably in the entire history of the university if not also throughout the university system in Sri Lanka – is granted a temporary appointment until the matter can be sorted out. Once their thesis is approved, their permanent appointment is backdated to the date of submission. Even people who haven’t finished their research are granted this facility, since it is commonly accepted that universities should help their young researchers to develop their capacities, rather than obsessing over deadlines.

Given the difficulties in retaining talent, this is understandable.

The Government is desperate to encourage the thousands of academics who have left the country in despair at the state of the university system to come back, to establish its as yet purely imaginary ‘knowledge hub’, so why does it want to get rid of Pradeep?

To facilitate his removal, the university has even stooped to the level of falsifying the submission date of his thesis in the papers the Vice Chancellor presented to its council meeting.

Why go to such lengths?

Because the Minister of Higher Education is obsessed with establishing private universities, and Pradeep has consistently and very effectively raised doubts about the policy and the manner in which it is being implemented.

Of particular importance is the Malabe Medical College.

Towards the end of last year, Pradeep and FUTA president Nirmal Ranjith Devasiri, together with Dr Sankalpa Marasinghe and Dr Upul Gunasekara of the GMOA, filed a fundamental rights petition against SB Dissanayake regarding the Malabe Medical College, otherwise known as the South Asian Institute of Technology and Medicine.

Curiously, when it was established in 2008/9, it was called the South Asian Institute of Technology and Management.

At least they both start with an ‘M’.

The Board of Investment approved the project on the condition that the approval of both the Sri Lanka Medical Council and the Ministry of Health would be obtained prior to starting any courses related to health, but they are yet to get around to that ‘detail’. They are also yet to fulfil any of the targets included in the gazette notification issued by the Ministry of Higher Education when it granted the Malabe Medical College the right to award degrees under the University Grants Commission.

In any case, it is not clear whether this gazette notification was legal, since the rules of the University Grants Commission require the approval of the relevant professional body for all of its courses, and this has not been given.

Silly doctors, not yet convinced by SB Dissanayake’s master plan.

How very irresponsible of them, for example, to think that medical students should be trained in an established hospital so that they can see for themselves how the most important ailments in Sri Lanka present and gain experience of treating actual patients.

The Malabe Medical College has managed to turn out seven batches of young people without troubling itself with such concerns.

The case was dismissed by the Supreme Court on the grounds that it was brought more than a month after the gazette notification, but the petitioners argue that the violation is ongoing and progressive in nature, albeit having begun some time ago. They also stress the fact that the issue is of widespread public interest, in the sense that it affects the two vital social services of health and education.

It would certainly seem to indicate how ineffective regulation of private universities is likely to be.

Pradeep has written a very useful book on private universities (‘Private Universities: Fashion and Reality’, Ravaya Publishers 2011) that explains the likely fate of the university system if SB Dissanayake is allowed to continue his crusade unchecked. He has studied the situation in other countries, concluding that many have no or very few private universities (e.g. the UK), while in places where they are common they are often almost exclusively not-for-profit institutions (e.g. the US). Where for-profit institutions are significant, a strong oversight mechanism is essential to prevent corruption.

But SB Dissanayake is confident that corporations – both domestic and foreign – have people’s best interests at heart, so why all this fuss?

It’s only education and health.

These were among the issues stressed by FUTA during its three month long strike last year, and Pradeep was one of its more visible participants.

The Minister of Higher Education made his displeasure absolutely clear in an article in Lakbima, in which he announced that ‘Pradeep can be expelled from the university any time’.

How exactly, when universities are supposed to be autonomous?

Well, SB Dissanayake has packed their councils with his supporters, including both his relatives and people eager to set up private universities. At Sri Jayawardenapura, the Minister of Higher Education appoints nine members, while eight come from the university. Even the university representatives are under tremendous pressure.

FUTA has issued a media statement condemning the dismissal of Pradeep, complaining of political interference. It says that it has received reports from several other universities of similar incidents, especially in the North and East. Perhaps the willingness of Pradeep to come forward and challenge his treatment stems from the fact that he is also an office-bearer of the JHU, giving him some protection from the full weight of the administration. He is fortunate. If he were a member of the TNA, he would have been labelled a Tiger and that would have been the last of him.

According to FUTA, political interference in the university system is now reaching unprecedented levels, as Shanie reported in these columns on Saturday with special reference to recent developments at Peradeniya.

This is hardly surprising.

The one thing that the Government is absolutely committed to is getting its own way. It doesn’t matter what you do, only total commitment to its goals and to the specific objectives of its key personalities will be enough to keep you out of trouble.

*Kath Noble’s column may be accessed online at  http://kathnoble.wordpress.com. She may be contacted at kathnoble99@gmail.com

SRI LANKA: Negambo police continuously harass a victim after torture and inhuman treatment

May 22, 2013

Dear friends,

The Asian Human Rights Commission (AHRC) has received information that Mr. Amarasinghege Priyantha Samanthilake was severely tortured by police officer P.C 51752 Jayasiri who is attached to the Negambo Police Station.

