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3.3.3. The Bindunuwewa Commission Date of Appointment: 8 th March, 2001 350 Date of Report: November 2001 (Not Published) Mandate: To inquire into questions of responsibility, rehabilitation, administration, and prevention in respect of incidents that occurred at the Bindunuwewa Rehabilitation Centre during the month of October 2000. This is one example of a commission appointed to examine alleged rights violations committed during the appointing President’s own administration. The inquiry centred on disturbances on 24 October 2000 at the Bindunuwewa Rehabilitation Centre. This facility had been held out by the government as contributing to rehabilitation of former LTTE rebels, including child soldiers. On the day prior to the incident, some of the detainees had protested to the officer-in-charge regarding their long detention without any charges being filed against them and had complained regarding some other matters such as the non-receipt of letters and telephone messages. Tensions mounted when the Officer-In-Charge (OIC), Capt. Y.K. Abheyaratna, informed the detainees that he was not authorised to order their release. The police were called to the scene, giving rise to further demonstrations. However, after these tensions subsided, matters had returned to normal in the camp to all intents and purposes. The next morning however, the camp was attacked by a large number of Sinhalese civilians, apparently residents of the area, who assaulted and clubbed detainees, setting fire to the halls of residence. They were not stopped by the police officers on duty. In total, 28 Tamil youth between the ages of 14-23 years were killed while some 14 other Tamil youth were seriously injured. The Commission report held liable the two senior police officers, ASP Dayaratne and HQI Seneviratne, for not taking action to prevent the attacks and for ordering the police to shoot into the crowd of detainees. It further held their junior officers, Subinspectors Walpola, Ratnayake and Abeynarayana, responsible for engaging in the attacks wilfully. 351 4. Prosecutions in relation to Commissions of Inquiry Reports The findings of these Commissions were not used to any good effect in enabling prosecutions of alleged perpetrators thereafter. 4.1. The Sansoni Commission Report In the Sansoni Commission Report, the names of few police officers (of Sinhalese ethnicity) are mentioned as regards their culpability in the communal violence of 1977 resulting in the deaths and destruction of the properties of Tamil victims. However, no action was taken against even the handful of individuals identified by Sansoni; i.e. SP 350 Appointed by President Chandrika Kumaratunge. The Commission was headed by Justice PHK Kulatilleke. 351 See later analysis for critique of the prosecutions that took place relevant to the Bindunuwewa case. It must be noted that these prosecutions did not follow from the findings of the Commission of Inquiry. 99
GW Liyanage, TD Gunewardene, PC 5920 and Cyril Fernando of Wattegama, 352 all of Sinhalese ethnicity. In other instances, Sansoni had observed that he was unable to come to a conclusion regarding the culpability of specific individuals due to their being unknown or being members of a mob. 353 4.2. The Kokkadicholai Commission Report No prosecutions resulted from the findings of this Report. The Commission had recommended, in any event, that further action should be taken only under the provisions of military law. These recommendations as well as the payment of compensation were accepted by the Cabinet of Ministers in mid-1992. Also adopted was the Commission’s recommendation that military authorities give clear instructions to soldiers not to indulge in or execute extra-military or non-military acts. The offenders were subsequently brought before a Military Court, which acquitted the 17 Sinhalese army men implicated in the killings of the Tamil civilians, but found the officer in charge, Captain Kudaligama, guilty on two counts - failure to control his subordinates and the improper disposal of dead bodies. The army announced in December 1992 that the officer had been dismissed. 354 This case illustrates the dangers in replacing the normal judicial process with military trials, resulting in cover-ups with one or two accused being cast as “scapegoats”, as evidenced in this instance. The reference of the matter to a Military Court by this Commission effectively amounted to a subversion of the jurisdiction of civilian courts. Further, though the Commission declined to refer the case to the ordinary criminal civilian court on the grounds that criminal liability could not be sustained as the individual perpetrators could not be identified, the Military Court’s finding of culpability of the officer-in-charge illustrates that indictment may yet have been possible for the offence of illegal omission under Sections 30 and 31 of the Penal Code. Such an indictment was in fact pursued successfully in the High Court against relevant officers-in-charge by the Attorney General in the Bindunuwewa Case, discussed later, even though the conviction was overturned by the Supreme Court pursuant to legal reasoning that has been stringently critiqued. The point needs to be reiterated however that whatever lacunae that may exist in the ordinary law cannot serve as a justification for referring cases of grave human rights violations to military courts. This issue is taken up later in the final chapter. In addition to ensuring that military tribunals do not have jurisdiction over human rights violations, law reform is required to incorporate into Sri Lanka’s penal statute a form of command responsibility that allows superiors to be held responsible both for dereliction of duty and, where warranted, for the crimes of their subordinates. A 352 Hoole, Rajan, op. cit, at p. 37. 353 Sessional Paper No. VII, July 1980, at p. 259. 354 Abeysekera, Charles, ‘Human Rights 1992 - A Dismal Record,’ Pravada, Social Scientist's Association, Colombo, 1993. 100
