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much affected by the awareness that State officers are investigating into complaints against officers of State. 371 The Commission strongly advocated an independent prosecutorial body in this regard though its suggestion that the Human Rights Commission of Sri Lanka (HRCSL) be allowed to establish a prosecuting arm is subject to criticism due to the manifest lacunae in the law under which the HRCSL functions, as observed previously. The recommendation of the 1994 Western, Southern and Sabaragamuwa Disappearances Commission that an Office of an Independent Prosecutor be established with appropriate constitutional safeguards 372 is a preferable approach. 4.5. The Batalanda Commission A great deal of publicity was generated by the findings of the Commission in regard to the prosecution of those found implicated of criminal culpability. However, what actually transpired was a good example of the manner in which commission findings are made nugatory as a result of the politicized establishment of these bodies. The primary police officer implicated in the findings, SSP Douglas Pieris, did not appear before the Commission, having fled the country by that time while an affidavit later submitted by him was rejected on the grounds of it not being authentic. The other police officers who had been found implicated indirectly were arrested and detained on the basis of threats received by the Batalanda Commission, risk of flight, and the possibility that these officers could inflict violence on witnesses before the Commission, and, indeed, on the Commissioners themselves. In response to their petition, the Supreme Court held that their detention was in clear breach of constitutional safeguards. 373 This ruling buttressed the perception that the Commission had been engaged in something resembling a political witch-hunt against particular police officers, rather than an impartial inquiry into practices of torture and illegal detention during a previous political regime. Though these findings by the Supreme Court may have been overcome later by a good faith investigation and prosecution of the alleged responsible police officers, this opportunity was also squandered. In a later prosecution, former SSP Douglas Peiris along with four other policemen were convicted of the offence of abduction of two men and one schoolboy and keeping them at the Batalanda “torture chamber” with the intent of causing murder during the late 1980’s, and sentenced to five years rigorous imprisonment by the 371 Report of the 1998 All-Island Disappearances Commission, Sessional Paper No. 1, 2001, at p. 16. The Commission went on to suggest that the Human Rights Commisison of Sri Lanka be allowed to establish a prosecuting arm which suggestion however is inherently problematic as observed previously. 372 Final report of the 1994 Western, Southern and Sabaragamuwa Disappearances Commission, Sessional Paper No. V, 1997, at p. 83 in particular. 373 I. Jayaratne v. de Silva and others S.C. (FR) No. 609/1996, SCM 21.09.1998. The three member bench of the Court comprised Justices Mark Fernando, A.R.B. Amarasinghe and D.P.S. Gunesekera. The Court pointed out as follows; “It is true that allegations of misconduct against police officers must be dealt with promptly and effectively and that the respondents purported to be acting in order to prevent the subversion of the course of justice before a Commission inquiring into unlawful arrests and unlawful places of detention. However, it is distressing and disturbing that the entire process of arrest and detention of the petitioners has been contrary to basic constitutional safeguards.” 105
Gampaha High Court on 26 August 2009. 374 The relatively mild sentence was occasioned by the fact that, in the absence of a crime of enforced disappearance in the Penal Code, this case – like many similar cases - was prosecuted on the basis of abduction of certain persons with the intention of murder, keeping them in illegal custody and causing their disappearance. As discussed later in detail, the lack of a statutorily defined offence with commensurately severe penalties is a most troublesome lacuna in Sri Lanka’s penal law. 4.6. The Presidential Truth Commission on Ethnic Violence (1981-1984) The Commission regretted the failure of the government to prosecute persons responsible for the acts of violence committed on persons of Tamil ethnicity during 1981-1984 and (in the minimum) to engage in proper investigations. Observations made in the context of the Welikada Prisons massacre are reproduced in their entirety given their relevance in pointing to the absence of political will in this respect. We regret to find that the government failed to prosecute those involved in the crimes of July 25 th and 27 th . The domestic inquiry initiated by the Head of the Welikada Prison Mr. Leo de Silva was not proceeded with. There is no evidence that investigations commenced by the Borella Police had been proceeded with, beyond the stage of the inquest. The efforts of the Commission to trace the police records proved futile with the IGP informing that these records were not traceable. It is the responsibility of every government to ensure that perpetrators of crimes are punished and that no one acts with impunity or gets away without accountability. The government of the day has failed to discharge these obligations. 375 No findings of prima facie culpability against any individual, public official, or political representative were arrived at and no specific prosecutions were recommended by this Commission. 374 ‘Justice after 20 years - Douglas Peiris given 5 yrs RI’, Daily Mirror, 27.08. 2009 375 Final report of the Presidential Truth Commission on Ethnic Violence, Sessional Paper No. III, 2003, at p. 61. 106
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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
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The Court of Appeal when sending th
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anything. We have received informat
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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
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Page 72 and 73: appear before the Commission was al
Page 74 and 75: Notwithstanding these consideration
Page 76 and 77: The Commission’s recommendation t
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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
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Page 88 and 89: 3.1.3. Reflections on the Procedure
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Page 102 and 103: ecommendation to this effect by the
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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
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Page 130 and 131: 2.1. First Information Reports In a
Page 132 and 133: arrests. In consequence, most of th
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Page 144 and 145: 5.2. Language Issues at Trial Stage
Page 146 and 147: enforced disappearance; (ii) Exerci
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Page 150 and 151: 6.3. Absence of a Specific Crime of
Page 152 and 153: camp. Scrutiny of the evidence in t
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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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