On 27 April 2013, at about 9.30 am, Samanthilake was returning home after taking his daughter to her tuition class. Police Constable (PC) Jayasiri and two other unknown people in civilian dress arrived on two motorbikes. Without any explanation they beat him brutally and damaged his motorbike before leaving. Samanthilake went to the Negambo Police Station and made a complaint under the number of CIB I 269/ 554. Following his complaint PC Jayasiri threatened him saying that Samanthilake had done something and warned him to be careful or he would face bigger problems. This case is yet another illustration of the exceptional collapse of the rule of law in the country.

CASE NARRATIVE:

Mr. Amarasinghage Priyantha Samanthilake (42) of No: 60/3, Pallansena North, Kochikade in Gampaha District is a government clerk by profession. He is married and the father of two children.

Samanthilake was severely tortured by police officer P.C 51752 Jayasiri who is attaching to the Negambo Police Station on 27 April 2013, at about 9.30 am. PC Jayasiri is attached to the team of the police officers who provide security to the Western Provincial Council Minister Nimal Lansa. According to Samanthilake there is an extramarital relationship in between PC Jayasiri and one of his neighbours as he had witnessed Jayasiri entering a nearby house on several occasions.

One day in August of 2012 a women who introduced herself as PC Jayasiri's wife called Samanthilaka and asked about PC Jayasiri and his illicit relationship. Samanthilaka replied that he knew anything about such a relationship but she called on several occasions asking the same question.

Finally Samanthilake went to meet PC Jayasiri in his minister's office at Wella Veediya. But at that time he was not in the office and so he got his Jayasiri's mobile number, called him and informed about him about the telephone calls from his wife. He also asked Jayasiri to do something about the calls and that if he did not then Samanthilake would have to take some action himself. Jayasiri told him, "My wife is mad" and should not to be taken seriously. But Samanthilake told him that if the calls continued he would complaint to the police.

In the afternoon of the same date, 6 September, 2012, he met the neighbor involved and she made a call to PC Jayasiri and begged him not to make trouble for Samanthilake as they had no any other conection other than being neighbours. Then PC Jayasiri used obscene language and also made threats against Samanthilake. Sometime later as Samanthilake was going to meet one of his friend PC Jayasiri arrived with two of his friends, placed his gun against Samanthilake's head and told him, "Be silent if not I will kill you".

Samanthilaka went to the office of the Inspector General of Police (IGP) and lodged a complaint under number of CIB/i/264/22 against Jayasiri on 10 September 2012. He was informed to go and meet the Assistant Superintend of Police (ASP) on 18 of September 2012. He went to the ASP's office and a statement was taken from him. He was also asked about witnesses as well. He requested that a proper inquiry be conducted but apparently none was carried out. On 10 December 2012 he received a letter from the ASP's office that informing him that they had conducted an inquiry into the incident but as there was no any evidence to support his claims they could not taken any further action against Jayasiri. Samanthilake felt frustrated after receiving that letter from the ASP’s office and he was helpless.

On 27 April 2013, at about 9.30 am, Samanthilake was returning home after taking his daughter to her tuition class. Police Constable (PC) Jayasiri and two other unknown people in civilian dress arrived on two motorbikes. Without any explanation they beat him brutally and damaged his motorbike before leaving. Samanthilake went to the Negambo Police Station and made a complaint under the number of CIB I 269/ 554. Following his complaint PC Jayasiri threatened him saying that Samanthilake had done something and warned him to be careful or he would face bigger problems.

Following his complaint police officers went to see the place and took a statement from the eye witnesses as well. However, the Headquarters Inspector (HQI) of Negambo Police Station withdrew his complaint and sent it to the media board without Samanthilake’s permission. On the same day of the assault Samanthilake was admitted to the Negambo Hospital. To-date his he is still unwell and continues to suffer from the damage to his teeth and left shoulder.

Samanthilaka has made written complaints to the Sri Lanka Human Rights Commission (HRC), Inspector General of Police (IGP), Deputy Inspector General (DIG) Western Province, Senior Superintendent of Police (SSP) Negambo, Headquarters Inspector (HQI) Negambo, the National Police Commission (NPC), Attorney General (AG) but until now has not received any information about the initiation of a credible, impartial and independent investigation into his rights violations. Samanthilaka appeals for justice.

SUGGESTED ACTION:
Please send a letter to the authorities listed below expressing your concern about this case and requesting an immediate investigation into the allegations of torturing by the police perpetrator, and the prosecution of those proven to be responsible under the criminal law of the country for misusing powers of a state. The officers involved must also be subjected to internal investigations for the breach of the department orders as issued by the police department. Further, please also request the NPC and the IGP to have a special investigation into the malpractices of the police officers for abusing the state officers' powers.

Please note that the AHRC has also written a separate letter to the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment on this regard.