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In exploring what constitutes a ver
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ABBREVIATIONS AC AG AHRC AI A-L ALR
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TAB TELO TUF TULF TYL UN UNHRC UNP
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government agencies may be unable o
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appointed under the Commissions of
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communities. Krishanthi Kumaraswamy
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investigative function that could m
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measures recommended in regard to r
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and Bandaranaike became the prime m
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assembly and association of trade u
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majority pro-Sinhala political lead
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The violence reached a crescendo in
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enforced disappearances were report
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The Court of Appeal dismissed petit
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process and commissions of inquiry
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Declaration on Upholding Human Righ
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terms, 66 and clear guidelines laid
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Though the drafters of second Repub
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• Perera v. AG 89 and Wickremeban
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was also spared the distinction of
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The Court’s reasoning at times ap
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however, linked the habeas corpus a
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The ineffectiveness of the writ rem
Page 50 and 51: The Court of Appeal when sending th
Page 52 and 53: anything. We have received informat
Page 54 and 55: the findings of guilt against the a
Page 56 and 57: The Embilipitiya case is unique in
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Page 60 and 61: sexual intercourse […].” 177 He
Page 62 and 63: accused even though the relevant do
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Page 66 and 67: Chapter Three - Commissions of Inqu
Page 68 and 69: excesses that had preceded the acti
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Page 72 and 73: appear before the Commission was al
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Page 76 and 77: The Commission’s recommendation t
Page 78 and 79: Date of Publication of Report: not
Page 80 and 81: (f) the measures necessary to preve
Page 82 and 83: were SLFPers. I was told, that area
Page 84 and 85: The 1994 Western, Southern and Saba
Page 86 and 87: focused on allowing within its purv
Page 88 and 89: 3.1.3. Reflections on the Procedure
Page 90 and 91: However, the weak process of re-ref
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Page 98 and 99: The Batalanda Commission recommende
Page 102 and 103: ecommendation to this effect by the
Page 104 and 105: As of 31 December 2000, according t
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Page 108 and 109: Chapter Four - Evaluating Sri Lanka
Page 110 and 111: pattern of harms, to recommend meas
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Page 116 and 117: analysis, these pillars of the judi
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Page 120 and 121: Regardless of the amendment however
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Page 124 and 125: 6.4. Affording alleged perpetrators
Page 126 and 127: Chapter Five - Sri Lanka’s Crimin
Page 128 and 129: to the attention of the Court in an
Page 130 and 131: 2.1. First Information Reports In a
Page 132 and 133: arrests. In consequence, most of th
Page 134 and 135: Lengthy delays in filing indictment
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Page 140 and 141: y the byzantine and unfair burdens
Page 142 and 143: […] while those in authority hold
Page 144 and 145: 5.2. Language Issues at Trial Stage
Page 146 and 147: enforced disappearance; (ii) Exerci
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6.3. Absence of a Specific Crime of
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camp. Scrutiny of the evidence in t
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any direct or indirect physical or
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have been adjourned by the relevant
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fact, acknowledged. 563 The accused
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The Human Rights Committee affirmed
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Thavaneethan v. Dissanayake [2003]
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Dias v. Abeywardene [1966] 68 NLR 4
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Vadivel Sathasivam and Parathesi Sa
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Criminal Courts Commission, Session
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Keenan, Alan, ‘Making Sense of Bi
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Principles on the Effective Prevent
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United Nations Human Rights Committ
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Pinto-Jayawardena, Kishali, ‘Furt
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