Photo courtesy of Amalini de Sayrah
As videos of helicopters taking off in the early hours of Tuesday May 10 appeared on social media, rumours swirled that some members of the Rajapaksa family had fled Colombo. While the destination of these helicopters was contested, by mid-morning crowds had begun to gather around the faux battlement entrance of the Navy base in Trincomalee. It was speculated that somewhere in the largest naval base in the country, former Prime Minister, Mahinda Rajapaksa, and his family had found safety.
The symbolism of the former Prime Minister being barricaded inside Temple Trees, his official residence, after hosting members of his party, the SLPP, who then went on to violently attack peaceful protestors at Mynagogama and Gotagogama was not lost on the citizens of this country. Nor was the fact that a politician who had glorified Sinhala majoritarianism had then sought refuge in the North East. A failed despot fleeing is an image that will become part of popular history and an example of the power of public protests.
The visuals of the façade of the Trincomalee Navy Camp, however, trigged other responses. For the families of the Navy 11 case, the very idea that the former Prime Minister (and President prior to that) would flee to this camp where their own family members were, according to court records, incarcerated after being abducted must have seemed incredulous. In one corner of the sprawling expanses of the Navy camp is a site referred to as Gunside and sometimes as Gota’s Camp. This is where it is alleged that at least some of the missing men were held in detention and last seen alive.
Navy 11 youth case
The name popularly used to describe this case, Navy 11 youth, is a slight misnomer: only some of them were youth, others were adult men. The shorthand name for the case refers to the abduction and disappearance of 11 persons which took place over a period of two years (2008 and 2009), and the identity of the alleged perpetrators, personnel from the Sri Lanka Navy.
Among the victims, five were schoolboys: Rajiv Naganathan, Pradeep Vishwanathan, Thilakeshwaram Ramalingam, Mohamed Sajid and Jamaldeen Dilan. On September 17, 2008, Rajiv met up with his friends to celebrate before he departed to the UK to attend university. All five were abducted in Badowita, Dehiwela. Their parents complained to the police and even managed to secure the intervention of a government minister. The parents received calls demanding ransom money of up to Rs. 10 million in return for freeing these children. Some of those abducted were allowed to speak on the phone to their family members, providing vital evidence of their location. In at least one case, the calls continued for two years. And then the calls stopped.
For over 14 years these families have been fighting for justice, both through the judicial system and beyond. The bewildering number of inter-related cases in the Magistrate and High Courts, (there are at least nine ongoing cases), and the investigations by the Criminal Investigation Department (CID) have exposed a number of startling and horrifying revelations.
During the course of investigations, the CID was able to present before court a range of evidence and a number of eyewitnesses to prove that some of the abducted were held in the custody of the state in the Navy Headquarters on Chaitya Road in Colombo and later in Trincomalee, building on the claims made by some of the family members that they had continued to speak to their loved ones while they were being held illegally and secretly by the state. The state that has long denied involvement in state sponsored disappearances has been forced to confront the fact that state officials are responsible for carrying enforced disappearances; a crime that is explicitly recognized in domestic law. In 2019, a Permanent High Court Trial-at-Bar commenced to prosecute 14 accused for over 667 offences.
While some of the accused are alleged to have been involved in the abduction and secret detention, one of the accused (at least initially) in the Trial-at-Bar included the former Commander of the Navy, Wasantha Karannagoda, on the grounds that he had knowledge of the abductions at the time. The existence of a secret detention centre at Gunside raises a series of questions ranging from knowledge of this detention centre within the naval hierarchy, the approval for the logistics (including food for detainees) for running such a centre, and complicity in its operations and the resulting crimes of illegal detention and responsibility for the fateof those held in these centres. This in turn challenges the theory of a few rotten apples sometimes floated by some within the state; instead, it highlights the systemic nature of these disappearances and other such egregious crimes. That some of the same individuals were named in another high profile case, the assassination of TNA politician N. Raviraj on 10 November 2006, forces us to ask how these teams were able to operate with such impunity without the logistical support and knowledge of the military hierarchy.
In search of truth and justice
While a couple of individual witnesses made conflicting claims about the fate of the victims, there is no definitive evidence as to what happened. It is this fundamental question of knowing the fate of the disappeared that drives so many families of the missing and disappeared across Sri Lanka to make complaints and request information from police stations, military camps, prisons, temporary commissions, the Office on Missing Persons (OMP) and other state institutions; to seek assistance from human rights activists, lawyers, prominent personalities and the UN; to organize protests and, when all that fails, to seek answers from soothsayers.
The experiences of dealing with disappearance and the protracted nature of investigations have taken a terrible toll on the health and mental wellbeing of the family members of the missing and disappeared. It is really difficult for us to understand what pain and anguish they go through as they face ‘ambiguous loss’ – a no man’s land where hope, despair and lack of certainty all exist uneasily. Stanley Mary Asuntha Peiris, died at home in Arippu, Mannar after attending a court hearing, not knowing what happened to her son, Roshan Lyon and husband, Amalan Lyon, who are two of the victims in the Navy 11 case. More than 115 mothers who have been part of protests by families of the disappeared in the North and East (some continuous protests have surpassed five years) have passed away since the protests commenced. Like these mothers, there are at least 17,000 families of the missing and the disappeared in Sri Lanka, thus making it a country with one of the highest disappearance numbers globally.