To support this appeal, please click here: 

SAMPLE LETTER:

Rohini Marasinghe And The Proportionality As A Ground Of Judicial Review

By Lakshman I.Keerthisinghe -

Lakshman Keerthisinghe

“We as judges of this land must take the lead from our departed friend and colleague, that no bullets of any calibre, knives of any depth, clubs of any weight, shall ever deter us from taking the exalted and well traversed path to do justice for all those who come before us.” – Rohini Perera J, Secretary of the High Court Judges Association.(2004)

The above mentioned words of Justice Rohini Perera, formerly Judge of the High Court of Colombo (presently Rohini Marasinghe Justice of the Supreme Court of Sri Lanka) in her oration delivered at the funeral of late Justice Sarath Ambepitiya, in the year 2004, in essence epitomized the values and the principles held sacred by the judiciary of our land at all times. Her Ladyship’s recent speech at the ceremonial sitting held to welcome Her Ladyship to the Bench of the Supreme Court carries a very valuable analysis as to the relationship of the judiciary with the executive. It was stated that the judges in the apex court should not consider themselves prisoners in an ivory tower. They should periodically leave such an enclosure and commence a dialogue with the Executive arm of government. The relationship between the Executive arm of government and the Judiciary should be a cordial one evoking mutual respect to each other,

Justice Rohini Marasinghe

Her Ladyship further stated that; “There is a most pointed reference to this relationship which Lord Phillips, the Lord Chief Justice of England made in a speech to the Commonwealth Law Conference, held in Nairobi, on September 12, 2007”. Justice Rohini Marasinghe quoted Lord Phillip to have said, “I have always believed that it is important, if possible, for judges to maintain good relations with ministers. I have to date managed to achieve this, both with the Home Secretary and with the Lord Chancellors – it is important at such meetings the line is clearly drawn between what are and what are not appropriate areas of discussion and ministers are, in my experience, quick to accept if a topic is “off limits”.

Justice Marasinghe further said that the Latimer House Guidelines encouraged the judiciary and the government to have periodical dialogues without compromising judicial independence, “We all swear an oath to administer justice without fear or favour affection or ill-will. Judicial independence requires that judges should be true to that oath and if the rule of law is really to prevail, the individual citizen must be confident that the judges will apply the law to them without fear or favour affection or ill-will. Justice Marasinghe quite correctly vowed that Her Ladyship shall be true to that oath until the relinquishment of the office and stepping down from the august office which Her Ladyship has now begun to hold.

The new Supreme Court Judge said sometimes laws are made by parliament to provide the country with security and social justice. When such laws come before the courts raising their Constitutional validity, the Courts should take a broader view of the social policies engaged by such legislation and show some consideration for its usefulness and its larger benefits to the country. There are many laws in many countries which are enacted targeted towards social development and security concerns. The Judges when considering the validity of such laws should not take purely a legalistic view of the Constitution, but a broader view of its necessity for securing social justice, social cohesion and economic development,

Her Ladyship’s speech in essence refers to the Doctrine of Proportionality, which is applied as a ground of judicial review of administrative action across continental Europe, and necessarily grants the judiciary wider powers to consider the merits of a decision. Broadly, it necessitates an assessment of the balance between interests and objectives. The decision made must be proved to have been necessary to meet a legitimate aim, and the most reasonable way of doing so. The modern procedural definition of the proportionality test is relatively clear. Tom Hickman, while acknowledging various different models, identified the most common formulation as a three-part procedure. The reviewing court must consider:

1) Whether the measure was suitable to achieve the desired objective.

2) Whether the measure was necessary for achieving the desired objective.

3) Whether, even so, the measure imposed excessive burdens on the individual it affected.

The third element is often termed proportionality stricta sensa and is the provision that requires balancing of interests.

The doctrine of proportionality in its present form is of European origin. A product of interpretation of Platonic and Cicerian theory, the concept was first applied in Prussia in the late 18th Century as the law was codified on Rechtsstaat (‘constitutional state’) lines, and refined by the German courts in the 19th Century. The principle took further hold in continental Europe after the Second World War, when proportionality became embedded in the new German constitution. It was then taken up by the European Court of Human Rights upon its founding in 1959, and later by the fledgling European Community as a conceptual ‘meta principle of judicial governance’.

After the UK’s belated entry into the European Community in 1973, whenever the UK courts have addressed the legality of government action within an area of Community competence, it has been necessary to recognize proportionality as a distinct and substantive ground of review.  Since the courts first began applying the doctrine academic and judicial suggestions that proportionality should be in some way incorporated into domestic UK law have been regular. Moreover, pressure for reform has increased markedly since the assent of the Human Rights Act (1998), which has required use of the doctrine in cases that involve the breach of ECHR rights. The most common suggestion, and the subject of this study, has been to establish proportionality as a separate full ground of judicial review.UK courts have been applying the proportionality doctrine since 1973 in EU cases, and from that date suggestions have been made that the test is deserving of a place in UK administrative law as a full head of review.

In conclusion, simply put proportionality as a ground of judicial review involves a balancing of interests by the Court. This balancing more often than not tilts more towards the majority public interest when compared with individual rights/It is essential that the judiciary and .the legal profession maintain a cordial relationship with the executive for the greater benefit of the litigants and the public at large. A more mature moderate impartial and consensual understanding is required from all parties in order to achieve this precious goal and Justice Marasinghe’s recent speech at the ceremonial sitting delivered subsequent to Her Ladyship’s over three decades of experience as a senior career judge would undoubtedly be a valuable guide in achieving this end.

