Featured image courtesy TamilGuardian
(This is an abridged version of a presentation made at a meeting at the University of London on 25th April, 2016. The full version can be read here)
Enforced disappearance of persons remains one of the widely known human rights violations in Sri Lanka. The machinery that had been set up during the past to perpetrate such incidents appears to have slowed down as a consequence to the passing of a Resolution at the UNHRC in September, 2015. However, this machinery could be switched on again if those in authority so desire. Dismantling this machinery and destroying the remains, is a challenge the government has to face.
The government has to now deal with an untenable number of complaints of disappearances that have been lodged with various national and international institutions calling for help to trace those who have disappeared. A bulk of the complaints relate to either the disappearances of persons after being abducted, handed to the security forces by wives or other relatives in response to a call by the military during the closing days of the war, or of those who surrendered to them in the presence of witnesses. There are also allegations of torture and sexual abuse of persons who had been in custody. Having to deal with these complaints along with those of enforced disappearances, to the satisfaction of the victims, is a daunting legacy the government has to face.
Long years of Emergency Rule and the availing of the obnoxious provisions of the Prevention of Terrorism Act, have blunted the knowledge of the Police and the security forces of the manner in which they should deal with law and order issues during peace time. Extracting information and/or confessions from suspects by torturing them, continues to be the norm. The forces appear to know no other way in which investigations into allegations against suspects could be conducted. The government is now left with a legacy of a Police force that has gained experience in performing more military duties than civilian functions. Bringing about a metamorphosis in their mentality and methods of investigation is another challenge the Government has to face to restore law and order
Persistent pressure on the Government to remove the Emergency Regulations (ER) made the previous regime, remove it ostensibly.[1] But soon afterwards the much maligned provisions of the ER were tagged on to the provisions of the Prevention of Terrorism Act (PTA) making it more virulent than it was before. [2]
It is the provisions of the PTA that enables persons to be abducted and detained instead of being arrested. Consequently there has arisen a need to remove the PTA from the laws of the land. The Prime Minister of Sri Lanka has stated recently that soon a British style anti-terrorism law will be introduced in place of the existing PTA.[3] Let us hope that the new law does not turn out to be the same wine in a different bottle.
The culture of impunity became endemic among the police and the security forces of Sri Lanka some years ago. That legacy contributed to enforced disappearances becoming so widespread. Many members of the Police and Security Forces who had been perpetrating abductions, torture and enforced disappearances in the past, have a mind-set that makes them feel they will not be made to face the consequences of their misconduct. Courts require evidence beyond reasonable doubt to deal with alleged perpetrators. The Central Zone Commission made a specific recommendation to take disciplinary action against police officers who had violated departmental procedures while dealing with complaints of enforced disappearances. [4]
During its investigations it found that Police Information Books in some stations had been destroyed despite a specific circular issued by the IGP to preserve them. Detention Registers of certain Police Stations did not contain the names of persons taken into custody while they were there in the Diet Registers of the Station. No disciplinary action was taken in such cases. A clear case of a witness to an incident relating to disappearances who had given evidence before the Commission, being threatened by the alleged perpetrator, is reported in Interim Report VII of the Central Zone Commission with a recommendation to deal with the officer concerned. This had been disregarded. Similarly, in spite of some of the Commissions of Inquiry into enforced disappearances finding evidence indicating certain persons responsible for causing said disappearances, hardly any of them have been held accountable. Perhaps the same fate awaits those who may be found to responsible by the current Commission on Missing Persons. Such matters contributed to the growth of impunity.
The mandates of the Commissions appointed by President Chandrika Bandaranaike and the mandate of the Paranagama Commission have overlapping periods. Consequently the question arises whether the government has decided not to accept the findings of the Commissions appointed in 1994 and 1998 in respect to enforced disappearances during the overlapping period. The presence of many reports of Commissions of Inquiry into enforced disappearances makes it necessary for a comparative study into the findings of all these reports, to taken any meaningful action.
Among the findings of the set of Commissions appointed during President Chandrika Bandaranaike’s time, [5] is evidence on the many mass graves and torture chambers in different parts of the country. These have not been probed in depth, despite a recommendation to do so. If the Government is determined to wipe out impunity and make enforced disappearances a thing of the past, these recommendations need to be taken seriously.
Recently in a case of a writ of mandamus at the Magistrate’s Court of Mullaitivu, a military officer who testified had stated on December 2015 that the names of the persons referred to in the case concerned, were not on a list of the names of persons who had surrendered. When this case came up before the Magistrate on 17th February, 2016, the officer concerned was ordered by Court to furnish the list to Court on the next date, viz. April 20th. On that date neither the witness nor the State Counsel attended Court with the document. The case had then to be postponed for 17th May 2016.[6]
Whether the document would be produced on that date is anybody’s guess. The absence of co-operation by the military to let the judiciary deal effectively with cases concerning enforced disappearances is another of the challenges the government has to face.
