Photo courtesy of Kumanan

In a landmark case last month, the Vavuniya High Court ordered the army to produce three LTTE members who had surrendered to the military in May 2019 and have been missing ever since, in response to a habeas corpus case filed by their wives.

The judge said he believed the women’s testimony that they had handed their husbands over to the military and said that if the army failed to produce them, it must explain the circumstances in which the men had disappeared.

Writ of habeas corpus is a remedy available to compel the body of a person who is illegally or improperly held in public or private custody and to discharge or deal with such person according to law. The Army Commander, the Commander of the 58th Brigade and the Commanding Officer of the Mullaitivu Army Camp were cited as respondents in the petition.

The applications were filed in the High Court of Vavuniya, which directed the Magistrate Court of Mullaitivu within which jurisdiction the incident happened, to hold an inquiry and file a report. It took nine years for the inquiry to be concluded.

The women described the panic and confusion during the last days of the war when they fled to escape shelling and bombing. When they reached military controlled territory, there were announcements that anyone who had been in the LTTE should surrender and that they would be released after an inquiry. The women encouraged had their husbands to surrender. They said that it was the last time they had seen their husbands, who were put into CTB buses by military personnel and taken away.

Major General Chanakya Gunawardena, the Commanding Officer of the 58th Brigade, was called by the Attorney General to give evidence on behalf of the army. He denied that any person was arrested or detained but during cross examination admitted that people had surrendered to the army on 17, 18 and 19 May, 2009 and that military personnel had a register of those who had surrendered. However, Major General Gunawardena failed to produce the register in court but brought the register complied by the Commissioner General of Rehabilitation instead.

The judge said that the court was satisfied by the evidence that the three men had surrendered to the army and that the army was accountable to produce them. The army was ordered to produce the men in court on March 22.

A similar ruling was given in December last year when the Vavuniya High Court ordered the army to produce a person who was handed over to the armed forces in Mullaitivu by his family members during the final stage of the war.

If the army failed to produce the person in court, the court said it should explain the circumstances surrounding his disappearance, adding that the burden of proof lay with the army.

The judge noted that the court believed that the disappeared person was in the custody and control of armed forces after a witness testifying on behalf of the army admitted to a register that documented those who had surrendered on that day but failed to produce the register to court.

One of the three women who filed the habeas corpus writ was Ananthy Sasitharan whose husband Elilan, an LTTE fighter, disappeared after she encouraged him to surrender to the security forces that day, fully confident he would return to her. When he did not, she started looking for him and hasn’t stopped. Ananthy took her case to the UN in Geneva and also launched an unsuccessful bid to enter parliament on a platform of accountability for war crimes.

Ananthy answered questions on the importance of the court decision and her continuing struggle for justice.

How important is the court decision asking the military to produce your husband?

On May 18, 2009, in a place where thousands were gathered, I surrendered my husband, unarmed, to the military. I appealed to the ICRC, Human Rights Council, rehabilitation ministers, the president and prime minister. In 2009 itself, I appealed to the UN forum as well. No answers. In 2013, a habeas corpus writ was filed in the Vavuniya High Court. As the surrender took place within Mullaitivu jurisdiction, it was taken up in the Mullaitivu District Court. During this time I the target of many threats by the military and the military intelligence. On my way to courts the intelligence officers would follow my vehicle, conducting surveillance in a threatening manner and inciting fights against me using ex-militants and militants’ wives. Despite this, I continued to appear for all the case hearings. The resolution to my habeas corpus petition has come at the Vavuniya High Court.

How did it make you feel?

This gives me hope and courage. I have received a resolution for all the hardship, suffering and humiliation I underwent. My mind is now relaxed. The hope that justice will win has arisen. It is a strong motivation to continue the struggle with more confidence and strength.

What was the process you went through in order to get this order?

After surrendering my husband up for surrender on May 18, 2009 on the meagre salary of a civil servant, I was a woman who had to struggle financially and psychologically in many ways to raise my children, educate them, and keep them safe. I took my three children by bus to Colombo for the first time in 2011, met the lawyer Mr. K.S. Ratnavale and appealed to him to investigate the surrender of my husband and file a habeas corpus petition. Mr. Ratnavale said this case is very dangerous and suggested that instead of getting involved alone, I should get a few others to join to file the case. He said I would not have to pay. In 2011 I met many wives and mothers of combatants in Kilinochchi and Jaffna. I met about 25 of them. Out of them four agreed to file the case with me. We then started the process of filing the case. Many wives of those who had surrendered were not in agreement with filing the case. They refused saying that their lives and the lives of their children would be under threat, that the government would take revenge on them and that their children’s futures would be affected. This verdict is a tribute to others fighting for the disappeared. There are thousands of them; the rest should come forward to file cases. Now we will have to wait patiently and see what will emerge from the defence.

Did you find the international community helpful when you went to Geneva? 

Since 2014, I have been demanding justice. I have addressed the Human Rights Council 15 times. In 2014 and 2015 the international community listened to our views, especially countries such as the US, Britain and Switzerland who listened to my voice as a witness in the war. But nothing has happened so we are demanding an international investigation. Resolution 30/1 mentioned a hybrid mechanism. Then the weak resolutions became diluted. After the regime changed in 2019, everything changed. However, my journey to seek justice continues. There is still a need to fight. The countries of the world think in terms of their own interests so human rights are not protected. Human rights are only used as a tool to manipulate the weak. Although 13 years have passed and hundreds of thousands of Tamils have been killed, what can I say about the UN Assembly that has failed to recognise that what happened to the Tamils who were bombarded with banned poisonous gas and cluster bombs was genocide?

Are you hopeful that you will eventually get justice?

Even if time passes there is hope that we will get justice. The sacrifice of thousands of heroes who laid down their noble lives in the pursuit of freedom will not be in vain. We will fight for justice. Virtue will win.