A bloodied childhood in war-torn Sri Lanka

May 22, 2013 

Sri Lankan Tamil poet and journalist Theepachelvan Pratheepan shares the experiences of his petrified childhood days spent in the war-torn island nation withRediff.com’s Shobha Warrier.

He was born when the ethnic conflict and the war broke out in 1983 in Sri Lanka [ Images ]. He grew up listening to fighter planes hovering over his head and watching men, women and children walking hundreds of kilometres in search of safety.

There had to be an outpouring of the troubled mind that saw blood, gore, hatred and killings all around him. He became a poet, a journalist and an essayist. What he went through in life may not be understood by many who live in a peaceful environment. Today, he is the author of 11 books, including five collections of poems, three of articles, a short story collection, and one anthology of poems by Eelam poets.

He is Sri Lankan poet and journalist Theepachelvan Pratheepan.

Pratheepan was in Chennai doing a masters degree in journalism at the Madras University and this interview with Rediff.com’s Shobha Warrier was done days before he went back home earlier this month.

Pratheepan’s words illuminate the life and times of a young man growing up in a war-torn country.

 War starts in Sri Lanka

I was born in 1983 in Kilinochchi, the year the war started in Sri Lanka between the Tamils and the Sinhalese people. In the first struggle, 3,000 Tamils got killed.

My memory of the struggle begins from the time I was four or five. Those were the times of Indian Peace Keeping Force. I have seen the Indian army [ Images ] catching people and almost everyday, I saw army vehicles going along the roads, past my house. I have also seen attacks from helicopters against the Liberation Tigers of Tamil Eelam. Members of the LTTE [Images ] were hiding all the time in the jungles, and I have seen many young men from my village being recruited by the outfit.

I had my grandmother, mother and Anna (brother) at home; my father left my mother and went to Colombo when she was eight months pregnant with me. I first saw my father when I was 10.

I never used to sleep well in those days as I was scared of army men coming and strafing all around us. The moment I got up, I used to go out on the roads in search of the footprints of the army men. On some mornings, I used to stand behind with my mother watching the army marching along with many young men, all of them said to be members of the LTTE or in allegiance with the LTTE.

At that time, I didn't know what the LTTE was; I had only heard many youngsters, including my brother, talking about a movement. For the young Tamils of that region, the LTTE was the major source of inspiration and hope that it would bring justice to them and the revolution they were fighting for.

An elder cousin of mine, who was a member of the LTTE, used to come home and talk about their activities. As I was a young child, they never used to take me seriously. I would be sleeping in one corner when they discussed what was going on in the jungles.

Going to school

My mother was the sole breadwinner for the family, and she worked as a coolie when I was small so that my brother and I were fed and sent to school. Whenever we saw the IPKF soldiers on our way to school, we stayed close to the walls. We were scared to walk along with them but they used to wave at us.

My initial growing up years have been associated with the IPKF. By 1990-91, the IPKF had left our soil, and very soon, Kilinochchi came under the control of the LTTE.

War intensifies

After the IPKF left, the war intensified. No one knew when bombs fell and when people would get killed. We had bunkers in our area and when bombs started falling, we rushed to the bunkers and hid there. This continued till 2009. It was mostly small fighter planes that hovered over our heads in the beginning, later on they became huge ones.

The kind of life I lead as a child was totally different from that of children growing up in other countries. Not only my generation, but even the next one grew up amidst the sound of fighter planes, bombs falling and under the scrutiny of army men all the time.

The days were full of fear, trepidation and anxiety. I didn't know where to pour out my fears. When I was around 12 or so, I started writing about my innermost feelings. That is why even today, I write a lot about what children feel growing up in troubled times.

Awareness about the war

Even when I was young, I knew the war was against us by the Sinhalese army. But proper awareness and the justification behind the fight came to me only after the death of my brother.

My brother Prasanna changed his name to Vallayan once he joined the LTTE as a soldier in 1996. He died in some action in 2001. That was a turning point in my life.

He used to meet the LTTE soldiers on his way to school and perhaps got influenced by what they were fighting for. The first time he went to join the LTTE was when he was just 10. He went of his own volition to be a fighter but he was sent back by the LTTE as he was too young. This happened five times before he was recruited as a young soldier at 15.

I was small, and used to fight with him for taking such a decision; but he had his own justifications even at that age. At that time, I didn't want my Anna to join the LTTE, and I had no idea how he got influenced by the LTTE.

Becoming a refugee

In 1996, the war intensified, and Kilinochchi came under the control of the Sri Lankan army. The army marched into our town, and we all ran away in the other direction. Even as we were running away, bombs fell near us and many people died in front of our eyes.

Lakhs of people became homeless and thus refugees. We were also displaced from our homes. As we ran for our lives, I wondered whether this was the kind of life we were born to live, and whether there would be an end to all this.

When we left our home, we didn't know what to carry and what to leave behind. I wanted to take all my books with me, but as a 12-year-old, how much can you carry when you are running for your life? As we became refugees, I walked in one direction with my mother, and my brother went to join the LTTE. After that, I saw him only one more time.