The Navy 11 case is treated as emblematic and so it serves as a prime example of the challenges of pursuing justice in disappearance cases. Some 10 years after the first magisterial case was initiated and despite all the evidence that has been presented, the investigations and the judicial process have far to go to both identify the fate of the disappeared and to sentence those accused. In addition to the delays in both the investigations and the judicial process, the families and their lawyer in the Navy 11 case have faced other issues, including intimidation and harassment. In a hostile political context, such as under President Gotabaya Rajapaksa, the challenges intensify. The politicisation of the state makes the processes of investigation and prosecution vulnerable to the political will of incumbent governments. For instance President Rajapaksa appointed a Commission of Inquiry to probe political victimisation of public servants in 2020, which alleged persecution of security force personnel by the Yahapalanya Government and the Attorney General took the decision to exclude former Commander Karannagoda from among the accused at the Trial-at-Bar.
It is a cruel irony that on account of the Navy 11 case having gone to trial, it is seen as a ‘success’ by other families of the disappeared, pointing to the many, many other cases that have not even made it to a court. This speaks to a larger legacy of the failure of the state, including the OMP (where I served as a commissioner from 2018 to 2021) to provide answers to the families of the missing and the disappeared, and how far we have yet to go as a country. A critical gap in the Navy 11 investigations is the absence of a thorough forensic investigations of Gunside. The investigation of suspected detention sites and mass graves require an experienced team with complementary skillsets, particularly of forensic anthropology and forensic archaeology. Sri Lanka lacks experienced and specialised professionals in these fields, and this has proved to be a serious obstacle to ascertain the fate of the disappeared.
Holding to account
The last week has seen a public outcry in response to the role played by the armed forces in supporting the escape of the Rajapaksas, the failure of the police and armed forces to protect the protestors at Mynahgogama and Gotagogama (GGG), the sluggish pace of arresting those who perpetrated this violence and more recently the use of a helicopter for former Prime Minister Rajapaksa to attend parliament. Will this outrage create a momentum to demand greater accountability of the armed forces, including for committing human rights violations, or will it peter out? Will the families of the disappeared, including parents from the Navy 11 case, who held vigil in a tent for the victims of enforced disappearances at GGG, find support or be once more disappointed?
At this moment, when we face an unprecedented economic and political crisis at a national level, it is tempting to exclusively focus on measures to establish a representative government; negotiate the vital lifelines of finance and assistance, and maintain essential supplies and services, and to give in to the calls of the ‘pragmatists’ who caution that now is not a good time to raise complex issues and to pursue justice and accountability.
These tensions are also evident within the aragalaya at GGG. Galle Face has become the focal point of a peaceful protest to demand change, and to mobilise citizenry, offering some space for public debate. The prominence given to the posters of killed and disappeared journalist, activists and others provide some hope that the aragalaya includes a call for justice. The calls of “change the system” and “jathiwadiya epa” (no to racism) that echo constantly from Gate Zero across the day suggests that there is an opportunity to think anew.
But on the ground at GGG the situation is more complicated. The efforts by those leading the adharey aragalaya (revolution of love) to demonstrate that the armed forces and police are allies and heroes, sits uncomfortably among others who see the latter as the violent arms of the state that needs to be scrutinised and critiqued from a healthy distance. The space highlight war time violations and the grievances of minorities remains difficult and incremental. On the morning of May 18, however, some protestors held a ceremony at GGG to remember the many victims of the war, especially Tamils who were killed and disappeared in the last stages of the fighting, marking a significant moment for the South where public commemorations of the war have been to celebrate militarism, victory and war heroes.
The aragalaya moment, beyond the physical confine of the demonstration sites, has opened up some space for dialogue, dissent and re-learning. But is there willingness to understand the systemic failure to pursue corruption cases and human rights violations, acknowledge the interconnectedness of issues and express solidarity with affected communities or will we return to politics as usual and the moment will pass? The risk of cherry picking cases deemed appropriate for this moment will only serve to consolidate the structures of power that have created a culture of impunity and a system of brutality. Postponing discussions and debates on critical socio-economic and human rights issues will thwart an understanding of the systems and processes that enable crimes and failings and foil our collective efforts to think through preventive measures and larger reform.
This is by no means an easy or straightforward task. From us citizens it demands political will, stamina and a willingness to listen. If our collective dream is to build a more democratic, pluralistic, equitable and fairer Sri Lanka, it is impossible to do so while ignoring issues of justice and accountability. It is only if we are willing to engage on and humanise issues such as, but not limited to, PTA detainees, military occupation of land claimed by communities, the destruction of low income housing in Colombo and disappearances that we can make space for a better Sri Lanka. We need to make the time to grapple with the more complicated tasks of reviewing national security from the perspective of public and human security, scrutinising the finances of the armed forces, insisting on parliamentary oversight of the various arms of defence and security, pursuing investigations and prosecutions of human rights violations (including alleged war crimes and enforced disappearances) and pushing for de-militarisation where the military returns to a more formal, peace time role. And not be afraid to challenge those who try to stifle such discussions under the cover of patriotism and national security.
But do we have the resolve for that?
 As stated in the Enforced Disappearances Act (2018) its application is not retroactive, although the crime is a continuing violation.