Urgent Appeal Case: AHRC-UAC-143-2011

16 August 2011

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SRI LANKA: Disabled man illegally and arbitrarily detained for over two years

ISSUES: Illegal arrest; arbitrary detention; torture; fabricated charge; impunity; rule of law

Mr. Alexander Thayaparan (48) of No 352, Hospital Road, Mannar was illegally arrested by officers attached to the Sri Lanka Navy on 17 April 2009. Thayaparan is disabled as his leg was amputated due to shelling some years earlier. He and his family were displaced by force due to the movements of the LTTE. When they were able to escape the LTTE detention and flee to the government controlled area he was arrested by officers of the Sri Lankan Navy. Initially he was detained in Boossa Welfare Center until being produced before the Magistrate of Colombo. Mr. Thayaparan has been in remand prison for more than two years since his arrest without fair trial or the possibility of bail. The Terrorist Investigation Division officer handling his case has been intentionally delaying the investigation. This case is yet another illustration of the exceptional collapse of the rule of law in the country.

CASE NARRATIVE:

According to the information that the Asian Human Rights Commission (AHRC) has received Mr. Alexander Thayaparan (48) of No 352, Hospital Road, Mannar is married to Sebastkunamalar and they have three daughters aged 14, 18 and 19 and a son aged 10.

Thayaparan is originally from Uyilankulam in the Mannar District. On 17 April 2009, Thayaparan was arrested by officers attached to the Sri Lankan Navy at Puthumathalan in the Mullaitivu District. Neither at the time of arrest nor later was he given any reason for his arrest. He and his family were forced to move to Puthumathalan by the LTTE along with the villagers of his area.

After the arrest he was transferred and detained at the Boossa Detention Center and later at the Welikada Remand Prison. Although no formal charges have been made against him, Thayaparan has been falsely accused of having links with the LTTE and has spent over two years in detention.

During the war he was seriously injured by shelling and his left leg was amputated above the knee in 1990. He now uses an artificial limb. Thayaparan got married in July 1991 and their eldest daughter was born in 1992. Following the birth of their daughter, he, being disabled worked as a hired laborer. With the birth of their other three children, Thayaparan also took up animal husbandry as a means of income in order to support the children’s education and daily needs.

According to the testimony of his wife Sebasatkunamalar in 2009, their family was displaced several times as a result of the military operation in the Vanni region. On 21 March 2009 a shell struck their home but they were able to escape. Following this attack, they were displaced to Puthumathalan where they faced severe difficulties due to the constant shelling. When it became impossible to remain safely in Puthumathalan, Thayaparan and his family, along with others, left the area by sea on 17 April 2009. Thayaparan’s children and wife went in one boat and Thayaparan assured them that he would follow them in another.

They were afraid for their lives and were not sure whether they would survive the sea journey. After around eight hours their boats were stopped by the Navy who assisted them with food and water. The Navy took them to the Jaffna Welfare Center where they were held for seven months until 15 October 2009.

Thayaparan’s wife did not get any details regarding the second boat in which her husband travelled and had no information regarding his whereabouts. Later the wife and children were released from the Jaffna Welfare Center. When she contacted the International Committee of the Red Cross (ICRC) for information regarding Thayaparan she was informed that he was being held at the Boossa Detention Center.

On 23 December 2009 Sebastkunamalar visited Thayaparan at Boossa and he told her that investigations into his case had been completed by the authorities and that he would be released shortly. However, he had still not been released after several months. However on 8 October 2010 Thayaparan was produced before the Magistrate of Colombo, detained and transferred to the Welikada Remand Prison.

Later Thayaparan and his wife learned that he was suspected of aiding and abetting the LTTE and that the case was being handled by the police officers attached to the Terrorist Investigation Division (TID).