Under the hot sun, without any slippers, we walked and when people fell dead, my mother would close my eyes so that I didn't see death and get scared. We must have walked 10-12 kms and finally found refuge in a temple. There were no proper refugee camps; and all the refugees lived under huge trees, in schools or in temples.

There were refugees from Jaffna also along with the displaced from Killinochi. I will never be able to describe the journey we took and the place where we all congregated.

LTTE helps with camps and schools

Soon, the LTTE started constructing small huts for the refugees, and we also got a small place to live. I couldn't go to school for one year, but by next year LTTE arranged education for all the refugee children. I also started going to school. If not for the LTTE, I would not have continued my education.

Brother dies

By 1998-99, the LTTE recaptured Kilinochchi, and that was when I saw my brother again. It was only in 2002 we could come back home. By then, my brother was no more. He fought bravely for his people and laid down his life for them. The news of his death was a big blow for me. Till his death, I didn't understand what he stood for and fought for, but after his death, I started sympathising with his ideals. Instead of living for himself and his family, he lived for a cause and his people. I started admiring his decision.

Studying in Jaffna

By 2001, there was peace around us. I decided to move to Jaffna to continue my education in Tamil literature at the Kilinochchi Central College of the University of Jaffna. It was a new experience for me as I had lived only in the LTTE controlled areas till then. In Jaffna, for the first time, I lived in the army controlled area. I became a student leader and also an activist under the scrutiny of the Sri Lankan army.

Theepachelvan is born

In 2006, once again, war broke out. This time, I had to express my feelings strongly, and I had only one weapon with me, and that was my writing.

But it was not safe to write under my name Pratheepan, and I wrote as Theepachelvan. My heart ached and I wrote many poems, and all my writings were about the sufferings of the people, how the LTTE helped, how all of us fought for our freedom, etc.

When war intensified in 2006, I published less in my country as there was danger if I wrote what I felt. Whatever I wrote appeared in the Tamil magazines in Tamil Nadu, and also on web journals.

‘Pray for my land’

I have written 11 books so far, the latest is Pray for my country. It has 11 poems about my land. If you look at my land, Kilinochchi, it is robbed off its true nature by war. I wrote it when my land was under siege, as a request to all others in the world to pray for my land.

Everyone should understand that we are not the Tamils of Tamil Nadu. We have our own identity, our own history and ancestors from our own land. That is why we are from Sri Lanka and not from India or Tamil Nadu.

The poems are about how important the land is to us because it has been passed on to us by our ancestors; we have our roots there, and we have no existence without our land. Our land is our life, our breath, our very own existence. That is why almost all my poems are about my land.

My dream is to live in a land that is our own, and where there is peace.

Image: Theepachelvan Pratheepan

Photograph: Sriram Selvaraj

Shobha Warrier in Chennai

SRI LANKA: Ganeshan Nimalaruban case: Chief Justice Mohan Peiris denies petitioner's lawyers right to see replies filed by Attorney General

May 22, 2013

The Fundamental Rights case of Ganeshan Nimalaruban was taken before the Supreme Court yesterday.

The Bench consisted of: Mohan Peiris CJ, P. A Ratnayake PC J and S Hettige J.

In the course of submissions by the petitioner's lawyers, Chief Justice Mohan Peiris made the following remarks:

"When the prison is under siege do you want the prisons commissioner have to read to them the Geneva Conventions?"

The AG submitted a confidential report to the Court and Counsel Petitioner requested a copy to be issued to him. CJ Peiris said "Why do you need this? The court is not a place to get documents for the petitioners. This is the way you all procure the evidence and then circulate to the entire world to tarnish the image of the country."

"The executive submits confidential reports only for the eyes of judges particularly where national security issues are concerned."

Counsel for the Petitioner said everyone is entitled to the protection of law. Then the CJ responded, "The prisoners were engaging in a siege and they are entitled to the protection of law, provided they respect the law."

"Human rights are there to protect the majority and not the minority of criminals."

"There is an emerging human right for the right to be protected from terrorism."

"Counsel, you are not concerned about the country, you are giving a wrong signal to likeminded people."

Counsel for the petitioner referred to the injuries in the postmortem report establishing torture. The Chief Justice said, "We don't send nursery children to quell a siege. You've got to expect injuries."

The medical report says there were injuries and that Nimalruban died of heart attack. There were 32 injuries and the siege would have led to the heart attack. The CJ said that there is a theoretical possibility of the death being caused not exclusively by heart attack. This jurisprudence should only be confined to the court room and not to be discussed elsewhere.

The case to be called once again next month.

The content of the petition is as follows:

3^rd day of August 2012.

1. The Petitioner is a citizen of Sri Lanka, 68 years of age, married the father of Ganeshan Nimalaruban.

The Petitioner states that he is filing this fundamental rights application on behalf in respect of the death of his son the said Ganeshan Nimalaruban who died on 04/07/2012 whilst in the custody of the 8^th Respondent. The Petitioner respectfully pleads for leave from Your Lordships Court to prosecute this application for and on behalf of the deceased above named who has died as a result of assaults inflicted upon him whilst under the custody of the said 6^th and/or 7^th and/or 8^th Respondents.

