Still waiting for justice in Sri Lanka

Several Commissions of Inquiry into Disappearances of Persons (COIs) had been appointed by successive  governments  since 1990.  Of these, the writer had been the Secretary to what is known as the Central Zone Commission and the All Island Commission appointed in 1994 and 1998, respectively. Militancy of Sinhala youth in the South and the Tamil youth in the North resulted  in what  the NGOs estimate to be the disappearance of nearly 60,000 youth from various  parts of Sri Lanka. However the Commissions appointed in 1994 received only 27,526 complaints.  Of these  10,136  complaints  were inquired into by the All Island Commission appointed in 1998.  The following comments and observations are made as a corollary to the book that is being launched today. It is hoped that  the readers would  get a clearer picture of the task of the COIs  and what followed after their reports were submitted to the President.

The Mandates of these  Commissions
It needs to be noted that the Mandates of the three Zonal Commissions authorized the COIs to inquire only into incidents of disappearances that occurred  after 1^st January, 1988. This resulted in a large number of disappearances that occurred during the period before that date being excluded from being inquired into by these COIs.

At the time the COIs were appointed. Jaffna was under the control of the LTTE and the people of that  area had no electricity or access to information. They were not able to travel freely to the South.  So many of the victims of disappearances in the North at that time did not even know there was a COI appointed to inquire into such incidents.  Consequently, the North East Zonal COI, which incidentally never had a sitting in Jaffna, received very few complaints from the Jaffna District.

In the conduct of their inquiries the COIs are exempted from the requirement to comply with the provisions of the Evidence Ordinance so they were able to come to a finding on a balance of probabilities based on the evidence of  complainant and other witnesses,   and on an examination of the relevant information books and records at the police stations. The COIs had to, inter alia, come to a  finding on whether credible material indicative of the person or persons responsible,  was available.

The COIs were also expected to  report on the whereabouts of the persons alleged to have disappeared.  This could not be done satisfactorily as they had no access to the several unauthorized detention centres about which the COIs became aware during course of the inquiries.

When the COIs had concluded their inquiries and were in the process of writing their reports, the Secretary to the President summoned the Chairmen and Secretaries of the COIs and informed them that any compensation contemplated should not be a burden to the finances of the country.   They  were  directed to fall in line with the provisions of a circular issued in 1987 with regard to compensation to victims of the riots that took place during that year.  This circular had specified a scale of compensation ranging from Rs.15,000 to a student who had been killed or disappeared to Rs.500,000 to a politician who had been killed or disappeared. The COIs had no option in this matter and had to comply  with the directive and they have added a note in their Reports  indicating their disapproval  with the grading of the disappeared persons and the  amounts  to be paid as compensation.

Procedure of recording evidence
In view of the large number of complaints that had been received by the COIs, the evidence of the complainants and the witnesses were led only up to the point where credible material indicative of the person responsible came to light.  During the trials where the court cases had been filed, the prosecution had not appraised the  courts of this fact. Consequently  the  defense counsel were able to take advantage of this deficiency and plead that  the details of the incident as given by the  witness during the trial,  were  fabrications.

Ignored Recommendations
The key recommendation with regard to the legal action  to be taken against the alleged perpetrators was that ‘an independent public prosecutor should be appointed’ to prosecute in cases of disappearances. In making this recommendation the COIs  implied  that the Attorney General may not be able to play a neutral role in these cases. Yet  these  cases were handled by the lawyers in the Missing Persons Unit of the Attorney General’s Department. They perused the evidence and  passed on the files for further investigations by the Disappearances Investigation Unit of the Criminal Investigation Department which had been set up for this purpose.  The latter  consisted of police officers. The brotherly feeling they had with the perpetrators,  some of whom had been their colleagues , superiors or subordinate officers, stood in the way of  effective investigations being carried out in all earnest.

Among the perpetrators against whom the COIs found credible material indicative of their responsibility for the disappearances  are, the names of several leading politicians, high ranking officers in the police and security forces many of whom are still in service in higher positions. The victims of the disappeared who gave evidence of their involvement in the incidents concerned,  are  helpless spectators of these persons who are now  in high positions despite their misdoings.

The President called for a special  report from the Central Zone COI  on the killing  of a candidate contesting a leading politician on the request by the influential wife of the deceased.  In compliance with this request, the Commission did a thorough investigation and  submitted a special report. The  passports of the security officers of this politician who were complicit in the killing, were impounded.  Yet no action was taken against this politician despite there being enough evidence of his involvement in the killing.  Subsequently the wife of the deceased, who had complained to the COI and caused a special report to be submitted, was made a Minister following which  the  Special Report was swept under the carpet.

The COIs drew the attention of the government to the information on the existence of  about ten mass graves and several torture chambers in various parts of the country. It was recommended that these be investigated into, yet, successive  governments  did not take any action with regard to this recommendation even though the location of these places and the names of the persons who were responsible for them were made available in the   statements of the relevant witnesses who gave evidence before the COIs.

Interim Report VII of the Central Zone COI refers to an officer in charge of a police station in the North Western Province who was alleged to have  threatened  a complainant and his family for having given evidence against him before the COI. This  matter was  brought to the notice of the President with a recommendation that this officer be interdicted forthwith and disciplinary action taken against him.  But this recommendation was ignored. Subsequently this police officer was promoted to the level of an Assistant Superintendent of Police, despite this case and  his involvement in several disappearances in the area where he served.