Despite severe financial difficulties Sebastkunamalar attends each and every hearing when Thayaparan is brought to court for the extension of his remand. As she is the sole breadwinner of the family she suffered immensely and does not have the means to provide for their children’s education and basic needs. On several occasions she directly addressed the Magistrate in open court and pleaded Thayaparan’s innocence, explained about their difficulties and begged for his release.

In the meantime Thayaparan continues to be detained at the Welikada Remand Prison without trial. Sebastkunamalar states that she and her children face an uncertain future as a result of this enforced separation from Thayaparan.

Thayaparan further states that he was illegally arrested and arbitrarily detained. As he is a disable man Thayaparan faces enormous difficulties at the prison due to his incapacity to look after his own bodily functions. He firmly believes that the treatment he has been subjected to constitutes torture under the local and international law. He also categorically states that the TID officers are intentionally delaying the investigation thereby preventing his release while knowing that he is an innocent man.

Due to the negligence of the state authorities the case against him has been delayed and as a result he has been held in indefinite remand. He further states that his fundamental rights have been violated by the state authorities.

ADDITIONAL COMMENTS:

The Asian Human Rights Commission has reported innumerable cases of torturing innocent by the Sri Lankan police which are illegal under international and local law which have taken place at different Police Station in the country over the past few years.

The Asian Human Rights Commission has observed in last few years under the Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979 and Emergency Regulations issued under the Public Security Ordinance thousands of innocents have been detained in deferent detentions camps in various part of the country. Many have been detained for more than 2 to 3 years. Later several of them have been produced before the different High Courts under these two laws. Basically all of them who have been tried on the confessions which have been prepared after detainees were subjected to severe torture.

The State of Sri Lanka signed and ratified the CAT on 3 January 1994. Following state obligations Sri Lanka adopted Act number 22 of 1994 the law adopted by the Sri Lankan parliament making torture a crime that can be punishable for minimum seven years and not less than ten years on being proven guilty. The Attorney General of Sri Lanka is suppose to file indictments in the case where credible evidence were found on torturing people by state officers.

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 illegal arrest, illegal detention by the police perpetrators, 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:

Dear ________,

SRI LANKA: Disabled man illegally and arbitrarily detained for over two years

Name of the victim: Mr. Alexander Thayaparan (48) of No 352, Hospital Road, Mannar

Alleged perpetrators: Officers attached to the Sri Lanka Navy, officers of the Terrorist Investigation Division Date of incident: 17 April 2009

Place of incident: Puthumathalan in Mullaitivu district

I am writing to express my serious concern over the case of Mr. Alexander Thayaparan (48) of No 352, Hospital Road, Mannar. Thayaparan is married to Sebastkunamalar and they have three daughters aged 14, 18 and 19 and a son aged 10.

Thayaparan is originally from Uyilankulam in the Mannar District. On 17 April 2009, Thayaparan was arrested by officers attached to the Sri Lankan Navy at Puthumathalan in the Mullaitivu District. Neither at the time of arrest nor later was he given any reason for his arrest. He and his family were forced to move to Puthumathalan by the LTTE along with the villagers of his area.

After the arrest he was transferred and detained at the Boossa Detention Center and later at the Welikada Remand Prison. Although no formal charges have been made against him, Thayaparan has been falsely accused of having links with the LTTE and has spent over two years in detention.

During the war he was seriously injured by shelling and his left leg was amputated above the knee in 1990. He now uses an artificial limb. Thayaparan got married in July 1991 and their eldest daughter was born in 1992. Following the birth of their daughter, he, being disabled worked as a hired laborer. With the birth of their other three children, Thayaparan also took up animal husbandry as a means of income in order to support the children’s education and daily needs.

According to the testimony of his wife Sebasatkunamalar in 2009, their family was displaced several times as a result of the military operation in the Vanni region. On 21 March 2009 a shell struck their home but they were able to escape. Following this attack, they were displaced to Puthumathalan where they faced severe difficulties due to the constant shelling. When it became impossible to remain safely in Puthumathalan, Thayaparan and his family, along with others, left the area by sea on 17 April 2009. Thayaparan’s children and wife went in one boat and Thayaparan assured them that he would follow them in another.