The Petitioner states that the 1^st Respondent (Nishantha Rathnapala) is the Officer-in-Charge of the Ragama Police Station and the 2^nd Respondent is the Headquarters Inspector of Police of the Police Headquarters of Vavuniya. The 3^rd Respondent is the Officer-in-Charge of the Criminal Investigation Unit of Vavuniya. The 4^th Respondent (R.W.M.C. Ranawana) is the Commandant of the Special Task Force which is a special strike force of the Sri Lanka Police Service. The 5^th Respondent is the Inspector General of Police who is the overall in charge of the police service. The 6^th to 8^th Respondents are the Superintendents of the Vavuniya, Anuradhapura and Mahara Prisons respectively. The 9^th Respondent (Mr. P.W. Kodippili) is the Commissioner General of Prisons. The 10^th Respondent is the Honourable Attorney General who has been made a party to this application as required by law.

The Petitioner states that his son was arrested by the Criminal Investigation Unit of the Vavuniya Police on 05/11/2009 while he was going on a motorcycle with a friend of his along Veppankulam Road, Vavuniya. The Petitioner further states that his son was 25 years of age at the time of arrest. He had been working as a Sales Representative in Vavuniya and had been taking steps to go abroad at the time of arrest.

The Petitioner states that after being detained at the Criminal Investigation Unit, Vavuniya for 2 days, his son was taken to the Vavuniya Police Station. Meanwhile a Detention Order under regulation 19(1) of the Emergency Regulations was issued by the Additional Secretary to the Ministry of Defence to detain the Petitioner's son for a period 30 days.

The Petitioner states that his son was produced before the Magistrate's Court of Vavuniya in case bearing No. B/2262/09 and the learned Magistrate ordered to remand him. The Petitioner states that his son was in remand custody until he passed away on 04/07/2012.

The Petitioner states that his son had been subjected to assaults and torture whilst in detention and was asked to sign on several sheets of papers typed in Sinhala. Therefore the Petitioner's son had signed in the places pointed out by the officers. The contents of the said documents were neither read nor explained to the Petitioner's son. The Petitioner further states that due to the torture that his son had undergone, his son had had a heart attack and was admitted to the General Hospital, Vavuniya on 26/12/2011 and was discharged on 01/01/2012.

The Petitioner states that his son instituted a fundamental rights application bearing No. SC FR 115/2011 against the violation of his fundamental rights and the said application is still pending before Your Lordships Court.

The Petitioner states that his wife visited their son on 28/06/2012 at Remand Prisons, Vavuniya which was the last visit of a family member. At that time their son was in good health. On the next day i.e. 29/06/2012 the Petitioner's wife again went to the Remand Prisons, Vavuniya to visit their son. However the Prison officers had informed the Petitioner's wife that they had transferred all the prisoners to Anuradhapura prison. Thereafter the Petitioner's wife went to the Anuradhapura prison and the officers of the Anuradhapura prison had informed her that they do not aware of the place of the detention of the Petitioner's son.

The Petitioner states that early in the morning on 05/07/2012 four Police officers of the Vavuniya police station came to the Petitioner's residence by a jeep and informed the Petitioner that his son was unable to breathe and asked the Petitioner and his wife to come with them to Ragama Hospital.

The Petitioner states that on the way from Vavuniya one police officer got the medical report regarding heart ailment of their som from the Petitioner's wife.

The Petitioner states that while they were told by the police officers that they were going to Ragama hospital the police officers took them to the Mahara police Station and afterwards kept them under their custody in a lodge at Mahara. While staying at the lodge some police officers tried to give alcohol to the Petitioner.

The Petitioner states that on the same day the Petitioner and his wife were taken to the mortuary of the Ragama Hospital (Colombo North Teaching Hospital) and the Petitioner's son's dead body was showed to him. The Petitioner state that at that time he observed injuries on his son's head and legs. The Petitioner's wife was not allowed to see the body at that time.

Thereafter the Petitioner was asked to sign some documents by the police before a Sinhala speaking doctor whose name is unknown to the Petitioner. The Petitioner states that he refused to sign the documents despite the insistence of the doctor and the police.

The Petitioner states that his wife told the police that she would do any further acts after making complains to the Human Rights Commission,Home for Human Rights and their lawyers. But the Police officers informed them falsely that they were about to take them to the Commission but instead they were taken to registrar of Birth and Death at Mahara hospital. But the Petitioner's wife when she became aware that she was deceived and taken to the registrar was distraught and shouted at the police whereupon the police shouted at them and when she wanted to come out they prevented her from coming out and forcibly detained her at the premises until she signed.

The Petitioner states that at the Ragama Hospital he was taken before a Tamil speaking doctor who mentioned that his son died because of the heart disease and further informed that he was present while the post-mortem examination was taking place. The doctor also asked to sign some documents which the Petitioner and his wife refused to do. The Petitioner states that when his wife refused to sign the documents one of the police officer whose uniform bore number 664 tried to assault her by raising his hand. The Petitioner states that while this incident was taking place, the Attorneys-at-Law appearing for the Petitioner's son, arrived at the hospital.