The need to include enforced disappearances as a crime was accepted by the Government only in September 2015. It had agreed to ratify the UN Convention on Disappearances of Persons in December 2015. It is still to be made part of the domestic laws of the country. According to international law, the crime of enforced disappearance is a continuous crime. It gets completed as a crime only at the point at which the fate and whereabouts of a disappeared person is finally determined. In the absence of retrospective legislation, there will be a juridical barrier to prosecutions in such cases. This has to be dealt with if the government is keen to put an end to the continuing agitation of the families of the victims of enforced disappearances who are still waiting for justice.
The Government has stated recently that laws to create a permanent office on missing persons to deal with the various issues relating to enforced disappearances, is in the process of being finalized[7]. Let us hope that it is not going to be another mirage.
A recommendation made by UNHRC resolution to deal with the human rights violations that took place during the conflict speaks of the need for such cases to be dealt by a hybrid court. Whether this would actually happen is yet to be seen.
In dealing with perpetrators of disappearances, the Attorney General has to get the services of the Police Department to get necessary investigations done and statements recorded. Whether the police would co-operate in doing so, especially if the perpetrator is a police officer, is debatable. Past performances of the police in such matters speak for themselves. Besides, can the present government deal with such cases diligently, while it is faced with the legacy of the Attorney-General’s Department consisting of personnel most of whom are known to be loyal to the regime that failed to deal with complaints of enforced disappearances of persons effectively? This was one of the issues raised by the International Independent Group of Eminent Persons when they found the Attorney General’s representative leading evidence before the Commission of Inquiry into Certain cases of Serious Human Rights Violations also known as the Udalagama Commission.[8]
That eventually led to IIGEP to abort their mission stating that the government does not have the will to promote or protect human rights. Whether the current government would take the necessary steps to avoid being branded in that manner, is to be seen.
A recommendation had been made in the Reports[9] of two[10] of the Disappearances Commission appointed by President Chandrika Bandaranaike on the need to create an independent Public Prosecutor with powers to institute criminal prosecutions after collecting sufficient evidence through his own investigating officers instead of through the Attorney General. This recommendation remains to be acted on.
Amnesty International had pointed out in one of its reports, that intimidation of witnesses can rise to the level of the witnesses themselves being abducted and caused to be disappeared.[11] Effective measures to protect witnesses are yet to be taken. Whether the Witness Protection Authority set up recently can perform this function effectively, is to be seen.
Article 6 of the UN Convention on Enforced Disappearances makes it obligatory for Governments to take ‘measures to hold any person who commits, orders, solicits, induces the commission of, or attempts to commit’ such an offence, criminally responsible for the offence. This is not yet part of the law in Sri Lanka. The Government will have to face the challenge of having to adopt appropriate laws after ratifying the Convention, as it has agreed to do so. This Convention does not condone the causing of disappearances even during a war.
The Government is faced with the legacy of persistent misrule by a regime that thought it was invincible. Condoning and overlooking the breaches of the rule of law by its agents led to its demise. If that pattern is allowed to continue unchecked and appropriate remedial measures are not taken diligently, the perpetrators of human rights violations and disappearances in particular, would continue to be a law unto themselves. The current regime has to face the challenge of disciplining the very same State machinery that brought disrepute to the previous regime and the Country itself. The lessons learned should not be in vain. It is hoped that the State would henceforth be seen as protector of its citizens and not as a perpetrator of abductions, torture and enforced disappearances or as protector of persons who had committed such offences.
[1] The EmergencyRegulations were removed in August, 2011 – https://www.hrw.org/news/2011/09/07/sri-lanka-bait-and-switch-emergency-law
[2] Ibid.
[3] Daily Mirror of 2nd May, 2016.
[4] This is from the personal knowledge of the writer who was the Secretary to that Commission.
[5] That includes the three Zonal Commissions appointed in 1994 and the All Island Commission appointed in 1998.
[6] Vide The Tamil Guardian of 22.4.2016 at http://tamilguardian.com/article.asp?articleid=17745
[7] “Laws to create office on missing persons by May-June”, Colombo Gazette, 31 March 2016, http://colombogazette.com/2016/03/31/laws-to-create-office-on-missing-persons-by-may-june/.
[8] A legal opinion drafted during that time (20.06.2007) by two highly respected retired judges of the Supreme Court, the late Justice Mark Fernando and Justice CV Wigneswaran, concluded that the ‘competent, ethical, professional and impartial performance’ of state law officers with the 2006 Commission had been compromised as a result.
[9]Final report of the 1994 Western, Southern and Sabaragamuwa Disappearances Commission, Sessional Paper No. V, 1997, at pp. 69, 83 and 175.
[10]Report of the 1998 All-Island Disappearances Commission, at p. 16.
[11] Amnesty International, ‘Sri Lanka: Extrajudicial Executions, ‘Disappearances’ and Torture,’ 1987-1990, AI Index, ASA/37/21/90, September 1990, at pp. 27-28.