Untitled - International Commission of Jurists

insufficiency of evidence to take the investigation further, this was accepted without
any demur. 367 In the actual prosecution itself, the problems faced by even
conscientious prosecutors were remarked upon as follows:
The attitude of counsel, courts and the accused sometimes make our work
difficult. The attitude seems to be that if the police/army had not resorted with
such force against subversives at that time, our society will not have survived
that era. Hence what is done is believed to be justified. Some believe that the
police officers were only doing their job. Some judges are also biased by the
personal experiences that they have had to undergo during this period. 368
This may be a critical observation that reflects the dominant culture of impunity,
although it points to institutional and motivational factors that are difficult to measure,
except through such testimony and by inference from the actual and quantifiable
performance of police, prosecutors, and the judiciary.
In addition, two factors in particular have been instrumental in preventing successful
prosecutions of these cases. First, fear has prevented many witnesses from
complaining to the police regarding the enforced disappearance or involuntary
removal of the victim. In many instances where in fact attempts have been made to
lodge such complaints, police officers typically have refused to record them. This is
then used against them in Commission reports to discredit the testimony as lack
credibility due to its belated reporting.
Secondly, even many years after making their first complaint, witnesses do not
usually state the names of the alleged perpetrators. In the official government forms
signed as a basis for compensation, complainants state that the perpetrators were
subversives or ‘unknown persons.’ 369 In court, thereafter, when they claim to
specifically identify the perpetrators, their earlier statements are often used against
them by defence counsel to impugn their credibility. 370
The conflict of interest emanating from the role of the Attorney-General in conducting
these prosecutions has been succinctly summed up by the 1998 All-Island
Disappearances Commission (after having the benefit of examining the functioning of
the MPU for some years) as follows:
The establishment of this Unit while underlining the special problems of
prosecuting cases of disappearances suffers from drawbacks, in that the
prosecutor is the Attorney General who invariably is the representative of the
State, either as prosecutor or as respondent in judicial proceedings. In this
instance, the present arrangement makes the Attorney General the
representative of the victim and prosecutions are conducted on the basis that
the crimes were the acts of errant officials. This again highlights a problem of
the public perception of a Conflict of Interest, in that the victims are very
367 Interviews with former senior state counsel, 11.06.2009.
368 ibid.
369 Referred to in Sinhala as ‘naanduna pudgalayan.’
370 Interviews with former senior state counsel, 11.06.2009. The practice of holding identification
parades in this regard also do not seem to be resorted to on the principle that it would be unfair to the
suspects as there is a substantial time lapse since the occurrence of the incidents.
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