The Petitioner states that thereafter he and his wife were taken to another doctor by the police in their jeep who also asked to sign a document regarding burial of the body. The Petitioner states that he and his wife refused to sign any document. The Petitioner states that subsequently he and his wife were taken to Magistrate's Court of Mahara.

The Petitioner states that the 1^st Respondent had filed information on 05/07/2012 in Magistrate's Court of Mahara in case bearing No : B 4218/12 and according to the said information:

a)      The Petitioner's son was arrested in 2009 in connection with possession of a claymore bomb.

b)      He was produced to the Magistrate's Court of Vavuniya in case bearing No. B:2262/2009 and remanded.

c)      The Petitioner's son and several other LTTE suspects who detained in the Vavuniya Prison started a fast-unto-death campaign over the transfer of a LTTE suspect, namely Saravana Bavan to the Boossa Camp following a court order.

d)     These suspects took three officers of the Vavuniya Prison into their custody on 28/06/2012.

e)      On 29/06/2012 the Special Task Force rescued the three officers and other 172 detainees who were held captive by these LTTE suspects.

f)       33 LTTE suspects who behaved violently were transferred to Anuradhapura Prison at the same time.

g)      Thereafter 28 LTTE suspects were transferred to the Mahara Prison and others were transferred to the Welikada Prison from the Anuradhapura Prison.

h)      The Petitioner's son was among the 28 LTTE suspects and he was detained under Suspect No.: 279.

i)        The Petitioner's son was not well and therefore the prison officers admitted the Petitioner's son to the Ragama Teaching Hospital on 04/07/2012 morning.

j)        The Petitioner's son was pronounced dead by the doctor who examined him at the Out Patients Department at 6.15 a.m.

k)      Since the Ragama Hospital is located in the Judicial Zone of Negombo, information was filed in the Magistrate's Court of Negombo in case bearing No. B:3140/12. The Hon. Magistrate conducted the magisterial inquiry and ordered the Judicial Medical Officer of the Ragama Hospital to conduct the postmortem.

l)        Subsequent to the magisterial inquiry and the postmortem, the body of the Petitioner's son is being kept at the mortuary of the Ragama Hospital.

The Petitioner states that the 1^st Respondent in his report further stated that;

a)      The Petitioner's son is a permanent resident of Vavuniya and a hardcore member of the LTTE.

b)      There are LTTE members in Vavuniya, who were rehabilitated and who were not rehabilitated.

c)      The peaceful environment of the area is likely to be affected, if the relatives were allowed to have the burial of the Petitioner's son at Vavuniya.

d)     Therefore, under Section 106 (1) of the Code of Criminal Procedure Act, the relatives may be ordered to have the burial of a body within the jurisdiction of the Magistrate's Court of Mahara.

The Petitioner further states that the learned Magistrate had conducted a scene visit on the same day.

A certified copy of the proceedings of the scene visit dated 05/07/2012 which is contained in X is marked as X-2 and is pleaded as part and parcel of the Petition.

The Petitioner states that subsequent to the scene visit the learned Magistrate made an order to bury the body of the Petitioner's son within the jurisdiction of the Mahara Magistrate's Court and if not taken over by the relatives that the body be buried at state expense.

A certified copy of the journal entry dated 05/07/2012 which is contained in X is marked as X-3 and is pleaded as part and parcel of the Petition.

The Petitioner states that in the evening of the same day, the Petitioner, the Petitioner's wife and their Attorneys-at-Law made an application in the judge's chambers seeking to take the body to Vavuniya for burial. The police officers vehemently objected to that application stating it may risk the national security of the country and submitted a further report.

A certified copy of a report signed by the 3^rd Respondent dated 05/07/2012 which is contained in X is marked as X-4 and is pleaded as part and parcel of the Petition.

The Petitioner states that after hearing the submissions of the parties the learned Magistrate ordered to have the burial of the Petitioner's son within the jurisdiction of the Magistrate's Court of Mahara holding not doing so will risk the national security.

The Petitioner states that on the same day the learned Magistrate directed the Coroner of the Colombo North Government Hospital (Ragama Teaching Hospital) to deliver the body of Ganeshan Nimalaruban to the Petitioner after conducting a postmortem and to have the burial at the Eldeniya Public Cemetery which is situated within the jurisdiction of Mahara.

The Petitioner states that on 09/07/2012 the Petitioner made an application to stay the burial of the body for 2 weeks until an order is obtained from Your Lordships Court in the fundamental rights application. The learned Magistrate allowed the application of the Petitioner and stayed the burial of the body at the expense of the government for 2 weeks from 09/07/2012.

The Petitioner states that a motion was supported before Your Lordships' Court on 18/7/2012 and on 20/07/2012 the Petitioner's Counsel and the Hon. Attorney General filed a settlement motion with regard to the burial of the body of the Petitioner's son and Your Lordships directed that the terms and the contents of the motion be communicated to the learned Magistrate of Mahara on the same day.

The Petitioner states that on 23/07/2012 the learned Magistrate of Mahara permitted to have the burial at Vavuniya as per the order of Your Lordships Court.

The Petitioner states that the funeral of his son Ganeshan Nimalaruban took place in the Nerakkulam in Vavuniya on 24/07/2012.