No disciplinary action against errant police officers
Though it was recommended that disciplinary action should be taken against all police officers who were found by the Commissions to have violated departmental rules and procedures, no such action had been taken against any of them.  Given below  are some instances of such violations found by the COIs -

• In spite of a circular by the IGP directing that all Information Books relating  to the period of the COIs  should be preserved until the COIs had completed their task, it was found that many OIC’s had destroyed these books.
• Where complains of disappearances had been accepted by the police,  such complaints had been recorded in  the Minor Offences Register. This indicates that whoever recorded such a  complaint considered the disappearance of a person to be a ‘minor offence’. Yet no action has been  taken against the officers concerned for this serious lapse.
• There were instances where the list of detainees at a police station on a given day, did not contain the  names of some individuals who had in fact been detained as was evident from such names appearing in  Diet Register for that particular day which was maintained by another officer.  This non-entering of the name of the persons in the detainees register is indicative of the intention of the OIC of that station. Many such persons had disappeared. Yet no action had been taken against such police officers.
• There had been evidence of female complainants having been raped by police officers either at the police  station when they came to make complaints or at other places  during  search operations. No action had been taken  against  any such officer even though evidence of such instances had been recorded.

Miscellaneous
The copies of the Reports of the COIs  that were  printed and made public by the Presidential Secretariat  do not contain all the contents of the reports that were handed to the President.  While sections  of the Reports had been omitted in some reports,  parts of the reports in others had been completely left out. Thereby  some important information which  the original reports contained had not been made public.

The mandate of the All Island Commission on Disappearances was identical to those of the Zonal Commissions  except that it was authorized only to inquire into the 10136  complaints that had been received by the Zonal Commissions and left un-inquired. In other words  it was precluded from inquiring into  any new complaints.  Yet   while  the Commission was functioning it  received  12,000 new complaints of disappearances which it was not authorized to inquire into. These complaints have been listed and  included in the Report of the COI with a recommendation that the President should take action to inquire into  them at a future date.

At the time the  All Island Commission was appointed in 1998  Jaffna had been regained from the LTTE and had come under government control.  About 600  of the new complaints received by this Commission were  in respect of  disappearances from the Jaffna District which occurred following the takeover of Jaffna by the government. The Citizens Committee of Batticaloa handed a list of 7000 disappearances with a note that these were not filed before the COIs appointed in 1994 as the persons who were alleged to be responsible for the incidents  were  still in service at the respective stations in the East. So the complainants were afraid to complain against them at that time.

Of the 600 alleged to have disappeared from Jaffna, 341 complaints  had been filed at the  National Human Rights Commission. This Commission  appointed a Committee to which it  delegated its  powers  to inquire into these 341 complaints. The Report of this Committee states that  in an overwhelming number of  those cases  there was clear evidence that the army in Jaffna had taken the persons concerned into custody and that there is no evidence whatsoever as to what happened to them thereafter.

The National Human Rights Commission launched on a project to process the 12,000 complaints  left un-inquired by the All Island Commission and to compile a computerized data base of all the  information  on the disappearances that had been inquired into up to that date  by the COIs.  Unfortunately, this project was aborted with the change of government and the new set of members taking over the Human Rights Commission by-passing  the provisions of the 17th Amendment to the Constitution.

As stated earlier in this document,  the role of the Attorney-General in prosecuting disappearances cases was discussed  by the COIs in their reports and they have  recommended the appointment of an Independent Public Prosecutor with constitutional safeguards.  This was cited by the International Independent Group of Eminent Persons who too contended that the Attorney General was not an independent person and should not lead evidence  at the COI appointed in 2007  to inquire into serious human rights violations.

Conclusion
Successive governments continued to ignore the recommendations of the Commissions with  regard to the perpetrators  and the steps that need to be taken to  prevent the re-occurence of such incidents in the future. This promoted the culture of impunity which had by then  pervaded the police and  security forces personnel.  It has been said in a lighter vein that the COIs have helped the successive  governments to identify those in the  police and army who could be used to cause  disappearances  effectively. By this time causing the disappearance of a person  had by then become a useful weapon  in the hands of whichever government that came to power.  Even the current incidents of disappearances could be by such persons who  have  by now become adept in the technique.

The three major parties in Sri Lanka - the UNP , the SLFP and the JVP are not interested in dealing with perpetrators of disappearances.  They have not pressed for the implementation of the recommendations of the COIs in this regard  perhaps  because, at some time or the other, each of these parties have themselves  used this weapon  on those who  had become  thorns on their backs. In the circumstances  the victims of disappearances who are waiting for justice have no hope whatsoever  of getting  justice meted out to them  in the near future.

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This is an edited version of a presentation made by the writer at a panel discussion organized by the International Commission of Jurists at the UN in Geneva on 18th March, 2010, on the occasion of the launching of the book “Rule of Law, The Criminal Justice System and Commissions of Inquiry since 1977” written by Kishali Pinto Jayawardena.

The author was formerly Secretary to two Commissions of Inquiry into Disappearances in Sri Lanka.