Untitled - International Commission of Jurists

The problem of non-indictments is not specific to cases of enforced disappearances
but is well seen in instances of torture cases from the South as well, involving the
torture of Sinhalese as well as Tamil persons by Sinhalese police officers. In many
cases, despite disclosure of evidence of torture and other ill-treatment prosecutions
have not ensued. 437
Even when political will to take action against perpetrators had been manifested at the
highest levels, the obduracy of the military establishment has prevented it being
translated into concrete action. An illustrative example of this was in January 1996
when then President Kumaratunge directed the Army Commander to place 200
service personnel on compulsory leave, following their repeated involvement in gross
human rights abuses as evidenced in the Disappearances Commissions Reports. 438
However, the order was not implemented.
The extent to which this facility of impunity prevails on the part of the military
hierarchy is exemplified in the Embilipitiya Case, referred to above. Here, a senior
military officer, of Sinhalese ethnicity, then Lt Col. Parry Liyanage, was implicated in
the long-term detention of Sinhalese schoolchildren in a camp under his direct control
during the conflict between the Government and the JVP in the 1980s and early 1990s
as discussed above. He was acquitted by the High Court due to the want of evidence
of direct involvement to a standard satisfying the criminal burden of proof beyond
reasonable doubt. He thereafter filed a fundamental rights petition in the Supreme
Court saying that he should have been given his due promotion as Brigadier General.
By that time, he had already been promoted to Brigadier by the Army Commander.
However, further promotions were vested by law in the hands of the President, 439 who
had refused to make the promotion due to his being implicated in the Embilipitiya
Case. Despite this, the Supreme Court decided that the requisite promotion ought to
be given as Liyanage’s responsibility was no more and no less than all the others in
the chain of command. The ruling was in direct contrast to the observations of the
1994 Disappearances Commission in respect of the long-term detention of the
schoolchildren at the Sevana Army camp, 440 which appeared not to have been brought
437 Pinto-Jayawardena, Kishali ‘The Rule of Law in Decline; Study on Prevalence, Determinants and
Causes of Torture and other Forms of Cruel, Inhuman or Degrading Treatment or Punishment in Sri
Lanka’, The Rehabilitation and Research Centre for Torture Victims (RCT) Denmark, 2009, at pp.
178-180.
438 Hoole, Rajan, op. cit, at p. 272. Kumaratunge is commended for this action given that it was taken
despite an ongoing war situation.
439 Under the 1978 Constitution, it is the executive President of the country who is the Commander in
chief of the Armed Forces. (Article 30) The President is also the Minister of Defence, by virtue of
Article 44 (2), which enables the assigning of any specific ministerial subject or function to be directly
under the office of the President. By virtue of regulations made under Section 155 of the Army Act, the
Commander in Chief is empowered to make all appointments and promotions above the rank of major.
For discussion of this case, see Pinto-Jayawardena, Kishali, ‘Rights Accountability at stake; the
difficult dilemma of the non-promoted brigadier,’ Moot Point, Centre for Policy Alternatives, Legal
Review, 2000, at p. 45.
440 Volume 11 of the Special Report of the 1994 Western, Southern and Sabaragamuwa
Disappearances Commission (unpublished), at p. 36. ‘In view of the above evidence elicited from the
Army official register for the Sevana army camp, the positions taken up by the Army Commander in the
Answers filed in the Court of Appeal in respect of the habeas corpus applications that the Sevana army
126