They were afraid for their lives and were not sure whether they would survive the sea journey. After around eight hours their boats were stopped by the Navy who assisted them with food and water. The Navy took them to the Jaffna Welfare Center where they were held for seven months until 15 October 2009.

Thayaparan’s wife did not get any details regarding the second boat in which her husband travelled and had no information regarding his whereabouts. Later the wife and children were released from the Jaffna Welfare Center. When she contacted the International Committee of the Red Cross (ICRC) for information regarding Thayaparan she was informed that he was being held at the Boossa Detention Center.

On 23 December 2009 Sebastkunamalar visited Thayaparan at Boossa and he told her that investigations into his case had been completed by the authorities and that he would be released shortly. However, he had still not been released after several months. However on 8 October 2010 Thayaparan was produced before the Magistrate of Colombo, detained and transferred to the Welikada Remand Prison.

Later Thayaparan and his wife learned that he was suspected of aiding and abetting the LTTE and that the case was being handled by the police officers attached to the Terrorist Investigation Division (TID).

Despite severe financial difficulties Sebastkunamalar attends each and every hearing when Thayaparan is brought to court for the extension of his remand. As she is the sole breadwinner of the family she suffered immensely and does not have the means to provide for their children’s education and basic needs. On several occasions she directly addressed the Magistrate in open court and pleaded Thayaparan’s innocence, explained about their difficulties and begged for his release.

In the meantime Thayaparan continues to be detained at the Welikada Remand Prison without trial. Sebastkunamalar states that she and her children face an uncertain future as a result of this enforced separation from Thayaparan.

Thayaparan further states that he was illegally arrested and arbitrarily detained. As he is a disable man Thayaparan faces enormous difficulties at the prison due to his incapacity to look after his own bodily functions. He firmly believes that the treatment he has been subjected to constitutes torture under the local and international law. He also categorically states that the TID officers are intentionally delaying the investigation thereby preventing his release while knowing that he is an innocent man.

Due to the negligence of the state authorities the case against him has been delayed and as a result he has been held in indefinite remand. He further states that his fundamental rights have been violated by the state authorities.

I request your urgent intervention to ensure that the authorities listed below instigate an immediate investigation into the allegations of illegal arrest, illegal detention and torture by the police perpetrators, and the prosecution of those proven to be responsible under the criminal law of the country for misusing powers of state officers and for wrongful prosecution. The officers involved must also be subjected to internal investigations for the breach of the department orders as issued by the police department.

Yours sincerely,

———————

PLEASE SEND YOUR LETTERS TO:

1. Mr. N K Illangakoon

Inspector General of Police

New Secretariat

Colombo 1

SRI LANKA

Fax: +94 11 2 440440 / 327877

E-mail: igp@police.lk

2. Mr. Mohan Peiris

Attorney General

Attorney General’s Department

Colombo 12

SRI LANKA

Fax: +94 11 2 436421

E-mail: ag@attorneygeneral.gov.lk

3. Secretary

National Police Commission

3rd Floor, Rotunda Towers

109 Galle Road

Colombo 03

SRI LANKA

Tel: +94 11 2 395310

Fax: +94 11 2 395867

E-mail: npcgen@sltnet.lk or polcom@sltnet.lk

4. Secretary

Sri Lanka Human Rights Commission

No. 108

Barnes Place

Colombo 07

SRI LANKA

Tel: +9411 2694925, +9411 2685980, +9411 2685981

Fax: +9411 2694924 (General) +94112696470 (Chairman)

E-mail: sechrc@sltnet.lk

Thank you.