The Petitioner states that:

a)      When the Petitioner's wife visited their son on 28/06/2012 at Remand Prisons, Vavuniya their son was in good health.

b)      According to the B report marked X-1,

i.      The Petitioner's son and several other LTTE suspects who detained in the Vavuniya Prison started a fast-unto-death campaign and allegedly took three officers of the Vavuniya Prison into their custody on 28/06/2012.

ii.      The Police Special Task Force entered into the Prison on 29/06/2012 and rescued the three officers and other 172 detainees who were allegedly held captive by these LTTE suspects.

iii.      The Petitioner's son was transferred from Vavuniya prison to Anuradhapura Prison and from there he was transferred to Mahara Prison and was detained under Suspect No.: 279

c)      Therefore, at any time relevant to this application, the Petitioner's son was in the custody of the prison officers.

d)     According to the B report marked X-1, the Petitioner's son was admitted to the Ragama Teaching Hospital by the officers of the Mahara Prison only on 04/07/2012 morning i.e. after 5 days from the "rescue" mission.

e)      The Petitioner's son was pronounced dead by the doctor who examined him at the Out Patients Department at 6.15 A.M.

f)       According to the information filed by the police at X-1, the Petitioner's son w

g)      However according to the report signed by the 3^rd Respondent dated 05/07/2012 marked X-4, the Petitioner's son passed away on 04/07/2012 as an inpatient at the Ragama Hospital.

h)      The Petitioner observed injuries in his son's body.

In the aforesaid circumstances and in view of the suspicious and secretive conduct of the police as described aforesaid , the Petitioner pleads that he has reasons to believe that the death of his son was not due to natural causes but due to him having been subject to assault by the prison officers and/or by the police officers whilst he was in the custody of 6^th and/or 7^th and/or 8^th Respondents, which led to his death.

The Petitioner states that he has every reason to doubt the impartiality of the police investigations into the death of his son and he apprehends that the prison authorities and the police would not conduct an unbiased and comprehensive investigation into the death of his son. The Petitioner further states that it is necessary for the evidence of other prisoners who were detained with the Petitioner's son in Vavuniya, Anuradhapura and Mahara to be recorded at the Inquest and that such evidence be recorded without them being intimidated by prison officials and the police, since the Petitioner verily believes that his son's death resulted from the assaults on him by the prison officers and/or police.

The Petitioner has information that other suspects who were detained with the Petitioner's son at Vavuniya had also sustained injuries during the incident at Vavuniya on the 28^th of June 2012.

The Petitioner states that in the aforesaid circumstances one or more or all of the Respondents and/or the State have infringed the fundamental rights of his son the deceased Ganeshan Nimalaruban as guaranteed to him by :

(a)       Article 11 of the Constitution guaranteeing to him freedom from torture and cruel, inhuman or degrading treatment or punishment.

(b)      Article 12(1) of the Constitution guaranteeing to him equality before the law and the equal protection of the law;

(c)       Article 13(4) of the Constitution guaranteeing to him the right not to be punished with death or imprisonment except by order of a competent court, made in accordance with procedure established by law;

(d)      Article 17 of the Constitution guaranteeing to him the right to apply to Supreme Court, as provided by Article 126, in respect of the infringement of his fundamental rights;

The Petitioner states that he verily believes that there is an attempt to show that his son's death was caused by "heart attack" and the Petitioner states that he seeks that a second post mortem be also conducted on his son by the Judicial Medical Officer, Colombo.

The Petitioner states that the report of the postmortem is still not produced to Court and he is still in a position only to give limited instructions to his Attorney-at-Law to file this application due to the past incidents and since the funeral ceremony of his son was finally held in Vavuniya only on 24/07/2012. Therefore the Petitioner respectfully seek permission of Your Lordships Court to submit further material to Your Lordships Court if and when they made available to him and to amend the pleadings and to add Respondents, if necessary.

The Petitioner has not previously invoked the jurisdiction of Your Lordships' Court in this matter.

The petitioner requested that Her Ladyship's Court:

Grant leave to proceed in the first instance;
Direct the Director of the Colombo  North Teaching Hospital, Ragama to submit the Post Mortem Report of the deceased Ganeshan Nimalaruban who died on 4^th July 2012, to Your Lordships' Court forthwith;
Direct the Director of the Colombo North Teaching Hospital and the Medical Officer in Charge of the Prison Hospital Mahara to submit to submit all Bed Head Tickets, treatment sheets and documents pertaining to the deceased Ganeshan Nimalaruban, to Your Lordships' Court;
Declare that the fundamental rights of the Petitioner's son Ganeshan Nimalaruban as guaranteed by Articles 11, 12(1) , 13(4) and 17 of the Constitution have been infringed by one or more or all of the Respondents and/or the State;
Direct the Inspector General of Police to cause an impartial investigation be held in relation to the death of Ganeshan Nimalaruban;
Direct the learned Magistrate of Mahara to direct the Judicial Medical Officer, Colombo to cause  Grant the Petitioner compensation in the sum of Rupees Ten Million (Rs. 10,000,000/=);
Grant Costs; Grant such other and further relief that Your Ladyships Court shall deem meet.