Urgent Appeals Programme

Asian Human Rights Commission (ua@ahrc.asia)

Document Type :

Urgent Appeal Case

Document ID :

AHRC-UAC-143-2011

Countries :

Sri Lanka

Issues :

Arbitrary arrest and detention, Fabrication of charges, Impunity, Rule of law, Torture

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A need for dialogue

Many people across Asia are frustrated by the widespread lack of respect for human rights in their countries. Some may be unhappy about the limitations on the freedom of expression or restrictions on privacy, while some are affected by police brutality and military killings. Many others are frustrated with the absence of rights on labour issues, the environment, gender and the like.

Yet the expression of this frustration tends to stay firmly in the private sphere. People complain among friends and family and within their social circles, but often on a low profile basis. This kind of public discourse is not usually an effective measure of the situation in a country because it is so hard to monitor.

Though the media may cover the issues in a broad manner they rarely broadcast the private fears and anxieties of the average person. And along with censorship – a common blight in Asia – there is also often a conscious attempt in the media to reflect a positive or at least sober mood at home, where expressions of domestic malcontent are discouraged as unfashionably unpatriotic. Talking about issues like torture is rarely encouraged in the public realm.

There may also be unwritten, possibly unconscious social taboos that stop the public reflection of private grievances. Where authoritarian control is tight, sophisticated strategies are put into play by equally sophisticated media practices to keep complaints out of the public space, sometimes very subtly. In other places an inner consensus is influenced by the privileged section of a society, which can control social expression of those less fortunate. Moral and ethical qualms can also be an obstacle.

In this way, causes for complaint go unaddressed, un-discussed and unresolved and oppression in its many forms, self perpetuates. For any action to arise out of private frustration, people need ways to get these issues into the public sphere.

Changing society

In the past bridging this gap was a formidable task; it relied on channels of public expression that required money and were therefore controlled by investors. Printing presses were expensive, which blocked the gate to expression to anyone without money. Except in times of revolution the media in Asia has tended to serve the well-off and sideline or misrepresent the poor.

Still, thanks to the IT revolution it is now possible to communicate with large audiences at little cost. In this situation there is a real avenue for taking issues from private to public, regardless of the class or caste of the individual.

Practical action

The AHRC Urgent Appeals system was created to give a voice to those affected by human rights violations, and by doing so, to create a network of support and open avenues for action. If X’s freedom of expression is denied, if Y is tortured by someone in power or if Z finds his or her labour rights abused, the incident can be swiftly and effectively broadcast and dealt with. The resulting solidarity can lead to action, resolution and change. And as more people understand their rights and follow suit, as the human rights consciousness grows, change happens faster. The Internet has become one of the human rights community’s most powerful tools.

At the core of the Urgent Appeals Program is the recording of human rights violations at a grass roots level with objectivity, sympathy and competence. Our information is firstly gathered on the ground, close to the victim of the violation, and is then broadcast by a team of advocates, who can apply decades of experience in the field and a working knowledge of the international human rights arena. The flow of information – due to domestic restrictions – often goes from the source and out to the international community via our program, which then builds a pressure for action that steadily makes its way back to the source through his or her own government. However these cases in bulk create a narrative – and this is most important aspect of our program. As noted by Sri Lankan human rights lawyer and director of the Asian Human Rights Commission, Basil Fernando:

"The urgent appeal introduces narrative as the driving force for social change. This idea was well expressed in the film Amistad, regarding the issue of slavery. The old man in the film, former president and lawyer, states that to resolve this historical problem it is very essential to know the narrative of the people. It was on this basis that a court case is conducted later. The AHRC establishes the narrative of human rights violations through the urgent appeals. If the narrative is right, the organisation will be doing all right."

Patterns start to emerge as violations are documented across the continent, allowing us to take a more authoritative, systemic response, and to pinpoint the systems within each country that are breaking down. This way we are able to discover and explain why and how violations take place, and how they can most effectively be addressed. On this path, larger audiences have opened up to us and become involved: international NGOs and think tanks, national human rights commissions and United Nations bodies. The program and its coordinators have become a well-used tool for the international media and for human rights education programs. All this helps pave the way for radical reforms to improve, protect and to promote human rights in the region.

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